Bombay High Court
Shivaji S/O Kisan Narwane vs Deputy Inspector General ... on 23 March, 2021
Bench: Z.A. Haq, Amit B. Borkar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH : NAGPUR.
CRIMINAL WRIT PETITION NO.58/ 2021
Shivaji S/o Kisan Narwane,
Aged about 63 years,
R/o Dhiraj Deems Complex,
2/B-104, LBS Road, Bhandup (West),
Mumbai - 400 008.
(Convict No. C/5752, At present at
Amravati Central Prison). . . . . PETITIONER
. . . . VERSUS . . . .
1. Deputy Inspector General (Prisons),
(Eastern Region), Nagpur.
2. The Superintendent,
Amravati Central Prison,
Amravati. . . . . RESPONDENTS
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Ms. Sonali B. Khobragade, Advocate for petitioner.
Shri S. D. Sirpurkar, A.P.P. for respondents/State.
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CORAM :- Z. A. HAQ AND
AMIT B. BORKAR, JJ.
DATED :- 23.03.2021.
ORAL JUDGMENT (Per Amit B. Borkar, J)
1. Rule. Rule made returnable forthwith.
2. By this petition under Article 226 of the Constitution of
India, the petitioner has challenged the order dated 20.11.2020
passed by the respondent no.1 refusing request of the petitioner of
furlough leave for 28 days.
3. The petitioner has been convicted under Section 302 of
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the Indian Penal Code for imprisonment for life. The petitioner has
completed term of imprisonment of 6 years, 2 months and 8 days on
the date of filing of furlough leave application. On 24.9.2020, the
petitioner filed the application seeking his release on furlough leave.
4. The respondent no.1 called Police Report. The Police
Report dated 10.7.2020 is received by the respondent no.1. The
respondent no.1, by the impugned order dated 20.11.2020, has
rejected furlough leave application of the petitioner on two grounds;
(i) the petitioner belongs to middle class and (ii) the petitioner has
criminal background.
5. The petitioner has, therefore, challenged the order dated
20.11.2020 by filing the present application.
6. This Court, on 21.1.2021 issued notice to the
respondents. The respondent no.2, in pursuance of the said notice, has
filed reply. It is stated in the reply that son of the petitioner is ready to
stand as surety. It is stated that the petitioner belongs to middle class
and has criminal background. Hence, his release has not been
recommended. It is stated that considering the adverse police report,
the respondent no.1 has rejected furlough leave application of the
petitioner relying on Rules 4(4) and 4(6) of the Prisons (Bombay
Furlough and Parole) Rules, 1959 (As Amended by Notification dated
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16.4.2018) (for short "the Rules of 1959").
7. We have heard the learned counsel for the petitioner and
learned APP for the respondents. With the assistance of learned
counsel for the parties, we have carefully scrutinized the impugned
order and reply filed by the respondent no.2. On careful scrutiny of
the impugned order, it appears that the respondent no.1 has rejected
furlough leave application of the petitioner mainly on the ground that
the petitioner belongs to middle class and has criminal background. It
is pertinent to note that there are no details given either in the police
report nor in the reply filed by the respondent no.2 about the alleged
criminal background of the petitioner. It has been consistently held by
this Court that merely stating that the petitioner has criminal
background is not sufficient to reject furlough leave application of a
convict. It is well settled that without valid reason, as contemplated
under Rule 4 of the Rules of 1959, the respondent no.1 could not have
rejected furlough leave application. A bare reading of Rule 4 (4) of the
Rules of 1959 indicates that release can be refused when the same is
not recommended by the Commissioner of Police in Greater Bombay
and elsewhere by the District Magistrate on the ground of public peace
and tranquility. The reason mentioned in the impugned order is not
that release of the petitioner will affect public peace and tranquility.
There is no material placed on record to substantiate the said ground.
Another reason in the impugned order is that the petitioner belongs to
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middle class. The said ground is not sufficient to reject furlough leave
application of the petitioner, particularly when the petitioner has
complied with Rule 6 of the Rules of 1959 of providing surety bond
in `Form A'. We are, therefore, satisfied that the reasons mentioned in
the impugned order are not sufficient to reject furlough leave
application of the petitioner.
8. The learned counsel for the petitioner invited our
attention to the judgment of this Court in Criminal Writ Petition
No.524/2020. This Court, in the case of Amardeepsingh Baswantsingh
Thakur Vs. Deputy Inspector General (Prisons) (East), Nagpur, and
another, has considered the Home Department Circular dated
1.8.2007. This Court has held that the said Circular will apply if any
application for grant of parole or furlough is made at least 45 working
days before the first day of leave sought by jail inmate. This Court
has held that once this requirement is fulfilled, the burden would be
upon the concerned officials to process the application within the time
lines prescribed in the said Circular. In the facts of the present case,
the petitioner had made application on 24.9.2020. It appears that the
police report was called for based on the application dated 12.3.2020
filed by the petitioner seeking his release on parole. It appears that the
police report dated 12.3.2020 sent by the Senior Inspector, Bhandup
Police Station, Mumbai, has been sent to the respondent no.2. From
the annexures to the reply filed by the respondent no.2, it appears that
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while passing the impugned order, report dated 10.3.2020 and
communication dated 10.7.2020 of the Assistant Police Commissioner,
Bhandup Division, Mumbai, has been relied upon by the respondent
no.1. Though, the application for furlough leave was filed on
24.9.2020, the same has been decided by order dated 20.11.2020,
which is after 45 days of filing of the application. Therefore, the State
of Maharashtra shall compensate the petitioner by paying
compensation of Rs.5000/-. We, therefore, pass the following order:
ORDER
(i) The impugned order dated 20.11.2020 passed by the
respondent no.1 rejecting application for furlough leave of 28 days of
the petitioner is quashed and set aside.
(ii) The respondents are directed to grant furlough leave to the
petitioner in accordance with his eligibility, upon suitable conditions
consistent with the Rules of 1959 within a period of one week from
the date of order.
(iii) The State of Maharashtra shall pay compensation of
Rs.5000/- to the petitioner within the period of six weeks from today.
Rule is made absolute in the above terms.
JUDGE JUDGE
Ambulkar
