Bombay High Court
Roshan @ Chini Danichand Thakur ... vs The State Of Maharashtra on 13 October, 2017
Bench: S.S. Shinde
cwp1232.17
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO.1232 OF 2017
Roshan alias Chini Danichand Thakur,
Convict No.9539,
Age-Major, Occu:Nil,
R/o-Nashik Road Central Prison,
Nashik.
...PETITIONER
VERSUS
1) The State of Maharashtra,
Through Home Department,
Through its Chief Secretary,
2) Inspector General of Prisons,
Mumbai, Maharashtra,
3) Deputy Inspector General of Prisons,
Central Region, Aurangabad,
4) Superintendent,
Nashik Road Central Prison,
Nashik.
...RESPONDENTS
...
Ms. Nihareeka S. Godsay Advocate appointed for
Petitioner.
Mrs. P.V. Diggikar, A.P.P. for Respondent
Nos. 1 to 4.
...
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cwp1232.17
2
CORAM: S.S. SHINDE AND
MANGESH S. PATIL, JJ.
DATE OF RESERVING JUDGMENT : 10TH OCTOBER, 2017.
DATE OF PRONOUNCING JUDGMENT: 13TH OCTOBER, 2017.
JUDGMENT [PER S.S. SHINDE, J.]:
1. Rule. Rule made returnable forthwith and
heard finally with the consent of the learned
counsel appearing for the parties.
2. This Petition takes exception to the
order dated 20th May, 2017 passed by the Deputy
Inspector General of Prisons, Central Region,
Aurangabad, thereby rejecting the request of the
Petitioner to release him on furlough.
3. It is the case of the Petitioner herein
that he applied for furlough, however, by the
impugned order his application has been rejected.
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In the impugned order it is observed that, the
report given by the Deputy Superintendent of
Police, Palghar is adverse. Secondly, if the
Petitioner is released on furlough there may be
danger to the life of the family members of the
informant and also the witnesses. Thirdly, as the
appeal filed by the Petitioner challenging the
conviction and sentence, is pending before the
High Court, in view of the Notification dated 26th
August, 2016 issued by the Home Department, State
of Maharashtra, furlough cannot be granted.
Fourthly, furlough cannot be granted to the
Petitioner in view of the order passed by the High
Court in Writ Petition No.4017 of 2016 (Smt.
Rubina Suleman Memon vs. The State of Maharashtra
and others). Accordingly, by invoking the
provisions of Rule 4(4), 4(11) and 4(17) of
Chapter 37 of the Prisons (Bombay Furlough and
Parole) Rules, 1959 (for short "the Rules of
1959), the application of the Petitioner has been
rejected.
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4. There is no denial to the assertion of
the Petitioner that the Petitioner was earlier
released twice on parole and once on furlough and
there was no harm caused by the Petitioner's
presence in the society. Learned counsel for the
Petitioner submits that earlier when the
Petitioner was released on parole/furlough, he did
not misuse the liberty granted to him. It is
submitted that the ratio in the case of Smt.
Rubina Suleman Memon, supra, is not applicable in
the facts of the present case, in as much as the
Petitioner therein was convict under the Terrorist
and Destructive Activities Act, 1987 (for short
"TADA Act") and wife of brother of Yakub Abdul
Razak Menon. The Petitioner herein is not convict
of the offence punishable under the provisions of
TADA Act. Learned counsel further submitted that
merely because appeal against conviction and
sentence is pending, is no ground to deny the
furlough in view of the orders passed by the
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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].
5. Learned A.P.P., referring to the relevant
rules and the reasons stated in the report
received from the Deputy Superintendent of Police,
Palghar, submits that the prayer of the Petitioner
to release him on furlough has been rightly turned
down in view of the reasons stated in the police
report. Learned A.P.P. further invites our
attention to the reasons assigned by the
Respondent Authority while rejecting the
application of the Petitioner to release him on
furlough.
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6. We have given careful consideration to
the submissions of the learned counsel appearing
for the Petitioner and learned A.P.P. appearing
for the State. As rightly contended by learned
counsel appearing for the Petitioner, the record
shows that earlier when the Petitioner was
released on parole/furlough, he did not misuse the
said liberty granted to him and also reported back
to the jail within time. Secondly, the ratio in
the case of Smt. Rubina Suleman Memon, supra, is
not applicable in the facts of the present case,
in as much as the Petitioner therein was convict
under the TADA Act. However, the Petitioner herein
is not convict under said Act.
7. 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,
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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."
8. 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 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.
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9. For the reasons afore-stated, in our
opinion, the Petition deserves to be allowed.
Accordingly, the Writ Petition is allowed in
terms of prayer clause "B)". We direct the
Respondents to release the Petitioner on furlough,
after completion of usual procedural formalities,
and shall not deny the same on the grounds
mentioned in the impugned order.
10. Rule made absolute on above terms. The
Writ Petition stands disposed of, accordingly.
11. We appreciate the sincere efforts taken
by learned counsel Ms. Nihareeka Godsay in
promptly preparing the memo of the Petition,
filing the same within time and extending able
assistance during the course of hearing of the
Petition so as to reach to the correct conclusion.
Since Ms. Nihareeka Godsay, learned counsel is
appointed to prosecute the cause of the
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petitioner, her fees be paid as per the schedule
of fees maintained by the High Court Legal
Services Sub-Committee, Aurangabad.
[MANGESH S. PATIL, J.] [S.S. SHINDE, J.]
asb/OCT17
