Bombay High Court
Omprakash Devandas Khanna vs State Of Maharashtra And Anr on 24 June, 2024
Author: Bharati Dangre
Bench: Bharati Dangre
2024:BHC-AS:26104-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
WRIT PETITION NO. 1927 OF 2024
Omprakash S/o Devandas Khanna}
Age: 68 years, Occ: Convict, R/o: }
610 Shivshakti Greens, Near }
D.K.Sadan, Karvai Naka, Joweli, }
Badlapur East Mumbai, at present}
confined in Central Jail Nasik } .. Petitioner
Road. }
Versus
1. The State of Maharashtra }
Inspector General of Prisons, }
Pune. }
2.Deputy Inspector General }
of Prisons, Chhatrapati }
Sambhajinagar. }
.. Respondents
3. Superintendent, Central }
Jail Nasik Road. }
...
Mr. Rupesh A. Jaiswal, for the Petitioner.
Ms S. S. Kaushik, APP, for the Respondent - State.
Ms Suvarna Chorge, Jailor, Group-II, Nashik Jail, is present.
...
CORAM: BHARATI DANGRE &
MANJUSHA DESHPANDE, JJ.
DATED : 24th JUNE, 2024
Judgment: (Per Manjusha Deshpande, J.):
1. Rule. Rule made returnable forthwith, by consent of both
the parties, the Writ Petition is taken up for final disposal.
2. The Petitioner in the present Writ Petition is confined in
the Central Jail, Nasik Road, being convict No. 8671. He has
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been convicted under Section 302 of the Indian Penal Code, by
the Sessions Judge Kalyan, in Sessions Case No. 24 of 2008, by
its Judgment and Order dated 05.02.2011. The Petitioner has
been awarded punishment of life imprisonment by the
Sessions Court.
3. The Petitioner herein has filed an application for grant of
furlough leave on 27.02.2023. His application was forwarded
to the Deputy Inspector General (DIG) of Prisons, Chhatrapati
Sambhajinagar. On receiving such application, the police
report in respect of the petitioner was called from the
concerned police station. The said report was received by the
office of the DIG Prisons, Chhatrapati Sambhajinagar on
05.04.2023, which mentions that, the friend of the petitioner
Raju S/o Nana Ubale is ready to give surety to the petitioner
alongwith one another person Kabirkant S/o Omprakash
Khanna. Both of them are ready to give surety during the stay
of the petitioner on the furlough leave. In spite of positive
police report, his application for grant of furlough leave has
been rejected by the DIG Prisons, Chhatrapati Sambhajinagar,
by the order dated 01.05.2023.
The reason for refusing him the furlough leave, by the
concerned authority is that, while the petitioner was released
on furlough leave previously by order dated 13.03.2012, he
had not reported back to the prison within time. He had not
surrendered to the prison authorities, as per the undertaking
given by him and as per the Rules for grant of furlough leave.
There is a delay of about 2008 days in surrendering to the
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prison authorities. He was required to be searched by the
police authorities and after he was arrested by the police
authorities, he had been taken in custody on 23.12.2017.
Therefore considering his past record, the application of the
petitioner for furlough leave has been rejected by the
concerned authorities.
While passing the said order under challenge, the
Competent Authority has referred to Chapter - XXXVII of the
Maharashtra Prisons Manual, 1979 and Rule 4(10) of The
Prisons (Bombay Furlough and Parole) Rules, 1959. It is
mentioned in the said order that, in exercise of his powers
under Rule 4(10) of the Rules, 1959, the application of the
petitioner has been rejected.
4. The petitioner being aggrieved by the said order of DIG
Prison, Chhatrapati Sambhajinagar, dated 01.05.2023, has
filed Appeal to the Additional Director General of Police and
Inspector General of Prisons, Correctional Services,
Maharashtra State, Pune-1. By order dated 27.10.2023, the
Appeal of the petitioner has been rejected by the said
Appellate Authority, maintaining the order passed by the DIG
Prisons.
5. The petitioner has approached this Court challenging the
two orders passed by the respondent Nos. 1 and 2, with a
prayer to quash and set aside the said orders. The appeal of
the petitioner has been solely rejected on the ground of delay
of 2008 days in surrendering after being released on parole by
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the Competent Authority. The rights of the petitioner as far as
furlough leave is concerned, is governed by the Prisons
(Bombay Furlough and Parole) Rules, 1959. Rule - 4 is the
provision for grant of furlough leave to the prisoners, which
contains eligibility as well as grounds on which the prisoner
shall not be considered for release on furlough.
For ready reference, the Rule - 4 reads as under:
4. When prisoners shall not be granted furlough.
The following categories of prisoners shall not be
considered for release on furlough :-
(1) Habitual prisoners.
(2) Prisoners convicted of offences under sections
392 to 402 (both inclusive) of the Indian Penal Code.
(3) Prisoners convicted of offence under the Bombay
Prohibition Act, 1949.
(4) Prisoners whose release is not recommended in
Greater Bombay by the Commissioner of Police and
elsewhere, by the District Magistrate on the ground
of public peace and tranquility.
(5) Prisoners who, in the opinion of the
Superintendent of the prison show a tendency
towards crime.
(6) Prisoners whose conduct is in the opinion of the
Superintendent of the Prison, not satisfactory
enough.
