Bombay High Court
Mahesh S/O. Manik Mote vs The State Of Maharashtra And ... on 15 December, 2017
Bench: S.S. Shinde
cwp1507.17
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO.1507 OF 2017
Mahesh s/o Manik Mote,
Age-31 years, Occu:Agril.,
R/o-Shivankhed, Tq-Chakur,
Dist-Latur,
At present: Prisoner
No. C-11073, Mandal-7,
Circle 3/2, Central Jail,
Nasik Road, Nasik
...PETITIONER
VERSUS
1) The State of Maharashtra,
Through Supdt. of Jail,
Central Jail Nasik, Nasik,
2) The Additional D.G.P.,
Maharashtra State, Pune-1,
3) The Deputy Supdt. of Prison,
Central Zone, Aurangabad
...RESPONDENTS
...
Mr. Pramod F. Patni Advocate for Petitioner.
Mr.M.M. Nerlikar, A.P.P. for Respondent
Nos.1 to 3.
...
CORAM: S.S. SHINDE AND
A.M. DHAVALE, JJ.
cwp1507.17
DATE OF RESERVING JUDGMENT : 12TH DECEMBER, 2017
DATE OF PRONOUNCING JUDGMENT : 15TH DECEMBER, 2017
JUDGMENT [PER S.S. SHINDE, J.]:
1. Rule. Rule made returnable forthwith and
heard finally with the consent of the learned
counsel appearing for the parties.
2. This Petition takes exception to the
order dated 5th May 2017, passed by the Deputy
Inspector General (Prison), Central Region,
Aurangabad thereby rejecting the request of the
Petitioner to release him on furlough and the
order dated 26th September, 2017 passed by the
Additional Director General of Police and
Inspector General (Prison), Pune thereby rejecting
the appeal filed by the Petitioner challenging the
order passed by the Deputy Inspector General
(Prison), Central Region, Aurangabad.
3. It is the case of the Petitioner herein
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that he applied for furlough, however, by the
impugned order dated 5th May, 2017, his
application has been rejected. The appeal filed by
the Petitioner has been rejected by order dated
26th September, 2017. In the impugned order
passed by the appellate authority, it is observed
that as the appeal filed by the Petitioner
challenging the conviction and sentence, is
pending before the High Court, in view of the
Notification dated 26th August 2016, issued by the
Home Department, State of Maharashtra, furlough
cannot be granted. Secondly, the Petitioner filed
application for furlough on 26th February, 2017
and therefore furlough cannot be granted to the
Petitioner in view of the order passed by the High
Court in Writ Petition No.4017 of 2016 (Smt.
Rubina Suleman Memon vs. The State of Maharashtra
and others). Thirdly, it is observed in the
impugned order that furlough is not the right of
the convict. Accordingly, by invoking the
provisions of Rule 4(6) and Rule 4(11) of the
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Prisons (Bombay Furlough and Parole) Rules, 1959
(for short "the Rules of 1959), the application of
the Petitioner has been rejected.
4. There is no denial to the assertion of
the Petitioner that since the date of his arrest
in the month of September, 2012, the Petitioner is
not at all released on parole or furlough. Learned
counsel appearing for the Petitioner submits that
the ratio in the case of Smt. Rubina Suleman
Memon, supra, is not applicable in the facts of
the present case, as the Petitioner therein was
convict under the Terrorist and Destructive
Activities Act, 1987 and wife of brother of Yakub
Abdul Razak Menon. Learned counsel further
submitted that merely because appeal filed by the
Petitioner against conviction and sentence is
pending, is no ground to deny him the furlough in
view of the orders passed by the Division Bench of
the Bombay High Court, Bench at Nagpur, in
Criminal Writ Petition No.196 of 2017 and Criminal
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Writ Petition No.97 of 2017 [Arun s/o Gulab Gawli
and another vs. D.I.G.(Prisons) (East) Nagpur and
another], and Criminal Writ Petition No.462 of
2017 [Abdul Rajjak Sheikh Abdul Nabi Shah vs.
Divisional Commissioner, Nagpur and others].
5. Learned Public Prosecutor, relying upon
the affidavit-in-reply filed by the
Superintendent, Nashik Road Central Prison,
Nashik, and also the relevant rules, submits that
the prayer of the Petitioner to release him on
furlough has been rightly turned down. He further
invites our attention to the reasons assigned by
the Respondent authorities while rejecting the
application of the Petitioner to release him on
furlough and prays that the Petition be rejected.
6. We have given careful consideration to
the submissions of the learned counsel appearing
for the Petitioner and learned A.P.P. appearing
for the State. As rightly contended by learned
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counsel appearing for the Petitioner, the ratio in
the case of Smt. Rubina Suleman Memon, supra, is
not applicable in the facts of the present case,
in as much as the Petitioner therein was convict
under the Terrorist and Destructive Activities
Act, 1987, and the Petitioner herein is not
convict under the said Act.
7. While rejecting the application of the
Petitioner to release him on furlough, the
Respondent Authorities have placed reliance on
Rule 4(11) of the Prisons (Bombay Furlough and
Parole) Rules, 1959, amended as per the
Notification dated 26th August, 2016, which reads
as under:
"(11) Whose appeal in conviction in Higher
Court or any other cases filed against them
either by Central Government or any of the
State Government in any of the Courts are
pending and for which bail is not granted
to him/her by the related Courts."
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8. We have carefully considered the
provisions of the said Rule 4(11) of the Rules of
1959. Merely because appeal filed by the
Petitioner challenging his conviction and sentence
is pending before the High Court is no ground to
deny the parole/furlough in view of the orders
passed by the Division Bench of the Bombay High
Court, Bench at Nagpur in Criminal Writ Petition
No.196 of 2017 and Criminal Writ Petition No.97 of
2017 [Arun s/o Gulab Gawli and another vs. D.I.G.
(Prisons) (East) Nagpur and another], and Criminal
Writ Petition No.462 of 2017 [Abdul Rajjak Sheikh
Abdul Nabi Shah vs. Divisional Commissioner,
Nagpur and others], supra.
9. We have perused the affidavit-in-reply
filed on behalf of the Respondents. Along with the
said reply, police report filed by Sub Divisional
Police Officer, Chakur is enclosed. The report
submitted by the Sub Divisional Officer, Chakur is
favourable to the Petitioner and in the said
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report it is specifically stated that Police had
no objection if the Petitioner is released on
furlough.
10. In the light of above, the impugned
orders are quashed and set aside. We direct the
Respondents to re-examine the entire case of the
Petitioner and if found eligible, release the
Petitioner on furlough, however, after completion
of usual procedural formalities, and shall not
deny the same on the grounds/objections mentioned
in the impugned order and without insisting for
fresh police report. The entire exercise shall be
done as expeditiously as possible, however, within
three weeks from the date of receiving copy of
this order.
11. Rule is made absolute in above terms. The
Writ Petition stands disposed of, accordingly.
[A.M. DHAVALE, J.] [S.S. SHINDE, J.]
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