Naved @ Gavya Abdul Kadir vs Deputy Inspector General Of ...
2021 Latest Caselaw 6141 Bom

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         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          NAGPUR BENCH, NAGPUR.

               CRIMINAL WRIT PETN. NO. 52 OF 2021

PETITIONER :-                     Naved @ Gavya Abdul Kadir, Aged about
                                  38 years, R/o. Mominpura, Wani, District
                                  Yavatmal.
                                  (C/5306, Central Prison, Amravati)

                                       ...VERSUS...

RESPONDENTS :-               1. Deputy Inspector General of Prison (East
                                Region), Nagpur.

                             2. Superintendent of Jail, Central Prison,
                                Amravati.

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                 Mr. Raju Kadu, Advocate for the petitioner.
                Ms N.R.Tripathi, A.P. P. for the respondents.
-------------------------------------------------------------------------------------------

                       CORAM : Z.A.HAQ AND AMIT B. BORKAR, JJ.

DATED : 06.04.2021.

ORAL JUDGMENT : (Per : Amit B. Borkar, J.)

1. Heard.

2. Rule. Rule made returnable forthwith.

3. The petitioner who upon his conviction for the offences

punishable under sections 380 and 457 of the Indian Penal Code is

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undergoing imprisonment for a period of 12 years. Presently, the

petitioner has been lodged in the Amravati Central Prison.

4. On 06/07/2020, the petitioner made an application with

the respondent No.1 for grant of furlough leave for a period of 21 days

which has been rejected on the ground that there is adverse Police

Report against the petitioner.

5. The learned Advocate for the petitioner submits that the

impugned order is perverse, arbitrary and illegal while the learned A.P.P.

contends that the impugned order is perfectly legal.

6. On scrutiny of the impugned order, which is based upon

adverse Police Report, we find that the Authority i.e. the respondent

No.1 has not referred to any material on the basis of which aforesaid

apprehension could have been expressed by the respondent No.1.

Neither the impugned order, nor did the Police Report refer to the basic

fact that there existed some material on record, which upon perusal,

would show that apprehension so expressed by the Authority has a

reasonable foundation, though in an executive order like the impugned

order, it is not necessary for the Authority passing the order to dwell

upon the reasons in detail. It is necessary for such Authority to reach

his subjective satisfaction upon consideration the material on record

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and if it is shown that the subjective satisfaction was without any basis,

it would be an unreasonable order and hence, be an order vulnerable in

law. This is called principle of wednesburry unreasonableness ( see:

Sumit Ramkrushna Maraskolhe v. Deputy Commissioner of Police,

Zone-I, Nagpur) reported in 2019 (2) Mh.L.J. (Criminal) 14 (Full

Bench). By applying this principle to the impugned order, we find that

it does not satisfy the test of principle of wednesburry unreasonableness

and therefore, it cannot be sustained in the eye of law.

7. The learned A.P.P. submits that there is provision under Rule

4 of the Prisons (Furlough and Parole) Rules, 1959, which lays down

that the prisoner be not granted furlough leave when the Police Report

is adverse.

8. We are of the opinion that it cannot be said that as a rule

of universal application that just because Police Report is adverse, no

furlough leave can be granted. All will depend on facts and

circumstances of the each case and in a given case, it is possible that

though the Police report is adverse, it cannot be accepted to be true

because the adverse opinion expressed therein is not founded on any

reasonable criteria or material. If Police Report is adverse and discloses,

no material or existence of any material for basing any such adverse

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conclusion, the Authority is not justified in rejecting furlough leave

application of the petitioner.

9. In the result, we pass following order.

i. The impugned order dated 20/11/2020 passed by the

respondent No.1 is quashed and set aside.

ii. The respondent No.1 is directed to grant furlough leave of

21 days to the petitioner upon such conditions as may be

permissible to be imposed upon the petitioner in terms of

the Rules within one week from the date of receipt of this

order.

10. Rule is made absolute accordingly.

                       (AMIT B. BORKAR, J)                        (Z.A.HAQ, J)




 Ghanshyam
 Khunte
 Digitally signed by
 Ghanshyam Khunte
 Date: 2021.04.09
 15:44:54 +0530




KHUNTE