Hariom Vijay Pandey (C-8617) vs The State Of Maharashtra
2017 Latest Caselaw 8212 Bom

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      IN  THE HIGH COURT OF JUDICATURE AT BOMBAY

                               BENCH AT AURANGABAD


             CRIMINAL WRIT PETITION NO.1237 OF 2017


 Hariom Vijay Pandey,
 Age-36 years, Occu:Prisoner,
 Convict No.C-8617,
 R/o-At Post-Kharhani, Tahsil-Mahnagar,
 Dist-Azamgarh, Uttar Pradesh,
 At present: In Nashik Road Central Prison,
 Nashik
                                 ...PETITIONER 

        VERSUS             

 1) The Superintendent,
    Nashik Road Central Prison,
    Nashik,

 2) The Divisional Commissioner,
    Nashik Division, Nashik,

 3) The Sr. Jailor,
    Parole & Furlough Dept. In-charge,
    Nashik Road Central Prison,
    Nashik.   
                                 ...RESPONDENTS

                      ...
    Ms. Harshita M. Manglani Advocate appointed
    for  Petitioner.
    Mrs.V.N. Patil-Jadhav, A.P.P. for Respondent
    Nos. 1 to 3.       
                      ...




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

DATE OF RESERVING JUDGMENT : 12TH 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. The Petition is filed with following

prayers:

"b. Order and sanction leave extension

for two days,

c. Quash and declare the complaint

(F.I.R.) lodged by respondent no.1 and 3

against the petitioner u/s 224 of the

I.P.C. at Nashik Road police station

vide C.R. No.00/17 dated 10/06/2017 as

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null and void and devoid of any merit or

substance in the interest of justice.

d. Issue a writ in the nature of

Mandamus or any other appropriate writ

order or direction under Article 226 and

227 of the Constitution of India

directing to release the Petitioner

immediately on furlough leave as he has

already completed the surety bond

formalities of the same."

3. The background facts giving rise to file

this Petition, in nut-shell are as under:-

A) The Petitioner is a citizen of India by

birth a permanent resident of Kharihani, Tehsil-

Mehnagar, Dist-Azamgarh, State-Uttar Pradesh and

that he is survived by his wife and children.

B) The Petitioner was convicted by learned

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Sessions Judge, Sessions Court at Dindoshi, Mumbai

for offence punishable under Section 302 of the

Indian Penal Code (for short "I.P. Code) and was

sentenced to suffer life imprisonment vide

Judgment and order dated 16th December, 2010. The

Petitioner was not on bail during pendency of

trial and since his arrest on 16th March, 2009, he

is in jail and is presently serving imprisonment

at Nashik Road Central Prison.

C) The Petitioner had been previously

released on furlough leave on one occasion and had

surrendered back on the due date.

D) The Petitioner had also been released on

parole leave on 9th May, 2017 and was supposed to

surrender to prison on 9th June, 2017 on

completion of his leave period, but due to

unavoidable circumstances, as the Petitioner fell

severely ill and was unable to undertake a journey

of two days, hence on regaining fitness, he

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surrendered back to prison and in the process was

late by two days.

E) The Petitioner had also contacted the

office of the Divisional Commissioner (Respondent

No.2) through a telephonic conversation and had

pleaded for relief and had asked whether he could

be granted parole leave extension for two days or

so since he was ill and unable to surrender but

the authorities clearly declined and stated that

as the Petitioner has approached the High Court

for leave, he should approach the High Court again

for the extension too.

F) The Petitioner had also contacted and

intimated Prison Authorities (Respondent Nos.1 and

3) regarding his inability to surrender back in

time from parole leave through a telephonic

message, and had clearly informed that he would be

surrendering back on 11th June, 2017 as it takes

two days to complete the journey back to the

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prison from his State i.e. Uttar Pradesh, but even

then the prison authorities unnecessarily lodged a

totally baseless complaint against him at Nashik

Road police station, vide C.R. No.00/17 dated 10th

June, 2017 under Section 224 of the I.P. Code.

G) The Petitioner had also applied for

furlough leave and had been sanctioned the same

vide order dated 8th May, 2017 by the Sanctioning

Authority and that while returning from parole

leave, the Petitioner had completed the required

surety formalities for the same and had brought

along the Bond papers for his subsequently release

on furlough leave.

H) The Petitioner was denied release on furlough

leave by Respondent Nos.1 and 3 and was rather

told that he would first have to procure bail in

the case registered by them under Section 224 of

the I.P. Code and then only he would be released

on furlough.

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I) The Petitioner was denied release on

furlough by the prison authorities by them citing

amended Rule 4 Sub rule (11) of the Bombay

(Furlough and Parole) Rules, 1959 vide

Notification dated 26th August, 2016 wherein it is

mentioned and inserted that prisoners whose appeal

against conviction is pending or who have any case

pending against them in any Court of law shall not

be eligible for release on furlough unless the

concerned Courts have granted bail in the said

cases.

