Munna Gopal Thakur vs Deputy Inspector General Prison, ...
2021 Latest Caselaw 13476 Bom

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


                           CRIMINAL WRIT PETITION NO. 578/2021


                   Munna Gopal Thakur,
                   Aged about 31 years,
                   R/o. At Parwa, Post. Talegaon
                   (Bhari), Tah. & Dist. Yavatmal
                   (C/5773, Central Prison, Amravati,
                   District Amravati)
                                                                 .... PETITIONER(S)

                                         // VERSUS //

          1]       Deputy Inspector General Prison,
                   East, Nagpur

          2]       Superintendent Central Prison,
                   Amravati
                                                               .... RESPONDENT(S)

           *******************************************************************
                      Shri S.D. Chande, Advocate for the petitioner(s)
                      Shri V.A. Thakare, APP for the respondent/State
           *******************************************************************

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

SEPTEMBER 20, 2021

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

1] Heard.

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          2]               RULE. Rule made returnable forthwith.



          3]               By this writ petition under Articles 226 and 227 of the

Constitution of India, the petitioner is challenging the order dated

16/06/2021 passed by the respondent no. 1 refusing to release the

petitioner on furlough leave of 21 days.

4] The petitioner is convicted for the offence punishable under

Section 302 of the Indian Penal Code and is undergoing imprisonment

for life. The petitioner on 16/04/2021 applied for grant of furlough leave

of 21 days on the ground that he wanted to meet his family and to spend

time with them. The respondent no. 1 - Authority called for report from

the Superintendent of Police, Yavatmal and based on the said report

rejected the furlough leave application of the petitioner. The petitioner

has therefore filed the present writ petition challenging the order

impugned order.

5] This Court on 23/08/2021 issued notices to the respondents.

The respondent no. 2, in pursuance of the notice issued by this Court,

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has filed reply stating that the furlough leave of the petitioner has been

rejected as the police report is adverse to the petitioner.

6] On scrutiny of the impugned order which is based on

adverse police report, we find that the respondent no. 1 has not referred

to any material on the basis of which the apprehension of breach of peace

and tranquility & threat to lives of witnesses could have been expressed

by the respondent no. 1. Neither the impugned order nor did the police

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

which upon perusal would show that apprehension so expressed by the

respondent no. 1 has reasonable foundation. Since the subjective

satisfaction recorded by the respondent no. 1 regarding threat to the

complainant and witnesses and threat to public law and order is without

any material, refusal to grant furlough leave to the petitioner cannot be

sustained. It is necessary for the respondent no. 1 to record such

subjective satisfaction upon consideration of material on record and if it

shows that subjective satisfaction is without any basis, it would be an

unreasonable order.

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          7]               Learned APP submits that there is provision under Rule 4 of

the Prisons (Bombay Furlough and Parole) Rules which lays down that

the prisoner cannot be granted furlough leave when the police report is

adverse.

8] We are of the opinion that it cannot be said that as a rule of

universal application that just because the police report is adverse, no

furlough leave can be granted. All will depend on the facts and

circumstances of each case and in a given case, it is possible that though

police report is adverse, it cannot be accepted to be true because the

adverse opinion expressed therein is not founded on any reasonable

criteria or material. If the police report is adverse and discloses no

material or existence of any material or basing such adverse conclusion,

the respondent no. 1 is not justified in rejecting the furlough leave

application of the petitioner.

9] Therefore, the following order is passed:-

(a) The impugned order dated 16/06/2021 passed by

the respondent no. 1 rejecting furlough leave

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application of the petitioner is quashed and set

aside.

(b) The respondent no. 1 is directed to grant furlough

leave of 21 days to the petitioner in accordance

with his eligibility upon suitable conditions

consistent with the Prisons (Bombay Furlough and

Parole) Rules, 1959 within a period of one week

from the date of production of this order.

Rule is made absolute in the above terms. Pending

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

                            (JUDGE)                                    (JUDGE)




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