Hariprasad Amruta Mandale ... vs The State Of Maharashtra
2017 Latest Caselaw 8465 Bom

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              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                         BENCH AT AURANGABAD


                     CRIMINAL WRIT PETITION NO.1249/2017



 Hariprasad Amruta Mandale
 Age Major, Occu : Convict No.9796,
 R/o : At present Nashik Road,
 Central Prison Nashik                         .. PETITIONER

          VERSUS

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

 2]       The Deputy Inspector General
          of Central Prison, Aurangabad.       .. RESPONDENTS

                              ...
 Adv.Mr.Amar V. Lavte (appointed) for petitioner
 APP Mr.S.P.Deshmukh for respondents 1 and 2.

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

DATE : 06/11/2017

ORAL JUDGMENT [PER S.S.SHINDE,J.] :-

Rule. Rule returnable forthwith. By consent of parties, Petition is heard finally.

2] This Petition seeks relief vide Prayer Clause "B" as under :

"B] By issuing writ of certiorari or in like nature the order dated 07/04/2017 passed by

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respondent No.2 rejecting the appeal filed by petitioner for his furlough leave may kindly be quashed and set aside and respondent be directed to release the petitioner on furlough leave."

3] Learned counsel appearing for the petitioner submits that the application of the petitioner to release him on furlough has been rejected on the basis of adverse report of Sub Divisional Police Officer, Omerga. There is no recommendation by Superintendent of Jail and thirdly, the appeal filed by petitioner against conviction is pending before the High Court. Learned counsel submits that none of the grounds is sustainable. In support of his contention that merely because appeal is pending before the High Court, could not have been ground to reject the application of the petitioner to release him on furlough. He placed reliance upon unreported judgment of this Court in the case of Criminal Writ Petition No.1104/2017 in the case of Dinesh S/o Sahebrao Kadam V/s State of Maharashtra and another in Criminal Writ Petition No.1104/2017 pronounced on 13/10/2017. It is submitted that when petitioner was earlier released on parole, he reported back to jail within time.

4] On the other hand, learned APP appearing for the State relied upon the reasons assigned in the impugned order and also averments in the affidavit in reply filed on behalf of the respondents and submits that the reasons assigned by the authorities are keeping in view Rule 4 (11) of the Prisons (Bombay Furlough and Parole) Rules, 1959 and also the report received from the concerned Police Officer and the Superintendent of Jail. Therefore, learned APP submits that Petition is devoid of any merit, the same may be rejected.

5] We have given careful consideration to the submissions of the

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counsel appearing for the petitioner and learned APP appearing for the State. Upon careful perusal of the reasons assigned by respondent authorities, it appears that the report of S.D.P.O. Omerga was not in favour of the petitioner, and secondly there was no recommendation from S.D.P.O. Omerga to release the petitioner on furlough leave. However, nothing is brought to the notice of this Court that the S.D.P.O. Omerga as a matter of fact has recorded statements of some witnesses and then reached to conclusion to submit adverse report against the petitioner. There is no denial to the contention of the counsel appearing for the petitioner, that when the petitioner was released earlier on parole, he reported back to jail voluntarily within time. Secondly, merely because the appeal filed by the petitioner against his conviction and same is pending before the High Court is no ground to reject the prayer to release petitioner on furlough. This Court in the case of Dinesh Kadam (supra) in paragraphs 7 and 8 of the same judgment held thus :

6] 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 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."

7] 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

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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.

8] In the light of above, the impugned order is quashed and set aside. We direct the Respondents 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, and shall not deny the same on the grounds/objections mentioned in the impugned order.

9] Rule is made absolute in above terms. The Writ Petition stands disposed of, accordingly.

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