Anilkumar Alias Lapetu Ramshakal ... vs The State Of Maharashtra And Anr
2021 Latest Caselaw 14573 Bom

                                                                    CRIWP3275-2021.DOC
         Digitally
         signed by
         SANTOSH                                                                   Santosh
SANTOSH SUBHASH
SUBHASH KULKARNI
KULKARNI Date:
         2021.10.06         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
         14:31:01
         +0530
                                   CRIMINAL APPELLATE JURISDICTION


                                     WRIT PETITION NO. 3275 OF 2021

                           Anilkumar alias Lapetu Ramshakal
                           Sharma                                          ...Petitioner

                                            Versus
                           The State of Maharashtra & ors.             ...Respondents


                      Mr. Prosper D'souza, for the Petitioner.
                      Mr. V. B. Kondedeshmukh, APP for the State/Respondent.


                                                   CORAM: S. S. SHINDE &
                                                       N. J. JAMADAR, JJ.

RESERVED ON: 28th SEPTEMBER, 2021.

PRONOUNCED ON: 6th OCTOBER, 2021.

JUDGMENT:- [PER : N. J. JAMADAR, J.]

1. Rule. Rule made returnable forthwith and, with the

consent of the Counsels for the parties, heard finally.

2. This petition under Article 226 of the Constitution of India,

takes exception to the legality and correctness of the order dated

16th March,2021 in Appeal No.21774/1780/2021, passed by the

Additional Director General of Police and Inspector General,

Prison and Correctional Services, Pune-1 - respondent no.2,

whereby the appeal preferred by the petitioner against denial of

furlough leave by Deputy Inspector General of Prions came to be

dismissed, affirming the order dated 17th September, 2020.

CRIWP3275-2021.DOC

3. Shorn of unnecessary details, the background facts

leading to this petition can be stated as under.

The petitioner came to be convicted by the Court of

Session, Mumbai, in Sessions Case No.511 of 2005, for the

offence punishable under Section 302 of the Indian Penal Code,

1860 ("the Penal Code") and sentenced to suffer imprisonment

for life, with default stipulation. The petitioner is undergoing the

said sentence of life imprisonment. The petitioner applied for

furlough. The Deputy Inspector of General, Prions, was

persuaded to reject the application on the ground that when the

petitioner was released on furlough, on two prior occasions, the

petitioner had overstayed and was required to be arrested and

brought back to prison. In the year 2011, the petitioner had

reportedly overstayed by 108 days, and in the year 2013, the

period of overstay was 383 days. Moreover, during the said

period of overstay, a crime was registered against the petitioner

at CR No.173/2013 at Bangur Nagar Police Station, Thane, for

the offences punishable under Sections 457 and 380 of the

Penal Code. It was further noted that on account of the

indiscipline and threat to security, the petitioner was

transferred to Yerwada Central Prison from Nashik Road Central

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Prison on 7th April, 2017. Thus, invoking Rule 4(4), (10) and (12)

the competent authority declined furlough to the petitioner.

4. Being aggrieved, the petitioner preferred an appeal. By the

impugned order respondent no.2 - the appellate authority

dismissed the appeal concurring with the view taken by the

Deputy Inspector General of Prison.

5. Being further aggrieved the petitioner has invoked the writ

jurisdiction of this Court.

6. We have heard Mr. Prosper D'souza, the learned Counsel

for the petitioner and Mr. V. B. Kondedeshmukh, the learned

APP for the State, at some length. With the assistance of the

learned Counsels for the parties, we have perused the material

on record including the impugned orders and the report

submitted by the Superintendent of Prison, Yerwada Central

Prison.

7. Mr. D'souza, the learned Counsel for the petitioner

submitted that the authorities were in error in declining to

grant furlough to the petitioner on the premise that the

petitioner had not returned to prison on time, when he was

released on furlough in the year 2011 and 2013. It was urged

that the time-lag of more than eight years since the said default

ought to have been taken into account by the authorities. Since

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the petitioner has already been punished by striking off his

name from the remission register and permanently debarring

him from claiming remission, the authorities could not have

banked upon the said ground again to deny furlough, submitted

Mr. D'souza. Laying emphasis on the period of 15 years actual

imprisonment undergone by the petitioner Mr. D'souza would

urge that the denial of furlough defeats the very object of the

furlough, which is a facet of penal reform.

