Sandip S/O Bahirunath Thopte vs The Addl. Director General Of ...
2021 Latest Caselaw 11100 Bom

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                    IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          CRIMINAL APPELLATE JURISDICTION

                       CRIMINAL WRIT PETITION NO. 2638 OF 2021

      Sandip s/o. Bahirunath Thopte ,
      Age- 40 Years R/o. Mahatma Phule
      Agricultural University Rahuri Thopte mess,
      Tq.Rahuri District Ahmednagar
      (Presently lodged at Nashik Central Prison
      as Convict Prisoner No.C/18571)                             ...Petitioner
            vs.
      1. The Addl. Director General of Police &
            Inspector General of Prisons, Pune & Ors.

      2. The Deputy Inspector General of Prisons
         Western Region, Pune-6

      3. The Superintendent,
         Nashik Central Prison, Nashik Road.                      ...Respondents

      Ms.Sharda P. Chate for Petitioner.p

      Mrs.S.D. Shinde, APP for State.

                                          CORAM : S.S. SHINDE &
                                                  N.J. JAMADAR, JJ.

DATE : 17 AUGUST 2021

ORAL JUDGMENT (PER N. J. JAMADAR, J.) :

1. Rule, Rule made returnable forthwith. By consent of parties, the

petition is taken up for final hearing.

2. The challenge in this petition is to the order dated 4 th April 2021,

passed by the Deputy Inspector of Prisons, Western Division, Pune,

whereby the application of the Petitioner came to be rejected.

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3. The petition arises in the backdrop of the following facts :

The Petitioner came to be convicted in Sessions Case

No.411/2016 for the offences punishable under Sections 120(B) and

302 of Indian Penal Code, 1860 ('the Penal Code') and was

sentenced to suffer imprisonment for life for the major offence. The

Petitioner's application for furlough came to be rejected on the

ground that the first informant and the victim are residing in the

same village in the Srirampur Taluka, and there is a strong possibility

of breach of peace and tranquility and imminent threat to the safety

of the informant and the witnesses, in the event the Petitioner is

released on furlough. Thus, invoking Rule 4(4) of the Prison

(Bombay Furlough and Parole) Rules, 1959 ('Rules, 1959'), the

competent authority rejected the application. Being aggrieved, the

Petitioner has invoked the writ jurisdiction of this court.

4. We have heard Ms.Chate, the learned Counsel for the

Petitioner and Mrs. S.D. Shinde, the learned APP for the State.

5. The learned Counsel for the Petitioner submitted that the

application of the Petitioner came to be rejected by ascribing reason of

likelihood of breach of peace and tranquility without there being any

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material to substantiate the said apprehension. It was submitted that the

apprehension expressed by the authorities is not at all borne out by the

conduct and antecedents of the Petitioner. In order to lend support to the

submission that the applications for release on parole and furlough should

not be rejected on the ground of breach of peace and tranquility and threat

to the first informant and witnesses, in a routine manner, learned Counsel

for the Petitioner placed reliance on the Division Bench judgment of this

court in the case of Sanjay Kisan Kadse vs. State of Maharashtra1.

6. In opposition to this, learned APP assailed the tenability of the

Petition on the ground that the Petitioner has already invoked the statutory

remedy of appeal against the impugned order and the said appeal is

pending before the appellate authority. It was further submitted that the

apprehension entertained by the authorities about the breach of public

peace and tranquility and threat to the first informant and witnesses cannot

be said to be unfounded.

7. On the perusal of the impugned order, it becomes evident that the

claim of the Petitioner is negatived on the basis of adverse report submitted

by the police. Apparently the said apprehension stems from the fact that

the person, who has volunteered to stand as a surety for the Petitioner, and

the informant and the witnesses are residents of the same village. Thus, the

possibility of untoward incident resulting in harm to the informant and the 1 2004(1) Bom.C.R.(Cri.) 758

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witnesses cannot be ruled out.

8. Faced with the aforesaid situation, learned Counsel for the

Petitioner submitted that the Petitioner would stay at a place which is at a

considerable distance from the village where the informant and witnesses

are residing. Learned Counsel for the Petitioner submitted that the

Petitioner would also furnish a surety who undertakes to take responsibility

of the Petitioner.

9. Undoubtedly, sub-rule (4) of Rule 4 of Rules, 1959 precludes

the release of a prisoner on furlough, whose release is not recommended by

the competent Police Officer or District Magistrate, as the case may be, on

the ground of public peace and tranquility. However, such adverse

recommendation cannot be resorted to as a ritualistic formula to deprive

the prisoner of legitimate privilege of being released on furlough. It is

imperative to consider whether the adverse recommendation is supported

by relevant material which justifies such apprehension. In the absence

thereof, the denial of furlough on the ground of adverse report, which is

nothing but mere ipse dixit of the concerned authority, would be an

arbitrary and unreasonable exercise of the authority. Likewise, resistance

to release the prisoner on the count that there is a likelihood of harm to the

informant, witnesses or the relations of the victim, cannot be pressed into

service in routine manner. Such apprehension must be borne out by the

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material and the attendant circumstances.

10. In the case at hand, we do not find that the adverse

recommendation is backed by material which justifies such stand of the

authorities. Denial of furlough on the said count, in the circumstances of

the case, appears unjustifiable. In any event, the apprehension on the part

of the authorities can be taken care of by imposing a condition that the

Petitioner, upon release on furlough, would stay at a place which is 25 kms

away from the boundaries of Srirampur Taluka in which the first informant

and the witnesses ordinarily reside.

11. As regards the objection to the maintainability of the petition,

it may be apposite to note that the report submitted by the Superintendent,

Prison, indicates that the appeal was preferred by the Petitioner on 19 th

May 2021 and it was forwarded to the appellate authority on 1 st June

2021. Having regard to the time lag, we do not find ourselves constrained

to entertain this petition on the score that the Petitioner preferred an

appeal.

12. Hence, the following order :

ORDER

(i) The petition stands partly allowed.

(ii) Respondent No.2 shall pass an order of releasing the

Petitioner on furlough for a period of fourteen days on usual

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terms, subject to the following conditions :

(a) The Petitioner, upon his release on

furlough, shall reside at a place which is at a

distance of 25 kms. from the revenue boundaries

of Srirampur Taluka.

                   (b)      The Petitioner shall furnish a surety, who

                   is an ordinary resident of the area outside the

                   aforesaid       limit,   and    where    the     Petitioner

proposes to stay, after his release on furlough.

(c) The said surety shall undertake to control

the activities of the Petitioner during the period

of release on furlough.

(iii) In order to obviate the possibility of conflicting

decisions, the appeal preferred by the Petitioner against the

impugned order stands disposed of.

Rule is made absolute in the aforesaid terms.

All concerned to act on an authenticated copy of this judgment.

      (N.J. JAMADAR J.)                                           (S.S. SHINDE, J.)