Dastgir Gafur Shah vs The State Of Maharashtra And Ors
2021 Latest Caselaw 6010 Bom

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                   IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                         CRIMINAL APPELLATE JURISDICTION

                    CRIMINAL WRIT PETITION NO. 1583 OF 2020

Dastgir Gafur Shaha
Aged 58 years, Occupation- Labour,
R/o. Sanjay Nagar, Idgaha Parisar,
Shrirampur, Tal- Shrirampur,
Dist. Ahmednagar.
At present- Central Jail, Kalamba,
Tal & Dist. Kolhapur.                              ...PETITIONER

         Versus

1.       The State of Maharashtra

2.       The D.I.G. Prison (Western Region), Pune-6.

3.       The I.G. Prison, Pune-1.

4.       The Superintendent
         Kolhapur (Kalamba) Kolhapur 7.            ...Respondents

                                 ALONG WITH
                     CRIMINAL WRIT PETITION NO. 331 OF 2021

Gafur Sandu Shaha
Aged 58 years, Occupation- Laborer,
R/o. Sanjaynagar, Idgaha Area, Shrirampur,
Tal- Shrirampur, Dist Ahmednagar

On behalf of

Dastgir Gafur Shaha
Aged 58 years, Occupation- Labour,
R/o. Sanjay Nagar, Idgaha Parisar,
Shrirampur, Tal- Shrirampur,
Dist. Ahmednagar.
At present- Central Jail, Kalamba,
Tal & Dist. Kolhapur.                              ...PETITIONER

         Versus


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1.       State of Maharashtra
         Through P.S.I. Shrirampur City Police
         Station, Tal. Shrirampur,
         Dist. Ahmednagar.

2.       Superintendent of Jail
         Rehabilitation of jail Maharashtra State
         And Special Police Inspector General (Jail)
         South section, Bayculla, Mumbai No. 8.

3.    The Superintendent of Jail
      Central Jail, Kalamba, Kolhapur
      Tal & Dist. Kolhapur.                                  ...RESPONDENTS
                                    ...
Mr. Khwaja Shaikh for Petitioner.
Mrs. S.D. Shinde, APP for State.
                                    ...

                                         CORAM :     S. S. SHINDE &
                                                     MANISH PITALE, JJ.

RESERVED ON : 31st MARCH, 2021.

PRONOUNCED ON: 5th APRIL 2021.

JUDGMENT [PER S.S. SHINDE, J.]:

. Rule. Rule made returnable forthwith and heard with the

consent of learned counsel appearing for the parties.

2. The convict namely Dastgir Gafur Shaha has directly sent an

application from jail to this Court, which is registered as Criminal Writ

Petition No. 1583 of 2020. It appears that Mr. R.S. Sadaphale and Mr. A.G.

Jadhav have filed Criminal Writ Petition No. 331 of 2021. Both the petitions

are heard together and are being disposed of by this common judgment and

order.

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3. In Criminal Writ Petition No. 1583 of 2020, it is the contention

of the petitioner that an application to release him on furlough has been

rejected for unsustainable reasons. The Petitioners prayer has been rejected

relying upon the Sub Rule 4 of Rule 4 of the Prisons (Bombay Furlough and

Parole) Rules, 1959 (hereinafter referred to as 'said Rules'). The Petitioner

has placed reliance on Rule 17 of the said Rules. It is stated that the law

confirms right to prisoner to avail furlough. Unless there are exceptional

reasons not to grant furlough leave, the convict is entitled for furlough leave

as a matter of right. It is stated that the Petitioner has completed more than

6 years imprisonment and he was never released on furlough or parole in

the past. It is stated that the family members of the Petitioner are ready to

stand as surety, and execute the surety bond in case, the petitioner is

released on furlough. It is specifically stated that the petitioner's father is

ready and willing to stand as surety. The report submitted by police is silent

about threat, if any, to the public in case, the petitioner is released on

furlough. Therefore, it is prayed that the Petitioner may be released on

furlough.

4. In Criminal Writ Petition No. 331 of 2021, the Petitioner who is

father of the convict on behalf of convict prayed that the convict be released

on 45 days parole.

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5. Learned APP appearing for Respondent-State vehemently

opposed the prayers in both the petitions on merits and prayed for rejection

of both the petitions.

6. We have considered the submissions of both sides. With the able

assistance of learned counsel appearing in Criminal Writ Petition No. 331 of

2021 and learned APP, we have carefully perused the pleadings and grounds

taken in the petition, annexures thereto and the impugned order passed by

respondent authority. It appears that the Petitioner filed Criminal

Application No. 2274 of 2019 in Criminal Appeal No. 770 of 2015 (Dastgir

Gafur Shaha Vs. State of Maharashtra) for bail. The said application was

rejected by the Division Bench (Coram: T.V. Nalawade & R.G. Avachat, JJ.)

on 10.10.2019. Thereafter, it appears that the convict had filed Criminal

Writ Petition No. 557 of 2020 (Dastgir Gafur Shaha Vs. State of

Maharashtra) which was heard by the Division Bench (Coram: Ravindra V.

