Bombay High Court
Sushil S/O Rambharose Bahuriya vs The State Of Maharashtra, Thr. ... on 26 July, 2022
Bench: Manish Pitale, Valmiki Sa Menezes
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL WRIT PETITION NO. 276 OF 2022
Sushil s/o Rambharose Bahuriya
Vs.
State of Maharashtra, Thru. DIG Prison (East), Nagpur and anr.
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Office notes, Office Memoranda of
Coram, appearances, Court's orders Court's or Judge's Orders.
or directions and Registrar's orders.
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Mr. A.Y. Sharma, Advocate for petitioner.
Mr. S.S. Doifode, APP for respondents/State.
CORAM : MANISH PITALE, &
VALMIKI SA MENEZES, JJ.
DATE : 26.07.2022.
The petitioner is aggrieved by rejection of
this application for grant of furlough, by order dated
21.01.2022 passed by the respondent No.1. The
petitioner is undergoing sentence of rigorous
imprisonment life for having committed offence
under Section 302 of the Indian Penal Code. The
petitioner was convicted on 07.10.2007 and he has
continued to remain behind bars since then.
2. It is the case of the petitioner that the
grounds on which his application for grant of
furlough was rejected, are not sustainable, as per
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settled position of law. According to Mr. Sharma,
learned counsel appearing for the petitioner, there
are three grounds on which the impugned order has
been passed against the petitioner, firstly, that he had
reported late on two earlier occasions when he was
released on furlough, secondly, that he had suffered
conviction under the provisions of the Narcotic
Drugs and Psychotropic Substances Act, 1985, which
disentitled him for grant of furlough and thirdly, that
there was adverse police report and that the brothers
of the victim had expressed an apprehension that the
petitioner being of violent nature, it would not be
appropriate to release him on furlough. It was
submitted that none of the three grounds were
sustainable.
3. Reliance was placed on the judgments of
this Court in the case of Satish Sankarrao Shinde Vs.
The State of Maharashtra and ors. 2019 ALL M.R.
(Cri) 5247 and Santosh s/o Sahebrao Nagargoje Vs.
The State of Maharashtra and ors., 220 ALL M.R.
(Cri) 3101.
4. As regards, the conviction under the
NDPS Act was concerned, it was submitted that Rule
4(12) of the Prisons (Bombay Furlough and Parole)
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Rules, 1959, would not come in the way of the
petitioner for the reason for the offence under the
NDPS Act, the petitioner was sentenced to suffer
imprisonment for a period of four months, which he
had already undergone. As regards the
apprehension expressed about the petitioner being of
violent nature and therefore, there being adverse
police reports and statements given by the brothers
of the victim, it was submitted that appropriate
conditions could be imposed by this Court for
ensuring that the petitioner does not enter the area
where the brothers of the victim or the witnesses
reside. The learned counsel for the petitioner, on
instructions, submitted that while brother of the
petitioner would stand surety, the petitioner would
stay with his brother-in-law at Inzapur in the
jurisdiction police station Sawangi Meghe in District
Wardha, where he would report regularly to the
satisfaction of the authorities.
5. On the other hand, learned APP
submitted that this Court ought to take into account
the fact that on two earlier occasions the petitioner
had reported late and in on the second occasion he
had to be arrested after a delay of 455 days. It is
submitted that adverse police reports indicated that
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the petitioner did not deserve release on furlough.
His past conduct disentitles him for any such relief.
6. This Court has perused the impugned
order and considered the contentions raised on
behalf of the rival parties, in the backdrop of the
material placed on record. The first ground for
rejecting the prayer for grant of furlough in the
present case is about the past conduct of the
petitioner, inasmuch as when the petitioner was
released on furlough in the year 2008, he had
reported five days late and in the year 2010, he had
been arrested and brought back, as a result there
was delay of 455 days from the date when the
duration of his furlough was over. Whether this
alone could be a ground for rejection of subsequent
application for grant of furlough has been dealt with
by the Division Bench of this Court in the
aforementioned judgments and the case of Satish
Shankarrao Shinde (supra) and Santosh s/o
Sahebrao Nagargoje (supra).
7. The Division Bench has referred to the
relevant Rules of the said Rules of 1959 and it has
been held that only because the convict had reported
late on earlier occasions for grant of furlough, that in
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itself could not be a ground for rejecting the
subsequent application.
8. Insofar as conviction under the provisions
of NDPS Act is concerned, a perusal of Rule 4 (12) of
the Rules of 1959 would show that despite such
conviction a convict may be eligible for furlough
after completion of stipulated sentence. The
petitioner was convicted and sentenced for a period
of four months under the provision of NDPS Act.
There is substance in the contention raised on behalf
of the petitioner he has already undergone the said
period of sentence and that therefore, the application
for grant of furlough could not have been rejected on
that ground.
9. Insofar as the adverse police reports are
concerned and apprehension expressed by brothers
of the victim, on instructions, certain statements
have been made before this Court as to the place
where the petitioner intends to reside during the
period of grant of furlough and that his brother
would stand surety.
10. We are of the opinion that insofar as the
first two grounds are concerned, the same are
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unsustainable and to that extent, the impugned
order cannot be sustained. But, insofar as the third
aspect of the matter is concerned about the
apprehension expressed by the brothers of the victim
and the witnesses, who had deposed against the
petitioner, the statement made on behalf of the
petitioner as to place where he intends to reside with
his brother-in-law, are matters that would require
verification and examination by the concerned
authority. Therefore, it would be appropriate to
remand the matter back to respondent No.1 for
proper consideration of the said aspect of the matter.
11. In view of the above, the impugned
order dated 21.01.2022, is quashed and set aside.
The matter is remanded back for fresh consideration
to respondent No.1.
12. It is made clear that the application for
grant of furlough shall not be rejected on the first
two grounds referred to herein above. The
respondent No.1 may take appropriate steps for
verification of statements made on behalf of the
petitioner and then pass appropriate order on the
application for grant of furlough by taking into
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consideration Rule 1-A of the Rules of 1959 that
specify the objectives for grant of furlough.
13. The respondent No.1 shall decide the
application within a period of two weeks from today.
[VALMIKI SA MENEZES, J.] [MANISH PITALE, J.]
Signed By:PRITY S GABHANE
Reason:
Location:
Signing Date:27.07.2022 18:13
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