Bombay High Court
Ghansham Dattatraya Tambde vs Director General Of Police ... on 3 August, 2021
Bench: S.S. Shinde, N. J. Jamadar
Digitally signed
LAXMIKANT by LAXMIKANT
GOPAL
GOPAL CHANDAN
CHANDAN Date: 2021.08.10
10:05:03 +0530 (46) jt- cri.wp-667.21.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO.667 OF 2021
Ghansham Dattatraya Tambde ]
Age 28 years, ]
R/at - 1122, Sadashiv Peth, Pune ]
At present Yerwada Central Prison, Pune ]..... Petitioner.
Versus
1] Director General of Police (Prison) ]
Maharashtra State, Pune-1 ]
Old Central Building, 2nd Floor, Pune ]
]
2] Superintendent of Police (Prison), ]
Western Division, Yerwada, Pune-6 ]
]
3] Asst. Police Commissioner, ]
Swargate Division, Pune City ]
]
4] The State of Maharashtra ]..... Respondents.
Mr. Priya G Sarda for the Petitioner.
Mrs. A S Pai, APP for the Respondents/State.
CORAM : S. S. SHINDE,
N. J. JAMADAR, JJ
DATE : 03rd August 2021
JUDGMENT : (PER S. S. SHINDE, J.)
1 Rule. Rule made returnable forthwith and with the consent of the
learned counsel for the parties heard finally.
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2 By this writ petition filed under Article 226 of the Constitution of
India, the Petitioner takes exception to the Order dated 02.07.2020 passed by
the Respondent No.1 - Director General of Police (Prison), Maharashtra State,
Pune, rejecting the Appeal filed by the Petitioner against the order dated
10.12.2019 passed by Respondent No.2 - Superintendent of Police (Prison),
Western Division, Yerwada, Pune, by which order the Application for furlough
leave filed by the Petitioner came to be rejected.
3 The facts which give rise to filing of this Writ Petition can be in
brief, stated thus :-
The Petitioner is a convict and is presently undergoing sentence
imposed upon him at Yerwada Central Prison, Pune. The Petitioner has filed an
application for release on furlough. The said application was rejected by
Respondent No.2 by order dated 10/12/2019 on the ground that there is an
adverse report against the Petitioner given by the Assistant Commissioner of
Police, Swargate Division, Pune. The Appeal preferred by the Petitioner against
the said order has also been rejected by the Respondent No.1 by order dated
02/07/2020. While rejecting the prayer of the Petitioner for furlough leave,
both the Respondents-Authorities have taken into consideration the
apprehension recorded in the adverse report that if the Petitioner is released on
furlough, there is a threat to the lives of the complainant and witnesses.
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4 The learned counsel appearing for the Petitioner submits that the
report submitted by the Respondent No.3 - Asstt. Commissioner of Police was
only on the basis of surmises and without any inquiry. He further submits that
the Petitioner is in jail and he has applied for furlough for the first time. The
Respondents-Authorities have not considered the facts in their proper
perspective and rejected the application for furlough without assigning any
cogent reason. The learned counsel for the Petitioner further submits that the
brother and father of the Petitioner, who are the convicts in the same crime, are
released on furlough and, therefore, there is no reason for discrimination in the
case of the present Petitioner. He, therefore, submits that the Petitioner is
entitled for furlough and prays that the Petitioner may be released on furlough.
5 The learned APP for the Respondents/State invites our attention to
the report of the Respondent No.3 and the impugned orders passed by the
Respondent Nos. 1 and 2 and submits that both the Respondents-Authorities
have rejected the furlough to the Petitioner on the basis of the adverse report
against the Petitioner submitted by the Respondent No.3. She supports the
impugned orders and submits that the said orders do not warrant interference.
6 We have given our due consideration to the rival submissions of
the learned counsel appearing for the parties. With their able assistance we
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have perused the pleadings, grounds taken in the Petition and annexures
thereto.
7 It appears from the reasons assigned in the impugned orders that
the application of the Petitioner to release him on furlough has been rejected
on the ground that in case the Petitioner is released on furlough, there is a
danger to the life of the complainant and witnesses. We have seen from the
original record that the Respondent-Authority has recorded the statement of
the witnesses and then reached to the conclusion that in case the Petitioner is
released on furlough, there is a danger to the life of the complainant and
witnesses.
8 During the course of hearing, this Court gave a suggestion to the
learned Advocate appearing for the Petitioner that, if the Petitioner is willing to
stay outside the Pune District, at a reasonable distance, so as to avoid
possibility of coming into contact with the complainant and witnesses and the
Petitioner gives surety from the said place where he is going to stay, in that
case this Court may consider the prayer of the Petitioner to direct the
Respondent-Authority to release the Petitioner on furlough.
In response to the said suggestion, the Petitioner filed an affidavit
of Sou.Vandana Vishnu Thakur, who is resident of Pune city. The said
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Sou.Vandana Vishnu Thakur in her affidavit has stated that the Petitioner is her
nephew and she is ready to stand as surety for the Petitioner, in case he is
released on furlough. It is stated that she is residing within the jurisdiction of
Bharti Vidyapeeth Police Station, Pune. It is further stated that the Petitioner
will reside at Post Kurle, Tal. Mahad, District Raigad during the period of his
release on furlough leave. The Petitioner will reside along with his maternal
uncle at village Kurle. It is further stated that the Petitioner is not in a position
to arrange the surety from village Kurle.
In our opinion, if the Petitioner, after release on furlough leave, is
going to stay with his maternal uncle at village Kurle, which is in District
Raigad, the Petitioner ought to furnish a surety, who is an ordinary resident of
the said village. His maternal uncle can also stand surety. This Court insisted
to have surety from village Kurle where the Petitioner is going to reside in case
he is released on furlough for the simple reason that the said surety would
have control over the Petitioner. However, the learned counsel appearing for
the Petitioner expressed difficulty to furnish surety from the said village Kurle.
9 As already observed herein above, the apprehension expressed by
the concerned police officers on the basis of the relevant material that, in case
the Petitioner is released on furlough, that would cause danger to the life of the
complainant and witnesses, is well founded, and therefore, we are unable to
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persuade ourselves to grant the relief to the Petitioner. Importantly two other
convicts i.e. the father and brother of the Petitioner, are already released on
parole/furlough, and therefore, in case all three convicts from the said crime
are released, at the same time, there may be danger to the complainant and
witnesses.
10 In that view of the matter, the Criminal Writ Petition is dismissed.
Rule stands discharged.
11 We make it clear that, in case the Petitioner is in a position to
furnish surety from a place outside the Pune District, which is at a reasonable
distance from the place of the complainant and witnesses, the Petitioner would
be at liberty to file fresh Petition/Application.
[N. J. JAMADAR, J] [S. S. SHINDE , J]
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