Bombay High Court
Raju Ramji More (C-9324) vs The State Of Maharashtra on 21 February, 2018
Author: Vibha Kankanwadi
Bench: Prasanna B. Varale, Vibha Kankanwadi
(Judgment) (1) Cri. W.P. No. 0092 of 2018
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
AURANGABAD BENCH, AT AURANGABAD.
Criminal Writ Petition No. 0092 of 2018
District : Nashik
Raju s/o. Ramji More. .. Petitioner.
versus
1. The State of Maharashtra,
Through its Secretary,
Home Department,
Government of Maharashtra,
Mantralaya, Mumbai.
2. Additional D.G.P. and
Inspector General (I.G.)
(Prison & Correctional Service),
Pune - 1.
3. Deputy Inspector General
(Dy.I.G.) (Prison),
Aurangabad.
4. The Superintendent of Prison,
Nashik. .. Respondents.
...........
Smt. Sunita D. Shelke, Advocate (appointed), for
the petitioner.
Mr. R.B. Bagul, Addl. Public Prosecutor, for
respondent nos.01 to 04.
...........
CORAM : PRASANNA B. VARALE &
SMT. VIBHA KANKANWADI, JJ.
DATE : 21ST FEBRUARY 2018
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(Judgment) (2) Cri. W.P. No. 0092 of 2018
ORAL JUDGMENT [Per Smt. Vibha Kankanwadi, J.] :
Heard learned Counsel (appointed) for the petitioner and the learned Addl. Public Prosecutor for the respondents.
02. By the present petition, the petitioner - convict no. C-9324 is challenging the order passed by respondent no.02 i.e. Addl. D.G.P. & I.G. (Prison), Pune, dated 21.11.2017, thereby rejecting the application made by the petitioner seeking furlough leave.
03. The application seeking furlough leave of the petitioner was rejected on many grounds. One of the grounds was, the police report was adverse. It is stated, that if the convict is released on furlough, there is possibility of threat to the life of the complainant and his family members. Thereafter, the appeal filed by the petitioner against his conviction and sentence is pending before this Court. Subsequent ground mentioned is, in view of the ratio laid down by this Court at principal seat, in Criminal Writ Petition No. 4017 of 2016, in the matter of Smt. Rubina Suleman Memon Vs. The State of Maharashtra & others, on 22nd December 2016, the petitioner is not entitled to be released on furlough. Lastly, it is mentioned that there is no recommendation by the Jail Superintendent.
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04. Learned Counsel (appointed) for the petitioner submits that the grounds for rejection of furlough leave mentioned in the impugned order are vague and unsustainable. She submits that the ground, that the police report is adverse, is not substantiated by any instances in the past when the petitioner was released on furlough leave. She further submits that the ratio in the case of Smt. Rubina Suleman Memon Vs. The State of Maharashtra & others (supra) is not at all applicable to the facts of the present case. She has, therefore, urged that the petitioner may be released on furlough leave.
05. Learned Counsel for the petitioner further submitted that in so far as the ground in respect of pendency of appeal, is concerned, the Division Bench of this Court at Nagpur Bench was pleased to consider this very aspect. Our attention is invited to the copy of an unreported order dated April 26, 2017, in Criminal Writ Petition (CWP) No. 196 of 2017 and Criminal Writ Petition (CWP) No. 97 of 2017, in the matter of Arun s/o. Gulab Gawli & another Vs. State of Maharashtra, through its Secretary, Home Department & others. It would be useful to refer observations of the Division Bench in paras 2 and 3 of the order, which read as under :
"2. The learned PP submits that the appropriate Authorities have advised State Government which is taking some steps and those steps may result in ::: Uploaded on - 26/02/2018 ::: Downloaded on - 27/02/2018 01:22:16 ::: (Judgment) (4) Cri. W.P. No. 0092 of 2018 amendment to the Rules. She seeks time till after vacation to make a definite statement in this respect.
3. The learned Senior Advocate has no objection provided the request of the petitioner for grant of furlough in Criminal Writ Petition No. 97 of 2017 is considered. He also adds that from the response of the respondents, it appears that they have accepted the inconsistency or arbitrariness in the provision which denies furlough to the prisoners whose appeal challenging conviction is pending and bail application is rejected by the High Court. " (Emphasis supplied) The Division Bench, in view of the statement made before the Court and on considering other grounds, namely, a vague police report and the track of leave of the petitioner, found that there was no reason to deny furlough leave. The Division Bench accordingly directed release of the petitioner in Criminal Writ Petition No. 97 of 2017 on furlough leave, within two weeks from the date of the order, after obtaining appropriate bonds, undertakings from the convict and his relatives / sureties.
06. Learned Addl. Public Prosecutor appearing for the respondents has supported the impugned order and opposed the petition.
