Arun S/O Gulab Gawli vs Deputy Inspector General ...
2021 Latest Caselaw 10869 Bom

  Judgment                                  1                                wp469.21.odt



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


                        CRIMINAL WRIT PETITION NO. 469/2021


          Arun S/o Gulab Gawli,
          Aged 66 years, C-8535,
          Presently Nagpur Central Prison,
          Nagpur
                                                                    .... PETITIONER

                                    // VERSUS //

 1]       Deputy Inspector General (Prisons) (East),
          Nagpur

 2]       The Superintendent Central Prison,
          Nagpur
                                                               .... RESPONDENT(S)

  *******************************************************************
                  Shri M.N. Ali, Advocate for the petitioner
               Shri V.A. Thakare, APP for the respondent/State
  *******************************************************************

                           CORAM : V.M. DESHPANDE & AMIT B. BORKAR, JJ.

AUGUST 11, 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 the order dated 11/04/2021 passed by the

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respondent no. 1 rejecting furlough leave application of the petitioner for

period of 28 days.

4] The petitioner is convicted for the offences punishable under

Sections 302 and 120-B of the Indian Penal Code read with Sections 3(1)(i),

3(i)(ii), 3(2) and 3(4) of the Maharashtra Control Of Organized Crime Act

and is undergoing imprisonment for life in Nagpur Central Prison. The

petitioner on 24/01/2021 applied for grant of furlough leave. The

respondent no. 1 rejected the application for furlough leave by the order

dated 11/04/2021 on the ground that the police report is adverse to the

petitioner. The petitioner has challenged the said order by way of the present

petition.

5] This Court on 07/07/2021 issued notices to the respondents.

The respondent no. 2 has filed reply dated 02/08/2021 stating that while the

petitioner was on parole leave from 17/04/2018 till 25/04/2018, an offence

came to be registered against the wife of the petitioner. It is stated that the

petitioner is head of a gang and there is terror of the petitioner in the locality.

It is also stated that the police report is adverse to the petitioner.

6] We have carefully scrutinized the impugned order and the reply

filed by the respondent no. 2. The impugned order reflects that the police

report is adverse to the petitioner. Annexure R-III to the reply indicates that

the petitioner has been released four times earlier on furlough and has

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surrendered himself on due date. There is no material on record that the

petitioner has misused the liberty granted to him earlier. Annexure R-III also

indicates that the petitioner has been released six times earlier on parole and

has surrendered before the due date.

7] On scrutiny of the impugned order which is based on adverse

police report, we find that the respondent no. 1 has not referred to any

material on the basis of which the apprehension of breach of peace and

tranquility 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

exists some material on record which upon perusal would show that

apprehension so expressed by the respondent no. 1 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 is without any basis, it would be an unreasonable

order.

8] Learned APP submits that there is provision under Rule 4 of the

Prisons (Bombay Furlough and Parole) Rules which lays down that the

prisoner cannot be granted furlough leave when the police report is adverse.

9] We are of the opinion that it cannot be said that as a rule of

universal application that just because the police report is adverse, no

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

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

police report is adverse and discloses no material or existence of any material

or basing such adverse conclusion, the respondent no. 1 is not justified in

rejecting the furlough leave application of the petitioner.

10] This Court while releasing the petitioner on parole has already

considered the ground of registration of the offence against the wife of the

petitioner in para no. 7 of the judgment in Criminal Writ Petition

No. 258/2021.

11] In the result, we pass the following order:-

(a) The impugned order dated 11/04/2021 passed by

the respondent no. 1 is quashed and set aside.

(b) The respondent no. 1 is directed to grant furlough

leave of 28 days to the petitioner upon such

conditions as may be permissible to be imposed

upon the petitioner in terms of the Rules.

Rule is made absolute in the above terms. Pending

application(s), if any, stand(s) disposed of.

                   (JUDGE)                                       (JUDGE)




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