Bombay High Court
Sudhakar Waman Sawant (C-7165) vs The State Of Maharashtra on 30 October, 2017
Bench: S.S. Shinde
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO.1044 OF 2017
Sudhakar s/o Waman Sawant (C-7165),
Age-Major, Occu:Cook in Prison,
R/o-Pimprala, Dist-Jalgaon,
At present: Central Prison,
Nashik Road, Nashik.
...PETITIONER
VERSUS
1) The State of Maharashtra,
Through its Secretary,
Home Department, Mantralaya,
Mumbai-400032,
2) The Inspector General of Prisons,
Maharashtra State, Pune-1,
3) The Deputy Inspector General
of Prisons, Aurangabad Division,
Dist-Aurangabad,
4) The Superintendent of Central Prison,
Nashik Road, Nashik.
...RESPONDENTS
...
Mr.Y.L. Bidve Advocate appointed for
Petitioner.
Mr.D.R. Kale, A.P.P. for Respondent
Nos.1 to 4.
...
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CORAM: S.S. SHINDE AND
MANGESH S. PATIL, JJ.
DATE : 30TH OCTOBER, 2017
ORAL 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 under Articles 226 227 of
the Constitution of India is filed with following
substantive prayer:
"B. By issuing writ of mandamus
or any other appropriate writ
order or directions in the like
nature this Hon'ble Court may be
pleased to quash and set aside
the impugned order dt.02/05/2017
passed by Respondent No.2 and
consequently by allowing this
petition grant Furlough to the
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petitioner."
3. Learned counsel appearing for the
Petitioner invites our attention to the reasons
assigned by Respondent No.2 in the impugned order
and submits that for genuine reasons, the
Petitioner overstayed for few days when he was
released earlier on parole/furlough. It is
submitted that on two occasions i.e. on 29 th
August, 2011, and on 22nd October, 2013, when
petitioner was released on furlough, the
Petitioner reported late by 5 and 7 days
respectively. It is submitted that on third
occasion when the Petitioner was released on
parole for thirty days on 5th July, 2014, he
overstayed for 119 days since he was suffering
from appendix and he was required to be treated
during the said period. It is submitted that on
account of overstay of the Petitioner, already
Respondent authorities have deducted the
remissions. It is submitted that the Division
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Bench of the Bombay High Court, Bench at Nagpur in
the case of Raju @ Rajabhau Bhagwantrao Wankhede
vs. The D.I.G. Prisons(E)(R) and another1, has
taken a view that if the remissions of a convict
are deducted, who overstayed when he was released
on furlough/parole, in that case such convict
cannot be prevented from filing the application
for releasing him on furlough/parole. It is
submitted that since the remissions were deducted
on account of overstay of the Petitioner for 119
days, for the same reason, the Respondents should
not have rejected the application filed by the
Petitioner to release him on furlough. In support
of aforesaid contentions, our attention is invited
to the relevant observations of the Division Bench
of this Court in the case of Raju @ Rajabhau
Bhagwantrao Wankhede vs. The D.I.G. Prisons(E)(R)
and another, supra, in Paras 15 and 16 of the
Judgment, which are as under:
1 2015 ALL M.R.(Cri) 1834
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"15. As noticed earlier, the full
bench of Gujarat High Court in the
Case of Bhikabhai Devshi(supra) has
held that the later part of Rule 4
(10) namely, "where the prisoner
has defaulted in any way in
surrendering himself at the
appropriate time after release on
parole of furlough", the word
"shall" as used in the opening part
of Rule 4 has been held to be
directory. It has been held that it
should be read as "may". This view
has also found favour with the
Division Bench in Criminal Writ
Petition No.1624/2004 [Bharat @
Vejji Govindji Panchal @ Lohar vs.
