Mahadeo @ Mahadu Narayan Kale ... vs The State Of Maharashtra
2017 Latest Caselaw 5412 Bom

                                                     784.2017 Cri.WP.odt
                                     1


               IN THE HIGH COURT OF JUDICATURE AT BOMBAY 
                          BENCH AT AURANGABAD

                     CRIMINAL WRIT PETITION NO.784 OF 2017  

          Mahadev @ Mahadu Narayan Kale, 
          Age: Major, Occ. Convict No.C/8251 
          R/o. At Nashik Road Central Prison, 
          Nashik.                           PETITIONER 

                           VERSUS

          1.       The State of Maharashtra,  
                   Through Principal Secretary,  
                   Home Department, Mantralaya,  
                   Mumbai.  

          2.       The Superintendent,  
                   Nashik Road Central Prison, 
                   Nashik.  

          3.       The Deputy Inspector General [Prison] 
                   Central Prison, Harsool, Aurangabad.  

          4.       The Maharashtra Prison Department,  
                   Additional Director General of Police 
                   and Inspector General of Prison 
                   & Correctional Services, Pune-1.  

                                                  RESPONDENTS 
                                 ...
          Mrs.Almas   Abdul   Quadar,   Advocate   for   the 
          petitioner 
          Ms.S.S.Raut, APP for the Respondent/State
                                 ...
                           CORAM:  S.S.SHINDE & 
                                    S.M.GAVHANE,JJ.      

Reserved on : 26.07.2017 Pronounced on : 02.08.2017

784.2017 Cri.WP.odt

JUDGMENT: (Per S.S.Shinde, J.):

1. Heard.

2. Rule. Rule made returnable

forthwith, and heard finally with the consent

of the parties.

3. It is the case of the petitioner

that the petitioner is a convict; he is

undergoing life imprisonment at Nashik Road

Central Prison, Nashik. The Sessions Court

has convicted the petitioner for the offences

punishable under Sections 302, 307, 323 and

504 of the Indian Penal Code on 23rd April,

2010. Since then the petitioner is in prison

at Nashik Road Central Prison, Nashik.

4. It is further the case of the

petitioner that during period of

imprisonment, the petitioner has availed of

parole only, and he never applied for

furlough leave. For the first time, the

petitioner applied for the furlough leave,

784.2017 Cri.WP.odt

however, application was rejected by order

dated 16th November, 2016, by the respondent

no.2. Thereafter, the Appellate Authority

i.e. respondent no.4, dismissed his appeal by

order dated 31.01.2017, on three grounds viz.

(1) adverse police report received from

Manwat Police Station, the Police Inspector

has not recommended furlough leave to the

petitioner, (2) unsatisfactory conduct, and

(3) on two occasions, when the petitioner was

on parole leave, he failed to report the jail

authorities within time.

5. It is further the case of the

petitioner that at the time of applying for

furlough leave, the petitioner promised not

to repeat such mistakes like observed in the

impugned order in future. The petitioner is

ready to abide by the terms and conditions as

would be imposed by the respondents-

authorities in case of his release on

furlough.

784.2017 Cri.WP.odt

6. Learned counsel appearing for the

petitioner submits that the orders passed by

respondent nos.3 and 4 are not legally

sustainable, and same deserves to be quashed

and set aside. The petitioner is entitled for

furlough leave as a matter of right. When the

petitioner was released on parole on earlier

occasion, he reported back to jail

authorities after 43 days from the date of

expiry of period for which he was released on

parole. However, he was punished by the

authorities by deducting 129 days from the

remission available to the petitioner.

Therefore, the learned counsel appearing for

the petitioner submits that the Petition may

be allowed.

7. On the other hand, the learned APP

appearing for the respondent - State, relying

upon the affidavit-in-reply, made following

submissions:

8. Initially, the petitioner was

784.2017 Cri.WP.odt

released on parole on 2nd August, 2011, for a

period of 30 days. The petitioner overstayed

for 43 days before surrendering himself. The

disciplinary action under the Prisons Act was

taken against him and his remission period of

129 was curtailed from the total remission

earned. Further again on 3rd December, 2012,

he was released on parole for 30 days and

overstayed for 570 days. Subsequently, he was

arrested by the police and handed over to the

prison authorities on 27th July, 2014. A

criminal case came to be registered against

the petitioner vide Crime No.85/2014 under

Section 224 of the Indian Penal Code at

Manwat Police Station and further his name

has been permanently deleted from the

remission register due to violation of the

prison Rules and Regulations, as per

Government Resolution dated 2nd August, 2011.