8. In contrast to this, Mr. Kokndedeshmukh, the learned

APP, stoutly submitted that the authorities were fully justified in

declining to release the petitioner on furlough. Twice the

petitioner was released on furlough and on both the occasions

the petitioner overstayed and was required to be apprehended

and brought back to prison. Laying stress on the long period of

overstay (383 days), in the case of last release,

Mr. Kondedeshmukh submitted that the apprehension

entertained by the authorities cannot be said to be unfounded.

The fact that a crime was registered against the petitioner,

during the said period, is a pointer to the propensity of the

petitioner to indulge in activities prejudicial to the maintenance

of public peace and tranquility and, therefore, the authorities

CRIWP3275-2021.DOC

were well within their rights in rejecting the prayer for furlough,

urged Mr. Kondedeshmukh.

9. The rival submissions now fall for consideration.

10. To begin with, the period of incarceration the petitioner

has actually undergone. The petitioner has been sentenced to

suffer imprisonment for life by judgment and order dated 26 th

June, 2007. The petitioner has undergone 15 years and one

month's actual imprisonment. Undoubtedly, the petitioner has

been sentenced to imprisonment for life. However, the period of

imprisonment actually undergone by the petitioner is

significant.

11. Indisputably, the petitioner overstayed by a period of 108

days when he was released on furlough in the year 2011 and

383 days in the year 2013. However, the fact that for the said

overstay the petitioner had already been punished by removing

his name from the remission register cannot be lost sight of.

The time-lag also assumes significance. A period of almost eight

years has elapsed from the date the petitioner was apprehended

and brought back to prison.

12. As regards the registration of CR No.173 of 2013, for the

offences punishable under Sections 457 and 380 of the Penal

Code, at this juncture, there is no material to demonstrate that

CRIWP3275-2021.DOC

the circumstances in which the said offences were allegedly

committed were such that they posed danger to public peace

and tranquility. Indisputably, the concepts of "law and order"

and threat to "public peace and tranquility" are distinct. The

registration of the crime for the offences punishable under

Sections 380 and 457 of the Penal Code thus cannot be arrayed

against the petitioner to deny him the benefit of furlough forever.

To do so would amount to completely loose sight of the object of

the correctional measure of release on furlough and parole. The

release of a prisoner on parole is considered necessary from the

point of view of the prisoner as well as the society. Such a

release, inter alia, affords opportunity to the prisoner to

assimilate with his family and the changed surrounding, after

release from prison. The society also has an abiding interest in

ensuring that a prisoner returned to the society as a productive

and responsible citizen.

13. We do not find that the ground of the transfer of the

petitioner from Nashik Road Central Prison to Yerwada Central

Prison could have been staked against the petitioner. On the

one hand, there is no supporting material to indicate that the

petitioner indulged in prison indiscipline. On the other hand,

the Superintendent, Yerwada Central Prison, has recommended

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the case of the petitioner for release on furlough opining that

the petitioner regularly and responsibly discharged the duties

entrusted to him.

14. In the aforesaid view of the matter, especially the period of

actual imprisonment 15 years and one month undergone by the

petitioner, in our view, the authorities were not justified in

declining to release the petitioner on furlough. We are, thus,

inclined to allow the petition.

15. Hence, the following order:

: Order :

The petition stands allowed.

(i) The impugned order dated 16th March, 2021, passed

by the Additional Director General of Police and

Inspector General, Prison and Correctional Services

- respondent no.2, stands quashed and set aside.

(ii) The petitioner - convict Anilkumar alias Lapetu

Ramshankar Sharma, is directed to be released on

furlough for a period of 14 days on usual terms and

conditions as the competent authority may find

suitable to impose in the circumstances of the case.

(iii) The petitioner shall abide by all conditions which

may be imposed by the competent authority.

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(iv) Necessary order of release of the petitioner on

furlough be passed by 18th October, 2021.

(v) Rule made absolute in the aforesaid terms.

(vii) All concerned shall act on an authenticated copy of

this judgment and order.

[N. J. JAMADAR, J.]                [S. S. SHINDE, J.]