Bombay High Court
Deepak S/O Anil Awale vs State Of Maharashtra And Ors on 24 June, 2024
Author: Bharati Dangre
Bench: Bharati Dangre
2024:BHC-AS:26103-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
WRIT PETITION (STAMP) NO. 12295 OF 2024
Deepak S/o Anil Awale
Convict No.8224., Age: 41 years,
Occu: Convict, R/o at present .. Petitioner
confined in Centrale Jail Nasik
Road.
Versus
1. The State of Maharashtra
Through Superintendent Nasik
Road, Nasik.
2. DIG Prisons, Central Division .. Respondents
Chhatrapati Sambhajinagar.
3. Inspector General Prisons,
Yerwada, Pune
...
Mr. Rupesh A. Jaiswal, for the Petitioner.
Mr. D. J. Haldankar, 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 herein is challenging the orders passed by
the respondent Nos. 2 and 3 dated 22.03.2024 and
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21.05.2024, thereby rejecting the application for furlough
leave to the petitioner on the ground that, there is a negative
police report and the petitioner- convict has not surrendered
within time, while on furlough leave. The petitioner has
surrendered late by 475 days. The petitioner herein has been
convicted by the Sessions Judge MCOCA, in Sessions Case No.
17 of 2015, by its Judgment and Order dated 03.04.2018. The
petitioner was arrested in the year 2016, and on his conviction
under Sections 342, 363, 386, 420 of the Indian Penal Code
and Section 3 of the Maharashtra Control of Organised Crime
Act, 1999 (MCOCA), the petitioner is presently undergoing the
punishment of life imprisonment at the Central Prison, Nasik
Road, Nasik.
3. The petitioner had made an application for furlough
leave, which was forwarded to the respondent No.2, through
the respondent No. 1. The said application for furlough leave
has been rejected by the respondent No. 2, by order dated
22.03.2024. The said order is annexed by the petitioner at
Exhibit- A (Page- 12). The respondent No. 2 has mentioned in
the order that, on receiving the said application of the
petitioner on 30.01.2024, a report from the Commissioner of
Police, Kamptee Division, Nagpur was called by the said
respondent. In response to the said communication by the
respondent No. 2, the Commissioner of Police, Kamptee
Division, Nagpur, sent a report on 11.03.2024. In the said
report, the Commissionerate has mentioned that, the person
whose name has been proposed as surety on behalf of the
petitioner, though ready to give surety of the petitioner, but
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according to the police authority, the said person does not
seem to be competent to control and keep vigilance on the
petitioner, while being released on furlough leave. The other
reason which is mentioned in the order is that, the petitioner
while being released on furlough leave on 01.11.2019, he has
not reported back to the prison within time, therefore, offence
under Section 224 of the IPC has been registered against the
petitioner. It is only after the searching the petitioner, he was
taken into custody by the police authorities, after delay of 475
days. The concerned authority has also mentions that, the
witnesses and complainant in the case are likely to be harmed
by the petitioner, therefore, the concerned authority does not
recommend his release.
4. While passing the said order under challenge, the
Competent Authority has referred to Chapter - XXXVII of the
Maharashtra Prisons Manual, 1979 and Rule 4(4),(10),(20) 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(4),(10)(20) of the Rules, 1959, the application of
the petitioner has been rejected.
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
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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
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."
5. The application of the petitioner has been rejected on two
grounds; the first being that he has not surrendered after his
furlough leave within time and the second being that there is a
adverse police report which does not recommend his release.
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6. So far as the delay in surrendering to the prison by 475
days is concerned, the said issue has been dealt with by the
Full Bench of the 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 the object of the
legislature in making rules of Parole and Furlough.
7. 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
1 AIR 1987 Gujarat 136
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Government had accepted the recommendation for a system of
release of prisoners on furlough Leave, so as to make them
available spell of occasional freedom, after they undergo a
specified period of imprisonment.
8. 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.
9. 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.
Having regard to the various orders which the petitioner
has placed on record and the Statements and Objects and
Reasons for Bombay (Prisons Amendment) Act No. 27 of 1953,
2 2015 ALL MR (Cri) 1834
3 2015 ALL MR (Cri) 1840
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the very object of framing the Rules would be frustrated if such
interpretation of Rule - 4(10) is allowed.
10. So far as the ground of adverse police report is
concerned, a similar issue had arisen before the Aurangabad
Bench of this Court in case of Satish Shankarrao Shinde V/s.
The State of Maharashtra4. This Court, while considering the
Sub-Rule-(4) of Rule 4 which provides for one of the
conditions, where prisoner shall not be considered for release
on Furlough is that, if he is not recommended by the police
authorities or the District Magistrate on the ground of public
peace and tranquility. While dealing with the said rule, this
Court has observed that, ordinarily on the basis of the enquiry
made with the witnesses such police report is given. However,
considering the scheme of furlough leave and purpose behind
it, the circumstance that witnesses have objections to release
of such prisoners on leave cannot sustain in law. Proper
conditions can be imposed to take care of that apprehension
and only on that ground furlough leave cannot be rejected.
The right of the prisoner cannot be curtailed on mere
apprehension.
11. In the present case, the order dated 22.03.2024 refers to
the police report, wherein it is mentioned that, there is
likelihood of danger to the life and property of the complainant
and the witnesses. Even, while commenting on the surety, who
is ready to take the responsibility of the petitioner, the police
report has expressed doubt, whether the said person can
4 2019 CJ (Bom) 2287
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control the petitioner-convict during his stay. The report of
the police authorities is merely based on apprehension and not
on substantive grounds. Therefore, considering the
observations of this Court in case of Satish Shankarrao Shinde
(supra), the said objection also does not seem to be strong
objection. The Appeal of the petitioner has also been rejected
by the respondent No. 3 on the same grounds and has
maintained the order of the respondent No. 2. The learned
APP has supported the orders passed by the respondent Nos. 2
and 3.
12. In view of the foregoing discussions and in view of the
case laws referred to, in our opinion, the impugned orders
passed by the respondent Nos. 2 and 3 are required to be
quashed and set aside. Hence, we pass the following order:
:ORDER :
(i) The orders passed by the Respondent Nos. 2
and 3 dated 22.03.2024 and 21.05.2024, 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.
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