Naresh Eknath Naik (C-5051) vs The State Of Maharashtra
2017 Latest Caselaw 9941 Bom

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      IN  THE HIGH COURT OF JUDICATURE AT BOMBAY

                               BENCH AT AURANGABAD


             CRIMINAL WRIT PETITION NO.1560 OF 2017


 Naresh Eknath Naik
 (Convict No.C-5051),
 Age-45 years, R/o-Narpoli,
 Tq-Bhivandi,
 Dist-Thane, Mumbai.
                                 ...PETITIONER 


        VERSUS             

 1) The State of Maharashtra,
    Through the Secretary,
    Home Department,
    Mantralaya, 
    Mumbai-32,

 2) The Director General of Police
    and Inspector General of Prison,
    Maharashtra State,
    Pune-1,

 3) The Deputy Inspector General
    of Prisons, Central Division,
    Aurangabad (Maharashtra),

 4) The Jailor,
    Nashik Road Central Prison,
    Jail Road, Nashik Road,
    Nashik (Maharashtra).   
                                 ...RESPONDENTS




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                      ...
    Mr. Shantanu A. Deshpande Advocate appointed 
    for Petitioner.
    Ms. Vaishali C. Choudhari , A.P.P. for 
    Respondent Nos.1 to 4.       
                      ...


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

DATE OF RESERVING JUDGMENT : 18TH 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 7th 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

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Additional Director General of Police and

Inspector General of Prisons and Correctional

Services, State of Maharashtra, Pune, thereby

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 9th December, 2016,

however, by order dated 7th 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 if the Petitioner is released on

furlough there may be danger to the life of the

informant and also to the witnesses. Secondly, as

the appeal filed by the Petitioner challenging the

conviction and sentence is pending before the High

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Court, in view of the Notification dated 26th

August, 2016 issued by the Home Department, State

of Maharashtra, furlough cannot be granted.

Thirdly, it is mentioned in the police report that

the witness, namely Smt. Motibai Mukund Bhandari,

who is mother-in-law of the Petitioner, has

expressed apprehension that if the Petitioner is

released on furlough, he may give threats to his

married daughter and a son who is taking education

in 9th standard. Fourthly, 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). Fifthly, furlough is

not the right of the convict and sixthly, the

Superintendent of Jail has not recommended the

case of the Petitioner. Accordingly, by invoking

the provisions of Rule 4(4), 4(6), 4(10) 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.

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4. There is no denial to the assertion of

the Petitioner that the Petitioner, earlier on

three times was released on furlough, and on two

occasions he reported back to the jail authorities

within time and only one occasion he reported late

by 24 days. Learned counsel for the Petitioner

submits that earlier when the Petitioner was

released on parole/furlough, he did not misuse the

liberty granted to him.

5. It is submitted by learned counsel

appearing for the Petitioner 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 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

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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,

Nashik, and also the relevant rules and the

reasons stated in the report received from the

Senior Police Inspector, Crime Branch, Office of

Commissioner of Police, Thane, 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

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Respondent authority while rejecting the

application of the Petitioner to release him on

furlough. Learned A.P.P. further submits that

mother-in-law of the Petitioner has given

statement to the police that in case of release

of the Petitioner on parole/furlough, he may give

threats to his married daughter and a son who is

taking education.

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 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,

2016, reads as under:

"(11) Whose appeal in conviction in Higher Court or any other cases filed against them

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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."

8. 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.

9. As rightly contended by learned counsel

appearing for the Petitioner, the ratio in the

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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.

10. It is submitted by the learned A.P.P.

that earlier when the Petitioner was released on

furlough in the year 2008, he reported late by 24

days after expiry of the period of furlough

granted to him. On account of overstay of the

Petitioner for 24 days, his remission might have

been deducted by the Respondent authorities.

Further, it is pertinent to note that again when

Petitioner was released on furlough on 6th June,

2016, he reported back to the jail authorities

within time.

11. So far as the apprehension expressed by

the mother-in-law of the Petitioner, the same can

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be taken care of by imposing stringent conditions

on the Petitioner while releasing him on furlough.

12. In the light of above, the impugned

orders are quashed and set aside. We direct the

Respondent authorities to examine entire earlier

record of 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 etc., and shall

not deny the same on the grounds/objections

mentioned in the impugned orders. While releasing

the Petitioner on furlough, the Respondent

authorities shall put conditions that the

Petitioner, during the course of his furlough

shall attend the nearest police station twice a

day i.e. between 9.00 a.m. to 10.00 a.m. and

6.00 p.m. to 7.00 p.m., and shall not leave

village Anjur, Tq-Bhiwandi, Dist-Thane, except for

attending the police station, if there is no

police station at village Anjur.

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13. Rule is made absolute in above terms. The

Writ Petition stands disposed of, accordingly.

14. We appreciate the sincere efforts taken

by learned counsel Mr. Shantanu A. Deshpande 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, Mr. Shantanu A. Deshpande, learned counsel

is appointed to prosecute the cause of the

petitioner, his 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