Rajesh Bhikaji Gade (C-10429) vs The State Of Maharashtra
2017 Latest Caselaw 8204 Bom

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      IN  THE HIGH COURT OF JUDICATURE AT BOMBAY

                               BENCH AT AURANGABAD


             CRIMINAL WRIT PETITION NO.1015 OF 2017


 Shri Rajesh Bhikaji Gade,
 Age-Major, Occu:Nil,
 R/o-Circle No.4/1,
 Nashik Road Central Prison,
 Tq. & Dist-Nashik,
 Presently, Prisoner No.10429,
 Central Prison, Nashik.
                                 ...PETITIONER 
        VERSUS             

 1) The State of Maharashtra,
    Through its Secretary,
    Home Department, Mantralaya,
    Mumbai-400 032,
    
 2) Inspector General of Prisons,
    Maharashtra State, Pune-1,

 3) The Deputy Inspector General of Prisons,
    Aurangabad Division,
    Dist-Aurangabad,

 4) The Superintendent Police, 
    Central Prison, Nashik.   
                                 ...RESPONDENTS

                      ...
    Mr. Y.D. Kale Advocate appointed for
    Petitioner.
    Mr. A.B. Girase, Public Prosecutor for   
    Respondent Nos.1 to 4.       
                      ...



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               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 9th 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.

In the impugned order firstly it is observed that,

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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.

Secondly, 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). Thirdly, it is mentioned in the

impugned order that the report submitted by the

Additional Superintendent of Police, Sub-Division,

Ambajogai, is adverse stating that if the

Petitioner is released on furlough there may be

danger to the life of the informant and also to

the witnesses. Accordingly, by invoking the

provisions of Rule 4(4) and 4(11) 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. Learned counsel appearing for the

Petitioner submits that merely because appeal

filed by the Petitioner against conviction and

sentence is pending, is no ground to deny him the

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]. Learned counsel further submits that the

ratio in the case of Smt. Rubina Suleman Memon,

supra, is not applicable in the facts of the

present case, as the Petitioner therein was

convict under the Terrorist and Destructive

Activities Act, 1987 and wife of brother of Yakub

Abdul Razak Menon. Learned counsel invited our

attention to the adverse police report and

submitted that the same cannot be taken into

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consideration as the same is too general in

nature. Therefore, it is submitted that the

Petition deserves to be allowed.

5. Learned Public Prosecutor relying upon

the affidavit-in-reply filed by the

Superintendent, Nashik Road Central Prison, Nashik

and also the relevant rules and the reasons stated

in the report received from the Additional

Superintendent of Police, Sub-Division, Ambajogai,

submits that Petitioner's prayer to release him on

furlough leave has been rightly turned down in

view of the reasons stated in the police report.

He further invites our attention to the reasons

assigned by the Respondent Authority while

rejecting the application of the Petitioner to

release him on furlough leave.

6. We have given careful consideration to

the submissions of the learned counsel appearing

for the Petitioner and learned A.P.P. appearing

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for the State. 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

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before the High Court is no ground to deny him 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. As rightly contended by learned counsel

appearing for the Petitioner, 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. However, the Petitioner is not convict under

the said Act.

9. In the light of above, the impugned order

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is quashed and set aside. The Petitioner to apply

afresh within TWO WEEKS with Respondent

authorities requesting to release him on furlough.

After receipt of such application, we direct the

Respondent Authorities to call fresh police report

within TWO WEEKS thereafter, and decide the

application of the Petitioner as expeditiously as

possible, however within TWO WEEKS from the date

of receipt of police report, without raising the

same objections/grounds raised in the impugned

order.

10. Rule made absolute in above terms. The

Writ Petition stands disposed of, accordingly.

11. We appreciate the sincere efforts taken

by learned counsel Mr. Y.D. Kale 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 Mr.

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Y.D. Kale, learned counsel 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, J.] [S.S. SHINDE, J.] asb/OCT17