Akil Ahmed @ Rahim Abdul Hamid Joja ... vs State Of Maharashtra Thr. D.I.G. ...
2017 Latest Caselaw 5471 Bom

                                                     1                                     jg.cri.wp325.17.odt


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

                        Criminal Writ Petition No. 325 of 2017

Akil Ahmed @ Rahim Abdul Hamid 
Joja, Convict No. C/430, 
aged 50 years, Occ. Nil, 
R/o Markanda Bra. Thadi, 
Tq. Chandurbazar, Dist. Amravati.  
(Present in Open Prison, 
Morshi)                                                                                       .... Petitioner

    // Versus  //

(1) State of Maharashtra,
      Through Deputy Inspector General of Prison, 
      Eastern Region, Nagpur. 

(2) The Superintendent,
      Open Prison, Morshi, 
      Dist. Amravati.                                                    .... Respondents
------------------------------------------------------------------------------------------------
Mrs. P. T. Joshi, Advocate for the petitioner (appointed)
Mrs. N. R. Tripathi, A.P.P. for the respondents
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                                                            CORAM :  P. B. VARALE and
                                                                             M. G. GIRATKAR, JJ.

                                                               DATE    :  03/08/2017.

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

Heard learned counsel for the parties.

2. Rule. Rule made returnable forthwith.

3. The petitioner has challenged the impugned order dated

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11-1-2017 passed by the respondent no. 1 by which furlough leave

application of the petitioner came to be rejected.

4. It is submitted that the petitioner is undergoing sentence

for the offences punishable under Sections 302, 498 and 201 of the

Indian Penal Code. The petitioner has completed 11 years of

imprisonment. The petitioner is in open prison. The petitioner has

moved application for grant of furlough leave of 30 days. Report was

called from the respondent no. 2. The respondent no. 2 submitted no

objection to release the petitioner. The respondent no. 1 rejected

furlough leave application on the ground that surety, namely, Rajesh

Damodarrao Thakre was not ready to take surety of the petitioner.

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

his mind wrongly rejected the application of the petitioner for

furlough leave.

6. The petition is opposed by the respondents by filing reply.

It is submitted that the petitioner has been convicted for life

imprisonment vide judgment dated 21-12-2006 in Sessions Trial No.

208/2006 by City Civil and Sessions Judge, Sewri, Mumbai. The

petitioner is undergoing imprisonment at Open Prison, Morshi,

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District Amravati. Competent authority called police verification

report of the petitioner. Superintendent of Police, Amravati vide its

communication dated 18-6-2016 submitted verification report to the

respondent no. 1. Perusal of the said report shows that the petitioner

has applied for grant of furlough recommending name of Shri Rajesh

Damodarrao Thakre as a surety. However, statement recorded by

police authorities shows that Shri Rajesh Thakre has denied to act as

surety for the petitioner, therefore, the application is rightly rejected

by the respondent no. 1.

7. Again respondent no. 1 called police verification.

Respondent no. 2 submitted verification report on 9-12-2016. As per

the verification report, surety named in the application, namely, Abdul

Shaikh Habib is already expired on 28-3-2016, therefore, respondent

no. 1 rightly passed the order dated 11-1-2017. Impugned order is

just and proper, therefore, the petition is liable to be dismissed.

8. Learned counsel Mrs. Joshi has pointed out judgment of

Full Bench of this Court in the case of Dipak Sudhakar Wakalekar

Vs. State of Maharashtra and ors. reported in 2011 Cr.L.J. 3263.

She has submitted that the petitioner is undergoing sentence in Open

Prison, Morshi. As per the proviso to Rule 6 of the Prisons (Bombay

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Furlough and Parole) Rules, 1959, there is no necessity to get the

surety of the petitioner.

9. Learned Additional Public Prosecutor Mrs. Tripathi has

submitted that the petitioner failed to give correct name of the surety

and, therefore, his application came to be rejected.

10. There is no dispute that the petitioner is undergoing

sentence in Open Prison, Morshi. As per the proviso to Rule 6 of the

Prisons (Bombay Furlough and Parole) Rules, 1959, sanctioning

authority may dispense with the requirement of execution of bond by

relatives/surety in case of convicts confined in Open Prison.

11. Full Bench of this Court in the case of Dipak Sudhakar

Wakalekar Vs. State of Maharashtra and ors. cited supra held as

under :

Prisons Act, 1894. Section 59 of Prisons (Bombay Furlough and Parole) Rules, 1959. Rules 6, 10 - release of prisoner on parole or furlough. Procedure - prisoner confined in open prison can be released on parole or furlough by sanctioning authorities by dispensing with requirement of execution of bond by his relatives.

12. It is further observed by the Full Bench in the above cited

decision in paragraph 23 that :

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"In the light of the discussion made above, we hold that as per the proviso to Rule 6 of the Rules 1959 a convict confined in open prison can be released on furlough by the Sanctioning Authority by dispensing with the requirement of execution of bond by the relatives. ..."

13. The petitioner is undergoing sentence in Open Prison at

Morshi, District Amravati. As per the proviso to Rule 6, a convict

confined in Open Prison can be released on furlough by the

sanctioning authority by dispensing with the requirement of bond ....

The petitioner could not give the name of surety to the authority.

First name which was given by the petitioner is one Shri Rajesh

Damodarrao Thakre. During verification, it was found that

Shri Thakre was not ready to stand as surety of the petitioner. On the

second time, the petitioner stated the name of Shri Abdul Shaikh

Habib. But during verification, it was found that he died on

28-3-2016. Therefore, it is clear that the petitioner is unable to

furnish surety. This fact is not taken into consideration by the

respondent authorities.

14. As per proviso to Rule 6 and 10 of the Prisons (Bombay

Furlough and Parole) Rules, 1959 and in view of the judgment of the

Full Bench in the case of Dipak Sudhakar Wakalekar Vs. State of

Maharashtra and ors. cited supra, it is clear that there was no

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necessity for the respondent authorities to get the surety from the

petitioner who is undergoing jail sentence in open prison. Impugned

order passed by the respondent no. 1 is, therefore, liable to be

quashed and set aside. Hence, the petition deserves to be allowed.

Accordingly, we allow the petition in terms of prayer clause (i) and

(ii) with direction to the respondents to release the petitioner on

furlough leave.

15. Fees of learned counsel appointed for the petitioner is

quantified at Rs. 1500/-

                         JUDGE                                  JUDGE



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