Prabhakar Ganeshrao Jawale ... vs The State Of Maharashtra
2017 Latest Caselaw 9913 Bom

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      IN  THE HIGH COURT OF JUDICATURE AT BOMBAY

                               BENCH AT AURANGABAD


             CRIMINAL WRIT PETITION NO.1564 OF 2017

 Shri Prabhakar s/o Ganeshrao Jawale,
 Age-Major, Occu:Nil,
 R/o-Prisoner No.C/10930,
 Nashik Road Central Prison,
 Nashik.
                                 ...PETITIONER 

        VERSUS             

 1) The State of Maharashtra,
    Through its Principal Secretary,
    Home Department, Mantralaya, 
    Mumbai-400 032,

 2) The Add. Director General of Police
    and Inspector General of Prisons,
    Maharashtra State, Pune-1,

 3) The Deputy Inspector General
    of Prisons, Aurangabad Division,
   Aurangabad, Dist-Aurangabad,

 4) The Superintendent,
    Nashik Road Central Prison,
    Nashik, Dist-Nashik.   
                                 ...RESPONDENTS

                      ...
    Ms. Sayali S. Tekale Advocate appointed 
    for Petitioner.
    Mr.D.R. Kale, A.P.P. for Respondent 
    Nos.1 to 4.       
                      ...



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               CORAM:   S.S. SHINDE AND
                        A.M. DHAVALE, JJ.

DATE OF RESERVING JUDGMENT : 20TH DECEMBER, 2017

DATE OF PRONOUNCING JUDGMENT: 21ST DECEMBER, 2017

JUDGMENT [PER S.S. SHINDE, J.]:

1. Rule. Rule made returnable forthwith and

heard finally with the consent of learned counsel

appearing for the parties.

2. This Petition takes exception to the

order dated 3rd April, 2017 passed by the Deputy

Inspector General of Prisons, Central Region,

Aurangabad thereby rejecting the request of the

Petitioner to release him on furlough and the

order dated 10th August, 2017 passed by the

Additional Director General of Police and

Inspector General of Prisons and Correctional

Services, State of Maharashtra, Pune, thereby

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rejecting the appeal filed by the Petitioner

challenging the order passed by the Deputy

Inspector General of Prisons, Central Region,

Aurangabad.

3. It is the case of the Petitioner that he

applied for furlough on 3rd October, 2016,

however, by order dated 3rd April, 2017 his

application came to be rejected. The appeal filed

by the Petitioner has been rejected by the

impugned order dated 10th August, 2017. In the

impugned order passed by the appellate authority,

it is observed that the police report is adverse

stating that the Petitioner may not be released on

furlough. Secondly, 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. Thirdly, furlough cannot be

granted to the Petitioner in view of the order

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passed by the High Court in Writ Petition No.4017

of 2016 (Smt. Rubina Suleman Memon vs. The State

of Maharashtra and others). Fourthly, the

Superintendent of Jail has not recommended the

case of the Petitioner, and fifthly furlough is

not the right of the convict. Accordingly, by

invoking the provisions of Rule 4(4), 4(6) and

4(11) of the 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 he was arrested on 10th June,

2013 and from the date of his arrest till date the

petitioner has not been released on parole or

furlough. The Petitioner is a life prisoner. It is

the case of the Petitioner that he has undergone

sentence of more than four years.

5. It is submitted by learned counsel

appearing for the Petitioner that merely because

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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 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]. Learned counsel further submitted 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 Disruptive

Activities (Prevention) Act, 1987 and wife of

brother of Yakub Abdul Razak Menon.

6. Learned A.P.P. appearing for the State,

relying upon the affidavit-in-reply filed by the

Superintendent, Nashik Road Central Prison,

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Nashik, and also the relevant rules and the

reasons stated in the report received from the

Sub Divisional Police Officer, Vasmat, submits

that the Petitioner's prayer to release him on

furlough has been rightly turned down in view of

the reasons stated in the police report. He

further invites our attention to the reasons

assigned by the Respondent authority while

rejecting the application of the Petitioner to

release him on furlough.

7. 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. While rejecting the request of the

Petitioner to release him on furlough, the

appellate authority has observed that the police

report is adverse and it is stated by the police

that the Petitioner may not be released on

furlough. In this context, we have carefully

perused the report dated 19th January, 2017,

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submitted by the Sub-Divisional Police Officer,

Vasmat. In the said report in all six reasons are

given by the said police officer which all are

favourable to the Petitioner and it is

specifically stated that the Sub-Divisional Police

Officer, Vasmat has no any objection if the

Petitioner is released on furlough. However,

surprisingly, at the end of the report it is

opined that the Petitioner may not be released on

furlough. Thus, considering the police report in

its entirety, it is clear that relying upon such

police report, the request of the Petitioner to

release him on furlough should not have been

turned down.

8. Secondly, while rejecting the application

of the Petitioner to release him on furlough, the

Respondent Authorities have placed reliance on

Rule 4(11) of the Rules of 1959. Rule 4(11) of the

Prisons (Bombay Furlough and Parole) Rules, 1959,

amended as per the Notification dated 26th August,

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2016, 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."

9. We have carefully considered the

provisions of 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.

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10. Learned counsel appearing for the

Petitioner has rightly contended that 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 Disruptive Activities

(Prevention) Act, 1987, and the Petitioner is not

convict under the said Act.

11. In the light of above, the impugned

orders are quashed and set aside. We direct the

Respondent authorities to re-examine the case of

the Petitioner and release the Petitioner on

furlough, if otherwise he is eligible for the

same, after completion of usual procedural

formalities like surety/sureties etc., and shall

not deny the same on the grounds/objections

mentioned in the impugned orders. The entire

exercise shall be done as expeditiously as

possible, however in any case within three weeks

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from the date of receiving copy of this order.

12. Rule is made absolute in above terms. The

Writ Petition stands disposed of, accordingly.

13. We appreciate the sincere efforts taken

by learned counsel Ms. Sayali S. Tekale in

promptly preparing the memo of the Petition,

filing the same within time and extending able

assistance during the course of hearing of the

Petition so as to reach to the correct conclusion.

Since, Ms. Sayali S. Tekale, learned counsel is

appointed to prosecute the cause of the

petitioner, her fees be paid as per the schedule

of fees maintained by the High Court Legal

Services Sub-Committee, Aurangabad.

[A.M. DHAVALE, J.] [S.S. SHINDE, J.] asb/DEC17