Avinash Shashikant Sawant ... vs The State Of Maharashtra
2017 Latest Caselaw 8927 Bom

                                                  1396.2017 Cri.WP.odt
                                    1


               IN THE HIGH COURT OF JUDICATURE AT BOMBAY 
                          BENCH AT AURANGABAD

                CRIMINAL WRIT PETITION NO.1396 OF 2017 


          Avinash Shashikant Sawant 
          Age- 27 years, Occ-Nil, 
          C/o. Nashik Road Central Prison, 
          Nashik.                            PETITIONER

                     VERSUS 

          1.       The State of Maharashtra, 
                   Through Additional Director General 
                   of Prison and Inspector General of Prison
                   Maharashtra State, Pune-1. 

          2.       The Deputy Inspector General [Prison],  
                   Aurangabad.  

          3.       The Superintendent,  
                   Nashik Road Central Prison, Jail Road, 
                   Nashik Road, Nashik.         RESPONDENTS

                                ...
          Mr.Sanket N.Suryawanshi [Appointed], Advocate 
          for the Petitioner 
          Mrs.P.V.Diggikar,       APP      for      the 
          Respondent/State
                                ...


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

Reserved on : 15.11.2017 Pronounced on : 22.11.2017

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JUDGMENT: (Per S.S.Shinde, J.):

          1]               Heard. 


          2]               Rule.       Rule        made             returnable 

forthwith, and heard finally with the consent

of the parties.

3] It is the case of the petitioner

that the petitioner is undergoing life

imprisonment at Nashik Road Central Prison,

Nashik. The petitioner was convicted for the

offence punishable under Section 302 r/w. 34

of the Indian Penal Code and sentenced to

suffer life imprisonment and fine of Rs.

10,000/-. The punishment was also imposed

for the offence punishable under Section 392

r/w. 397 and the petitioner was sentenced to

suffer seven years of imprisonment and fine

of Rs.10,000/-. The punishment under Section

452 r/w. 34 of the IPC of one year

imprisonment and fine of Rs.2,000/- is also

imposed on the petitioner. The petitioner was

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arrested on 09.10.2009, and since then he is

in jail. On 04.08.2012, the petitioner was

released on furlough, and on completion of 14

days period of furlough, the petitioner on

his own surrendered in the Nashik Road

Central Prison on 19.08.2012. Again with

effect from 11.09.2015 till 12.10.2015, the

petitioner was released on parole, and after

completion of said period, the petitioner

himself surrendered in prison.

4] It is further the case of the

petitioner that he has challenged his

conviction by filing an appeal at the

principal seat at Bombay High Court, and same

is pending for adjudication. In the year

2016, the petitioner applied for furlough.

Thereafter, the police report was called from

the Police Sub Inspector, Wakola, Mumbai. It

appears that the police report was adverse,

and it was stated in the police report that

the petitioner had threatened the complainant

1396.2017 Cri.WP.odt

and witnesses that he will see them. The

police report mentioned that if the

petitioner is released on furlough; he may

cause trouble to the complainant, witnesses

and their families. There is also possibility

of commission of serious offence/ofences if

released on parole/furlough. Respondent no.3

also did not recommend the case of the

petitioner for furlough. In the light of

adverse police report, the request of the

petitioner for furlough was rejected by

respondent no.2, vide order dated 22.02.2017.

5] It is further the case of the

petitioner that thereafter the petitioner

filed an appeal to respondent no.1

challenging the order of refusal of furlough.

The appeal came to be rejected by respondent

no.1 vide order dated 21.07.2017. It is

mentioned in the said order that the police

report is adverse to the petitioner, the

appeal filed by the petitioner is pending in

1396.2017 Cri.WP.odt

the High Court, and the petitioner had

threatened the complainant and witnesses that

he will see them, if he is released on

furlough. He may likely to cause danger to

the life of the family members of the

witnesses and panchas, and also may involve

in the commission of serious offences against

human body. It is also mentioned in the

impugned order that the petitioner is

convicted for the offence punishable under

Section 392 r/w. 397, and hence under Rule 4

[2] of the Prisons [Bombay Furlough and

Parole] Rules, 1959, the petitioner is not

entitled for furlough leave.

6] The learned counsel appearing for

the petitioner submits that the entire

approach on the part of respondent in

refusing furlough to the petitioner is

arbitrary and unreasonable. The respondents

have misread the Rules and have erroneously

placed reliance on the adverse report. It is

1396.2017 Cri.WP.odt

a matter of record that the petitioner was

earlier released in the year 2012 on furlough

and in the year 2015 on parole, no any

untoward incident has been happened during

the said leave period. The petitioner has

surrendered in the jail within time. In this

view of the matter the reliance placed by the

respondent on the adverse report from Wakola

Police Station is unwarranted and

unreasonable and the same is unsustainable in

law and facts of the case. The petitioner has

already undergone 7 years imprisonment till

date. The petitioner has not committed any

prison offence, or he has not committed any

offence while he was either on parole or

furlough. Therefore, the impugned orders

passed by the authorities thereby refusing

furlough to the petitioner are unsustainable,

and the same are liable to be quashed and set

aside. The impugned order refusing to grant

furlough to the petitioner in the peculiar

1396.2017 Cri.WP.odt

facts and circumstances is arbitrary and the

same is contrary to the Prisons [Bombay

Furlough and Parole] Rules, 1959. Non

application of mind on the part of respondent

no.1 is writ large on face of record and the

relevant considerations have been ignored by

the respondents while refusing furlough. The

approach on the part of respondent no.3 in

not recommending the case of the petitioner

for furlough is therefore arbitrary and

unreasonable.

