Bombay High Court
Javed Bashir Bagwan (C-129) vs The State Of Maharashtra on 20 April, 2017
Bench: S.S. Shinde
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1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO.308 OF 2017
Javed Bashir Bagwan,
Age Major Years, Convict No.C-109,
R/o.Visapur Open District Prison,
Visapur, Dist. Ahmednagar. PETITIONER
VERSUS
1. The State of Maharashtra
through the Principal Secretary,
Home Dept., Mantralaya,
Mumbai - 32.
2. The Dy. Inspector General Prison
Western Region, Yeroda,
Pune-6. RESPONDENTS
...
Mr.Shantanu N. Udhan, [Appointed], Advocate
for the Petitioner
Ms.P.V.Diggikar, APP for Respondent Nos.1 and
2/State
...
CORAM: S.S.SHINDE &
K.K.SONAWANE,JJ.
Reserved on : 18.04.2017
Pronounced on : 20.04.2017
JUDGMENT: (Per S.S.Shinde, J.):
1. Heard.
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2. Rule. Rule made returnable
forthwith, and heard finally with the consent
of the parties.
3. The relevant facts of the case as
disclosed in the memo of Petition are as
under:
The petitioner is convicted by the
Sessions Court at Ahmednagar for the offences
punishable under Sections 302 and 498-A of
the Indian Penal Code. He is sentenced to
undergo life imprisonment.
4. In the year 2012, the petitioner had
applied for furlough leave to respondent no.2
i.e. Dy. Inspector General, Western Region,
Pune. Respondent no.2 was pleased to sanction
/ approve such leave to the petitioner on 17th
August, 2012. After completing the requisite
formalities, the petitioner came to be
released from Yerwada Central Prison, Pune,
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on 16th October, 2012 for a period of 14 days.
However, it is transpired that, during the
said period, the petitioner's father became
ill, and the petitioner was required to cater
to him and nurse him. Therefore, the
petitioner applied for another 14 days leave
extension to respondent no.2. Upon conducting
the requisite enquiries, respondent no.2 -
Dy. Inspector General Prisons, Western
Region, Yerwada, Pune-6, approved extension
of furlough leave to the petitioner for
further period of 14 days. Thus, the
petitioner was to surrender on 14th November,
2012.
5. On 14th November, 2012, the
petitioner had left his house early.
However, on account of the agitation by the
sugarcane farmers, he could reach the prison
only at 3.00 p.m. on 14th November, 2012.
However, the concerned employees of the Jail,
who were on duty at main gate of the Yerwada
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Prison, did not permit the petitioner to
surrender, as the prison gates were closed
for the day on account of there being a
holiday owing to 'Moharam' festival. An
authorities concerned directed the petitioner
to surrender on the next day i.e. on 15th
November, 2012. On account of these
transpirations, the petitioner was forced to
surrender on 15th November, 2012. Once having
so surrendered, the petitioner also applied
to respondent no.2 - Dy. Inspector General
Prisons, Western Region, Yerwada, Pune-6 to
grant him one day leave extension. However,
without at all considering the facts and
circumstances involved, respondent no.2 - Dy.
Inspector General Prisons, Western Region,
Yerwada, Pune-6, confiscated/forfeited the
petitioner's deposit amount of Rs.10,000/- by
holding that, he was late by one day. This
was done by respondent no.2 - Dy.
Superintendent of Prisons by taking aid of
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the provisions of the Maharashtra Prison
Rules, 1979, particularly, sub-rule (5) of
Rule 10 of the Prisons [Bombay Furlough and
Parole] Rules, 1959, chapter 37.
6. The petitioner has also made a
written representation dated 31st December,
2016, to the High Court, inter alia, praying
that respondent no.2 be directed to grant one
day leave extension or in the alternative, to
set aside the confiscation of his cash surety
amount of Rs.10,000/-. The Superintendent of
Visapur Open District Prison forwarded the
petitioner's representation to the Registrar
of this Court, vide his communication dated
16th January, 2017.
7. The petitioner was prevented from
approaching the Prison on the scheduled date
on account of genuine reason. The petitioner
had left his house early on 14th November,
2012, however, on account of the agitation by
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the sugarcane farmers, the petitioner was
late in reaching the prison on 14th November,
2012. However, the petitioner, on account of
aforesaid genuine reason, could reach the
prison only at 3.00 p.m. Thus, the petitioner
was late by a mere matter of four and half
hours. That apart, on reaching the prison,
the authorities concerned informed the
petitioner that, the prison gates had been
closed early on account of 'Moharam' holiday
on that day i.e. on 14th November, 2012.
