Kartik Shankar Salve vs State Of Maharashtra, Thr. Deputy ...
2021 Latest Caselaw 6410 Bom

                                              1                                38-wp-234-21j.odt

              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        NAGPUR BENCH : NAGPUR

                  CRIMINAL WRIT PETITION NO. 234 OF 2021

  Kartik Shankar Salve,
  Convict No. C/10266,
  Aged 25 years, Occ. Nil,
  Confined at Central Prison,
  Nagpur.                                                                . . . PETITIONER

                         ...V E R S U S..

  1. State of Maharashtra through
     Deputy Inspector General of Prison,
     Eastern Region, Nagpur.

  2. The Superintendent,
     Central Prison, Nagpur.                                         . . . RESPONDENTS

 ------------------------------------------------------------------------------------------------
 Ms. Shweta D. Wankhede, Advocate for petitioner.
 Ms. Mayuri Deshmukh, A.P. P. for respondentS/State.
 -----------------------------------------------------------------------------------------------
                               CORAM :- Z. A. HAQ AND
                                        AMIT B. BORKAR, JJ.

DATED :- 09.04.2021

JUDGMENT (PER : AMIT B. BORKAR, J.) :-

1. Heard.

2. Rule. Rule made returnable forthwith.

3. By this Writ Petition, under Article 226 and 227 of the

Constitution of India, the petitioner is challenging the order dated

25.01.2021 passed by the respondent no.1 thereby rejecting the

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application of the petitioner to release him on furlough leave for a

period of 21 days.

4. The petitioner is convicted under Sections 302 and 34 of

the Indian Penal Code and is undergoing sentence of imprisonment for

life. The petitioner had completed period of 4 years 6 months and 14

days of imprisonment on the date of filing of the application. On

01.12.2019, the petitioner submitted the application for furlough

leave. The respondent no. 1 called for report from the Superintendent

of Police, Chandrapur. The Superintendent of Police, Chandrapur

submitted the report dated 23.12.2019 expressing apprehension that

there is possibility of witnesses being harassed. It is also stated in the

report that the question of peace and tranquility may also arise if the

petitioner is released on furlough leave. On 25.01.2021, the

respondent no. 1 rejected the application of furlough leave filed by the

petitioner relying on sub-Rule 4 of Rule 4 of the Prisons (Bombay

Furlough and Parole) Rules, 1959 (in short "the Rules of 1959").

5. The petitioner has therefore filed the present petition

challenging the order dated 25.01.2021. The respondent no. 2 has

filed reply stating that there is likelihood of the petitioner assaulting

the complainant and the witnesses. It is stated that in view of the

adverse police verification report of the petitioner, the respondent no.

1 has rightly rejected furlough leave of the petitioner.

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6. Learned Advocate for the petitioner submitted that the

police report is not based on sufficient material to support the

apprehension expressed in the police report. It is submitted that the

impugned order is perverse, arbitrary and illegal. Learned A.P.P. has

supported the impugned order submitting that the respondent no. 1

has rightly rejected the furlough leave application based on sub-Rule 4

of Rule 4 of the Rules of 1959.

7. We have scrutinized the impugned order. The impugned

order reflects that police verification report is adverse to the petitioner.

On perusal of sub-Rule 4 of Rule 4 of the Rules of 1959, we are of the

view that the said Rules could not be mechanically applied just because

the police report is adverse. In a given case it is possible that though

the police report is adverse, same cannot be relied upon to reject the

application of furlough leave, if the police report is not founded on

reasonable criteria or material. If the police report is adverse and

discloses no material or existence of any material for passing adverse

conclusion, the authority is not justifying in rejecting the furlough

leave application of the petitioner. On scrutiny of reply along with its

annexures and the reasons stated in the reply we do not find any

material, based on which apprehension expressed in the report of the

Commissioner of Police. Neither the impugned order nor the police

report refers to the basic fact that there exists some material on record,

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which upon perusal would show the apprehension so expressed by the

authority has reasonable foundation.

8. We, therefore, pass the following order :-

(i) The impugned order 25.01.2021 passed by the respondent

no. 1 rejecting furlough leave application of the petitioner is quashed

and set aside.

(ii) The respondent no. 1 is directed to grant furlough leave of

21 days to the petitioner upon such condition as may be permissible by

imposing upon the petitioner in terms of Rules, within one week from

the date of receipt of this order.

Rule is made absolute in the above terms.

                             JUDGE                                            JUDGE


RR Jaiswal