Bombay High Court
Kalidas Kundlik Lomte (C-10174) vs The State Of Maharashtra on 31 January, 2018
Bench: Prasanna B. Varale
(Judgment) (1) Cri. W.P. No. 01562 of 2017
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
AURANGABAD BENCH, AT AURANGABAD.
Criminal Writ Petition No. 01562 of 2017
District : Osmanabad
Kalidas Kundlik Lomte (C-10174),
Age : 48 years,
Occupation : Nil,
At Present : Circule No.4.5,
Central Prison, Nashik Road,
Nashik. .. Petitioner.
versus
1. The State of Maharashtra,
Through its Secretary,
Home Department,
Mantralaya,
Mumbai - 400 032.
2. Spl. IG Police (Prison)(HQ),
2nd Floor,
Old Central Building,
Pune - 1.
3. Dy. Inspector General of
Prison,
Central Region,
Aurangabad.
4. The Superintendent of
Central Prison,
Nashik Road,
Nashik. .. Respondents.
...........
Mr. Digambar P. Sathe, Advocate (appointed),
for the petitioner.
Mr. K.S. Patil, Addl. Public Prosecutor, for
respondent nos.01 to 04.
...........
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(Judgment) (2) Cri. W.P. No. 01562 of 2017
CORAM : PRASANNA B. VARALE &
SMT. VIBHA KANKANWADI, JJ.
DATE : 31ST JANUARY 2018
ORAL JUDGMENT [Per Prasanna B. Varale, J.] :
Heard learned Counsel (appointed) for the
petitioner and learned Addl. Public Prosecutor for
the respondents.
02. The petitioner - convict (C-10174), namely,
Kalidas Kundlik Lomte, is before this Court
challenging the order dated 07.08.2017, passed by
respondent no.02 - Spl. IG Police (Prison), thereby
rejecting the prayer of the petitioner for grant of
furlough leave.
03. Perusal of the material placed on record
show that the prayer for furlough leave was rejected
on many fold grounds. These grounds are, (1) there
is adverse police report against the petitioner, (2)
an appeal filed by the petitioner is pending before
the High Court, (3) there is a threat of life to the
eye witness, (4) the petitioner is not entitled for
the said benefit in view of the judgment of this
Court delivered at principal seat, in Criminal Writ
Petition No. 4017 of 2016, in the matter of Smt. Rubina
Suleman Memon Vs. The State of Maharashtra & others, on 22nd
December 2016.
04. Learned Counsel appearing for the petitioner
(Judgment) (3) Cri. W.P. No. 01562 of 2017
vehemently submitted that all these grounds raised
for rejection for furlough leave are clearly
unsustainable. It was the submission of the learned
Counsel, that merely because an appeal filed by the
petitioner is pending before this Court, cannot be a
reason for rejection of furlough leave. Filing of an
appeal is a statutory right provided and if somebody
avails the remedy provided under the law, cannot be a
reason for the authorities to reject the application
seeking furlough. Learned Counsel then submitted
that the ground of adverse police report is also
vague and unsustainable. Learned Counsel also
submitted that the other ground, that the petitioner
is not entitled for the furlough leave in view of the
judgment of this Court in the matter of Smt. Rubina
Suleman Memon (supra), is also a ground applied
mechanically. He submitted that the Division Bench
of this Court in the matter of Smt. Rubina Suleman Memon
(supra), considered the case of the petitioner Smt.
Rubina Suleman Memon, who was a convict under the
Terrorist and Destructive Activities Act, 1987, and
rigors of the notification dated 23.02.2012, more
particularly, Sub-Rule 13 of Rule 4 of the Prisons
(Bombay Furlough and Parole) Rules, 1959, were fully
applicable to the petitioner therein, which is not
the case of the petitioner. The petitioner is not
suffering punishment for any act under the provisions
of TADA. Thus, learned Counsel for the petitioner
prays for quashing and setting aside the order
impugned and allowing the petition.
(Judgment) (4) Cri. W.P. No. 01562 of 2017
05. Learned Addl. Public Prosecutor appearing
for the respondents opposes the petition.
06. Learned Addl. Public Prosecutor has made
available, copy of the police report. One of the
reasons assigned in the order impugned is that there
is an adverse police report against the petitioner.
In juxtaposition to this ground, if the report is
perused, interestingly, the report states that there
was a surety standing for the petitioner expressing
his willingness and was also ready to submit an
undertaking and inspite of this fact, the report
states that the surety is unable to control the
petitioner. On what material this satisfaction is
arrived at by the authorities, is not at all
reflected in the said report. Thus, it is only a
mechanical objection raised and there is merit in the
submission of the learned Counsel for the petitioner.
Amongst other grounds, one of the grounds in the
impugned order is about threat to the witness i.e. an
eye witness. In the report, it is only stated that
there is a threat to the son of the petitioner who is
17 years of age and is prosecuting his studies at
Pune. Thus, even this ground holds no water.
Learned Counsel for the petitioner was also justified
in submitting that the judgment of Division Bench of
this Court in the matter of Smt. Rubina Suleman Memon
(supra) will not be applicable to the present
petitioner for the reason that the facts of the case
(Judgment) (5) Cri. W.P. No. 01562 of 2017
of the petitioner and the facts of the case in the
matter of Smt. Rubina Suleman Memon (supra) are altogether
different. Considering all these grounds, we are of
the opinion that the learned Counsel for the
petitioner has made out a case for grant of relief as
prayed in the petition.
07. In the result, the criminal writ petition is
allowed.
The impugned order dated 07.08.2017 passed by
respondent no.02 is quashed and set aside and the
petitioner is directed to be released on furlough
leave as per entitlement under the Prisons (Bombay
Furlough and Parole) Rules, 1959. The petitioner is
directed to comply with the necessary formalities.
It is also directed that the petitioner shall not
enter into the jurisdiction of Pune city and town
Dhoki (District Osmanabad) while enjoying the benefit
of furlough leave.
08. Learned Advocate Mr. D.P. Sathe was
appointed to represent case of the petitioner. His
fees are quantified at Rs. 3,000/- [Rupees three
thousand].
( Smt. Vibha Kankanwadi ) ( Prasanna B. Varale )
JUDGE JUDGE
...........
puranik / CRIWP1562.17
