Bombay High Court
Jitendra Fakirchand Rana @ Chaina vs Tha Addl. Director General Of ... on 9 June, 2017
Bench: V.K. Tahilramani
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO. 909 OF 2017
Jitendra Fakirchand Rana @ ]
Chaina, Aged about 29 years ]
R/o Room No. 112, ]
Hindu Muslim Chawl, Anand Nagar ]
Jogeshwari (W), Mumbai ]
(Presently lodged at Nashik Road ]
Central Prison, As Convict Prisoner ]
No.C/10698) ].. Petitioner
Vs.
1) The Addl. Director General of ]
Police and Inspector General ]
of Prisons, Pune. ]
]
2) The Deputy Inspector General ]
of Prisons, Central Region, ]
Aurangabad ]
]
3) The Superintendent, ]
Nasik Road Central Prison, ]
Nasik-422101 ]
]
4) The State of Maharashtra ].. Respondents
....
Mr. Akash Kavade Advocate i/b Ms. Sakshi D.Chogle Advocate
for Petitioner
Mr. H.J.Dedia A.P.P. for the State
....
CORAM : SMT.V.K.TAHILRAMANI AND
SANDEEP K. SHINDE, JJ.
DATED : JUNE 09, 2017
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ORAL JUDGMENT [PER SMT. V.K.TAHILRAMANI,J. ]:
1 Heard both sides.
2 Rule. By consent, Rule is made returnable forthwith
and the matter is heard finally.
3 The petitioner preferred an application for furlough on
30.5.2016. The said application was rejected by order dated
20.12.2016. Being aggrieved thereby, the petitioner preferred
an appeal. The appeal was dismissed by order dated
16.2.2017, hence, this petition.
4 The learned counsel for the petitioner submitted that
the ground for rejecting the application of the petitioner for
furlough was that there was danger to the life of the
complainant and witnesses and the police report is adverse.
The third reason is that the petitioner has been sentenced to
life imprisonment for the remainder of his life and the last
reason is that he may not report back to the prison if he is
released on furlough.
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5 The learned counsel for the petitioner placed reliance
on a decision of Nagpur Bench of this Court in the case of
Miyakhan Bhurekhan Vs. State of Maharashtra and Anr.
reported in 2006 Cri.L.J. 2233. In the said case, the
application of the petitioner therein was rejected on the ground
that there is possibility of petitioner taking revenge on the
prosecution witnesses. In the said case, it was observed by the
Court that there was no material available for the competent
authority to come to this conclusion and no material was
pointed out to Court. In such case, the petitioner therein was
directed to be released on furlough.
6 Thereafter, reliance is placed by the learned counsel
for the petitioner on the judgment of the Nagpur Bench of this
Court in the case of Sanjay Kisan Kadse Vs. State of
Maharashtra and Ors. reported in 2004(1) Mh.L.J. 789.
Reliance was placed on paragraph 7 thereof. In the said case, it
was observed that the authority is expected to apply their mind
to the facts and circumstances of the case. It was further
observed that the order demonstrated total non-application of
mind. It was further observed that mere observations in the
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police report that there is likelihood of breach of peace if the
prisoner is released is not enough as furlough leave should not
be the formal expression only to deprive the prisoner from
availing furlough leave. The police authorities should be in a
position to substantiate their opinion and there was no material
to substantiate this opinion. It was in these circumstances
furlough came to be granted.
7 Lastly, reliance was placed by the learned counsel for
the petitioner on a decision of the Nagpur Bench of this Court in
the case of Sarfuddin Aminuddin Vs. State of Maharashtra
reported in 2003 (4) Mh.L.J. 481. Reliance was placed on
paragraph 7 thereof. In the said case, furlough was rejected on
the ground of adverse police report. The Court observed that it
is not known as to what type of enquiry has been conducted to
arrive at the conclusion that there was possibility of breach of
peace and tranquility. It is also not known as to whether the
statements of witnesses were recorded in that context.
Observing thus: furlough came to be granted to the petitioner
therein.