(7) Prisoners confined in the Ratnagiri Special
Prison [other than prisoners transferred to that
prison for jail services].
(8) Prisoners convicted of offences of violence
against person or property committed for political
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motives, unless the prior consent of the State
Government to such release is obtained.
(9) A prisoner or class of prisoners in whose case the
State Government has directed that the prisoner
shall not be released or that the case should be
referred to it for orders.
(10) Prisoners who have at any time escaped or
attempted to escape from lawful custody or have
defaulted in any way in surrendering themselves at
the appropriate time after release on parole or
furlough."
6. The case of the petitioner has been categorised under
4(10) of the Rules, 1959. The said Sub-Rule 10 of Rule- 4
provides that, the prisoners who have been released on
furlough, but who have defaulted in any way in surrendering
themselves at appropriate time after being released on parole
or furlough, shall not be considered for grant of furlough leave.
7. A similar question fell for consideration of a Full Bench of
Gujarat High Court in case of Bhikhabhai Devshi V/s. State of
Gujarat and Ors.1 The full Bench, while interpreting the word
"shall" used in Rule- 4 in context with provision of Rule -
4(10), has been pleased to hold that, the word "shall" will have
to be read as "may" and the said Rule is directory and not
mandatory. Therefore, it was not mandatory on the part of the
authorities to reject the application for Furlough merely on the
ground that, the prisoner has not surrendered within
prescribed time after being released on furlough. While
considering this issue, whether it is directory or mandatory,
the Full Bench of Gujarat High Court has gone into the depth of
1 AIR 1987 Gujarat 136
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the object of the legislature in making rules of Parole and
Furlough.
8. The Full Bench has observed that, the Parole and
Furlough Rules are part of the Penal and Prison system, they
are framed with a view to humanise the prison system. These
rules enable the prisoner to obtain his release and to return to
the outside world for a short period prescribed in the Order and
Rules; It is to enable the inmate to maintain continuity with his
family life and deal with family matters; to save the inmate from
the evil effects of continuous prison life; to enable the inmate to
maintain constructive hope and active interests in life.
Therefore, taking into account the Statement of Objects and
Reasons for Bombay (Prisons Amendment) Act No. 27 of 1953,
the Jail Reforms Committee has recommended and the
Government had accepted the recommendation for a system of
release of prisoners on furlough, so as to make them available
spell of occasional freedom, after they undergo a specified
period of imprisonment.
9. Taking note of the said Statement of Objects and Reasons,
the Full Bench of Gujarat High Court has ruled that, the word
"shall" used in Rule- 4 will have to be read as "may". The prison
authorities cannot reject the request for furlough leave of the
prisoner who has surrendered late in the past. The authorities
have the powers and it is their duty to consider grant or refuse
such furlough leave to the prisoner, having regard to the facts
and circumstances of each case, including the fact that the
prisoner had surrendered late in the past.
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10. Following the said judicial pronouncement and law laid
down in the said Judgment which was decided on 28.08.1986,
there are various judgments and orders passed by this Court on
the basis of the said Judgment, to name them a few, Raju @
Rajabhau Bhagwantrao Wankhede V/s. The D.I.G. Prisons (E)
(R) and Anr.2, Indrajit Vasantrao Gadgile V/s State of
Maharashtra and Anr.3. The learned counsel for the petitioner
has placed on record the copies of the said judgments relied by
him.
11. The learned APP has supported the orders passed by the
respondent Nos. 1 and 2. The learned APP has placed on record
the nomination chart of the petitioner indicating the offence
committed by him; the date of offence; the conduct of the
petitioner while in prison; his remission and record of his parole
and furlough leave if at all availed by him. On going through the
said chart, it is evident that the petitioner has so far not availed
parole leave and he has availed the facility of furlough leave
only once when he was released on 13.03.2012, and he had not
surrendered within time. The petitioner had been apprehended
by the police authority and he had been taken in custody on
23.12.2017. However, thereafter it is more than five years, he
has not been released on furlough. The application of the
petitioner has been rejected by both the authorities resorting to
Rules 4(10) and 4(20) of the Rules, 1959.
12. Having regard to the various orders which the petitioner
has placed on record and the Statements of Objects and Reasons
2 2015 ALL MR (Cri) 1834
3 2015 ALL MR (Cri) 1840
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for Bombay (Prisons Amendment) Act No. 27 of 1953, the very
object of framing the Rules would be frustrated if such
interpretation of Rule- 4(10) is allowed.
13. In view of the above mentioned position of law which is
refected in various judicial pronouncements, in our opinion, the
impugned orders passed by the respondent Nos. 1 and 2 are
required to be quashed and set aside. Apart from the reason of
not surrendering by the concerned authority within time, there
is no other impediment in release of the petitioner. Hence, we
pass the following order:
:ORDER:
(i) The order passed by the Respondent Nos. 1 and 2 dated 27.10.2023 and 01.05.2023, are hereby quashed and set aside.
(ii) The Respondents are directed to release the Petitioner on Furlough Leave, subject to usual terms and conditions as required under the Rules.
Rule is made absolute in the above terms.
(MANJUSHA DESHPANDE, J.) (BHARATI DANGRE, J.) R.V.Patil ::: Uploaded on - 04/07/2024 ::: Downloaded on - 14/07/2024 02:39:22 :::