J) The Petitioners thereafter the prison

authorities through his application dated 4th

August, 2017 explaining that he did not have and

second case pending against him in any Court of

law and as the prison authorities too did not

possess any warrant (production or remand) issued

by any Court in connection with any second case

pending against him in any Court of law, the

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action of Respondent Nos.1 and 3 of preventing the

Petitioner's release on furlough was clearly

illegal, illogical and dictatorial and that the

Petitioner had requested to release him on

furlough.

K) Even after explaining the legal point of

view and the correct meaning of the rules,

Respondent Nos.1 and 3 refused to acknowledge the

same and once again informed the Petitioner that

they would not release him on furlough till he

procures bail in the complaint lodged by them

under Section 224 of the I.P. Code.

4. On the above grounds the Petitioner has

filed this Petition and prayed for the reliefs as

afore mentioned.

5. Learned counsel appearing for the

Petitioner submits that the Petitioner was

released on Parole on 9th May, 2017 and he was

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supposed to surrender back to the prison on 9th

June, 2017. It is submitted that the Petitioner

suddenly fell ill, he could not surrender back to

the jail within time and he surrendered late by

two days. It is submitted that the Petitioner has

also contacted the office of the Divisional

Commissioner and jail authorities through a

telephonic conversation and prayed for extension

of parole for two days, but his request was not

favourably considered. In support of her

contentions, learned counsel invites our attention

to the medical report of the Petitioner from

Adarsh Pathology Centre, Kharihani, Azamgarh,

Uttar Pradesh and the prescription given by the

Medical Officer Dr. M.K. Vishwakarma of "Ashirwad

Chikitsalaya", Kharihani, Azamgarh.

6. Learned counsel appearing for the

Petitioner submitted that, the Petitioner was

supposed to surrender back to the jail on 9th

June, 2017 and as he did not report back on due

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date, the jail authorities lodged Crime No.00/17

against the Petitioner for the offence under

Section 224 of the I.P. Code. It is submitted that

there was no mens rea on the part of the

Petitioner to commit offence under Section 224 of

the I.P. Code. Learned counsel pressed into

service the exposition of law by the Division

Bench of this Court (CORAM S.S. SHINDE AND A.M.

DHAVALE, JJ) in the case of Ashishrao Venkatrao

Phad vs. State of Maharashtra and others (Criminal

Writ Petition No.904 of 2017), dated 14th

September, 2017, and submits that in the said

Judgment this Court has taken a view that for

every offence mens rea is an essential ingredient

and in case of delay in returning to jail, it is

difficult to draw a line when the mens rea can be

assumed. It is submitted that in the said Judgment

this court has occasion to consider the Circular

dated 1st January, 2015 issued by the Home

Department, Government of Maharashtra, of which

reference is made in Para 15 of the Judgment and

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after adverting to the said circular, this Court

has observed that, in case of furlough, if the

convict does not return on 29th day and in case of

parole he does not return on 91st day, crime

should be registered against him u/s. 224 of the

IPC. It is observed that the said Circular refers

to assumption of extension of furlough or parole

even though such furlough or parole might not have

been granted. The Circular gives due weightage to

the expectancy of the convict to get extension of

furlough or parole.

7. Learned counsel submitted that the

Petitioner prayed for extension of parole leave

and under expectation and due to illness was

required to overstay for two days and then instead

of 9th June, 2017, he reported back to jail on

11th June, 2017. It is submitted that the

Petitioner has reported back to the jail on 32nd

day after his release. After completion of maximum

period of parole for 90 days if the convict fails

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to report back to the jail, on 91st day crime

could be registered against him under Section 224

of the I.P. Code. Therefore, it is submitted that

the crime registered against the Petitioner is

liable to be quashed.

8. Learned counsel appearing for the

Petitioner submitted that the Respondent

authorities rejected the application of the

Petitioner to release him on furlough relying upon

Rule 4(11) of the Prisons (Bombay Furlough and

Parole) Rules, 1959, amended as per the

Notification dated 26th August, 2016. Learned

counsel further submits 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 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

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Writ Petition No.462 of 2017 [Abdul Rajjak Sheikh

Abdul Nabi Shah vs. Divisional Commissioner,

Nagpur and others]. Learned counsel submits that

the Petition deserves to be allowed.

9. On the other hand, learned A.P.P.

appearing for the State, invites our attention to

the affidavit-in-reply filed by one Rajkumar

keshavrao Sali, serving as Superintendent, Nashik

Road Central Prison, and the annexures thereto and

submits that the Petition may be rejected.

10. We have given anxious consideration to

the submissions made by the learned counsel

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

appearing for the State, and with their able

assistance perused the averments in the Petition,

grounds taken therein, annexures thereto, reply

filed by the Respondents and the exposition of law

in the cases cited by the learned counsel

appearing for the respective parties.

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11. So far as the contention of the learned

counsel appearing for the Petitioner that no FIR

should have been registered against the Petitioner

taking recourse to the provisions of Section 224

of the I.P. Code is concerned, it may be apt to

reproduce herein below Para 15 from the Judgment

of the Division Bench of this Court, in the Case

of in the case of Ashishrao Venkatrao Phad vs.

