Akshay @ Bashya Santosh Maskar vs State Of Mah. Thr. Deputy ...
2021 Latest Caselaw 11798 Bom

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


                       CRIMINAL WRIT PETITION NO. 421/2021


          Shri Akshay @ Bashya Santosh Maskar,
                                         Maskar,
          Aged about 25 years,
          R/o. Mungsaji Ward, Ghatanji,
          District Yavatmal, (Prisoner No. C/5374
          Presently at Central Prison, Amravati)
                                                                     .... PETITIONER

                                      // VERSUS //

 1]       State of Maharashtra,
                   Maharashtra,
          Through Deputy Inspector General
          Of Prison, Eastern Region, Nagpur

 2]       Superintendent of Jail,
                            Jail,
          Central Prison, Amravati,
          District Amravati
                                                                 .... RESPONDENT(S)

  ********************************************************************************
                     Shri R. Kadu, Advocate for the petitioner(s)
                   Ms. N.R. Tripathi, APP for the respondent/State
  ********************************************************************************

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

AUGUST 25, 2021

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

1] Heard.

 2]               RULE. Rule made returnable forthwith.




 ANSARI




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 3]               By this petition under Articles 226 and 227 of the Constitution of

India, the petitioner is seeking setting aside of the order dated 23/11/2020 passed by

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

ground that the police report is adverse to the petitioner.

4] The petitioner is convicted for the offence punishable under Section

302 of the Indian Penal Code and is undergoing sentence of imprisonment for life.

The petitioner had completed three years and three days on the date of filing of the

furlough leave application. The petitioner on 20/03/2020 filed an application with

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

Superintendent of Police, Yavatmal. In the report, it is stated that there is possibility

of breach of peace and tranquility and the witnesses and respectable persons in the

area have objection for release of the petitioner.

5] The petitioner has therefore filed the present petition. This Court by

the order dated 16/06/2021 issued notices to the respondents. The respondent no. 2

in pursuance of the notice issued by this Court has filed affidavit-in-reply stating that

the police verification report submitted by the Superintendent of Police, Yavatmal is

against the petitioner.

6] We have carefully scrutinized the impugned order along with the copy

of the police report annexed to the reply which is at page 27. On scrutiny of the

impugned order which is based on adverse police report, we find that the respondent

ANSARI

Judgment 3 wp421.21.odt

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.

7] 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.

8] 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 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.

 ANSARI




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 9]               Therefore, the following order is passed:-



                  (a)      The impugned order dated 23/11/2020 passed by the

respondent no. 1 rejecting furlough leave application of the

petitioner is quashed and set aside.

(b) The respondent no. 1 is directed to grant furlough leave of 21

days to the petitioner in accordance with his eligibility upon

suitable conditions consistent with the Prisons (Bombay

Furlough and Parole) Rules, 1959 within a period of one week

from the date of production of this order.

Rule is made absolute in the above terms. Pending application(s), if

any, stand(s) disposed of.

                   (JUDGE)                                        (JUDGE)




 ANSARI