Kaushik Baldev Rajgaur vs The State Of Maharashtra And Ors
2023 Latest Caselaw 10664 Bom

2023:BHC-AS:30951-DB


                       Harish
                                                                             WP 2015 of 2023.odt



                            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                     CRIMINAL APPELLATE JURISDICTION
                                       WRIT PETITION NO. 2015 OF 2023

                Kaushik Baldev Rajgaur                                     ...Petitioner
                     V/s.
                The State of Maharashtra & Ors.                            ...Respondents

                Mr. Aniket Vagal a/w Mr. Kunal Pednekar, & Mr. Divesh Mehani for the
                Petitioner.
                Mr. Ajay Patil, APP for the Respondent-State.


                                                  CORAM : A.S. GADKARI &
                                                          SHARMILA U. DESHMUKH, JJ.

RESERVED ON : 3rd OCTOBER, 2023.

PRONOUNCED ON : 16th OCTOBER, 2023.

ORDER : (PER SHARMILA U. DESHMUKH J.)

1. By this Petition filed under Article 226 and 227 of the

Constitution of India, the Petitioner seeks quashing of the Order dated

21st April, 2023 passed by the Respondent No. 4-Additional Director

General of Police rejecting the Appeal filed by the Petitioner against the

Order of the Superintendent of Jail, thereby upholding the rejection of

the Petitioner's Application for furlough leave.

2. Heard Mr. Aniket Vagal, learned Advocate for the Applicant

and learned APP for the Respondent-State.

3. Mr. Vagal, learned Advocate for the Petitioner submits that,

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the Petitioner's Application for furlough leave is rejected on three

grounds viz, that the victim had expressed apprehension of risk to his

life, the possibility of breach of law and order situation and the

Petitioner being a gang member of a noted criminal. He would further

submit that the conviction is of the year 2021 and this is the first

Application for furlough leave of the Petitioner. He would further point

out that the Petitioner's wife Gauri Kaushik Rajgaur has filed her

Affidavit-Cum-Undertaking to stand as surety for him.

4. On behalf of Respondent No. 2, Ms. Aruna A.

Mutugrao,Superintendent, Nashik Road Central Prison has filed Affidavit

dated 1st September, 2023. It is stated that on 28 th July, 2022, the

Petitioner had filed an Application for furlough leave with the

Superintendent which was forwarded to the Deputy Inspector General of

Police (Prisons) for opinion and report. That on 30 th December, 2022,

the Assistant Commissioner of Police has submitted an adverse police

report stating that, the victim has raised apprehension of threat to his

life and that the Petitioner is connected with a noted criminal. It is

stated that the Petitioner is convicted for offences punishable under

Section 307 read with Section 120 B of the IPC and Section 3(1)(ii),

3(2), 3(4) of MCOC Act, 1999. It is stated that, the Application was

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rejected on account of the adverse police report under the provisions of

Sub Rule (4) of Rule 4 of the Prisons (Bombay Furlough and Parole)

Rules, 1959. The Appeal preferred against which is also rejected by the

impugned Order dated 21st April, 2023.

5. Upon query by this Court, learned APP submits that, the

address of the wife of the Petitioner has been verified and the Petitioner

was released on bail during the trial and he did not abscond.

6. We have considered the submissions and perused the record.

7. The Petitioner has been convicted by the Sessions Court

(Special MCOC Court), Mumbai vide Judgment and Order dated 16 th

March, 2021 in MCOC Special Case No. 16 of 2013 @ 06 of 2014 @ 19

of 2014 @ 05 of 2018 and convicted for the offences under Section 307

read with Section 120-B of the IPC and sentenced to undergo rigorous

imprisonment for 10 years with fine and 10 years for Section 3(1)(ii) of

MCOC Act with fine.

8. This Court is informed that as of 31st August, 2023, the

Petitioner has undergone imprisonment of 3 year 1 month and 13 days.

The stated object of grant of furlough and parole leave is to enable the

inmate to continue with his family life and to deal with family matters.

The Application of the Petitioner for furlough leave has been rejected by

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relying on Sub-Rule (4) of Rule 4 of the Prisons (Bombay Furlough and

Parole) Rules, 1959 which provides that the prisoners whose release is

not recommended in Police commissionerate area by the Assistant

Commissioner of Police and elsewhere, by the Deputy Superintendent of

Police on the grounds of public peace and tranquility shall not be eligible

for furlough.

9. The adverse police report has been submitted based on the

apprehension of the victim that, if the Petitioner is released, there is

threat to the life of the victim and that the Petitioner is an active

member of a noted criminal, and, that there is possibility of breach of

peace and law and order. In that respect, it needs to be noted that,

during the trial, the Petitioner was released on bail and there is no

breach of the bail conditions. Further, during this period, there is no

complaint from the victim that, there was any threat to his life on

account of the Petitioner being released on bail. The Petitioner has

already undergone sentence of 3year 1month and 13days and this is the

first Application of the Petitioner for furlough leave. In our opinion, the

reasons mentioned in the adverse police report are not cogent enough to

deny furlough leave as there is no material to support the reasons set

out in the adverse police opinion. In our view, the reason of breach of

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law and order situation has been stated in mechanical manner without

any substantial material to support the same. That apart, there is an

Affidavit-cum-Undertaking dated 1st August, 2023 filed by the wife of the

Petitioner undertaking to stand as surety for the Petitioner and her

address has been verified.

10. In that view of the matter, we are inclined to allow the

Petition for grant of furlough leave. Resultantly, the impugned Order

dated 21st April, 2023 passed by the Respondent No.4-Additional

Director General of Police is hereby quashed and set aside.

11. We direct to the Superintendent of Jail, Nashik Road, Central

Prison to release the Petitioner on furlough leave in accordance with the

applicable rules and regulations.

12. Petition is allowed in the above terms.

(SHARMILA U. DESHMUKH, J.) (A.S. GADKARI, J.)

5/ 5 Signed by: Harish V. Chaudhari Designation: PA To Honourable Judge Date: 17/10/2023 15:03:19