Bombay High Court
Kapil Ratan Shitole (C- 6284) vs Deputy Inspector General Prison, ( East ... on 24 July, 2025
Author: Anil L. Pansare
Bench: Anil L. Pansare
2025:BHC-NAG:7125-DB
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1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL WRIT PETITION NO. 252/2025
1. Kapil Ratan Shitole (C-6284),
Aged about 29 yrs., Occ. NA.
R/o. Station Vibhag, Murtizapur,
Tah. Murtizapur, Dist. Akola.
...PETITIONER
VERSUS
1. Deputy Inspector General Prison,
(East Region), Nagpur.
2. Superintendent of Jail,
Central Prison, Amravati.
RESPONDENTS
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Mrs. Ratna Singh, Advocate for petitioner.
Mrs. N. Tripati, Addl. Public Prosecutor for respondent Nos. 1 & 2.
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CORAM : ANIL L. PANSARE AND
M. M. NERLIKAR, JJ.
DATE : 24.07.2025
ORAL JUDGMENT : (PER: M. M. NERLIKAR, J.)
Heard.
2. Rule. Rule made returnable forthwith. By consent of
parties, heard finally.
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3. The present petition is being filed under Articles 226 and
227 of the Constitution of India. It takes exception to the order dated
31.01.2025 passed by respondent No.1, Deputy Inspector General
Prison (East Region), Nagpur, wherein the furlough leave application
of the petitioner was rejected on the ground of Adverse Police Report
and secondly on the ground that the petitioner is accused in Crime
No.14/2021 registered with Police Station Murtizapur, Dist. Akola
under Sections 20(B), 25 of Narcotic Drugs and Psychotropic
Substances Act, 1985 ("NDPS"), Sections 4, 25 of the Arms Act,
Sections 50, 277 of the Motor Vehicles Act. The said case is pending
with the Sessions Court at Akola as ST No. 34/2021.
4. We have heard learned counsel appearing for petitioner as
well as learned Additional Public Prosecutor ("APP"). It is the
contention of the petitioner that impugned order is passed without
application of mind, as the petitioner was not convicted in the Crime
No.14/2021 and the case is still pending and therefore, the respondent
No.1 ought not to have considered the bar provided in the
Notification dated 02.12.2024. Respondent No.1 has committed an
error by applying Rule 4 (2)(e)(l) under Chapter II of Notification
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dated 02.12.2024. Learned counsel for petitioner further contended
that the Adverse Police Report of the petitioner is far away from the
actual facts as the petitioner got bail in Crime No.14/2021 on
07.06.2021, and thereafter, no offence was registered against him. It is
only in Crime No.191/2014 (Sessions Case No.134/2014), he was
awarded punishment of life imprisonment which he is undergoing.
There are no complaints against the petitioner and therefore, the Police
Report is not based on actual facts. On the other hand, learned APP
vehemently argued that the petitioner was convicted under Section
302 of the Indian Penal Code. The Notification dated 02.12.2024
bars the offender like the present petitioner. He is heavily relied on
Rule 4 (2)(e)(l) under Chapter II of Notification dated 02.12.2024.
He has also relied on the Police Report dated 01.01.2025 which was
addressed to the respondent No.1 by the Additional Superintendent of
Police, Akola and accordingly, he has supported impugned order dated
31.01.2025.
5. Upon careful perusal of the petition, documents annexed
thereto and also arguments advanced by learned counsel appearing for
parties at length, it is not in dispute that the petitioner was sentenced
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to undergo life imprisonment under Sections 302 as well as 307 of the
Indian Penal Code in Crime No.191/2014 in Sessions Case
No.134/2014. It seems from the record that he was convicted under
Sections 302, 307 of the Indian Penal Code for life imprisonment and
under Section 148 of the Indian Penal Code for two years. Secondly, it
is not in dispute that in the year 2021, Crime No.14/2021 was
registered under the provisions of sections 20(B), 25 of NDPS Act,
Sections 4, 25 of the Arms Act and Sections 50, 277 of the Motor
Vehicles Act against the petitioner. The petitioner has undergone 3
years, 11 months and 10 days till 11.11.2024 and therefore, as he has
undergone more than 3 years, he was eligible for furlough leave as per
Rule 3(C) of the Prisons (Bombay Furlough and Parole) Rules, 1959.