The State of Maharashtra and
others]. Even in the case of
Ramchandra Naik [2005 ALL MR (Cri)
1919] (supra), this court has held
that the question would depend on
facts of each case and where the
petitioner can justify the overstay
on account of the circumstances
which may be beyond his control
such as where the prisoner is
compelled to to overstay on account
of some serious ailment or illness,
either of himself or his family
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member, or for some other
justifiable cause, certainly an
exception can be made. It can thus
be seen that this court had time
and again held that Rule 4 (10)
cannot be read to mean as imposing
absolute fetters on the powers of
the competent authority to release
the prisoner on furlough particular
when the case of such a prisoner
falls within the later part of Rule
4(10) of the 1959 Rules.
16. Shri Kaptan, the learned Senior
Counsel has placed reliance on a
decision of this court in the case
of Anil Laxman Jawade vs. State of
Maharashtra and another, reported
in 2007(4) Mh.L.J. 25: [2007 ALL MR
(Cri) 1865]. In that case, on
earlier occasion, the petitioner
did not surrender on due date and
was required to be arrested by the
police. His request for release was
rejected under Rule 4 (10) of the
1959 Rules. The challenge was to
the rejection of such a request.
The principal submission which was
canvassed before the Division Bench
was that, when substantive
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punishment under the Prison Rules
was already awarded by the
Competent Authority to the
petitioner for late surrender, the
legal right to get furlough leave
in future, cannot be taken away.
This Court on noticing the
provisions of Rule 9 of the 1959
Rules, which entitles the prisoner
to make a fresh application for
furlough leave, after expiry of six
months, from the date of rejection
of his previous application, held
that the conjoint reading of Rules
4 and 9 of the 1959 Rules would
show that the authorities can
consider such an application if
made after an expiry of six months.
This court found that on a
harmonious interpretation of these
two rules, although the Jail
Authorities are entitled to reject
the application for furlough leave
on the ground of later surrender,
the prisoner can always make a
fresh application for furlough
leave after six months and by
necessary implication, authorities
will have to consider the same, on
its own merits."
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4. On the other hand, learned A.P.P.
appearing for the State, relying upon the reasons
recorded in the impugned order and also the
averments in the affidavit in reply filed by one
Mr. Rajkumar Keshavrao Sali, presently serving as
Superintendent, Nashik Road Central Prison, Nashik
and the annexures thereto, submits that keeping
in view the earlier record of the Petitioner that
when he was released on furlough/parole, he did
not report back to the jail within time, the
application of the Petitioner to release him on
furlough has been rightly turned down. He further
submits that in case of release of the Petitioner
on furlough/parole he may abscond, and might not
be available to undergo the remaining sentence.
5. Upon hearing learned counsel appearing
for the Petitioner and learned A.P.P. appearing
for the State and upon perusal of the grounds
taken in the Petition and also the reply filed by
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Respondent No.4, we are of the opinion that merely
because the Petitioner, when he was released on
earlier occasions on furlough/parole, reported
back late, cannot be construed as an impediment to
the Petitioner for filing another application for
furlough in view of the fact that on account of
overstay, already remissions have been deducted.
We find considerable force in the argument of
counsel appearing for the Petitioner that similar
issue has been considered in the case of Raju @
Rajabhau Bhagwantrao Wankhede vs. The D.I.G.
Prisons(E)(R) and another, supra. Keeping in view
the observations in the said Judgment, we are
inclined to quash and set aside the impugned
order.
6. Accordingly, the impugned order is
quashed and set aside. The Petitioner is at
liberty to file the application afresh. In case
such application is filed, Respondent No.3 to
decide the same in accordance with law as
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expeditiously as possible, but in any case within
four weeks from filing such application, however
by ignoring the reasons mentioned in the impugned
order.
7. The Writ Petition is partly allowed. Rule
made absolute on above terms. The Writ Petition
stands disposed of, accordingly.
8. We appreciate the sincere efforts taken
and able assistance rendered by learned counsel
Mr. Y.L. Bidve during the course of hearing of the
Petition. Since Mr. Y.L. Bidve, 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