State of Maharashtra and others (Criminal Writ

Petition No.904 of 2017), cited supra:

"15. For every offence, mens rea is an essential ingredient and in case of delay in returning to Jail, it is difficult to draw a line when the mens rea can be assumed. Therefore, the State of Maharashtra has issued guidelines by letter dt. 29.06.2013. The Government has taken a wise decision in considering the maximum period permissible to be enjoyed by a convict either as a furlough or parole

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for considering the mens rea of the convict and the action to be taken against him for committing offence u/s. 224 of the IPC. The guiding instructions disclose that the convict is entitled for furlough of 14 days with additional furlough extension of 14 days. In case of parole, the maximum period at one time can be 30 days, which can be extended twice so as to grant maximum period of parole for 90 days. If the application is moved by the convict for extension of furlough or parole and same is rejected and still he does not return to the Jail, FIR should be lodged against him u/s. 224 of the IPC. The Circular dt. 01.01.2015 shows that, in case of furlough, if the convict does not return on 29th day and in case of parole he does not return on 91st day, crime should be registered against him u/s. 224 of the IPC. This Circular refers to assumption of extension of furlough or parole even though such furlough or parole might not have been granted. This Circular gives due

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weightage to the expectancy of the convict to get extension of furlough or parole but at the same time due caution is taken that such expectation cannot be beyond the permissible period."

12. If the facts of the case of the

Petitioner are carefully perused, the Petitioner

was released on parole on 9th May, 2017 and he was

required to surrender back to the prison on 9th

June, 2017. But he failed to surrender in time and

surrendered late by two days, i.e. on 11th June,

2017. It appears that immediately on 10th June,

2017, Crime No.00/17 was registered against the

Petitioner for the offence under Section 224 of

the I.P. Code. In the first place, keeping in view

the medical papers placed on record by the

Petitioner and the fact that he surrendered late

by only two days, it cannot be said that there was

mens rea on the part of the Petitioner or there

was deliberate omission to return to the jail. As

observed by this Court in Para 15 of the Judgment

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in the case of Ashishrao Venkatrao Phad vs. State

of Maharashtra and others (Criminal Writ Petition

No.904 of 2017), cited supra, already reproduced

herein above, if the convict is released on

parole, and the application is moved by the

convict for extension of parole and the same is

rejected and still he does not return to the Jail,

on 91st day FIR should be lodged against him under

Section 224 of the I.P. Code. In the present case

admittedly the Petitioner applied for extension of

parole and reported back to the jail on 32nd day.

As already observed the Petitioner has placed on

record medical papers regarding his ailment and

and also there was delay of only two days, the

explanation given by the Petitioner deserves

acceptance.

13. In the peculiar facts and circumstances

of this case and keeping in view the material on

record, we are of the opinion that there was no

deliberate omission on the part of the Petitioner

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to return to jail and therefore the Petition

deserves to be allowed in terms of prayer clause

"b" and "c".

14. Upon perusal of the affidavit-in-reply

filed by the Respondents, it is stated in the

reply that since the appeal filed by the

Petitioner challenging his conviction is pending

before the High Court, in view of the provisions

of Rule 4(11) of the Prisons (Bombay Furlough

and Parole) Rules, 1959, amended as per the

Notification dated 26th August, 2016,

furlough/parole cannot be granted to him. Another

reason given by the Respondents is that Cr.

No.00/17 for the offence under Section 224 of the

I.P. Code is registered against the Petitioner at

Nashik Road Police Station. Since we are allowing

the Petition in terms of prayer clause "b" and

"c", the second ground of registration of FIR

would not survive.

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15. So far as the reason stated by the

Respondents that appeal filed by the Petitioner

against his conviction is pending before the High

Court is concerned, as rightly submitted by the

learned counsel appearing for the Petitioner,

merely because appeal against conviction and

sentence is pending, is no ground to deny 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].

16. In the light of discussion herein above,

the Writ Petition is allowed in terms of prayer

clause "b" and "c". So far prayer clause "d" is

concerned, we grant liberty to the Petitioner to

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file application afresh requesting to release him

on furlough. If such application is filed by the

Petitioner, the Respondent authorities to decide

the same as expeditiously as possible, however

within TWO WEEKS from the date of filing such

application, ignoring that aforementioned Crime

No.00/17 was registered against him and secondly

his appeal is pending before the High Court.

17. Rule is made absolute in above terms. The

Writ Petition stands disposed of, accordingly.

18. We appreciate the sincere efforts taken

by learned counsel Ms. Harshita Manglani 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. Harshita Manglani, learned counsel is

appointed to prosecute the cause of the

petitioner, her fees be paid as per the schedule

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of fees maintained by the High Court Legal

Services Sub-Committee, Aurangabad.

[MANGESH S. PATIL, J.] [S.S. SHINDE, J.] asb/OCT17