Shivaji Ganeshrao Jawale ... vs The State Of Maharashtra
2017 Latest Caselaw 8206 Bom

Citation : 2017 Latest Caselaw 8206 Bom
Judgement Date : 13 October, 2017

Bombay High Court

Shivaji Ganeshrao Jawale ... vs The State Of Maharashtra on 13 October, 2017

Bench: S.S. Shinde

                                                                 cwp1010.17
                                        1


                                        
      IN  THE HIGH COURT OF JUDICATURE AT BOMBAY

                               BENCH AT AURANGABAD


             CRIMINAL WRIT PETITION NO.1010 OF 2017


 Shivaji s/o Ganeshrao Jawale,
 Age-Major, Occu:Prisoner,
 Presently Prisoner Convict No.10929,
 Nashik Road Central Prison,
 Nashik.
                                 ...PETITIONER 
        VERSUS             

 1) The State of Maharashtra,   

 2) The Additional Director
    General of Police and
    Inspector General Prison
    and Correction Service,
    M.S. Pune-1,

 3) The Deputy Inspector General,
    Central Prison, Harsool,
    Aurangabad,   
                                 ...RESPONDENTS

                      ...
    Ms. Varsha M. Bhagwat Advocate appointed for
    Petitioner.
    Mr. A.B. Girase Public Prosecutor for 
    Respondent Nos.1 to 3.       
                      ...


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

cwp1010.17

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 3rd April, 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, 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

cwp1010.17

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, furlough is not the right of

the convict. Accordingly, by invoking the

provisions of Rule 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.

4. There is no dispute that the police

report forwarded by the Superintendent of Police,

Parbhani is favourable to the Petitioner. 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

cwp1010.17

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]. It is further

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. Therefore, learned counsel submits 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

cwp1010.17

and also the relevant rules submits that, the

Petitioner's prayer to release him on furlough

leave has been rightly turned down. 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

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

cwp1010.17

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 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