Sanjay S/O Anant Patil vs The Deputy Inspector General ...
2021 Latest Caselaw 9710 Bom

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              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        NAGPUR BENCH : NAGPUR

                  CRIMINAL WRIT PETITION NO. 652 OF 2020


  Sanjay S/o. Anant Patil,
  Aged about 40 years, Convict No. C-5507,
  R/o. House No. 138, Patil House,
  Mukkam Post Borivali West, Mumbai,
  Presently detained at Central Prison,
  Amravati, Tah. & Dist. Amravati.                                       . . . PETITIONER

                         ...V E R S U S..

  1. The Deputy Inspector General,
     (Prison),[E][R], Wardha Road,
     Tah. & Dist. Nagpur.

  2. The Superintendent of Prison,
     Central Prison, Amravati,
     Tah. & Dist. Amravati.

  3. The Assistant Commissioner of Police,
     Borivali Division, Mumbai.                                      . . . RESPONDENTS

 ------------------------------------------------------------------------------------------------
 Shri Gaurav Singh Sengar, Advocate (appointed) for petitioner.
 Ms. N. R. Tripathi, A.P. P. for respondents/State.
 -----------------------------------------------------------------------------------------------

                  CORAM :- V. M. DESHPANDE AND
                           AMIT B. BORKAR, JJ.

DATED :- 26.07.2021

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

1. Hearing was conducted through Video Conferencing and

learned counsel agreed that the audio and visual quality were proper.

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2. Rule. Rule is made returnable forthwith. Heard finally by

consent of the parties.

3. By this petition under Article 226 and 227 of the

Constitution of India, the petitioner is challenging the order dated

19.08.2020 passed by the respondent no. 1, rejecting the furlough

leave application of the petitioner and order dated 10.10.2020 passed

by the respondent no. 2, rejecting emergency parole leave application

of the petitioner.

4. The petitioner is a convict for the offence punishable

under Section 302 of the Indian Penal Code and Section 3/35 of the

Arms Act. The petitioner has completed sentence of 6 years, 5 months

and 4 days on the date of filing of the application for furlough leave. In

the month of April-2020, the petitioner applied for the furlough leave

before the respondent no. 1, which was rejected by impugned order

dated 19.08.2020.

5. The petitioner on 14.08.2020 applied for emergency

parole leave of 45 days under Rule 19(C)(ii) of the Maharashtra

Prisons (Mumbai Furlough and Parole) Rules, 1959 (in short, "the

Rules of 1959"). The said application was rejected by the respondent

no. 2 by order dated 10.10.2020.

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6. Insofar as the application for emergency parole leave filed

by the petitioner under Rule 19(C)(ii) of the Rules of 1959 is

concerned, it is not disputed fact that the petitioner has been convicted

for the offence punishable under the provisions of Sections 3/35 of the

Arms Act. The Full Bench of this Court in the case of Pintu Vs. State of

Maharashtra reported in (2020) 6 Mh.LJ 627 has held that when a

prisoner is convicted for serious offence or the offence under Special

Acts, he is not eligible for release from prison under Rule 19(C)(ii) of

the Rules of 1959. We are therefore satisfied that respondent no. 2

was justified in rejecting request of the petitioner for his release on

emergency parole.

7. Insofar as the release of the petitioner on furlough leave is

concerned, the impugned order is passed on the basis of adverse police

report. On careful scrutiny of the impugned order, it appears that the

respondent no. 1 has not referred to any material, on the basis of

which the apprehension could have been expressed by the respondent

no. 1 that there will be threat to peace and tranquility in the area.

Neither the impugned order nor the police report referred to the basic

fact that there exists some material on record, which on perusal would

show that the apprehension so expressed by the authorities has

reasonable foundation. It is necessary for the respondent no. 1 to

record such substantive satisfaction, upon consideration of the material

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on record and if it shows that subjective satisfaction recorded by the

respondent no. 1 was without any basis then it would be a

unreasonable order and hence liable to be struck down.

8. We are therefore satisfied that the respondent no. 1 was

not justified in rejecting the furlough leave application of the

petitioner. In the result, we pass following order:-

(i) The impugned order dated 19.08.2020 passed by

respondent no. 1 rejecting the furlough leave application of the

petitioner for a period of 28 days is set aside.

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

28 days to the petitioner upon such terms and conditions, which may

be permissible in terms of the Rules applicable, within a period of one

week from the date of receipt of this order.

(iii) The impugned order dated 10.10.2020 passed by the

respondent no. 2, rejecting emergency parole leave of the petitioner is

hereby confirmed.

(iv) The learned Advocate appointed for the petitioner shall be

paid his professional fees, which quantified at ₹ 1500/- (Rs. One 1500/- (Rs. One

Thousand Five Hundred).

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                               Rule is made absolute in the above terms.




                               JUDGE                                  JUDGE




RR Jaiswal