Prathmesh @ Nana S/O. Ankush Rode vs The State Of Maharashtra, Thr. ...
2021 Latest Caselaw 12849 Bom

                                                                         1                            Cr.W.P.No.427.21-J

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

                        CRIMINAL WRIT PETITION NO.427 OF 2021

  Prathmesh @ Nana S/o. Ankush Rode,
  Aged - 32, Convict No. C - 6539,
  (Presantly at Central Prison, Amravati)
  Distt. Amravati.                                                                       ....PETITIONER

              ---- VERSUS ----

  1.       State of Maharashtra through
           D. I. G. Prison, (East), Nagpur.

  2.       The Superintendent of Central Prison,
           Amravati, Distt. Amravati.            .... RESPONDENTS

  _________________________________________________________________________________________________________________________________

  Shri A. Y. Sharma, 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.

ORAL 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 16.04.2021 thereby refusing to grant

furlough leave of 28 days to the petitioner.

4. The petitioner is a convict for the offence punishable

under Section 302 of the Indian Penal Code, and is undergoing

punishment of imprisonment for life. The petitioner had undergone

imprisonment of 5 years, 3 months and 3 days on the date of filing

of furlough leave application. The petitioner on 03.02.2020 filed an

application for grant of furlough leave of 28 days with the

respondent No.1. The respondent No.1 by order dated 16.04.2021

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), 4(12) of the

Prisons (Bombay Furlough and Parole) Rules, 1959.

5. The petitioner has therefore, challenged the order

dated 16.04.2021 by way of present petition. This Court on

17.06.2021 issued notice to the respondents. The respondent No.2

has filed reply dated 30.06.2021 stating that since the witnesses in

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

petitioner having assaulted the fellow prisoner, punishment for

reduction of 20 days of remission 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(12)

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

reads as under :-

"Rule 4(12) - Prisoners who are considered dangerous or have been involved in serious prison violence like assault, outbreak, riot, mutiny or escape, or who have been found to be instigating the serious violation of prison discipline, smuggling of narcotic and psychotropic substances including convicted under Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), rape or rape with murder, attempt to rape with murder and foreigner prisoners (Prisoners may be eligible for furlough after completion of stipulated sentence in the respective section)."

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

bracketed portion of the Rule 14(12) permits Prison Authorities to

release prisoner on furlough leave, if he has already completed

punishment imposed upon the prisoner. In the facts of the present

case, the order of remission cut was passed on 05.01.2021. In our

view, since the petitioner has already undergone the punishment

confirmed by the order dated 05.01.2021, there is no impediment

for releasing the petitioner on furlough leave. 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.

8. We therefore, pass following order :

i. The impugned order dated 16.04.2021 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 28 days on such terms

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

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

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

                                    JUDGE                                     JUDGE


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