It is submitted that the Police Inspector,

Manwat Police Station had forwarded adverse

784.2017 Cri.WP.odt

police report vide letter bearing O.W.NO.

1390/4810 dated 29th August, 2016, regarding

furlough leave of the petitioner. The Police

Inspector, Manwat Police Station had not

recommended the leave of the petitioner on

the following grounds:

[a] That there is possibility of breach

of public peace if he is released on

leave.

[b] That there is threat to the life of

the relatives of the informant and

witnesses, who have deposed against

him during the trial.

[c] The guarantor Shri Vishnu Narayan

Kale appears to be incapable to take

control of the prisoner during his

leave period.

[d] There are possibilities that the

prisoner will not surrender before

784.2017 Cri.WP.odt

the prison authorities on completion

of leave as previously when he was

released on parole leave he did not

surrender on time.

9. It is further submitted that the

Deputy Inspector General of Prisons, Central

Region, Aurangabad, vide order No.161 dated

4th January, 2017, had rejected the furlough

leave application of the petitioner under

the Prisons [Mumbai Furlough and Parole]

Rules, 1959 [for short 'Rules, 1959], Rule 4

[4], 4 [6] and 4 [10] on the adverse grounds

as mentioned in the police report.

Thereafter, the petitioner had filed an

appeal on 28th November, 2016, against the

said order of the Deputy Inspector General of

Prisons, Central Region, Aurangabad, before

the Additional Director General of Police and

Inspector General [Prisons], Pune-1. The

Appellate Authority, on considering the

entire facts of the case, has rejected the

784.2017 Cri.WP.odt

appeal on the similar grounds as mentioned

above, vide its order No.1005 dated 31st

January, 2017. Hence, the petitioner has

filed the present Writ Petition on 17th March,

2017 before this Court. Therefore, the

learned APP submits that the Petition may be

dismissed.

10. We have considered the submissions

of the learned counsel appearing for the

petitioner, and the learned APP appearing for

the respondent-State. With their able

assistance, we have perused the grounds taken

in the Petition, annexures thereto, reply

filed by the respondents, and also the Rules,

1959, and also the reasons assigned by the

respondent no.3 in the impugned order. Upon

careful perusal of the reasons assigned in

the impugned order, it appears that, the

police report received from the Police

Inspector, Manwat Police Station, is adverse,

and the Superintendent of Police, Parbhani

784.2017 Cri.WP.odt

has not recommended the case of the

petitioner to release him on furlough. Upon

careful perusal of the reply filed by the

respondents, it appears that, the petitioner

was released on parole in the past, and he

did not report to the jail authorities within

the period for which he was released on

parole. It appears that, in the year 2012,

when the petitioner was released on parole,

he did not report back after availing of

parole within time. He overstayed more than

570 days. Therefore, the offence was

registered against him under Section 224 of

the IPC. Thereafter, he was arrested and was

brought back to the jail to undergo remaining

sentence. It appears that his name is also

struck down from the convicts, who are

entitled for the remission.

11. In that view of the matter, in our

opinion, the reasons assigned in the impugned

order are keeping in view the past record of

784.2017 Cri.WP.odt

the petitioner, and also the relevant Rules.

Therefore, we are not inclined to exercise

discretion in favour of the petitioner. For

the reasons aforesaid, the Petition stands

rejected. Rule stands discharged. We make it

clear that rejection of this Petition may not

be construed as an impediment to the

petitioner to apply in future for furlough or

parole as the case may be.

12. Since Mrs.Almas Abdul Qadar, the

learned counsel is appointed to prosecute the

cause of the petitioner, she would be

entitled for the fees, as per the schedule of

fees maintained by the High Court Legal

Services Sub-Committee, Aurangabad.

              [S.M.GAVHANE]             [S.S.SHINDE]
                  JUDGE                     JUDGE  
          DDC