Bombay High Court
Dinesh S/O. Sahebrao Kadam ... vs The State Of Maharashtra And Anr on 13 October, 2017
Bench: S.S. Shinde
cwp1104.17
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO.1104 OF 2017
Dinesh s/o Sahebrao Kadam,
(C-7576),
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.
...RESPONDENTS
...
Mr. Rupesh A. Jaiswal Advocate appointed for
Petitioner.
Mr. A.B. Girase, Public Prosecutor for
Respondent Nos.1 and 2.
...
CORAM: S.S. SHINDE AND
MANGESH S. PATIL, JJ.
DATE OF RESERVING JUDGMENT : 10TH OCTOBER, 2017.
DATE OF PRONOUNCING JUDGMENT: 13TH OCTOBER, 2017.
cwp1104.17
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.
In the impugned order it is observed that, the
Petitioner filed application for furlough after
26th August, 2016. 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
cwp1104.17
of Maharashtra and others) 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 is not the right of the convict.
Accordingly, by invoking the provisions of Rule
4(11) 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.
4. There is no denial to the assertion of
the Petitioner that the Petitioner was earlier
released on parole and furlough four times each,
and on each occasion the Petitioner reported back
to the jail authorities within time. Learned
counsel for the Petitioner submits that earlier
when the Petitioner was released on
parole/furlough, he did not misuse the liberty
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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,
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 further submitted 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].
5. Learned Public Prosecutor, referring to
the relevant rules submits that, the prayer of the
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Petitioner to release him on furlough has been
rightly turned down in view of the reasons stated
in the police report. Learned Public Prosecutor
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
for the State. 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, and the Petitioner is not convict under
the said Act.
7. While rejecting the application of the
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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."
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
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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.
9. 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.
10. Rule is made absolute in above terms. The
Writ Petition stands disposed of, accordingly.
[MANGESH S. PATIL, J.] [S.S. SHINDE, J.]
asb/OCT17
