Bombay High Court
Bhimrao Sakharam Jadhav (C-5361) vs Deputy Inspector General Prison ... on 1 August, 2023
Bench: Vinay Joshi, Valmiki Sa Menezes
1 26-J-WP-436-23.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL WRIT PETITION NO. 436 OF 2023
PETITIONER : Bhimrao Sakharam Jadhav (C-5361)
(In Jail) Aged about 48 years, Occ. : NA
R/o Babhali, P. O. Golegaon,
Tah. Hadgaon, Distt. Nanded.
VERSUS
RESPONDENTS : 1. Deputy Inspector General Prison
(East Region), Nagpur.
2. Superintendent of Jail,
Central Prison, Amravati.
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Ms. Ratna Singh, Advocate for petitioner.
Mrs. N. R. Tripathi, Additional Public Prosecutor for respondent Nos.1
and 2.
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CORAM:- VINAY JOSHI AND
VALMIKI SA MENEZES, JJ.
DATED : 01/08/2023.
ORAL JUDGMENT : (PER VINAY JOSHI, J.) :
1. Rule. Rule made returnable forthwith. Heard finally
with the consent of learned counsel appearing for the parties.
2. The petitioner was convicted for the offence punishable
under Sections 304 and 498-A of the Indian Penal Code, and is
suffering the sentence imposed by the Convicting Court. The
petitioner has undergone actual imprisonment of 1 year and 10
months and 25 days. The petitioner applied for furlough leave of
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28 days vide application dated 01/09/2022, however, it was
rejected vide impugned communication dated 27/05/2023. The
reason put-forth for rejection is about petitioner's late surrender by
25 days when he was earlier released on special Covid parole
leave.
3. Learned counsel appearing for petitioner would submit
that though Rule 4(10) of the Prisons (Bombay Furlough and
Parole) Rules, 1959 (for short, "the Rules") precludes for grant of
furlough on defaulted to surrender on earlier release, however, the
said Rule is directory and not mandatory. To substantiate said
contention, reliance is placed on the decision of Gujarat High
Court, in the case of Bhikhabhai Devshi Vrs. State of Gujarat and
others, reported in AIR 1987 Gujarat 136. In said decision, Full
Bench of Gujarat High Court has considered the penal provision
for late surrender vis-a-vis the Rule 4(10) of the Rules. In that
context, it has been observed that the said Rule is of directory
nature and discretion vests with the authority while considering
application for furlough on merits. It is also held that such
application cannot be rejected at the threshold on account of Rule
4(10) of the Rules.
4. The petitioner's learned counsel would submit that
earlier, petitioner was released on Covid Emergency Parole. No
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fixed date was given by the jail authorities nor he was intimated
through jail administration nor even by the police station. The
petitioner later on surrendered to the Jail. It is brought to the
notice that though there is delay of 25 days, however, petitioner at
his own surrendered meaning thereby, he was not brought by
arrest. Having regard to the facts, there is no likelihood of
abscondence of petitioner's late surrender. Already action has been
initiated against the petitioner for late surrender under Section 48-
A of the Prisons Act, 1894.
5. Having regard to the above facts, we find no
justification in rejecting the parole leave for petitioner. In view of
that, petition is allowed. We hereby quash and set aside the
communication dated 27/05/2023. We direct the respondents to
release the petitioner on furlough leave, as permissible under law
on usual terms and conditions. Necessary consequential order shall
be passed within two weeks from the receipt of communication of
this order.
6. The petition stands disposed in above terms.
[VALMIKI SA MENEZES, J.] [VINAY JOSHI, J.]
Choulwar
