Mayuresh Ajit Gambhir vs The State Of Maharashtra And Ors
2021 Latest Caselaw 130 Bom

                                                     cri.wpst. 3208-2020.doc

DDR
            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                 CRIMINAL APPELLATE JURISDICTION

             CRIMINAL WRIT PETITION ST.NO. 3208 OF 2020

      Mayuresh Ajit Gambhir
      aged 30 years, Occ. : Not known
      residing at Ram Ali, Poynad,
      Tal. Alibaug, District - Raigad,
      (now confined at Nasik Road Central
      Prison, Nasik Road)                            ..Petitioner


            vs.


      1. The State of Maharashtra


      2. The Superintendent,
      Nasik Road Central Prison,
      Nasik Road.


      3. The Deputy Inspector General
      Central Region, Aurangabad,
      Harsul, Aurangabad.


      4. The Addl. Director General of
      Police and Inspector General of
      Prisons, Central Bldg.,
      Pune - 411001.                                 ..Respondents
                               ----------------------------
      Mr. N.N. Gawankar i/b. Mr. M.N. Gawankar for petitioner.
      Mr. J.P. Yagnik, APP for State.
                               ----------------------------


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                                                 cri.wpst. 3208-2020.doc

                 CORAM             :   S.S.SHINDE &
                                       M.S.KARNIK, JJ.

RESERVED ON : DECEMBER 22, 2020.

PRONOUNCED ON : JANUARY 5, 2021.

JUDGMENT : (PER M.S. KARNIK, J.)

Rule. Rule is made returnable forthwith. Heard finally with

the consent of the learned counsel appearing for the parties.

2. This Petition is filed under Article 226 of the Constitution of

India impugning the order dated 31/8/2020 passed by the

respondent No.4 - Additional Director General of Police and

Inspector General of Prisons, Pune. The petitioner prays for an

appropriate writ or directions to the respondent No.2 for release

on furlough leave.

3. The petitioner was convicted by the Sessions Court, Raigad

- Alibaug in Sessions Case No. 2 of 2008 and sentenced to sufer

rigorous imprisonment for life under Section 302 of the Indian

Penal Code ('IPC' for short) by judgment and order dated

25/2/2016.

cri.wpst. 3208-2020.doc

4. The petitioner was also convicted by a judgment and order

dated 19/5/2018 passed by the Sessions Judge, Raigad, Alibaug

and sentenced to sufer imprisonment for 3 years along with fine

of Rs.500/- for the ofences punishable under Sections 147, 148,

149, 324 of IPC.

5. Learned counsel for the petitioner submitted that the

convicted prisoners undergoing sentence of imprisonment are

entitled to be released on furlough as per the provisions of Rule 3

of the Prisons (Bombay Furlough & Paroles) Rules, 1959

(hereinafter referred to as 'the furlough rules'). The petitioner

applied for furlough vide his application dated 3/12/2018. By an

order dated 14/8/2019 respondent No.2 has rejected petitioner's

furlough under Rule 4 (4) and 4(8) of the furlough rules on the

ground of adverse of police report, apprehension of danger to the

family of victims, criminal antecedents and pending criminal

cases.

6. By an order dated 31/8/2020 the respondent No. 4 rejected

the Appeal preferred by the petitioner against the order dated

14/8/2020. Learned counsel for the petitioner relied upon the

decision of this Court in the case of Anil Dhondiba Mane vs.

The State of Maharashtra and others 1 to submit that merely 1 Criminal Writ Petition No.186 of 1998 decided on 26/3/1998.

cri.wpst. 3208-2020.doc

because a large number of cases are pending against the

petitioner is no a ground to reject the furlough.

