Bombay High Court
Sudhakar Bajirao Kumbhar ... vs The State Of Maharashtra on 27 March, 2017
Bench: S.S. Shinde
303.2017 Cri.WP.odt
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO.303 OF 2017
Sudhakar s/o. Bajirao Kumbhar,
Convict No.4409,
Open District Prison, Paithan. PETITIONER
VERSUS
1. The State of Maharashtra
Through Police Station Erondal,
Tq. Erondal, Dist. Jalgaon.
2. The Dy. Inspector General, [Prison]
Aurangabad.
RESPONDENTS
...
Mrs.S.G.Chincholkar, [Appointed], Advocate
for the Petitioner
Mr.P.G.Borade, APP for Respondent/State
...
CORAM: S.S.SHINDE &
K.K.SONAWANE,JJ.
Reserved on : 22.03.2017
Pronounced on : 27.03.2017
JUDGMENT: (Per S.S.Shinde, J.):
1. Heard.
2. Rule. Rule made returnable
forthwith, and heard finally with the consent
of the parties.
303.2017 Cri.WP.odt
3. It is the case of the petitioner
that he is convict and undergoing life
imprisonment in the Open District Prison. He
applied for 14 days furlough leave from 13th
January, 2015 to 28th January, 2015, and
accordingly, the Competent Authority allowed
the prayer of the petitioner, and granted
furlough leave with effect from 13th January
2015 to 28th January, 2015. The petitioner
prayed for extension of furlough leave, and
accordingly, the Competent Authority extended
furlough leave for further 14 days i.e. till
11th February, 2015.
4. It is the specific case of the
petitioner that brother of the petitioner
namely Ambadas died on 31st January, 2015, and
his funeral and other rites were performed by
the petitioner i.e the 10th day [Dashkriya]
on 9th February, 2015, and 13th day on 12th
February, 2015. Due to aforesaid un-avoided
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circumstance, he could not report
back/surrendered on 11th February, 2015, and
surrendered on 12th February, 2015.
5. The learned counsel appearing for
the petitioner submits that, after the
petitioner surrendered to the Jail
Authorities, he applied for extension of
furlough leave of 1 day, however,
respondent no.2 turned down the request. It
is submitted that even the Sessions Court has
not properly considered the contention of the
petitioner and rejected the prayer for
extension of furlough leave of one day i.e.
12th February, 2015.
6. It is submitted that though
respondent authorities have power to deduct 5
days remission for each day of overstay by
the convict nevertheless the said power is to
be exercised judiciously and not arbitrarily.
The respondent authorities failed to take
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into consideration the reason for which the
petitioner had stayed back in his house on
11th and 12th February, 2015. In support of her
contention that the petitioner has to
overstay in his house for genuine reason, and
as a result he surrendered one day late,
ought to have been considered and accepted by
respondent authorities, by extending furlough
leave of one day. In support of aforesaid
contention, the learned counsel for the
petitioner placed reliance on observations
made by the Division Bench of the Bombay High
Court, Bench at Nagpur, in para 4 and 5 in
the case of Rajendra s/o.Shivaji Dongre Vs.
State of Maharashtra & Ors.1 and also further
placed reliance on the ratio laid down in the
case of Sheikh Said Sheikh Najir Vs. State of
Maharashtra & Anr.2. and in the case of Raju
Natthuji Dhengre Vs. State of Maharashtra &
Ors.3. Therefore, she submits that the
1 2013 All M.R. [Cri.] 2568
2 2011 [1] Bom.C.R. [Cri.] 76
3 2010 [1] Bom.C.R. [Cri.] 910
303.2017 Cri.WP.odt
petition deserves to be allowed.
7. The learned APP appearing for
respondent - State relying upon the averments
in the affidavit-in-reply, filed by one
Mr.Rajkumar Keshavrao Sali, working as
Superintendent of Open District Prison,
Paithan, District Aurangabad, made following
submissions:
8. The petitioner has undergone total
imprisonment of 24 years, 2 months and 16
days [till 28th February, 2017]. The
petitioner had applied for furlough leave,
while he was confined in Open District
Prison, Paithan, through letter No.4916/2014,
dated 9th October, 2014. Accordingly, the
Deputy Inspector General [Prison], Aurangabad
Region, Aurangabad, sanctioned furlough leave
for a period of 14 days under certain terms
and conditions, by its order dated 8th
January, 2015. It is further submitted that
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as per Chapter No.37 [Parole and Furlough to
prisoners] of the Maharashtra Prison Manual,
1979, after accepting and agreeing to the
stipulated terms and conditions in the said
order such as Form C Rule 10 and the
declaration before release on leave, the
petitioner was released from the prison for a
period of 28 days on 12th January, 2015 [From
14.01.2015 to 10.02.2015], as per prison's
letter No.183/2015, dated 12.01.2015 and the
petitioner was given written intimation to
surrender back in prison on 11.02.2015.