07. So far as the ground, that there is threat to the lives of complainant and his family members is concerned, the ground appears to be vague. No ::: Uploaded on - 26/02/2018 ::: Downloaded on - 27/02/2018 01:22:16 ::: (Judgment) (5) Cri. W.P. No. 0092 of 2018 instance of such nature is mentioned when the convict
- petitioner was ever before released on furlough leave. Moreover, the ground is not substantiated by filing any reply on behalf of the State. Another ground, that the appeal of the petitioner - convict against his conviction and sentence is pending before this Court, is not tenable. Filing of an appeal is a statutory right provided under law and if the convict avails the remedy provided under law, it has no nexus with grant or rejection of furlough leave. Similarly, the ratio of judgment of this Court in the case of Smt. Rubina Suleman Memon Vs. The State of Maharashtra & others (supra) is not applicable to the facts of the present case. The convict in the said case was undergoing imprisonment for committing offence under the Terrorist and Destructive Activities Act, 1987, and rigors of the notification dated 23.02.2012, more particularly, Sub-Rule 13 of Rule 4 of the Prisons (Bombay Furlough and Parole) Rules, 1959, were fully applicable to the petitioner therein. In the instant case, the petitioner is not suffering punishment for any act under the provisions of TADA. The last ground, that there is no recommendation of Jail Superintendent, is also untenable. Though the application for furlough was not accompanied by recommendation, the sanctioning authority can suo motu call recommendation or otherwise from the Jail Superintendent.
08. There is no dispute, that the very circular ::: Uploaded on - 26/02/2018 ::: Downloaded on - 27/02/2018 01:22:16 ::: (Judgment) (6) Cri. W.P. No. 0092 of 2018 which is referred to in the order prevents the prisoner to avail the benefit and statement was made before the Division Bench at Nagpur Bench, that the State Government is in process to re-think the rule and if necessary, cause an amendment to rule. We may also take note of the decision by Division Bench of this Court at this Bench, in Criminal Writ Petition No. 1010 of 2017, in the matter of Shivaji Vs. The State of Maharashtra & others, decided on 13.10.2017. So also, a useful reference can be made to the decision of Division Bench of this Court at this Bench, in Criminal Writ Petition No. 1237 of 2017, in the matter of Hariom Vijay Pandey Vs. The Superintendent & others, decided on the same day. In both these petitions, the Division Bench of this Court had taken note of the above referred judgment of the Division Bench at Nagpur Bench, in the matter of Arun s/o. Gulab Gawli & another (supra) and the benefit was then given to the petitioners therein.
09. Further, we may refer to a Full Bench judgment of this Court at principal seat in the matter of S. Sant Singh @ Pilli Singh Ajit Singh Kalyani Vs. Secretary, Home Department, Govt. of Maharashtra & others [2006 (2) Mh.L.J. 422 = 2006(1) Bom.C.R.(Cri.) 743]. Though this is the case which was pronounced prior to Government Circular dated 26.08.2016, yet it appears that at that time also, there was similar provision, wherein it has been observed in paras 26 and 27 of the judgment, thus :
::: Uploaded on - 26/02/2018 ::: Downloaded on - 27/02/2018 01:22:16 :::(Judgment) (7) Cri. W.P. No. 0092 of 2018 "26. The provisions of law clearly disclose that once a person is convicted and sentence is imposed by the Court, and such person is sent to jail as a prisoner the execution of the sentence imposed upon him is to be done by the appropriate Government in accordance with the rules framed in that regard. Once a person is in prison he would be governed by the Prisons Act, and the Rules framed thereunder. The Prison Rules clearly provide for grant of parole. It is for the Competent Authority or the Government to decide as to whether any Parole for any particular period is to be granted to the convicts undergoing imprisonment period and on the conditions as may be fixed. It is, therefore, clear that merely because a convict prefers an appeal before the Appellate Court, that would not divest the Government of its powers under the Prison Act to deal with the management of the convict by following the rules framed under the said Act.
27. From this, it is clear that the powers of the State to grant Parole are not fettered even if the appeal of the convict is pending before the Court. Thus, the Competent Authority or the Government would have the legal competence to entertain an application for parole by following the procedure set out under the Prison Rules to meet the contingencies stated therein. The exercise of such power would not be in any way be in conflict with the powers exercised under section 389 and/or Section 432 of the Code of Criminal Procedure. It is also evident that the amendments carried out in this scheme of Rules 19 and 25 in the year 1989 have provided for adequate safeguards so as to ensure that the benefit of parole leave is not misused or abused so as to defeat or nullify the Courts order passed under Section 389 of the Code of Criminal Procedure as was noticed in Jayant ::: Uploaded on - 26/02/2018 ::: Downloaded on - 27/02/2018 01:22:16 ::: (Judgment) (8) Cri. W.P. No. 0092 of 2018 Veerappa Shetty Vs. State of Maharashtra [1986(1) Bom.C.R.311 = 1986 Cri.L.J. 1298]. "
Thus, we find that this reason cannot be a hurdle in the way of the petitioner.
10. Considering the facts and circumstances of the case, we are of the opinion that the learned Counsel for the petitioner has made out a case for grant of relief as prayed in the petition.
11. In the result, the criminal writ petition is allowed.
The impugned order dated 21.11.2017 passed by respondent no.02 i.e. Addl. D.G.P. & I.G. (Prison), Pune, is quashed and set aside and the petitioner is directed to be released on furlough leave as per entitlement under the Prisons (Bombay Furlough and Parole) Rules, 1959. The petitioner is directed to comply with the necessary formalities.
12. Learned Advocate Smt. S.D. Shelke was appointed to represent case of the petitioner. Her fees is quantified at Rs. 3,000/- [Rupees three thousand].
( Smt. Vibha Kankanwadi ) ( Prasanna B. Varale )
JUDGE JUDGE
puranik / CRIWP92.18
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