Bombay High Court
Kiran Arjun Singh Rathod (C-5747) vs Deputy Inspector General Prison ... on 1 August, 2023
Bench: Vinay Joshi, Valmiki Sa Menezes
1 25-J-WP-435-23.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL WRIT PETITION NO. 435 OF 2023
PETITIONER : Kiran Arjun Singh Rathod (C-5747)
(In Jail) Aged about 29 years, Occ. : NA
R/o Baradtanda, Akola Bazar,
Distt. Yavatmal.
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 Section 307 of the Indian Penal Code, and is suffering the
sentence imposed by the Convicting Court. The petitioner has
undergone actual imprisonment of 3 years and 27 days. The
petitioner applied for furlough leave of 28 days vide application
2 25-J-WP-435-23.doc
dated 04/01/2023, however, it was rejected vide impugned
communication dated 19/05/2023. The reason put-forth for
rejection is about petitioner's late surrender by 55 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 for 45
3 25-J-WP-435-23.doc
days. He returned on due date, however, Prison Authorities have
asked him to return later due to insurgence of Covid, but did not
intimate the date. The petitioner later on surrendered to the Jail. It
is brought to the notice that though there is delay of 55 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 19/05/2023. 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
