Sukhchand Sambhuji Bhalavi vs Deputy Inspector General Of ...
2021 Latest Caselaw 6627 Bom

                                              1                                26-wp-177-21j.odt

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

                  CRIMINAL WRIT PETITION NO. 177 OF 2021

  Sukhchand Sambhuji Bhalavi,
  Aged about 50 years,
  R/o. Kanhan, Tah. Kamptee,
  Dist. Nagpur
  (C/8997, Central Prison, Nagpur)                                       . . . PETITIONER

                         ...V E R S U S..

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

  2. Superintendent of Jail,
     Central Prison, Nagpur.                                         . . . RESPONDENTS

 ------------------------------------------------------------------------------------------------
 None for the petitioner.
 Shri T. A. Mirza, A.P. P. for respondents/State.
 -----------------------------------------------------------------------------------------------
                               CORAM :- Z. A. HAQ AND
                                        AMIT B. BORKAR, JJ.

DATED :- 22.04.2021

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

1. Heard.

2. Rule. Rule made returnable forthwith.

3. By this petition under Article 226 of the Constitution of

India, the petitioner has challenged order dated 25.01.2021 passed by

the respondent no. 1, rejecting furlough leave of the petitioner for a

period of 28 days.

2 26-wp-177-21j.odt

4. The petitioner is a convict for offence punishable under

Section 302 of the Indian Penal Code and is undergoing imprisonment

for life. The petitioner had undergone imprisonment of 10 years 10

months and 22 days on the date of filing of the application for

furlough leave.

5. The petitioner on 12.12.2019 applied for his release on

furlough leave of 28 days. The respondent no. 1 sought report from

the Commissioner of Police, Nagpur and the report submitted by the

police was adverse to the petitioner. The respondent no. 1 rejected the

furlough leave application of the petitioner on the ground that police

report was adverse and in the year 2011 the petitioner surrendered

himself late by two days. The petitioner has therefore challenged the

order of rejection of furlough leave application by filing the present

application. This Court on 31.03.2021 issued notice to the respondents

and there is no reply filed by the respondents.

6. We have carefully scrutinized the impugned order, which is

passed on the basis of adverse police report. On careful scrutiny of the

impugned order, it appears that the respondent no.1 has not referred

any material, on the basis of which the apprehension could have been

expressed by the respondent no. 1 that there will be threat to peace

and tranquility in the area. Neither the impugned order nor did the

police report refers to the basic facts that there exist some material on

3 26-wp-177-21j.odt

record, which on perusal would show that apprehension so expressed

by the authorities has reasonable foundation. It is necessary for the

respondent no. 1 to record such subjective satisfaction upon

consideration of material on record and if it shows that subjective

satisfaction recorded by the respondent no. 1 was without any basis, it

would be an unreasonable order and hence is liable to be set aside.

7. The next reason mentioned in the order for rejection of

furlough leave application of the petitioner is that the petitioner

surrender himself late by two days in the year 2011. It needs to be

noted that the petitioner was not required to be arrested but,

voluntarily submitted himself late by two days and the said event

happened in the year 2011. On the basis of the said event, the

respondent no. 1 could not have rejected the furlough leave

application of the petitioner.

8. We are therefore satisfied that the respondent no. 1 was not

justified in rejecting the furlough leave application of the petitioner. In

the result, we pass the following order :-

i) The impugned order dated 25.01.2021 passed by the

respondent no. 1 is quashed and set aside.

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

28 days to the petitioner upon such conditions, which may be

4 26-wp-177-21j.odt

permissible and shall be imposed upon the petitioner, in terms of the

Rules applicable within one week from the date of receipt of this order.

Rule is made absolute accordingly.

                             JUDGE                                          JUDGE




RR Jaiswal