Bombay High Court
Akil Ahmed @ Rahim Abdul Hamid Joja (In ... vs State Of Maharashtra Thr. D.I.G. ... on 3 August, 2017
Author: M. G. Giratkar
Bench: P. B. Varale, M. G. Giratkar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
Criminal Writ Petition No. 325 of 2017
Akil Ahmed @ Rahim Abdul Hamid
Joja, Convict No. C/430,
aged 50 years, Occ. Nil,
R/o Markanda Bra. Thadi,
Tq. Chandurbazar, Dist. Amravati.
(Present in Open Prison,
Morshi) .... Petitioner
// Versus //
(1) State of Maharashtra,
Through Deputy Inspector General of Prison,
Eastern Region, Nagpur.
(2) The Superintendent,
Open Prison, Morshi,
Dist. Amravati. .... Respondents
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Mrs. P. T. Joshi, Advocate for the petitioner (appointed)
Mrs. N. R. Tripathi, A.P.P. for the respondents
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CORAM : P. B. VARALE and
M. G. GIRATKAR, JJ.
DATE : 03/08/2017.
JUDGMENT (Per : M. G. GIRATKAR, J.)
Heard learned counsel for the parties.
2. Rule. Rule made returnable forthwith.
3. The petitioner has challenged the impugned order dated ::: Uploaded on - 04/08/2017 ::: Downloaded on - 06/08/2017 00:46:26 ::: 2 jg.cri.wp325.17.odt 11-1-2017 passed by the respondent no. 1 by which furlough leave application of the petitioner came to be rejected.
4. It is submitted that the petitioner is undergoing sentence for the offences punishable under Sections 302, 498 and 201 of the Indian Penal Code. The petitioner has completed 11 years of imprisonment. The petitioner is in open prison. The petitioner has moved application for grant of furlough leave of 30 days. Report was called from the respondent no. 2. The respondent no. 2 submitted no objection to release the petitioner. The respondent no. 1 rejected furlough leave application on the ground that surety, namely, Rajesh Damodarrao Thakre was not ready to take surety of the petitioner.
5. It is submitted that the respondent no. 1 without applying his mind wrongly rejected the application of the petitioner for furlough leave.
6. The petition is opposed by the respondents by filing reply. It is submitted that the petitioner has been convicted for life imprisonment vide judgment dated 21-12-2006 in Sessions Trial No. 208/2006 by City Civil and Sessions Judge, Sewri, Mumbai. The petitioner is undergoing imprisonment at Open Prison, Morshi, ::: Uploaded on - 04/08/2017 ::: Downloaded on - 06/08/2017 00:46:26 ::: 3 jg.cri.wp325.17.odt District Amravati. Competent authority called police verification report of the petitioner. Superintendent of Police, Amravati vide its communication dated 18-6-2016 submitted verification report to the respondent no. 1. Perusal of the said report shows that the petitioner has applied for grant of furlough recommending name of Shri Rajesh Damodarrao Thakre as a surety. However, statement recorded by police authorities shows that Shri Rajesh Thakre has denied to act as surety for the petitioner, therefore, the application is rightly rejected by the respondent no. 1.
7. Again respondent no. 1 called police verification. Respondent no. 2 submitted verification report on 9-12-2016. As per the verification report, surety named in the application, namely, Abdul Shaikh Habib is already expired on 28-3-2016, therefore, respondent no. 1 rightly passed the order dated 11-1-2017. Impugned order is just and proper, therefore, the petition is liable to be dismissed.
8. Learned counsel Mrs. Joshi has pointed out judgment of Full Bench of this Court in the case of Dipak Sudhakar Wakalekar Vs. State of Maharashtra and ors. reported in 2011 Cr.L.J. 3263. She has submitted that the petitioner is undergoing sentence in Open Prison, Morshi. As per the proviso to Rule 6 of the Prisons (Bombay ::: Uploaded on - 04/08/2017 ::: Downloaded on - 06/08/2017 00:46:26 ::: 4 jg.cri.wp325.17.odt Furlough and Parole) Rules, 1959, there is no necessity to get the surety of the petitioner.
9. Learned Additional Public Prosecutor Mrs. Tripathi has submitted that the petitioner failed to give correct name of the surety and, therefore, his application came to be rejected.
10. There is no dispute that the petitioner is undergoing sentence in Open Prison, Morshi. As per the proviso to Rule 6 of the Prisons (Bombay Furlough and Parole) Rules, 1959, sanctioning authority may dispense with the requirement of execution of bond by relatives/surety in case of convicts confined in Open Prison.
11. Full Bench of this Court in the case of Dipak Sudhakar Wakalekar Vs. State of Maharashtra and ors. cited supra held as under :
Prisons Act, 1894. Section 59 of Prisons (Bombay Furlough and Parole) Rules, 1959. Rules 6, 10 - release of prisoner on parole or furlough. Procedure - prisoner confined in open prison can be released on parole or furlough by sanctioning authorities by dispensing with requirement of execution of bond by his relatives.
12. It is further observed by the Full Bench in the above cited decision in paragraph 23 that :
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5 jg.cri.wp325.17.odt "In the light of the discussion made above, we hold that as per the proviso to Rule 6 of the Rules 1959 a convict confined in open prison can be released on furlough by the Sanctioning Authority by dispensing with the requirement of execution of bond by the relatives. ..."
13. The petitioner is undergoing sentence in Open Prison at Morshi, District Amravati. As per the proviso to Rule 6, a convict confined in Open Prison can be released on furlough by the sanctioning authority by dispensing with the requirement of bond .... The petitioner could not give the name of surety to the authority. First name which was given by the petitioner is one Shri Rajesh Damodarrao Thakre. During verification, it was found that Shri Thakre was not ready to stand as surety of the petitioner. On the second time, the petitioner stated the name of Shri Abdul Shaikh Habib. But during verification, it was found that he died on 28-3-2016. Therefore, it is clear that the petitioner is unable to furnish surety. This fact is not taken into consideration by the respondent authorities.
14. As per proviso to Rule 6 and 10 of the Prisons (Bombay Furlough and Parole) Rules, 1959 and in view of the judgment of the Full Bench in the case of Dipak Sudhakar Wakalekar Vs. State of Maharashtra and ors. cited supra, it is clear that there was no ::: Uploaded on - 04/08/2017 ::: Downloaded on - 06/08/2017 00:46:26 ::: 6 jg.cri.wp325.17.odt necessity for the respondent authorities to get the surety from the petitioner who is undergoing jail sentence in open prison. Impugned order passed by the respondent no. 1 is, therefore, liable to be quashed and set aside. Hence, the petition deserves to be allowed. Accordingly, we allow the petition in terms of prayer clause (i) and
(ii) with direction to the respondents to release the petitioner on furlough leave.
15. Fees of learned counsel appointed for the petitioner is quantified at Rs. 1500/-
JUDGE JUDGE
wasnik
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