9. It is submitted that on 11th
February, 2015, the petitioner did not
surrender himself on due date. The petitioner
surrendered himself on 12th February, 2015,
instead of 11th February, 2015, due to which
he was accounted to be one days late from
furlough leave. As per the Prison Rules, a
show cause notice having No.1552/2015, dated
04.04.2015, was issued by 1 days to which he
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submitted his explanation. The learned APP
submits that even on earlier occasion when
the petitioner was released on furlough
leave, he did not surrender within time, and
thereby committed offence under Rule 10 [5]
of the Prison [Bombay Furlough and Parole]
Rules, 1959, and also as per the State
Government Circular No.JLM-1010/ Chapter No.
32/PRS2, Mantralaya, Mumbai, dated 2nd August,
2011. It was proposed that the petitioner be
punished by deducting 1:5 days of his
remission. The said punishment was judicially
appraised by the District Sessions Court,
Aurangabad. In addition to this, furlough
leave surety amount of Rs.2000/- was
confiscated and deposited in the Government
Treasury. Therefore, the learned APP submits
that the Petition may be rejected.
10. We have considered the submissions
of the learned counsel appearing for the
petitioner, and the learned APP appearing for
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the respondent-State. With their able
assistance, we have perused the pleadings and
grounds taken in the petition, annexures
thereto, reply filed by the respondents, and
the judgments cited across the Bar by the
learned counsel appearing for the petitioner.
Admittedly, the petitioner was released on
furlough leave for 14 days on 12th January,
2015. The petitioner applied for extension of
furlough leave, and accordingly, his prayer
was favourably considered and further 14 days
furlough leave was extended, till 11th
February, 2015. The petitioner surrendered
himself on 12th February, 2015, instead of
surrendering on 11th February, 2015. The
reasons given by the petitioner for overstay
of one day is explained in para 4 and 5 of
the Petition. There is no denial to the
factual position stated by the petitioner in
para 4 and 5, and also in ground Nos. IV and
V of the Petition. The reasons given by the
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petitioner for overstay of one day i.e. on
11th February, 2015 is that his brother
Ambadas died on 31st January, 2015, and 10th
day [Dashkriya] was on 9th February, 2015 and
13th day was on 12th February, 2015. The
petitioner performed ritual of 13th day i.e.
on 12th February, 2015 and surrendered /
reported back to the Jail on 12th February,
2015. Admittedly, there is one day delay in
reporting back to the Jail. The petitioner
did apply for extension of furlough leave of
one day, but the same was refused by the
respondent authorities.
11. Upon careful perusal of the reply
filed by the respondents and in particular
Exhibit-R5 Page 48 of the reply, it appears
that, the Superintendent, Open District
Prison, Paithan submitted proposal for
deduction of remission of 25 convicts for
their overstay when they were released on
furlough and parole. The name of the
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petitioners stands at serial no.12. For one
day's delay, deduction of 5 days remission,
approval is granted by the District Judge-6
and Additional Sessions Judge, Aurangabad.
12. In our opinion, keeping in view the
genuine reason stated by the petitioner for
his one day overstay as approved by the
District Judge-6 and Additional Sessions
Judge, Aurangabad, only 5 days remission
would have been deducted by the respondent
authorities.
13. In that view of the matter, we quash
and set aside the appraisal order dated
10.10.2016 [Exh.R-5 Page 48 with affidavit-
in-reply] to the extent of present petitioner
namely Sudhakar Bajirao Kumbhar [Convict No.
4409] at serial No.12 in the list of the
appraisal order.
14. We also set aside the consequential
action / order of the respondent authorities
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to confiscate the amount of Rs.2,000/-. We
direct respondent no.2 to consider afresh the
prayer of the petitioner to extend furlough
leave of one day i.e. on 11th February, 2015,
in the light of the discussion in the
foregoing paragraphs and also keeping in view
the judgments in the cases of Rajendra
s/o.Shivaji Dongre [cited supra], Sheikh Said
Sheikh Najir [cited supra] and also in the
case of Raju Natthuji Dhengre [cited supra],
as expeditiously as possible, however, within
8 weeks from today and communicate the said
decision to the petitioner.
15. With the above observations, the
Petition is partly allowed. Rule is made
absolute on above terms and the Writ Petition
stands disposed of accordingly.
16. Since, Mrs. S.G.Chincholkar, the
learned counsel is appointed to prosecute the
cause of the petitioner, her fees be paid as
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per the schedule of fees maintained by the
High Court Legal Services Sub-Committee,
Aurangabad.
[K.K.SONAWANE] [S.S.SHINDE]
JUDGE JUDGE
DDC
