Omnarayan Amarnath Sharma vs The State Of Maharashtra And Anr
2021 Latest Caselaw 14574 Bom

SANTOSH
SUBHASH                                                               CRIWP2713-2021.DOC
KULKARNI
                                                                                   Santosh
Digitally signed by
SANTOSH SUBHASH
KULKARNI
Date: 2021.10.06
14:15:15 +0530
                            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                   CRIMINAL APPELLATE JURISDICTION


                                     WRIT PETITION NO. 2713 OF 2021

                           Omnarayan Amarnath Sharma
                           Aged : 32 years, Occu. : Nil
                           Convict No.C-6310
                           Residing at Near Shiv Shakti Flour Mill,
                           Indira Nagar, Rupadevi Pada No.2,
                           Road No.33-34, Wagle Estate, Thane,
                           Maharashtra,
                           At present a convict prisoner and lodged
                           at Central Jail, Thane.                         ...Petitioner

                                           Versus
                      1. The State of Maharashtra
                         Through the Superintendent,
                         Central Jail, Thane.
                      2. The Inspector General of Police (Prison)
                         South Zone, Byculla, Mumbai - 8.               ...Respondents


                      Mr. Sandeep Kumar Singh, for the Petitioner.
                      Mrs. M. H. Mhatre, 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. The challenge in this petition is to an order dated 10 th May,

2021 passed by the Special Inspector General (Prison), South

CRIWP2713-2021.DOC

Division, Byculla, Mumbai, whereby the application of the

petitioner for release on furlough came to be rejected.

3. The petition arises in the backdrop of the following facts:

(a) The petitioner came to be convicted by the Court of

Sessions, Thane, for the offence punishable under Section 302

of the Indian Penal Code, 1860 ("the Penal Code") for having

committed murder of his wife and sentenced to suffer

imprisonment for life, by judgment and order dated 2 nd March,

2017. The petitioner has undergone imprisonment for more

than five years. The petitioner thus preferred an application for

release on furlough. The father of the petitioner offered to

furnish surety.

(b) The prayer of the petitioner was initially not acceded

to on the ground that the father of the petitioner was not in a

position to exercise effective control over the petitioner.

Thereupon, Mr. Imran Ismail Shaikh volunteered to furnish

surety. However, upon inquiry, Mr. Imram Shaikh backed out.

Thus, by communication dated 23rd August, 2020, the petitioner

was called upon to furnish a respectable person like Sarpanch,

Police Patil, Councilor, Doctor and Teacher etc., as surety.

Citing the long period of incarceration, the petitioner expressed

CRIWP2713-2021.DOC

his inability to furnish surety of the type sought by the

authorities.

(c) Eventually, by the impugned order dated 10 th May,

2021, the competent authority negatived the prayer of the

petitioner invoking Rule 4(4) and (6) of the Maharashtra Prisons

(Furlough and Parole) Rules, 1959 ("the Rules, 1959"). The

competent authority took note of the fact that the brother of the

deceased wife of the petitioner, namely Mr. Mukesh Matadin

Kahar, had expressed apprehension about threat to his life, in

the event of the release of the petitioner on furlough.

4. We have heard Mr. Sandeep Kumar Singh, the learned

Counsel for the petitioner and Mrs. Mhatre, the learned APP, for

the State/respondent. With the assistance of the Counsels for

the parties we have perused material on record including the

impugned order and the report submitted by the

Superintendent, Central Prison, Thane.

5. The learned Counsel for the petitioner submitted that

respondent no.2 committed an error in rejecting the application

of the petitioner for furlough on the ground that no surety, who

happened to be a respectable person, could be furnished.

Mr. Singh strenuously urged that the father of the petitioner

had offered to stand as a surety. The insistence to furnish a

CRIWP2713-2021.DOC

surety, who happens to be either an official or an elective office

bearer is not legally sustainable. Amplifying the submission,

Mr. Singh would urge that such a condition would defeat the

object of the correctional measure as the prisoner would find it

difficult to furnish a surety who satisfies the aforesaid criteria.

6. Mrs. Mhatre, the learned APP, on the other hand, would

urge that respondent no.2 was fully justified in negativing the

prayer for release on furlough as the possibility of the petitioner

not reporting back to prison, in the absence of a surety, who

would exercise effective control, was imminent. Since the father

of the petitioner resides in a premises which is unauthorisedly

erected, there was risk of fleeing away, submitted Mrs. Mhatre.