7. Learned APP for the State on the other hand supported the

impugned order and pointed out to us list of cases which have

been registered against the petitioner. He further pointed out

that in the year 2012 the petitioner was externed. Pursuant to an

order passed by this Court, the petitioner was granted re-entry

for a period of 8 days. During this period the petitioner along with

his co-accused on 30/12/2013 committed ofence punishable

under Section 143, 147, 148, 149, 307, 395, 452, 436, 427, 504,

506 of the IPC and under Section 3(1), 25 of the Arms Act

registered as C.R.No. 86 of 2013. Learned APP therefore

submitted that considering all the materials on record and the

number of cases registered against the petitioner, the competent

authority has rightly rejected the grant of furlough to the

petitioner.

8. We have heard learned counsel for the parties.

9. So far as adverse report against the petitioner on the

ground that there is likelihood of the petitioner threatening the

complainant and the witnesses is concerned, we do not find that

cri.wpst. 3208-2020.doc

the said report is substantiated by any material on record.

However, we find that following criminal cases pending against

the petitioner as per the report submitted by learned APP :

I) C.R.No.33/13 registered with Poinad Police Station Case

No.25/15 under Sections 143, 147, 451, 454, 504, 526 of the IPC,

C.J.M. Court, Raigad, Alibaug (Production Warrant).

II) C.R.No.86/13 registered with Poinad Police Station under

Sections 3(i)(ii), 3(2) of MCOC Act, 1994 and under Section 3(2)

of the Arms Act, Addl. Sessions Court, Special MCOC Court,

Raigad - Alibaug (Remand Warrant).

III) P.W. Alibaug Police Station C.R.No.37/14, Sessions Case

No.638/15, C.J.M. Court, Raigad, Alibaug (Production Warrant).

IV) P.W. Alibaug Police Station C.R.No.04/09, Sessions Case

No.58/09, C.J.M. Court, Raigad, Alibaug (Production Warrant).

10. From the record it is further seen that even when the

petitioner was granted re-entry in the year 2013 for a period of 8

days in the Raigad District pursuant to the order passed by this

Court while the petitioner was under an order of externment, an

ofence came to be registered against him under Section 143,

147, 148, 149, 307, 395, 452, 436, 427, 504, 506 of the IPC read

with Section 3(1), 25 of the Arms Act on the allegation that the

Petitioner alongwith other co-accused attempted to murder one

cri.wpst. 3208-2020.doc

Vijendra Ramesh Tavade by attacking him and setting his house

on fire.

11. As per the report, there are three criminal cases registered

against the petitioner at Poinad Police Station, two criminal cases

registered at Alibaug Police Station, one criminal case registered

at Mandva Police Station, one case registered at Vikhroli Police

Station at Mumbai. In all there are 7 ofences registered against

the petitioner.

12. We have gone through the decision relied upon by learned

counsel for the petitioner in the case of Anil Dhondiba Mane

(supra). The said decision is not applicable in the facts of the

present case. In the facts of the present case the adverse police

report clearly reveals the provisions under which the crime has

been registered against the petitioner in diferent police stations.

The Petitioner is alleged to have committed an ofence even

during the period he was granted an indulgence of eight days re-

entry by this Court when an externment order against him was in

force. This is a circumstance which is not possible for us to

overlook in the exercise of our jurisdiction under Article 226 of

the Constitution of India.

cri.wpst. 3208-2020.doc

13. The petitioner has undergone actual imprisonment of over

5 years and 1 month. Considering these materials, in our opinion,

we do not find any merit in the submission of learned counsel for

the petitioner so as to interfere with the order passed by the

competent authority and the appellate authority refusing to

release the petitioner on furlough. The Writ Petition, therefore,

deserves to be rejected and accordingly, the same is rejected.

14. Rule is discharged.

15. The Writ Petition is disposed of.

Digitally signed by Diksha

16. This judgment will be digitally signed by the Personal Diksha Rane Rane Date:

2021.01.05 12:41:57 Assistant of this Court. All concerned will act on production by fax +0530

or email of a digitally signed copy of this judgment.

                      (M.S.KARNIK, J.)                               (S.S.SHINDE, J.)