Bombay High Court
Ranjit S/O. Shivlal Shreebansari ... vs State Of Maharashtra Thr. Deputy ... on 6 June, 2017
Bench: Prasanna B. Varale
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
: NAGPUR BENCH : NAGPUR.
CRIMINAL WRIT PETITION NO. 49 OF 2017
PETITIONER : Ranjit S/o Shivlal Shreebansari
Age Major, Occu. : Convicted Offender
Prisoner No.C-407,
R/o Open Jail, Morshi, Amravati.
VERSUS
RESPONDENTS: 1] State of Maharashtra,
through Deputy Inspector General
of Police (prisons), (East Division),
Nagpur.
2] Superintendent of Prison,
Open Prison, Morshi, Amravati.
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Mr. R. D. Hajare, Advocate appointed for the petitioner.
Mrs. N. R. Tripathy, A.P.P. for respondent nos.1 and 2
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CORAM : PRASANNA B. VARALE and
MURLIDHAR G. GIRATKAR, JJ.
DATE : JUNE 06, 2017.
ORAL JUDGMENT
Rule. Rule is returnable forthwith. Heard finally by
consent.
2] Being aggrieved by the order passed by the respondent
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no.1 authority seeking indulgence in the order passed on 05.10.2016
for relaxing condition no.1 on the ground that the petitioner/ convict
was not in a position to submit cash surety due to poverty, the
petitioner is before this Court.
3] Perusal of the record shows that the petitioner had
applied to the respondent no.1 for grant of furlough leave. The
police report was in favour of the petitioner. Though, order dated
05.10.2016 was passed in favour of the petitioner, condition no.1
contained therein, namely the petitioner shall furnish personal surety
bond of Rs.5,000/- and other surety, was the subject matter of the
application. The petitioner had submitted before the respondent
no.1 that his wife Smt. Shashikalabai is ready to stand surety and
being poor person, neither the petitioner nor the other members of
his family are having any property either immovable or otherwise.
The petitioner, therefore, requested the respondent no.1 to accept
undertaking of his wife, who is ready to stand surety for him. The
respondent no.1 found no favour with the petitioner and rejected the
application.
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4] The reply filed by the State reveals that the only ground
raised to oppose the petition is the earlier negative police report of
the petitioner. The material placed on record shows that the
subsequent report, which was in favour of the petitioner, was not
considered by the respondent no.1. It is specifically stated in the
report that wife of the petitioner is ready to stand surety and the
financial condition of the petitioner is poor. These facts are
reflected in the report submitted to the Prison Authority, dated
20.8.2016.
5] Mr. Hajare, learned counsel for the petitioner, by placing
heavy reliance on the judgment of this Court reported in 2012(2)
Bom.C.R. (Cri.) 219 in the case of Anil Vishwanath Pathawe .vs.
D.I.G. Prison and another, submitted that the respondent-authority
has committed a serious error in rejecting the application seeking
modification of condition. In Anil Pathawe's case also an objection
was raised that on earlier occasion the petitioner therein had
reported to the Prison authorities belatedly and the Division Bench of
this Court was pleased to observe at paragraphs 8, 9 and 13 thus -
8. After having gone through the documents on
record and the rival submissions, it is not in dispute
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that the Appropriate Authority has had ordered release
of the petitioner on furlough leave vide order dated
10th July, 2008 on condition of furnishing cash
security and surety. As the petitioner was not in a
position to comply with the condition, he filed Writ
Petition in this Court, being Criminal Writ Petition No.
2581 of 2008. The said Writ Petition was disposed of
on 2nd February, 2009 by directing release of
petitioner on furnishing surety of personal bond of
Rs.10,000/- and surety in the like amount by two
persons. However, the petitioner was not in a position
to even fulfil this stipulation. Accordingly, the
petitioner has again approached this Court by way of
this Letter Petition through jail, praying for relaxation
of requirement of furnishing two sureties and instead
accepted cash surety of Rs.5,000/-. Indeed, the
respondents, relying on Rule 6 of the said Rules, may
be justified in contending that furnishing surety as
condition for release on furlough is indispensable.
9. However, the learned amicus curiae has invited our
attention to the exposition of the Full Bench of Gujarat
High Court, which had occasion to interpret this very
rule. The Full Bench of the Gujarat High Court in
Natia Jiria's case has opined that the requirement of
Rule 6 is also embodied in Rule 10. Rule 10 bestows
discretion in the Sanctioning Authority to grant
furlough to prisoner, subject to his executing a
personal bond or giving cash security in Form
appended to the said Rules and also subject to a surety
executing a bond in Form A appended to the said
Rules, if so required. This has been construed to mean
that two things that have to be done under Rule 10 to
enable release to be ordered are (a) personal bond or
cash security in Form C and (b) surety bond in Form
A. It is held that the former requirement can be
fulfilled by the prisoner by executing a personal bond,
but, in respect of a prisoner, who is expected to furnish
cash security, the Sanctioning Authority insists upon
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such cash security, it will be an erroneous, improper
and unfair exercise by it. It went on to observe that it
will be equally unfair if, despite the circumstances
eloquently speaking to the impecunious situation of the
prisoner, the Sanctioning Authority insists on proof of
it. It held that the person in prison is under a great
disadvantage, and particularly so, if he has no friends
or competent relatives to help him out. It went on to
observe that in that case there is no reason why when
the prisoner pleads his poverty, and if there is no
material to disbelieve his case of poverty, the
Sanctioning Authority should not accept it in the
normal course and release him on his personal bond.
The Court went to the extent of observing that the
words occurring in Rule 10 "if so required" cast a duty
and obligation on the Sanctioning Authority to
consider whether the case requires waiver of the
insistence of the execution of a surety bond. Further,
the appropriate justification for such waiver would be
where a person is, by reason of his penury and his
absence of influence in society, unable to furnish a
surety bond.
13. As aforesaid, the learned amicus curiae has invited
our attention to couple of orders passed by learned
Single Judges as well as the Division Benches of this
Court where the Court itself directed release of the
concerned prisoners. We are not inclined to follow that
course. In our considered opinion, it is for the
Sanctioning Authority to record satisfaction on
material aspects, and in particular, on issues noted by
us hitherto.
The above referred judgment in Anil Pathwe's case is squarely
applicable to the fact situation of the present matter.
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6] In view of above, the order impugned in the present
petition is set aside. The respondent authorities are directed to
consider the case of the petitioner afresh for his release on furlough
leave in view of the observations of this Court in Anil Pathawe's case
(supra). The respondent-authorities are directed to take necessary
decision as expeditiously as possible. The criminal writ petition is
allowed and disposed of in the aforesaid terms.
The fees of the learned counsel appointed for the
petitioner is quantified at Rs.1,500/- (Rupees One thousand Five
hundred only).
JUDGE JUDGE
Diwale