These authorities directed the petitioner to
come on the next day i.e. on 15th November,
2012. Thus, it is crystal clear that, the
petitioner had made every attempt to reach
and to surrender himself on 14th November,
2012. On account of the certain unavoidable
circumstances, which were beyond the
petitioner's control, he could make it to the
prison only by 3.00 p.m. on 14th November,
2012. The prison gates were closed early on
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account of there being a 'Moharam' holiday on
14th November, 2012. Hence, the petitioner
cannot be blamed for the said delay in
surrendering, and consequently, cannot be
punished for the same.
8. Perusal of the impugned order
itself, would reveal that, the petitioner had
been to surrender on 14th November, 2012,
itself. The statements of Shri Rathod and
Shri Zopale would reveal that, the petitioner
was not permitted to surrender and was
directed to surrender on the next day i.e. on
15th November, 2012. The impugned order also
reveals that, the statements of these two
persons depict the prison gate was closed
early on account of 'Moharam' holiday.
9. The learned counsel appearing for
the petitioner invites our attention to Rule
13 of the Prisons [Bombay Furlough and
Parole] Rules, 1959, and submits that, the
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said provision provides for extension of
leave. However, respondent no.2 has given
more importance to the Circular/Notification,
dated 2nd December, 2003, issued by the Home
Department, Government of Maharashtra,
Mumbai. It is submitted that, the said
Circular/Notification cannot prevail over the
statutory Rules. It is submitted that, when
the authority has discretion to extend the
period of furlough, keeping in view the
reasons stated by the petitioner in his
application for not reporting back
immediately in the morning hours on 14th
November, 2012 to the Jail, after completion
of 14 days leave. Therefore, in view of
unavoidable difficulties/ circumstances faced
by the petitioner to reach to the Yerwada
Central Prison, Pune, respondent no.2 ought
to have extended period of furlough leave by
one day.
10. The learned counsel appearing for
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the petitioner further invites our attention
to the judgments of the Bombay High Court at
Principal Seat in the case of Nandkishor
Kaluram Dudhne Vs. The Superintendent,
Yerwada Central Prison, Pune & anr. in Writ
Petition No.3101 of 2013, decided on 17th
December, 2013, and in the case of Sanjay
Jaiwant Kamble Vs. The State of Maharashtra
in Criminal Writ Petition No.2965 of 2009,
decided on 15th February, 2010, and submits
that, in the similar fact situation, in
afore-mentioned cases, the High Court allowed
the Petition, observing that, there was no
any willful or deliberate breach on the part
of the petitioner therein in reporting back
to the Jail after availing of furlough and
allowed the Writ Petition thereby holding
that, there was no justification for
forfeiting the cash security amount of
Rs.8,000/-. He submits that, in the case of
Sanjay Jaiwant Kamble [supra], the petitioner
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therein surrendered to the prison 7 days
late, since he was admitted in Hospital at
Alibag, and keeping in view the reasons for
not reporting back to the Jail, the High
Court allowed his Petition and set aside the
order of forfeiture of surety amount.
Therefore, the learned counsel appearing for
the petitioner submits that, in the peculiar
facts and circumstances of this case, this
Court may allow the petition by setting aside
the impugned order passed by respondent no.2
- Dy. Inspector General of Prisons, Western
Region, Yerwada, Pune-6.
11. On the other hand, the learned APP
appearing for the respondent-State, relying
upon the affidavit-in-reply, submits that,
respondent no.2 - Dy. Inspector General of
Prisons, Pune, after considering the relevant
Rules and Circulars, has rightly passed the
impugned order.
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12. We have given careful consideration
to the submissions of the learned counsel
appearing for the petitioner and the learned
APP appearing for the respondent - State.
With their able assistance, perused the
grounds taken in the Petition, annexures
thereto, and the reply filed by the
respondents. It appears that, the petitioner
has undergone actual imprisonment of 11
years, 04 months and 23 days [till 28th
February, 2017]. If the reply filed by
respondents is perused, after including
under-trial period of detention and other
remissions, the petitioner has already
undergone the period of 16 years, 06 months
and 09 days imprisonment as on 28th February,
2017. It further appears that, respondent no.
2 - Dy. Inspector General of Prisons, Pune,
granted 14 days furlough leave on certain
terms and conditions on 17th August, 2012. The
petitioner was released from Yerwada Central
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Prison, Pune, for a period of 14 days on 16th
October, 2012, for the period from 17th
October, 2012 to 30th October, 2012, and the
petitioner was given intimation to surrender
back in the prison on 31st October, 2012.
