Bombay High Court
Hasrat Devram Salve (C-7672) vs The State Of Maharashtra on 31 January, 2018
Bench: Prasanna B. Varale
(Judgment) (1) Cri. W.P. No. 01566 of 2017
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
AURANGABAD BENCH, AT AURANGABAD.
Criminal Writ Petition No. 01566 of 2017
District : Jalgaon
Hasrat s/o. Devram Savle,
Age : Major,
Occupation : Convict No. C/7672,
R/o. At present Nashik Road
Central Prison, Nashik. .. Petitioner.
versus
1. The State of Maharashtra,
Through Secretary,
Home Department,
Maharashtra, Mumbai - 32.
2. The Additional Director
General of Police and
Inspector General of Prison,
Maharashtra State, Pune - 01.
3. The Deputy Inspector General
of Central Prison,
Aurangabad. .. Respondents.
...........
Mr. Milind Gawai, Advocate (appointed), for
the petitioner.
Mr. S.W. Munde, Addl. Public Prosecutor, for
respondent nos.01 to 03.
...........
CORAM : PRASANNA B. VARALE &
SMT. VIBHA KANKANWADI, JJ.
DATE : 31ST JANUARY 2018
(Judgment) (2) Cri. W.P. No. 01566 of 2017
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-7672), namely,
Hasrat s/o. Devram Savle, is before this Court
challenging the order dated 21.04.2015 passed by
respondent no.03 - Dy. IG of Central Prison, thereby
rejecting the prayer of the petitioner for grant of
furlough leave. The petitioner has also challenged
the order dated 10.08.2017 passed by respondent no.02
- Addl. DGP & IG of Prison, thereby rejecting the
appeal filed by the petitioner.
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 Hon'ble Apex Court, (3) there is a threat of life
to the complainant and prosecution witnesses, (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
vehemently submitted that all these grounds raised
for rejection for furlough leave are clearly
(Judgment) (3) Cri. W.P. No. 01566 of 2017
unsustainable. It was the submission of the learned
Counsel, that merely because an appeal filed by the
petitioner is pending before the Hon'ble Apex 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 orders
impugned and allowing the petition.
05. Learned Addl. Public Prosecutor appearing
for the respondents opposes the petition.
(Judgment) (4) Cri. W.P. No. 01566 of 2017
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 complainant and
prosecution witnesses. In the report, it is only
stated that there is a threat to the complainant and
witnesses. In the report, it is further stated that
the daughter of the complainant is studying in 12th
standard and if the petitioner is released on
furlough leave, her study will be affected due to
disturbance at the instance of the petitioner. 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 of the petitioner and the
(Judgment) (5) Cri. W.P. No. 01566 of 2017
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 21.04.2015 passed by
respondent no.03, so also, order dated 10.08.2017
passed by respondent no.02, are 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 Taluka
Dharangaon (District Jalgaon) while enjoying the
benefit of furlough leave.
08. Learned Advocate Mr. Milind Gawai 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 / CRIWP1566.17
