Naresh Ramchandra Sonekar (In ... vs Prison Deputy Inspector General ...
2017 Latest Caselaw 5407 Bom

                                                   1                               jg.cri.wp105&226.17.odt


                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                           NAGPUR BENCH : NAGPUR.

                         Criminal Writ Petition No. 105 of 2017

Shri Naresh S/o Ramchandra Sonekar,
(In Jail). Convict No. C-7650 
Central Prison, Nagpur.                                                                       .... Petitioner

    // Versus  //

(1) State of Maharashtra through 
      Deputy Inspector General, 
      Prison, Nagpur. 

(2) Superintendent of Prison,
      Central Jail Nagpur.                                               .... Respondents
------------------------------------------------------------------------------------------------
Shri N. P. Meshram, Advocate for the petitioner 
Mrs. N. R. Tripathi, A.P.P. for the respondents
-----------------------------------------------------------------------------------------------------------------------
                                                         with

                         Criminal Writ Petition No. 226 of 2017

Shri Naresh Ramchandra Sonekar,
Aged about 37, Occupation - Not known, 
Now detained in Central Prison, Nagpur
as Convict No. C-7650.                                                                        .... Petitioner

    // Versus  //

(1) Prison Deputy Inspector General of 
      Prison, East Division, Nagpur. 

(2) Superintendent of Jail, Nagpur
      Central Prison, Nagpur.                                            .... Respondents
------------------------------------------------------------------------------------------------
Shri C. D. Wasade, Advocate for the petitioner 
Mrs. N. R. Tripathi, A.P.P. for the respondents
------------------------------------------------------------------------------------------------




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                                                 CORAM :  P. B. VARALE and
                                                                  M. G. GIRATKAR, JJ.

DATE : 02/08/2017.

COMMON JUDGMENT (Per : M. G. GIRATKAR, J.)

Petitioner Naresh Sonekar filed both the petitions for the

same cause of action. Writ Petition No. 105/2017 was filed by the

petitioner through private counsel Shri N. P. Meshram. Another

petition viz. Writ Petition No. 226/2017 was filed by appointed

counsel Shri C. D. Wasade as per the directions given by High Court

Legal Services Sub-Committee, Nagpur.

2. In both the writ petitions, the petitioner has challenged

the impugned order dated 1-1-2017 passed by the respondent no. 1 by

which furlough leave application of the petitioner came to be rejected.

3. Heard Shri Meshram, learned counsel for the petitioner

and Mrs. Tripathi, learned Additional Public Prosecutor for the State/

respondents.

4. Rule. Rule made returnable forthwith.

5. It is submitted that the petitioner is undergoing sentence

of life imprisonment for the offence punishable under Section 302 of

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the Indian Penal Code. He has completed 7 years 3 months and 5

days imprisonment in the prison. The petitioner is suffering from

serious piles disease. He was admitted in Medical Hospital, Nagpur.

His piles operation was performed. He was advised by doctor to use

hot water and have a rest. Due to non-availability of hot water facility

in jail, said disease was again increased whereby the pus is started to

come out from the operated place. The petitioner was unable to

stand, seat and sleep properly. Therefore, the petitioner approached

the respondent no. 2 for seeking medical parole leave for getting rest.

Respondents refused to accept the parole application.

6. The petitioner made representation to the High Court and

prayed for release. By considering the serious disease and need of rest,

he again approached the respondent no. 2 for grant of furlough leave

vide application dated 15-11-2016. Respondent no. 1 passed arbitrary

order dated 1-1-2017 by which he rejected furlough application of the

petitioner.

7. It is submitted that the respondent no. 1 without applying

his mind illegally rejected furlough leave application. It is submitted

that the petitioner was already prosecuted under Section 224 of the

Indian Penal Code for late surrendering to jail. On the last occasion,

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he was granted parole leave on 19-3-2016 and the petitioner

surrendered on due date. Therefore, it is prayed to quash and set

aside the impugned order.

