Prashant Arjun Chamke vs Deputy Inspector General ...
2021 Latest Caselaw 7338 Bom

                                              1                                35-wp-302-21j.odt

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

                  CRIMINAL WRIT PETITION NO. 302 OF 2021

  Prashant Arjun Chamke,
  Aged about 38 years,
  R/o. Plot No. 133, 134, Samta Nagar,
  Anwar Layout, Ambatoli,
  Near Girish Kirana Stores,
  Jaripatka, Nagpur.
  (Convict No. C/10617, Central Prison, Nagpur)                          . . . PETITIONER

                         ...V E R S U S..

  1. Deputy Inspector General (Prisons),
     (East Region), Nagpur.

  2. The Superintendent,
     Nagpur Central Prison,
     Nagpur.                                                         . . . RESPONDENTS

 ------------------------------------------------------------------------------------------------
 Ms. Sonali B. Khobragade, Advocate for petitioner.
 Ms. N. R. Tripathi, A.P. P. for respondents/State.
 -----------------------------------------------------------------------------------------------
                               CORAM :- Z. A. HAQ AND
                                        AMIT B. BORKAR, JJ.

DATED :- 06.05.2021

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

1. Heard.

2. Rule. Rule made returnable forthwith.

3. By this Writ Petition under Article 226 of the Constitution of

India, the petitioner has challenged order dated 25.01.2021 passed by

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the respondent no. 1 rejecting the application for furlough leave of the

petitioner for period of 21 days.

4. The petitioner has been convicted for offences punishable

under Sections 302, 304(2), 143 and 148 of the Indian Penal Code and

is undergoing imprisonment for life. The petitioner had completed

period of 3 years, 8 months and 16 days of imprisonment on the date

of filing of the application for furlough leave. On 17.03.2020, the

petitioner submitted the application for grant of furlough leave. The

respondent no. 1 called for report from the Commissioner of Police,

Nagpur. The Commissioner of Police, Nagpur submitted report dated

04.05.2020, expressing apprehension that surety suggested by the

petitioner, being mother of the petitioner, is old aged lady would be

unable to control conduct of the petitioner during the leave period. On

25.01.2021, the respondent no. 1 rejected the application of furlough

leave of the petitioner relying on sub-Rule 4 of Rule 4 of the Prisons

(Parole and Furlough) Rules, 1959 (in short "the Rules of 1959").

5. The petitioner has therefore filed the present petition

challenging order dated 25.01.2021. The respondent no. 2 has filed

reply stating that the petitioner submitted surety of his wife however,

the police report indicates that neighbours and persons of the locality

have objected release of the petitioner on furlough leave and therefore,

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the respondent no. 1 has rightly rejected furlough leave of the

petitioner.

6. Learned Advocate for the petitioner submitted that the

police report is not based on sufficient material to support the

apprehension expressed in the police report. It is submitted that the

impugned order is perverse, arbitrary and illegal. Learned A.P.P. has

supported the impugned order submitting that the respondent no. 1

has rightly rejected the furlough leave application based on sub-Rule 4

of Rule 4 of the Rules of 1959.

7. We have scrutinized the impugned order. The impugned

order reflects that police verification report is adverse to the petitioner.

On perusal of sub-Rule 4 of Rule 4 of the Rules of 1959, we are of the

view that the said Rules could not be mechanically applied just because

the police report is adverse. In a given case it is possible that though

the police report is adverse, same cannot be relied upon to reject the

application of furlough leave, if the police report is not founded on

reasonable criteria or material. If the police report is adverse and

discloses no material or existence of any material for passing adverse

conclusion, the authority is not justifying in rejecting the furlough

leave application of the petitioner. On scrutiny of reply along with its

annexures and the reasons stated in the reply we do not find any

material, based on which apprehension expressed in the report of the

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Commissioner of Police. Neither the impugned order nor the police

report refers to the basic fact that there exists some material on record,

which upon perusal would show the apprehension so expressed by the

authority has reasonable foundation.

8. We, therefore, pass the following order :-

(i) The impugned order 25.01.2021 passed by the respondent

no. 1, rejecting the furlough leave application of the petitioner is

quashed and set aside.

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

21 days to the petitioner by imposing such condition as may be

permissible in terms of Rules, within one week from the date of receipt

of this order.

Rule is made absolute in the above terms.

                             JUDGE                                            JUDGE

RR Jaiswal