Accordingly, the petitioner applied for furlough leave by application
dated 05.11.2024. After completing the formalities, respondent No.1
was pleased to reject the application of the petitioner on the ground
that the petitioner is not entitled for furlough leave as there was bar
contemplated under Notification dated 02.12.2024 and more
specifically Rule 4 (2)(e)(l) under Chapter II of Notification dated
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02.12.2024. There is another ground of rejection that there was an
Adverse Police Report.
6. Upon careful perusal of the Notification dated 02.12.2024, it
appears to us that the said provision deals with certain categories of
prisoners (those who have been convicted), wherein one of the
category is in respect of the convicts involved in the narcotic drugs.
The Rule 4 (2)(e)(l) under Chapter II of Notification dated
02.12.2024 reads as under:-
"4. Categories of eligibility of prisoners for furlough.....
(2) The following prisoners shall not be eligible for
furlough ......
......
.......
(e) prisoners who are convicted under the Narcotic
Drugs and Psychotropic Substances Act, 1985 (61 of
1985), the Terrorist and Disruptive Activities (Prevention)
Act, 1987 (28 of 1987), the Maharashtra Control of
Organized Crime Act, 1999 (Mah. XXX of 1999), the
Prevention of Terrorist Activities Act, 2002, (15 of 2002),
the Protection of Children from Sexual Offences Act, 2012
(32 of 2012) or convicted for offence of gang rape and
human trafficking;
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(l) prisoners, whose release is not recommended by an
officer not below the rank of the Assistant Commissioner of
Police or Deputy Superintendent of Police, on the grounds
that their release is prejudicial to public peace, order and
tranquillity;"
Perusal of said Rule shows that these Rules would not be applicable to
those who are not yet convicted and their cases are pending with the
Trial Court, therefore, we are not in agreement with the arguments
advanced at the behest of learned APP that the said Rule will cover the
petitioner. Rule 4 (2)(e)(l) under Chapter II of Notification dated
02.12.2024 specifically states that there would be bar of certain
categories of prisoners who have been convicted under those
prohibited categories, like NDPS, terrorist activities, MCOCA, etc.
Therefore, respondent No.1 has utterly failed by applying said criteria
of the Notification dated 02.12.2024 to the petitioner. It is not out of
place to mention at this juncture that the said category would be only
applicable to the convicts referred to hereinabove and not to the
accused persons whose cases are pending in the Trial Court. It would
be useful to refer to the definition of the 'prisoner' as provided in Rule
2(f) under Chapter I of Notification dated 02.12.2024 which defines
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as "(f) 'prisoner' means the convicted prisoner." Further, in Rule (1)(3)
under Chapter I, under the heading of introduction, it is specifically
stated that these Rules 'shall apply to convicted prisoners'. Therefore,
considering the above facts situation, there is no doubt in our mind
that these Rules are applicable only to the convicts. However, the
petitioner is yet not convicted in Crime No. 14/2021 registered under
the provisions of the NDPS Act and therefore, these Rules of
Notification dated 02.12.2024 will not be applicable.
7. The next ground on which application was turned down by
respondent No.1 is that there is an Adverse Police Report. We have
gone through the Police Report dated 01.01.2025 of the Additional
Superintend of Police, Akola, wherein it is stated that if the furlough
leave is granted to the petitioner, there would be danger to the family
of the deceased. Further, it is stated that petitioner does not have any
property nor he was married and the petitioner along with his relatives
are undergoing life imprisonment, and therefore, if he was released,
there is every possibility that he will commit another serious offence.