7] In support of the contentions raised

in the Petition, the learned counsel

appearing for the petitioner placed reliance

on the ratio laid down in the cases of Sanjay

Kisan Kadse Vs. State of Maharashtra &

others1, Balu Rangnath Chintamani Vs. The

State of Maharashtra in Criminal Writ

Petition No.787 of 2017 with connected

Criminal Writ Petition decided on 28.07.2017

1 2004 [1] Bom.C.R. [Cri.] 758

1396.2017 Cri.WP.odt

and Ishwarsinh M.Rajput Vs. State of

Gujarat2.

8] On the other hand, learned APP

appearing for the respondent-State, relying

upon the reasons assigned in the impugned

order passed by respondent no.2, submits that

it is mentioned in the police report received

from the Police Inspector, Wakola Police

Station, Mumbai that the petitioner has given

threats to the witnesses. Therefore, in case

the petitioner is released on furlough, he

may commit serious offences. The petitioner

is convicted of the offences punishable under

Sections 392 r/w.397 of the Indian Penal

Code, and therefore, he cannot be released on

furlough / parole.

9] We have considered the submissions

of the learned counsel appearing for the

petitioner and the learned APP appearing for

the respondent-State. With their able 2 [1990] 2 GLR 1365

1396.2017 Cri.WP.odt

assistance, we have perused the pleadings in

the Petition, annexures thereto, the reasons

assigned by respondent no.2 in the impugned

order and the relevant record in respect of

the release of the petitioner in past on

furlough / parole. Upon careful perusal of

the information furnished by the

Superintendent, Nashik Road Central Prison,

Nashik, it appears that the petitioner has

undergone 7 years, 10 months and 8 days

imprisonment as on 24th August, 2017. It

further appears that he was released on

furlough on 4th August, 2012 for 14 days and

on his own, he reported back to the Jail on

19th August, 2012 within time. The petitioner

was again released on 11th September, 2015 on

furlough, and he reported back to the jail on

his own on 12th October, 2015 within time. The

respondents have not placed any incriminating

material on record to show that in case the

petitioner is released on furlough / parole,

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he may indulge in commission of some offences

or there is danger to the life of the

witnesses. As already observed, when the

petitioner was released twice in part, there

was no any untoward incident, and also the

petitioner did not misuse the liberty,

secondly, the petitioner has undergone more

than 7 years imprisonment. He was convicted

for the offence punishable under Sections 392

r/w. 397 of the IPC for 7 years and fine

amount of Rs.10,000/- and in default to

undergo one month imprisonment. Since the

petitioner has already undergone more than 7

years imprisonment/sentence, which was

ordered for commission of the offence under

Section 392 r/w.397 of the IPC, in view of

the judgment of the Division Bench of the

Bombay High Court at Principal Seat in the

case of Gorakh @ Baba Patole Vs. Government

of Maharashtra and others3, the petitioner's

3 [1993] 2 Mh.L.J. 1423

1396.2017 Cri.WP.odt

prayer to release him on furlough / parole

could not have been turned down. Para 3 of

the said judgment reads as under:

3. It will be seen from the above Rule that while the prisoner convicted of an offence of robbery under section 397 of the Indian Penal Code is debarred from getting furlough, the prisoner convicted of an offence of murder under section 302 of the Indian Penal Code is not. The two offences are quite distinct for which different punishments have been prescribed. Only because these two offences have been committed in one incident and, therefore, tried in one case, they do not cease to be distinct. Section 31 of Criminal Procedure Code provides that when a person is convicted at one trial of two or more offences, the Court can sentence him for such offences to the different punishments prescribed therefor. Such punishments when consisting of imprisonment commence consecutively i.e. one after the expiry of the other. But the Court has discretion to order them to run concurrently. Only because the court exercised the discretion of ordering the sentences to run concurrently, the independent character of those sentences does not

1396.2017 Cri.WP.odt

disappear. On undergoing the imprisonment of seven years, the petitioner would cease to be a convict under section 397, Indian Penal Code. Had he been convicted only of offence under section 397, he would have been a free bird. His continuation in the portals of jail is because of sentence under section 302, Indian Penal Code. He does not continue to be prisoner falling under category (2) of Rule 4 only because of concurrent nature of the other sentence undergoing which does not disqualify him from furlough leave. Contrary interpretation of Rule 4 (2) would be against the letter as well as spirit of the Rules. Thus, in our view, the furlough cannot be denied to the petitioner only on the ground that he continues to be in jail as a result of concurrent sentence for other offence.

[Underlines added]

10] In that view of the matter and

keeping in view the fact that when the

petitioner was released twice on

furlough/parole in the year 2012 and 2015

respectively, he reported back to the jail on

his own within time, we are inclined to allow

1396.2017 Cri.WP.odt

this Petition. Accordingly, the Petition is

allowed in terms of prayer (b) and (c). Rule

is made absolute on above terms. The

respondents to release the petitioner on

furlough on completion of procedural

formalities, as expeditiously as possible,

however, within two weeks from the receipt of

this order.

11] The registry to send the copy of

this order to the Superintendent, Nashik Road

Central Prison, Nashik.

12] In addition to that, the learned APP

assures this Court that copy of this order

will be sent to the Superintendent, Nashik

Road Central Prison, Nashik forthwith.

13] We appreciate the sincere efforts

taken and able assistance rendered by

Mr.Sanket N. Suryawanshi, learned counsel

appointed for the petitioner. Since,

Mr.Sanket N. Suryawanshi, the learned counsel

1396.2017 Cri.WP.odt

is appointed to prosecute the cause of the

petitioner, his fees be paid as per the

schedule of fees maintained by the High Court

Legal Services Sub-Committee, Aurangabad.

              [MANGESH S.PATIL]           [S.S.SHINDE]
                  JUDGE                      JUDGE  
          DDC