Bombay High Court
Sanjay Madhukar Waghade vs State Of Mah. Thr. Deputy ... on 5 July, 2022
Bench: S.B. Shukre, G. A. Sanap
Judgment 1 19.Cri.W.P.No.158.2022.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL WRIT PETITION NO. 158 OF 2022
Sanjay Madhukar Waghade (C/9351),
Aged about 52 years, Occ. - Labour,
R/o Dhanla, Near Hanuman Mandir,
Tah. Lakhni, Dist. Bhandara.
.... PETITIONER
// VERSUS //
1) State of Maharashtra,
through Deputy Inspector General
(Prisons), East Region, Nagpur.
2) The Superintendent
Central Prison, Nagpur.
.... RESPONDENTS
______________________________________________________________
Mr. A.K. Sorde, Advocate for the Petitioner.
Mrs. N.R. Tripathi, Additional Public Prosecutor for Respondents.
______________________________________________________________
CORAM : SUNIL B. SHUKRE AND
G.A. SANAP, JJ.
DATED : 05.07.2022
ORAL JUDGMENT : (Per Sunil B. Shukre, J.)
1. Heard. Rule. Rule made returnable forthwith. Heard finally
by consent of the learned counsel appearing for the parties.
2. It is true that in the year 2018 the Petitioner, while on
furlough, did not surrender to the jail authorities on the due date and
Judgment 2 19.Cri.W.P.No.158.2022.odt
was required to be arrested and brought back to the prison, after the
delay of about 173 days. It is also true that his earlier furlough
application made in the year 2021 was rejected by the Respondent
No.1, which order was confirmed by this Court by it's order dated 12 th
August, 2021 in Criminal Writ Petition No.426 of 2021. But, the
question is for how many days the Petitioner can be deprived of
furlough only because, he had not surrendered on due date and was
required to be arrested and brought back to the prison once in the
terms.
3. The Provisions of Rule 4(10) of the Prisons (Bombay Parole
and Furlough) Rules, 1959 (for short the "Rules of 1959") state that a
prisoner, who has escaped or attempted to escape from lawful custody
or have defaulted in any way in surrendering himself at the appropriate
time after release on parole or furlough is not eligible to get the benefit
of furlough. This rule has been interpreted by the Division Bench of
this Court at Aurangabad in it's judgment dated 26.11.2019 in Criminal
Writ Petition No. 1535 of 2019 (Satish Shankarrao Shinde Vs. The
State of Maharashtra and Others) along with another connected
matters. The opinion of the Division Bench at Aurangabad is that this
rule is not mandatory in nature and in fit cases, in spite of default
having been made by a prisoner in surrendering on due date, when on
furlough or parole, the prisoner can be considered to be given furlough
Judgment 3 19.Cri.W.P.No.158.2022.odt
if, facts and circumstances of the case justify. The Division Bench
interpreted rule 4(10) of the Rules of 1959 in this fashion, keeping in
view the purpose of the furlough and parole scheme when it observed
in paragraph No.10 of the judgment, as under :-
"The purpose behind the scheme is to see that the
prisoner is allowed to mix in the society so that at
the end when he comes out of the jail after serving
the entire sentence, he knows the society well and he
can adopt the changes which have taken place in the
society. If that opportunity is not there, it will be
difficult for prisoner to mix in the society and that
will create problems for the society also. If it is
presumed that the rule is mandatory then the
purpose of the scheme itself will be defeated."
Thus, the Division Bench held that only because there is a
default committed by a prisoner in surrendering on the due date as
stated in rule 4(10) of the Rules of 1959, furlough cannot be refused to
the prisoner and the case of each of the prisoners needs to be
considered separately on its own merits and upon proper justification.
The Division Bench also held that if sufficient time has lapsed after the
last default, the authority would be duty bound to consider the
application of such a prisoner and decide it on the basis of the conduct
of the prisoner during the intervening period from the date of the
lapse. The relevant observations of the Division Bench appearing in
paragraph No.14 are reproduced thus :-
Judgment 4 19.Cri.W.P.No.158.2022.odt
"This Court holds that only for the second ground
mentioned in the Rule 4(10) the furlough leave
cannot be refused and the case of each prisoner
needs to be consider separately on its own merits
and proper justification needs to be given for refusal
of the furlough leave. At the cost of repetition, this
Court is observing that after sufficient time has
passed since the date of lapse, it become duty of the
authority to consider the applications of such
prisoners and on the basis of the conduct of the
prisoner during the intervening period, from the
date of lapse, the authority can take proper
decision."
4. The view so taken by the Division Bench at Aurangabad in
said case of Satish Shankarrao Shinde, accepting the view of the Full
Bench of Gujarat High Court in the case of Bhikhabhai Devshi Vs. State
of Gujarat and others, AIR 1987 Gujarat, 136 commends to us. There
are, of course, judgments as rightly pointed out by the learned
Additional Public Prosecutor, which lay down that whenever there is a
default committed by a prisoner in surrendering on the due date before
jail authority, ordinarily the prisoner should not be granted furlough or
parole on the sole ground of default. One of such judgments is of
Murlidhar Ramchandra Bhalerao Vs. State of Maharashtra & Another,
2011 ALL MR (Cri.) 2132 case and some other judgments taking this
view have been rendered in Criminal Writ Petition No. 224 of 2013
Judgment 5 19.Cri.W.P.No.158.2022.odt
decided on 25.06.2013 and Criminal Writ Petition No. 62 of 2016
decided on 16.03.2016. The judgment of Murlidhar Ramchandra
Bhalerao (supra) has already been considered by the Division Bench at
Aurangabad in the case of Satish Shankarrao Shinde, holding that the
observations made therein are of general nature and have been made
without making any interpretation of rule 4 of the Rules of 1959 and,
therefore, it was found that case of Murlidhar Ramchandra Bhalerao
(supra) would not help the case of Respondent authorities. In the writ
petitions referred to above, the wider aspect of the Rules of 1959, have
not been considered and therefore, we are of the view that the
judgments in those writ petitions would also not help the case of the
authorities.
5. In the present case, a time of more than three years has
elapsed since the last default committed by the prisoner. This time gap
between the last default and the application presently made by the
Petitioner would be important in the present case and, therefore, it
would be necessary for the authorities to consider the overall conduct
of the Petitioner and also the reasons for his not surrendering on the
due date before the prison authorities and decide the application of the
Petitioner accordingly. This is also a view taken by the Division Bench
at Aurangabad in the case of Satish Shankarrao Shinde (supra). We,
Judgment 6 19.Cri.W.P.No.158.2022.odt
thus, find that there is no justification for upholding the impugned
order and the Petition deserves to be allowed.
6. The Writ Petition is allowed. The impugned order dated
28.10.2021 is hereby quashed and set aside.
Matter is remanded back to the Respondents for fresh
consideration and decision in accordance with law, in the light of
observations made herein above.
We expect that the decision on the furlough application of
the Petitioner shall be taken by the Respondents at the earliest and in
any case within four weeks from the date of receipt of the order.
Rule is made absolute in the above terms.
(G.A. SANAP, J.) (SUNIL B. SHUKRE, J.)
Kirtak
Digitally Signed By:KIRTAK
BHIMRAO JANARDHAN
Signing Date:06.07.2022
17:37
