Ashwin @ Gondya Dipak Telang vs Deputy Inspector General ...
2021 Latest Caselaw 12831 Bom

                                                                         1                        Cr.W.P.No.409.2021-J


                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                           NAGPUR BENCH, NAGPUR.

                        CRIMINAL WRIT PETITION NO.409 OF 2021

  Ashwin @ Gondya Dipak Telang,
  Convict No. C/5546,
  Presently at Central Prison, Amravati.                                                 ....PETITIONER

              ---- VERSUS ----

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

  2.       The Superintendent Central Prison,
           Amravati.                                                                   .... RESPONDENTS
  _________________________________________________________________________________________________________________________________

  Shri Mir Nagman Ali, Advocate for the Petitioner.
  Shri V. A. Thakare, A.P. P. for the Respondents/State.
  _________________________________________________________________________________________________________________________________


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

DATE : 08.09.2021.

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 is challenging order passed by

the respondent No.1 dated 01.04.2021 thereby refusing to grant

furlough leave of 21 days to the petitioner.

4. The petitioner is a convict for the offence punishable

under Section 302, 307, 143, 147, 148, 149, 449 of the Indian Penal

Code, and is undergoing punishment of imprisonment for life. The

petitioner had undergone imprisonment of 3 years and 9 days on

the date of filing of furlough leave application. The petitioner on

11.12.2020 filed an application for grant of furlough leave of 21

days with the respondent No.1. The respondent No.1 by order

dated 01.04.2021 rejected the furlough leave application of the

petitioner mainly on the ground that the petitioner had assaulted

fellow prisoner Amarsingh Thakur and as a punishment order of

reduction of 20 days remission from the remission earned by the

petitioner was passed. The respondent No.1 therefore, rejected the

furlough leave application of the petitioner relying on Rule 4(4),

4(6) of the Prisons (Bombay Furlough and Parole) Rules, 1959.

5. The petitioner has therefore, challenged the order

dated 01.04.2021 by way of present petition. This Court on

10.06.2021 issued notice to the respondents. The respondent No.2

has filed reply dated 19.06.2021 stating that since the witnesses in

the Sessions Trial have objected for release of the petitioner; the

petitioner having assaulted the fellow prisoner, punishment for

reduction of 20 days of remission cut was passed against him and

therefore, the petitioner is not eligible for being released on

furlough leave.

6. We have carefully considered the reasons stated in the

impugned order. We have also carefully considered the Rule 4(6) of

the Prisons (Bombay Furlough and Parole) Rules, 1959 which reads

as under :-

"Rule 4(6) - Prisoners whose work and conduct are, in the opinion of the Superintendent of the Prison, not satisfactory enough."

7. On careful reading of aforesaid Rule, it appears that the

Superintendent of Prison is entitled to access work and conduct of

prisoner and if he finds the same to be unsatisfactory, he can refuse

furlough leave to the prisoner. The Prison Authorities are required

to take into consideration object of furlough which enables the

prisoner to maintain continuity with his family life and to deal with

family matters and save him from ill effect of continuous jail life.

Taking into consideration objects of furlough system, the request of

the petitioner in the facts and circumstances of the present case

could not have been denied by the respondent No.1 merely because

the order of remission cut was passed on 03.04.2021. We have also

considered the order of remission cut and taking into consideration

the nature of allegations made against the petitioner in the said

order, we are of the opinion that the request of the petitioner to

release him on furlough leave could not have been rejected in

exercise of power under Rule 4(6) of the said Rules.

8. In so far as ground of witnesses objecting the release of

the petitioner is concerned, there is no material produced by the

respondent No.2 in the affidavit in reply filed in the present

petition. We have also considered the copy of police report, which

is annexed along with the reply. On perusal of the police report, it

appears that there is no material disclosed in the report, which is

the basis of apprehension expressed in the police report. In absence

of the material in support of apprehension expressed in the police

report, the respondent No.1 was not justified in rejecting the

application of the petitioner of furlough leave. We are therefore,

satisfied that the respondent No.1 has exercised its power, which

has resulted into miscarriage of justice.

9. We therefore, pass following order :

i. The impugned order dated 01.04.2021 passed by the

respondent No.1 is quashed and set aside.

ii. The respondent No.1 is directed to release the

petitioner on furlough leave for a period of 21 days on such terms

and conditions as the respondent No.1 deems fit and proper.

10. Rule is made absolute in the above terms. Pending

application(s), if any, stand(s) disposed of.

                               JUDGE                                         JUDGE
RGurnule