Bombay High Court
Kailash Rameshwar Rathod vs Deputy Inspector General Of Prison ( Er) ... on 12 July, 2019
Author: P.N. Deshmukh
Bench: P.N. Deshmukh, Pushpa V. Ganediwala
cwp377.19 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH
CRIMINAL WRIT PETITION NO. 377 OF 2018
Kailash Rameshwar Rathod,
aged about 47 years, r/o
Ranwadi, Tahsil - Talegaon,
District - Wardha (C/9313,
Central Prison, Nagpur). ... PETITIONER
Versus
1. Deputy Inspector General
of Prison (East Region),
Nagpur.
2. Superintendent of Jail,
Central Prison, Nagpur. ... RESPONDENTS
Ms. S.B. Khobragade, Advocate for the petitioner.
Mrs. N.R. Tripathi, APP for the respondents.
.....
CORAM : P.N. DESHMUKH &
PUSHPA V. GANEDIWALA JJ.
JULY 12, 2019.
ORAL JUDGMENT : (PER P.N. DESHMUKH, J.)
Rule. Rule is made returnable forthwith and heard finally with the consent of Ms. S.B. Khobragade, learned counsel for the petitioner and Mrs. N.R. Tripathi, learned APP for the respondents.
::: Uploaded on - 16/07/2019 ::: Downloaded on - 14/04/2020 09:49:12 ::: cwp377.19 2
2. The challenge in this petition is to the impugned order dated 22.03.2019 whereby the petitioner's application for furlough leave came to be rejected.
3. The learned counsel for the petitioner submitted that the petitioner was convicted for the offence punishable under Sections 302, 324 of IPC and also under Section 393 read with Section 34 of Indian Penal Code and further contended that since he had already undergone punishment of five years prescribed for the offence under Section 393 of IPC, he is entitled for grant of furlough. To substantiate above case, the learned counsel for the petitioner submitted that the petitioner was in custody from the date of his arrest from 04.04.2014 and is convicted by the learned Sessions Judge, Gadchiroli, by its judgment dated 04.05.2016, by which the petitioner was convicted for the offence under Section 302 for life, under Section 324 of IPC for two years and for the offence under Section 393 of IPC for five years. It is submitted that since for the offence punishable under Section 393 of the IPC, the petitioner has undergone the term of sentence fully, bar ::: Uploaded on - 16/07/2019 ::: Downloaded on - 14/04/2020 09:49:12 ::: cwp377.19 3 under clause (2) of Rule 4 of the Prisons (Bombay Furlough and Parole) Rules, 1959 (hereinafter for short referred to as above Rules), cannot be attracted and the petition be allowed.
4. According to the affidavit-in-reply filed by the respondents, this is the main ground mentioned in it for rejection of his furlough as the petitioner is convicted for the offence punishable under Section 393 of the IPC. Another ground is that petitioner's surety is not competent since there are crimes registered against her under Bombay Prohibition Act.
5. The learned counsel for the petitioner, on instructions, makes a statement that if the petition is allowed, he will furnish some other surety.
6. In the background of submissions as aforesaid and perusal of clause (2) of Rule 4 of the above Rules would reveal that it bars release of prisoners on furlough leave, if the conviction is under any of the Sections 392 to 402 of the IPC, however, such bar do not apply if the prisoner completes the ::: Uploaded on - 16/07/2019 ::: Downloaded on - 14/04/2020 09:49:12 ::: cwp377.19 4 stipulated sentence in the respective section.
7. In the petition in hand, apart from having being convicted under Sections 302 and 324 of IPC, the petitioner is also convicted for the offence punishable under Section 393 of IPC and is inflicted with the term of imprisonment for five years and since he is in custody since 04.04.2014, he has already undergone period of five years imposed for the offence punishable under Section 393 of the IPC. In that view of the matter, bar provided under clause (2) of Rule 4 of the above Rules, cannot be attracted.
8. In that view of the matter, Criminal Writ Petition is allowed. The respondents are directed to release the petitioner on furlough as per rules, on petitioner's providing some other competent surety than his mother Saybi Rameshwar Rathod. Criminal Writ Petition is disposed of in above terms. Rule is made absolute in above terms.
JUDGE JUDGE
******
*GS.
::: Uploaded on - 16/07/2019 ::: Downloaded on - 14/04/2020 09:49:12 :::