7. Mrs. Mhatre further submitted that the petitioner has an

efficacious remedy of approaching the appellate authority under

Rule 2(3) of the Rules, 1959. Therefore, this Court may not

entertain the petition.

8. We have given careful consideration to the aforesaid

submissions. From the perusal of the material on record it

becomes evident that the competent authority delved into the

issue of suitability of the surety, primarily. Initially, the father

of the petitioner offered to stand surety. However, his proposed

suretyship was not accepted on the count that he would not be

CRIWP2713-2021.DOC

able to exercise effective control over the petitioner. The efforts

made by and on behalf of the petitioner to furnish an

independent surety did not yield success as Mr. Imran Shaikh,

who had offered to furnish surety, backed out. Vide

communication dated 13th August, 2020, the competent

authority requested the Superintendent, Central Prison, Thane,

to advise the petitioner to furnish a competent and eligible

surety, who happened to be a respectable person like Sarpanch,

Police Patil, Councilor, Doctor and Teacher etc.

9. The aforesaid communication dated 13th August, 2020,

thus indicates that the competent authority was of the view that

the petitioner was entitled to be released on furlough provided a

suitable and competent surety was furnished. When the

petitioner expressed his inability to furnish the surety of the

type desired by the competent authority, the latter proceeded to

reject the application invoking Rule 4(4) and (6) of the Rules,

1959. Support was sought to be drawn from the apprehension

expressed by the Assistant Commissioner of Police on the basis

of the statement of Mr. Mukesh Kahar, the brother of the

deceased wife of the petitioner, that the petitioner may cause

harm to the said witness.

CRIWP2713-2021.DOC

10. It is interesting to note that the consideration upto the

point of the rejection of the prayer for furlough revolved around

the suitability of surety and not the entitlement of the petitioner

to be released on furlough. In our view, having recorded in

black and white that the petitioner be advised to furnish a

surety who happened to be a respectable person, it was not

open for respondent no.2 to reject the application for furlough

itself by invoking Sub-rule (4) and (6) of Rule 4, of the Rules,

1959.

11. Even otherwise, we do not find that the reliance on Sub-

rule (4) and (6) of Rule 4 is sustainable in the facts of the case.

There is no cogent material to show that the release of the

petitioner on furlough would pose danger to public peace and

tranquility. In any event, the apprehension could have been

taken care of by imposing appropriate conditions.

12. The petitioner has placed on record the affidavits of his

brother Udit Sharma and Amarnath Sharm, his father, to the

effect that they undertook to produce the petitioner before the

authorities, in the event he is released on furlough. Udit

Sharma claimed that he deals in the business of real estate and

earns Rs.40,000/- per month and pays income tax regularly.

Udit Sharma is the younger brother of the petitioner.

CRIWP2713-2021.DOC

13. In the aforesaid view of the matter, where the competent

authority was inclined to release the petitioner on furlough

provided a suitable surety was furnished, in our view, the

rejection of the prayer for release on furlough subsequently by

invoking Sub-rule (4) and (6) of Rule 4 is not justifiable. In the

circumstances, we do not deem it appropriate to relegate the

petitioner to the remedy of appeal before the appellate authority.

In our view, the concern of the authorities can be adequately

addressed by directing the petitioner to furnish an independent

surety, apart from Udit Amarnath Sharma, as an additional

surety. We are, thus, inclined to allow the petition.

14. Hence the following order:

:Order:

(i) The petition stands allowed.

(ii) The impugned order dated 10th May, 2021 passed by the Special Inspector General (Prison), South Division, Byculla, Mumbai, stands quashed and set aside.

(iii) The petitioner - convict Omnarayan Amarnath Sharma be released on furlough for a period of 14 days on furnishing two sureties, one of whom shall be Udit Amarnath Sharma, the brother of the petitioner, and another independent person having good conduct, in the sum of Rs.15,000/-, each.

CRIWP2713-2021.DOC

(iv) In addition to the conditions which may be imposed by the competent authority - respondent no.2, the petitioner shall attend the Wagle Estate Police Station, Thane, twice during the aforesaid period of 14 days, to mark his presence, in between 10.00 am. to 12.00 noon.

(v) The petitioner shall not contact the witness Mukesh Kahar or any of his family members for any purpose whatsoever.

(vi) Necessary order of release of the petitioner on furlough be passed by 18th October, 2021.

(vii) All concerned shall act on an authenticated copy of this judgment and order.

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