8. This issue was dealt with by Division Bench of this Court in
the matter of Sanjay Kisan Kadse Vs. State of Maharashtra and others,
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(2004) 1 Mah LJ 789, wherein this Court has observed in para 6
which reads as under:-
"6. It is unfortunate that in many matters, the competent
Authorities have passed orders rejecting applications of prisoners
for furlough leave on the grounds which are non est. This court as
well as other High Courts from time to time have issued various
directions in this regard and also categorically observed about the
material, which would be required to be considered by the
competent Authorities while considering the applications for
grant or refusal of furlough leave. Rule 4 of the Prisons (Bombay
Furlough and Parole) Rules, 1959 clearly denotes contingencies
in which furlough leave of the prisoner can be refused. Similarly,
the competent Authorities are also required to consider the law
laid down by the High Courts and the Apex Court in this regard
and after such consideration, the competent Authorities are
expected to pass orders one way or the other, which are
sustainable in law. Similarly, in many matters, it is noticed by us
that the orders passed by the competent Authorities rejecting the
applications for furlough leave are in a very casual manner
completely ignoring the provisions of Rule 4 of the Prisons
(Bombay Furlough and Parole) Rules, 1959 and, therefore, the
orders demonstrated total non-application of mind on the part of
the competent Authorities and rendered them invalid in law. In
many matters, the competent Authorities rejected the applications
for furlough leave in the routine manner only on the basis of
adverse Police reports, which are submitted on the basis of
statements of witnesses of the opposite side and, therefore, as we
have already observed hereinabove, such orders cannot be
sustained. The competent Authorities, who are entrusted with the
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powers of grant or refusal of furlough leave, which is the right of
the prisoner, are expected to apply their mind to the facts and
circumstances of the case keeping in view the contingencies
mentioned in Rule 4 of the Prisons (Bombay Furlough and
Parole) Rules, 1959 and only thereafter, should express their
opinion in this regard. Similarly, mere observations in the Police
report that there is a likelihood of breach of peace if prisoner is
released on furlough leave should not be the formal expression
only to deprive the prisoner from availing the furlough leave. The
Police Authorities should be in a position to substantiate their
opinion by giving valid reasons for the same. We expect that in
future all these factors will be kept in mind by the competent
Authorities while considering the applications for grant or refusal
of furlough leave.
7. In the instant case, the only ground on the basis of which the
furlough leave of the petitioner is refused is the adverse Police
report based on the statements of the prosecution witnesses and
there is nothing on record to show that if petitioner is released on
furlough leave, there is a likelihood of conflict between petitioner
and witnesses and threat to the peace and tranquility in the area.
Therefore, we are of the considered view that the ground on
which furlough leave is refused to the petitioner by the competent
Authority, is not proper and the order of rejection dated 5-7-
2003 passed by the competent Authority is not sustainable in
law."
9. We have gone through the said report, however the
apprehension of the Additional Superintend of Police does not sustain
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in view of the fact that, there is no base for such apprehension. It is
matter of record that the petitioner is undergoing life imprisonment in
Crime No. 191/2014. There was no complaint from the side of the
informant at any point of time that the petitioner indulged in
threatening the witnesses or the informant. Therefore, the
apprehension expressed by the Additional Superintendent of Police is
not sustainable. It would be useful to refer to the order dated
10.07.2024 passed by this Court in Criminal Writ Petition
No. 828/2024, wherein the Division Bench of this Court has observed
that :-
"3..... However, merely because the police report from the local
police station advises the authorities not to exercise the power to
release him on parole/furlough, which is merely founded on an
apprehension and without any basis, as what is stated in the
affidavit is that the Petitioner is associated with Amin Pathak
gang, without furnishing any iota of material, as to on what basis
such a connect is alleged.
4. We hope and trust that the authorities would refrain from
making such remarks which are totally unfounded and scribed
just with an intention to deny the benefit available to a convict,
who despite being incarcerated is not denuded of his right under
Article 21 of the Constitution of India."
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10. After considering the above facts and circumstances, we are
of the considered view that respondent No.1 has committed gross error
in law by relying on the Notification dated 02.12.2024 and also not
applied his mind while passing order. In view of above facts and
circumstances, we are passing the following order:-
I. Petition is allowed.
II. We hereby quash and set aside impugned order dated
31.01.2025 passed by respondent No.1 with a direction to
release the petitioner on furlough leave for a period of 21
days as prayed for on the condition as the authorities
concerned deem fit.
II. No order as to costs.
11. The criminal writ petition stands disposed of accordingly.
( M. M. NERLIKAR , J.) (ANIL L. PANSARE, J.)
Gohane
Signed by: Mr. J. B. Gohane
Designation: PS To Honourable Judge
Date: 24/07/2025 15:25:51
