Krushna S/O. Dnyaneshwar Satpute ... vs The State Of Maharashtra And ...
2017 Latest Caselaw 8432 Bom

                                        1                Cri.W.P.1191-17.odt

      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                 BENCH AT AURANGABAD


            CRIMINAL WRIT PETITION NO.1191 OF 2017

     Krushna Dnyaneshwar Satpute (C-8219),
     Central Prison Aurangabad         ...  Petitioner

                      Versus

     1.      The State of Maharashtra
             Through D.I.G., Prisons,
             Aurangabad.  
     2.      The State of Maharashtra
             Through Superintendent Central Prison,
             Aurangabad.
     3.      The State of Maharashtra,
             Through I.G., Prisons,
             Pune.                                   ...  Respondents

                                ...
     Mr. R.A.Jaiswal, Advocate for Petitioner
     Mr. A.R.Kale, APP for Respondents - State 
                                ...

                                CORAM :  S.S.SHINDE AND
                                         MANGESH S. PATIL, JJ.

RESERVED ON : 31st October, 2017 PRONOUCED ON : 3rd November, 2017

JUDGMENT : (Per Mangesh S. Patil , J.) :-

Rule. The Rule is made returnable forthwith.

Heard finally by consent of learned advocates for the

2 Cri.W.P.1191-17.odt

parties.

2. This is a petition impugning the orders passed by

the Respondents rejecting petitioner's application for

Furlough Leave.

3. The petitioner, who is suffering imprisonment for

seven years for the offence punishable under Section

304 of the Indian Penal Code, applied for Furlough

Leave. However, his request was rejected by Respondent

No.2 by the order dated 12.01.2017 and the appeal

preferred by him has been rejected on 09.05.2017 by

Respondent No.1. As is apparent from the impugned

orders, the Furlough Leave has been refused on the

ground that there is an adverse report by police, the

surety does not possess any immovable property and

the petitioner is likely to threaten the original

complainant and witnesses if released on Furlough

Leave.

4. We have heard the learned Advocate for the

petitioner and the learned APP. We have also perused

the papers filed along with the petition and also the

3 Cri.W.P.1191-17.odt

affidavit-in-reply and the documents annexed thereof. It

is necessary to note that there is no dispute that

barring the grounds mentioned in the impugned orders,

the petitioner is otherwise eligible to be released on

Furlough Leave under Rule 4 of the Prisons (Bombay

Furlough and Parole) Rules, 1959. It is, therefore,

necessary to consider whether the grounds on which

the Furlough Leave has been refused have any basis and

are justified.

5. Primarily the objection is that there is an adverse

police report. However, time and again it has been laid

down that such adverse police report should come out

with some concrete material to enable the Court to

ascertain if really the apprehension entertained by the

police is justified or not. Suffice for the purpose to refer

to the recent decision of the Division Bench of this

Court to which one of us (Shri.S.S.Shinde, J.) was a

party in the case of Kisan Soma Rathod Vs. The State

of Maharashtra [2017 ALL MR (Cri.) 3561]. The

apprehension expressed by the police without any basis

4 Cri.W.P.1191-17.odt

cannot be a ground to refuse furlough / parole. There is

absolutely no material placed on the record as to what

are the reasons which weighed with police in submitting

the so called negative report. One cannot make out

even from the two impugned orders as to what exactly

the police had reported. Reference to such adverse

police report in both the orders is vague and cursory.

6. Similarly is the case with the apprehension being

expressed by the present authorities as regards the

likelihood of the petitioner threatening the original

complainant and the witnesses. Barring a bald

statement in the impugned orders, there is absolutely

no record to justify this apprehension. There is no

material to show that statements of the persons are

recorded by police and any independent inquiry is

conducted to draw such inference that the petitioner's

liberty would come in the way of safety of the

complainant and the witnesses. Infact even in the

impugned orders only a likelihood is expressed of

petitioner's threatening the complainant and the

witnesses. It is thus apparent that primarily the main

5 Cri.W.P.1191-17.odt

reasons for rejection of Furlough Leave to the petitioner

are not sustainable on facts and in law.

7. Under these circumstances, we are satisfied that

the petitioner ought to have been released on Furlough

Leave and there was no justifiable ground to refuse it.

The impugned orders are not sustainable in law and

deserves to be set aside.

8. The petition, therefore, deserves to be allowed in

terms of prayer clause 'B'. The Petition is allowed. The

rule is accordingly made absolute in prayer clause 'B'.

(MANGESH S. PATIL, J.) (S.S.SHINDE, J.)

...

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