Ghuge & Shrikant D. Kulkarni, JJ.) and decided on 23.06.2020, thereby

directing the Superintendent of Jail, Kalamba, Tal & Dist. Kolhapur, to

decide the application of the Petitioner within four weeks from the date of

passing of the said order.

7. Upon careful perusal of application filed by the Petitioner

before the respondent-authority praying therein to release him on furlough,

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one of the reason stated is that his mother is seriously ailing and nobody is

to look after the mother of the convict.

8. At this juncture it would be apt to reproduce herein below

objectives of mentioned in Rule 1(A) of the said Rules.

*[1(A). Objectives:-

Furlough and Parole leaves to inmates are progressive measures of correctional services. The objectives of releasing a prisoner on leave are:-

(a) To enable the inmate to maintain continuing with his family life and deal with family matters,

(b) To save him from evil effects of continuous prison life,

(c) To enable him to maintain and develop his self-confidence,

(d) To enable him to develop constructive hope and active interest in life.]

9. It is an admitted position that the petitioner was never released

either on furlough or parole. Since, the petitioner has undergone more than

6 years imprisonment, in view of Rule 3(C), which is reproduced herein

below, the petitioner is entitled to be released on furlough.

*[3. When Prisoner may be granted furlough.

(A) ----------

(B)----------

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                   (C)    A prisoner sentenced to imprisonment for a
                          period of exceeding fourteen years,

                   (1)    Shall become eligible for furlough on
                          completion of three years of actual
                          imprisonment.

                   (2)    Shall become eligible for second release on
                          furlough after completion of one year of
                          actual imprisonment from the date of last
                          return from furlough.

                   (3)    Shall become eligible for subsequent releases

on furlough after completion of six months of actual imprisonment from the date of last return from furlough.

(4) Prisoner shall not be given furlough exceeding 21 days in a calendar year for the first five years of his imprisonment and thereafter for the period not exceeding 28 days.

10. It appears that one of the reason assigned in the impugned

order is that the petitioner was never released on furlough/parole and

therefore, such convict cannot be released on emergency Covid-19 parole

and accordingly prayer of the petitioner to release him of parole was turned

down.

11. This issue has been dealt with by the Bombay High Court, bench

at Aurangabad, in the case of Kavita w/o Dilip Baviskar v/s. The State of

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Maharashtra (Coram: T.V. Nalawade & Shrikant D Kulkarni, JJ) 1, wherein a

view is taken that whether the convict was released on one occasion or twice

on parole in past and reported back in time, had been introduced with an

intention to see that the convict shall return to jail in case he is released on

emergency parole. It is further held in the said case that through the petitioner

therein had released only once on parole in the past, he was entitled to be

released on emergency parole. In view of aforesaid judgment the prayer of

the petitioner to release him on parole should not have been rejected on the

ground that he was not released earlier twice on furlough or parole. The

said reason is legally unsustainable in view of aforesaid pronouncement of

this Court.

12. So far petitioners prayer for furlough is concerned, there is no

legally sustainable reason assigned by the respondent while rejecting the

prayer of the petitioner. In one of the communication by the jail authority at

Yerwada addressed to the Kolhapur Central Prison, Kalamba, Kolhapur, it is

stated that the Petitioner is not maintaining the discipline in the jail at

Yerwada, and because of this reason, the petitioner was transferred to

Kolhapur Central Prison, Kalamba, Kolhapur. The aforesaid reason given is

not supported by any specific activity of indiscipline of the convict when he

was in Yerwada Jail. Be that as it may, since the petitioner is in jail for more

1 Criminal Writ Petition No. 571 of 2020.

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than 6 years, in order to achieve the objective of granting furlough to the

convicts, in our opinion, the petitioner deserves to be released on furlough

for the period as admissible in the said Rules. In case, the petitioner is not

released the object/legislative intent to make provisions for furlough would

get defeated.

13. In the light of discussion in foregoing paragraphs, in our

opinion, the ends justice would be met in case, the petitioner is released on

furlough leave .Accordingly, we pass the following order:-

ORDER

A) The Writ Petition No. 1253 of 2020 is allowed. The impugned order dated 04.02.2020 is quashed and set aside.

B) In view of disposal of Criminal Writ Petition No. 1253 of 2020, nothing survives for consideration in Criminal Writ Petition No. 331 of 2020. Hence, same stands disposed of.

C) The Petitioner be released on furlough for the period stated in the Prisons (Bombay Furlough and Parole) Rules, 1959, on following conditions:

(i) The Petitioner shall not tamper with the prosecution witnesses or evidence.

(ii) The Petitioner shall attend the nearest police station on alternate day.

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(v) The Petitioner shall be released on furlough, on fulfilling conditions in Rule 10 of the Prisons (Bombay Furlough and Parole) Rules, 1959.

(vi) On completion of furlough period the Petitioner shall surrender to the Kolhapur Central Prison, Kalamba, without any delay.

D) Rule made absolute to above extent. The writ petitions stand disposed of accordingly.

      ( MANISH PITALE, J.)                                       (S. S. SHINDE, J.)




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