13. It further appears from the
affidavit-in-reply filed by the respondents
that, the petitioner applied for extension of
14 days furlough leave, since the
petitioner's father fell sick, and
accordingly, 14 days further extension was
granted, and the petitioner was due to
surrender in the Prison on 14th November,
2012. It is admitted position that, the
petitioner surrendered on 15th November, 2012,
instead of 14th November, 2012, and without
considering and accepting the plausible
explanation of the petitioner, the
respondents held petitioner guilty of
committing a prison offence under Rule 10 [5]
of the Prison [Bombay Furlough and Parole]
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Rules, 1959, and accordingly, the petitioner
was proposed to be punished by issuing a
'strict warning'. According to the
respondents, the said punishment was
judicially appraised by the Sessions Court,
Pune. In addition to the said action,
deposited surety amount of Rs.10,000/- was
confiscated, and deposited in the Government
Treasury. It further appears that, the
petitioner's request to the respondents to
recall the said order of forfeiting the
surety amount was not favourably considered.
It appears that, the respondents carried
impression that, the petitioner intentionally
breached the conditions laid down in the
order, and accordingly, as per the Prison
Rules the surety amount was confiscated and
came to be deposited in the Government
Treasury.
14. Upon careful perusal of the
explanation given by the petitioner, it
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appears that, the petitioner had left his
house early on 14th November, 2012. However,
on account of the agitation by the sugarcane
growers, he could not reach to the Prison.
It further appears that, he could reach the
Prison only at 3.00 p.m. and by that time,
the prison gates had been closed early on
account of 'Moharam' holiday on that day i.e.
on 14th November, 2012, and therefore, the
authorities asked the petitioner to come on
next day. Therefore, if the aforesaid
explanation given by the petitioner is
considered, it appears that, due to aforesaid
unavoidable circumstances, which were beyond
petitioner's control, he could reach to the
Prison only by 3.00 p.m. on 14th November,
2012, but as already observed, the gates of
the prison were closed on account of
'Moharam' holiday on that day. The petitioner
has also relied upon the statements of Shri
Rathod and Shri Zopale that, he was not
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permitted to surrender on 14th November, 2012,
and was asked to surrender on next day i.e.
on 15th November, 2012.
15. In our opinion, in the peculiar
facts and circumstances of this case,
respondent no.2 ought to have accepted the
explanation given by the petitioner, and
therefore, we are inclined to consider the
prayer of the petitioner.
16. Upon perusal of the operative part
of the impugned order, it appears that, the
extended period of furlough leave of 14 days
is cancelled by respondent no.2, relying upon
the Circular issued by the Home Department,
Government of Maharashtra, dated 2nd December,
2003. Upon perusal of the discussion in the
impugned order, and also para 7 of the
affidavit-in-reply, it appears that, the
Deputy Inspector General [Prisons], Western
Reason, Pune i.e. respondent no.2, had
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sanctioned/granted extension of 14 days
furlough leave, by his order bearing No.
GFP/5812/2012, dated 21st December, 2012.
Therefore, such extension of furlough leave
is granted by respondent no.2 by the
aforesaid order. It is unacceptable that, the
very same authority i.e. respondent no.2, who
passed the order and extended the furlough
leave of 14 days earlier, subsequently
relying upon the Circular, has
disapproved/cancelled extension of 14 days
furlough leave. Respondent no.2, while
granting/sanctioning extension of furlough
leave, ought to have kept in view the
relevant Circulars / procedure. However,
respondent no.2, by the afore-mentioned
order, has sanctioned/granted extension of 14
days furlough leave, and therefore, he cannot
disown earlier order passed by him.
In the light of the discussion in
the foregoing paragraphs, we are of the
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opinion that, in the peculiar facts and
circumstances of this case, the petition
deserves to be allowed for the reason that,
though the petitioner went to surrender on
14th November, 2012 at 3.00 p.m. i.e. due date
to surrender, the gates of the Jail were
closed on account of 'Moharam' festival, and
to that effect, the statements of the
employees working in the Yerwada Prison
namely; Shri Rathod and Shri Zopale are
recorded wherein they have stated that, they
asked the petitioner to come on next day
i.e., on 15th November, 2012, for reporting in
the Jail.
17. Therefore, in the light of the
discussion herein above, in the peculiar
facts and circumstances of this case, we are
of the opinion that, the impugned order
cannot sustain, hence the impugned order is
quashed and set aside.
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18. The rule is made absolute on above
terms. The Criminal Writ Petition stands
disposed of accordingly.
19. We appreciate able assistance
rendered by the learned counsel appearing for
the petitioner.
[K.K.SONAWANE] [S.S.SHINDE]
JUDGE JUDGE
DDC
