Bombay High Court
Abdul Zahid @ Raju Abdul Rashid vs Deputy Inspector General (Prisons) ... on 9 July, 2021
Author: Amit B. Borkar
Bench: V.M. Deshpande, Amit B. Borkar
Judgment 1 wp406.21.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL WRIT PETITION NO. 406/2021
Abdul Zahid @ Raju Abdul Rashid,
Convict No. C/5527,
Presently at Central Prison, Amravati
.... PETITIONER
// VERSUS //
1] Deputy Inspector General (Prisons)
(East) Nagpur
2] Superintendent Central Prison,
Amravati
3] Inspector General of Prisons,
Pune .... RESPONDENT(S)
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Shri M.N. Ali, Advocate for the petitioner
Ms. M.A. Barabde, APP for the respondents
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CORAM : V.M. DESHPANDE & AMIT B. BORKAR, JJ.
JULY 09, 2021
JUDGMENT :(PER:- AMIT B. BORKAR, J.) 1] Heard.
2] RULE. Rule made returnable forthwith. 3] By this writ petition under Article 226 of the Constitution of
India, the petitioner has challenged the order dated 20/11/2020 passed by the respondent no. 1 and also the order dated 23/04/2021 passed by the respondent no. 3 rejecting the furlough leave of the petitioner on the ground that the surety furnished by the petitioner is not competent to control the ::: Uploaded on - 12/07/2021 ::: Downloaded on - 20/09/2021 08:32:31 ::: Judgment 2 wp406.21.odt activities of the petitioner and therefore the police report is adverse to the petitioner.
4] The petitioner is a convict for the offences punishable under Sections 302, 143, 147, 148 and 149 of the Indian Penal Code and is undergoing imprisonment for life. The petitioner has undergone approximately 4 years of punishment and had therefore applied for furlough leave on 11/09/2021 which had been rejected by the order dated 20/11/2020. The petitioner had therefore filed Criminal W. P. No. 41/2021 before this Court which was withdrawn with liberty to file appeal by the order dated 24/02/2021. The appellate authority by the order dated 23/04/2021 confirmed the order of the respondent no. 1 relying on Rule 4(4) and Rule 4(6) of the Maharashtra Prisons (Bombay Furlough and Parole) Rules, 1959.
5] We have carefully considered the impugned orders challenged by the petitioner. The Competent Authority while considering the application for furlough is required to pass an order keeping in view the contingencies mentioned in Rule 4 of the said Rules. In Rule 4, circumstances are enumerated as to when the Competent Authority can refuse to grant furlough leave. It is no doubt contemplated by Sub-Rule (4) of Rule 4 of the said Rules that in case the police report is adverse, the application for furlough leave can be rejected. The ground of adverse police report no doubt is a valid ground but the said ground must be based on the material which must be reflected in the order passed by the Prison Authorities. It is also true that if ::: Uploaded on - 12/07/2021 ::: Downloaded on - 20/09/2021 08:32:31 ::: Judgment 3 wp406.21.odt the persons who have been examined by the prosecution as prosecutions witnesses in the trial, express the apprehension that if a prisoner is released on furlough leave, their lives and properties would be in danger, in such situation, the Competent Authority is required to access as to whether the conflict which is likely to occur between these witnesses and the prisoner would result in causing breach of peace and tranquility on the basis of facts and circumstances involved. Mere opposition by witnesses to release of the prisoner on the ground of likelihood of harm simplicitor would not be sufficient to deny the furlough leave to the petitioner.
On careful consideration of the orders passed by the respondent nos. 1 and 3, we are satisfied that the impugned orders demonstrate total non-application of mind on the part of the respondent nos. 1 and 3. In many matters, the Competent Authorities reject the application for furlough leave in the routine manner only on the basis of adverse police report which is an out come of no material to support such conclusion. The Competent Authorities are expected to apply their mind to the facts and circumstances of the case keeping the view the contingencies mentioned in Sub-Rule (4) of Rule 4 of the said Rules and only thereafter should express their opinion in this regard. Mere observations in the police report that there is likelihood of breach of peace if the prisoner is released on furlough 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. In the facts of the present case, there is nothing on record to show that if the petitioner is released on ::: Uploaded on - 12/07/2021 ::: Downloaded on - 20/09/2021 08:32:31 ::: Judgment 4 wp406.21.odt furlough leave, there is likelihood of conflict between the petitioner and the witnesses or threat to peace and tranquility of the area. Therefore, we are of the considered view that the ground on which the furlough leave of the petitioner is rejected by the Competent Authority is not proper. One more reason mentioned in the impugned orders is to the effect that the surety named by the petitioner is aged person and he would not be in a position to control the activities of the petitioner. Faced with this situation, the advocate for the petitioner, on instructions, makes a statement that the petitioner would furnish fresh surety to the satisfaction of the Prison Authorities.
6] Hence, the following order:-
(a) The impugned orders dated 20/11/2020 and
23/04/2021 passed by the respondent nos. 1 and 3 respectively are quashed and set aside.
(b) The respondent no. 1 is directed to release the petitioner on furlough leave on furnishing fresh surety, on such terms and conditions as the respondent no. 1 deems fit and proper.
Rule is made absolute in the above terms.
(JUDGE) (JUDGE)
ANSARI
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