8. The petitions are strongly opposed by the respondents. It

is submitted that after perusal of the police verification report, it is

clear that proposed surety is not competent to exercise control over

the prisoner during his leave. Whenever he was released on furlough

or parole leave, he did not surrender on due date. At last, it is

submitted that the petitions are devoid of substance and merits and,

therefore, liable to be dismissed.

9. Learned counsel Shri Meshram for the petitioner has

submitted that lastly, petitioner was released on parole on 19-3-2016.

The petitioner himself surrendered on due date i.e. on 18-6-2016.

Learned counsel placed on record letter issued by the Superintendent

of Central Prison, Nagpur dated 20-6-2016. Same is taken on record

and marked as Annexure-'X' for identification. Learned counsel relied

on the order of this Court dated 26-4-2017 passed in Writ Petition

No. 189/2017 and submitted that in view of order of this Court, writ

petition be allowed.

5 jg.cri.wp105&226.17.odt

10. Learned Additional Public Prosecutor Mrs. Tripathi has

submitted that the petitioner was arrested and brought to the prison

on three occasions. He did not surrender on due date and, therefore,

his application is rightly rejected.

11. As per the chart given in the reply filed by the respondent

no. 2, the petitioner was released on furlough leave on 24-3-2011. He

did not surrender on due date, he was arrested by police and brought

back to the prison after 139 days. He was released on parole leave on

23-1-2009. He did not surrender on due date. He was arrested by

police and brought back to the prison after 95 days. He was released

on parole leave on 1-3-2012. He did not surrender on due date. He

was arrested by police and brought back to the prison. It is submitted

by learned counsel for the petitioner that he is already punished by

registering the offence punishable under Section 224 of the Indian

Penal Code.

12. As per the letter, Annexure-X, on the last occasion, he was

released on 19-3-2016 and he surrendered on due date i.e. on

18-6-2016. In the above cited order of this Court in Writ Petition

No. 189/2017 (Nandu @ Devanand Budhbaware Vs. Deputy Inspector

General of Prison, Central Prison, Nagpur and anr.), Division Bench of

6 jg.cri.wp105&226.17.odt

this Court observed as under :

2] Perused chart showing history of release either on furlough leave or parole leave and surrender thereafter. On one occasion i.e. on 25-06-2011 the petitioner was required to be arrested and brought back after 89 days'. He was being given parole leave on 20-07-2012 and he has surrendered himself on 18-01-2013 late by 101 days'. The Authorities, thereafter, on 06-01-2016 granted him parole leave and he has reported back on due date i.e. on 06-04-2016. 3] In view of the last release and surrender on due date, it is apparent that, the previous history loses its significance. 4] Accordingly, we quash and set aside the impugned order dated 09-12-2016. The petitioner is directed to be released for enjoying the furlough leave after obtaining the necessary bond and undertaking from him and from his surety within three weeks'.

13. In the above cited decision, convict was arrested and

brought back after 89 days. Thereafter he was released on parole

leave. He himself surrendered late by 101 days. Thereafter parole

leave was granted and a convict was reported on due date. In the

present case, on the last occasion, the petitioner was released on

19-3-2016 and he himself surrendered on due date. Therefore, in

view of the order of Division Bench of this Court in Criminal Writ

Petition No. 189/2017, the petitioner is entitled for furlough leave.

Respondent no. 1 not considered the grounds in the application of the

petitioner. The petitioner has stated that he wanted leave for medical

treatment and as per advise of doctor, he can get hot water and rest at

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his house. Therefore, we allow Writ Petition No. 105/2017 in terms

of prayer clause (a) and (b) and direct the respondents to release the

petitioner on furlough leave on usual conditions.

14. The petitioner filed two petitions for the same relief. As

per the order of this Court dated 26-4-2017, the petitioner was

directed to deposit amount of Rs. 1500/- with the Registry of this

Court. The petitioner deposited the said amount. Registry is directed

to pay amount of Rs. 1500/- deposited by the petitioner as a

quantified fee to Shri C. D. Wasade, learned counsel appointed for the

petitioner in Writ Petition No. 226/2017.

The writ petitions are disposed of accordingly.

                         JUDGE                                JUDGE



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