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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 (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.

(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 (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.