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8 As far as the present case is concerned, the learned
A.P.P. has pointed out that the police report is based on the
case in which the petitioner is involved. The facts of the case
are that on 20.10.2011 PW 1 who is a young girl, along with her
friends including deceased Keenan and deceased Ruben went
to a restaurant in Amboli to have dinner. After they had dinner,
PW 1 along with her three friends who were girls, went to the
wash room and four boys who were with them went to Pan
shop. When PW 1 and the other girls came out of the
restaurant, the petitioner who was wearing white Pathani dress,
called her by making noise "shuk shuk". When she looked at
that person, he said "kya mast maal hai. Isko aaj rat ko uthake
le ke jayenge." PW 1 ignored the petitioner. Till that time,
other girls came near her. Then the petitioner pressed her left
breast. PW 1 screamed and pushed aside his hand. The other
accused who were with the petitioner, started laughing. Then
accused no.2 came and touched buttock of PW 1 and said "aaj
hamara rat ka asra ho gaya" and he tried to pull her from
behind. She screamed and pushed him away and ran towards
her friends i.e. four boys and told them what had happened.
Then Keenan (deceased) came forward and he told all these
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four accused including the petitioner that don't you have
mother or sister in your home, you are openly harassing girls,
you should be ashamed. Then the petitioner along with other
accused started abusing Keenan. Then one of the other boys
i.e. Avinash from the group of PW 1 came forward and tried to
talk to the petitioner and co-accused. However, the petitioner
started abusing Avinash in filthy language. Then co-accused
no.2 told Avinash that if you have courage you wait there, I will
come and kill you. At that time, the petitioner told him that he
would not leave them and he would come back and show them.
Then the petitioner and other accused went away. After some
time, four accused persons including the petitioner came
running towards Keenan and his group. The petitioner was
carrying big knife and accused no.2 was also carrying a knife.
The other two accused were also armed with weapons. On
seeing them, PW 1, and other girls who were with her, ran
towards the steps of the restaurant and stood there. They were
very frightened. Then the petitioner started stabbing Keenan in
the stomach again and again. Keenan fell down on the foot-
path and started bleeding. The co-accused no.2 stabbed Ruben
in his stomach. Ruben fell on the foot-path. The other accused
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persons then attacked the other two boys i.e. Benjamin and
Avinash. They screamed and shouted for help but nobody
came forward. Thereafter the petitioner and the other accused
persons ran away.
9 One of the grounds for rejecting the application of the
petitioner for furlough is that there is danger to the life of the
witnesses. It is seen that two of the witnesses are Panwala and
security guard who work in or near the restaurant where PW 1,
deceased and others in their group went to have dinner. Thus,
it is seen that these two witnesses are very much from the
same area where the petitioner is residing. Moreover, the facts
relating to the case in which the petitioner is involved, show
that the petitioner has tendency of taking revenge which can be
seen from the fact that when the deceased tried to question
him regarding the teasing of PW 1, the petitioner along with
other accused came back with deadly weapons and assaulted
the deceased persons. In fact, on account of the assault two
persons lost their lives. Thus, we find much merit in the order
of rejection which shows that there will be danger to the life of
the complainant and witnesses. Looking to the brazen act of
molestation on the part of the petitioner of PW 1 who is a young
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girl and other facts of this case, we find much merit in the order
of rejection and order dismissing the appeal on the ground that
there would be danger to the life of witnesses. Looking to all
these facts, we find that in the present case there is sufficient
material available before the authorities to reach the above said
conclusion that there would be danger to the life of witnesses if
the petitioner is released on furlough. It cannot be said that
there is no material to substantiate the police report. The act
of the petitioner shows that he is the kind of person who is most
likely to take revenge if he is released on furlough. Thus, as
stated earlier, we find that there is sufficient material before the
authorities to reach the conclusion that there would be danger
to the life of the complainant and witnesses, if the petitioner is
released, hence, we do not find it necessary to go into the other
grounds of rejection.
10 In view of the above, we are not inclined to grant
furlough, hence, petition is dismissed. Rule is discharged.
[ SANDEEP K. SHINDE, J.] [ SMT.V.K.TAHILRAMANI, J.]
kandarkar
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