The High Court quashed the condition requiring two sureties for a convict's furlough release held the petitioner could be released on furnishing one surety.
The Criminal Writ Petition was allowed, quashing the condition requiring two sureties, and directing respondents to release the petitioner on furnishing one surety.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
44.2017 Cri.WP.odt
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO.44 OF 2017
Shivaji s/o.Nagorao Shinde,
Age: Major, Convict No.9663,
Lodged at Nashik Road Central Prison,
Nashik, Dist. Nashik. PETITIONER
VERSUS
1. The State of Maharashtra
2. Dy. Inspector General (Prison), Central Region, Aurangabad.
3. Inspector General (Prison), Pune, Maharashtra State.
4. Superintendent of Jail, Nashik Road Central Prison, Nashik.
5. The Superintendent of Police, Hingoli, Dist. Hingoli. RESPONDENTS
...
Mr.Shaikh Wajeed Ahmed [Appointed] Advocate
for the Petitioner
Mr.S.P.Deshmukh, APP for the Respondent Nos.1
to 5/State
...
CORAM: S.S.SHINDE &
K.K.SONAWANE,JJ.Reserved on : 01.03.2017
Pronounced on : 03.03.2017
44.2017 Cri.WP.odt
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JUDGMENT: (Per S.S.Shinde, J.):
1.Heard. Rule. Rule made returnable
forthwith, and heard finally with the consent
of the parties.
2.This Petition is filed seeking
modification of the condition no.1 in order
dated 06.10.2016 passed by the DIG (Prison),
Aurangabad, asking the petitioner to furnish
two sureties and issue directions to
respondents to release the petitioner on
furnishing one surety instead of two
sureties.
3.It is the case of the petitioner
that, the petitioner was arrested on 15th
June, 2008. Thereafter, after trial he was
convicted for the offence punishable under
Section 302 of the Indian Penal Code, thereby
sentencing him to undergo life imprisonment
and continuously he is in Jail since his
arrest.
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4.On 9th May, 2016, he applied for
furlough leave before the sanctioning
Authority through the Superintendent, Nashik
Road Central Prison, Nashik. His prayer to
release him on furlough leave was favourably
considered by the concerned Authority, and
the said authority granted 28 days furlough
leave to the petitioner by imposing certain
conditions including furnishing of two
sureties by the petitioner. The petitioner
requested the Jail Authority to release him
upon furnishing one surety instead of two
sureties, however, his request has been
rejected. Hence this Petition.
5.It is submitted by the learned
counsel appearing for the petitioner that,
the right of a convict to release on furlough
cannot be denied by putting such stringent
conditions.Furthermore,alreadythe
petitioner had undergone more than 8 years of
imprisonment. Though the petitioner is
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granted furlough leave, he is unable to
furnish two sureties for his release.
However, he has managed one surety and ready
to furnish the same. So also the petitioner
is indigent person as his financial condition
is not good and due to his inability to
secure 2nd surety, his right to be released
on furlough is frustrated. If the petitioner
is not released on furlough leave on
furnishing one surety, then the entire object
behind having the provision of Furlough leave
for the prisoners would get frustrated.
Moreover, imposition of such strict
conditions to furnish two sureties would
make it impossible for the prisoners to
maintain the constructive hopes and active
interest in life. Hence, the Jail Authority
should have considered the grievance of the
petitioner by allowing him to furnish one
surety instead of insisting him to furnish
two sureties for his release on furlough.
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6.Pursuant to the notices issued to
the respondents, respondent nos.1 to 4 have
filed affidavit-in-reply, fact that 28 days
furlough leave subject to condition to
furnish two sureties is granted in favour of
the petitioner is not in dispute. It appears
that in the process of considering the prayer
of the petitioner to release him on furlough
leave, the Deputy Inspector General (Prison),
Central Region, Aurangabad, has mentioned
that, earlier when the petitioner was
released on furlough leave, he quarreled with
the people under the influence of liquor and
due to such adverse police report, the
petitioner’s request was not considered. It
is stated in the affidavit-in-reply that, the
petitioner has undergone the sentenced of 8
years, 5 months and 16 days till filing of
the affidavit-in-reply. He was granted
furlough leave on 27th August, 2012 and after
availing the said furlough leave, he reported
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44.2017 Cri.WP.odt
back to the Jail on 10th September, 2012,
within time. Again he was released on parole
leave on 27th June, 2013, and he reported 16
days late, and therefore, 48 days remission
has been cut/deducted.
7.Upon hearing the learned counsel
appearing for the petitioner and the learned
APP appearing for the respondent–State and
upon perusal of the grounds taken in the
petition, annexures thereto and the
affidavit-in- reply filed by the respondents,
we are of the opinion that, since the
respondent authority thought it fit to accept
the prayer of the petitioner to release him
on furlough leave for 28 days, merely because
he cannot furnish two sureties, can not be a
ground to deny him furlough leave. The
petitioner is ready to furnish one surety,
and therefore, in our opinion keeping in view
the fact that, the petitioner has undergone
more than 8 years sentence and on his own he
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reported back to the Jail when he was earlier
released on furlough / parole leave.
Petition in terms of prayer clause-B, which
reads thus:
B.ByissuingappropriateWrit,
direction or order in the Like
nature Quash and Set aside the
Condition No.1 in order dt.
06/10/2016 passed by the DIG
(Prison), Aurangabad to the extent
of furnishing two sureties by the
Petitioner and further direction may
kindly be given to the Respondents
to allow the Petitioner to submit
One Surety instead of two sureties.
respondents to release the petitioner on
furnishing one surety subject to completing
usual formalities, if any. The Criminal Writ
Petition is allowed in terms of prayer
clause-B. Rule is made absolute on above
44.2017 Cri.WP.odt
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terms and the Writ Petition stands disposed
of accordingly.
10. The learned APP to communicate this
order to the respondents by the fastest mode
of communication.
11.Since, Mr.Shaikh Wajeed Ahmed, the
learned counsel is appointed to prosecute the
cause of the petitioner, his fees be paid as
per the schedule of fees maintained by the
High Court Legal Services Sub-Committee,
Aurangabad.
[K.K.SONAWANE] [S.S.SHINDE] JUDGE JUDGE
DDC
1 issue framed by the court
Whether a convict already granted furlough leave can be denied release due to an inability to furnish a second surety when ready to furnish one.
Shivaji S/o. Nagorao Shinde
State of Maharashtra
Dy. Inspector General (Prison), Central Region, Aurangabad
Inspector General (Prison), Pune, Maharashtra State
Superintendent of Jail, Nashik Road Central Prison, Nashik
The Superintendent of Police, Hingoli, Dist. Hingoli
S.S. Shinde
K.K. Sonawane
As recorded by the court registry
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