Allowed

Deepak S/O. Maruti Ghate (C-8292) v. the State of Maharashtra and Others

Bombay HC5 Mar 2018WP/243/2018

Case brief

AI extract

What is this about?

The High Court at Aurangabad allowed a criminal writ petition by a convict challenging the rejection of his furlough leave. The court held that the pending appeal against conviction does not bar furlough, the specific facts of the Rubina Suleman Memon case did not apply, and the late return from previous leave was already penalized. The impugned orders were quashed.

What did the court decide?

The impugned orders dated 03.06.2017 and 27.11.2017 were quashed. The petitioner was directed to be released on furlough leave after complying with formalities.

Deepak S/O. Maruti Ghate (C-8292) Vs the… — Pension and Retirement Benefits | Bombay HC (2018)

¶1

(1)Cri. W.P. No. 0243 of 2018

¶2

(Judgment)

¶3

IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AT AURANGABAD.

¶4

Criminal Writ Petition No. 0243 of 2018

¶5

District : Aurangabad

¶6

Deepak s/o. Maruti Ghate,
(C-8292)(Convict),
Central Prison,
Nashik Road, Nashik. .. Petitioner.

¶7

versus

¶8

1. The State of Maharashtra, Through the Secretary, Home Department (Prison), Mumbai - 400 005.

¶9

2. The Additional Director General of Police And Inspector General of Prison and Correctional Services, State of Maharashtra, Pune.

¶10

3. The Deputy Inspector General of Prisons, Central Division, Aurangabad.

¶11

4. The Superintendent, Central Prison, Nashik Road, Nashik. .. Respondents. ...........

¶12

Mr. Rajendra N. Chavan, Advocate, for the petitioner.

¶13

Mr. S.W. Munde, Addl. Public Prosecutor, for respondent nos.01 to 04.

¶14

...........

¶15

CORAM : PRASANNA B. VARALE &
 SMT. VIBHA KANKANWADI, JJ.

¶16

 DATE : 05TH MARCH 2018

¶17

(Judgment) (2) Cri. W.P. No. 0243 of 2018

¶18

ORAL JUDGMENT [Per Smt. Vibha Kankanwadi, J.] :

¶19

Heard learned Counsel for the petitioner and
the learned Addl. Public Prosecutor for the
respondents.

¶20

02.By the present petition, the petitioner -
convict no. C-8292 is challenging the order dated
03.06.2017, passed by respondent no.03 i.e. Deputy
Inspector General of Prisons, Aurangabad, thereby
rejecting the application made by the petitioner
seeking furlough leave. The petitioner has also
challenged the order dated 27.11.2017, passed by
respondent no.02 i.e. Addl. D.G.P. & Inspector
General of Prisons, Pune, thereby rejecting the
appeal preferred by the petitioner.

¶21

03. The prayer of the petitioner seeking furlough leave was rejected on the ground that the appeal filed by the petitioner against his conviction and sentence is pending before this Court. Another ground for rejection of furlough leave is, when the petitioner was released on leave for 30 days in the year 2014, he had reported back in jail lately by 137 days. The next ground for rejection of furlough leave is, in view of the ratio laid down in the judgment of this Court delivered 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 , dated 22nd December 2016, the petitioner is not entitled for furlough leave. The last ground for

¶22

(Judgment) (3) Cri. W.P. No. 0243 of 2018

¶23

rejection of the furlough leave is, there is no
recommendation of the Jail Superintendent.

¶24

04. Learned Counsel appearing for the petitioner submits, that the grounds for rejection of furlough leave are vague and unsustainable. He submits, that filing of an appeal against conviction and sentence is a statutory right of the convict and, therefore, said ground is not tenable. He further submits, that though the petitioner - convict when on leave in the year 2014 had reported late by 137 days, separate punishment is awarded by the jail authorities on that count. He also submits, that the ratio of the judgment of this Court in the matter of Smt. Rubina Suleman Memon (supra) is not applicable to the facts of the present case as the petitioner is not undergoing sentence for conviction under the Terrorist and Destructive Activities Act, 1987. He has, therefore, urged that the petition be allowed and the petitioner may be released on furlough leave.

¶25

05. Learned Counsel for the petitioner further submitted that in so far as the first 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

¶26

(Judgment) (4) Cri. W.P. No. 0243 of 2018

¶27

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 :

¶28

"2. The learned PP submits that the appropriate Authorities have advised State Government which is taking some steps and those steps may result in amendment to the Rules. She seeks time till after vacation to make a definite statement in this respect.

¶29

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)

¶30

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.

¶31

(Judgment) (5) Cri. W.P. No. 0243 of 2018

¶32

06.Learned Addl. Public Prosecutor appearing
for the respondents opposed the petition and urged
that the petition be dismissed.

¶33

07. So far as the ground, that the appeal preferred by the petitioner against his conviction and sentence is pending before this Court, same is not tenable. Filing of an appeal against conviction and sentence is a statutory right of the convict and it has no nexus with grant or rejection of furlough leave. So far as the next ground, that the petitioner had reported late in jail by 137 days when released on leave in the year 2012, as rightly submitted by the learned Counsel for the petitioner, separate punishment is awarded by the jail authorities on that count. Learned Counsel for the petitioner was also right in submitting that the case of Smt. Rubina Suleman Memon (supra) is not applicable to the facts of the present case. In the said case, the convict was undergoing sentence for conviction under the provisions of 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. Such is not the case of the present petitioner. The petitioner is not suffering punishment for any act under the provisions of TADA. The last ground, that there is no recommendation of the Jail Superintendent, is also not tenable. The

¶34

(Judgment) (6) Cri. W.P. No. 0243 of 2018

¶35

leave sanctioning authority can suo motu call recommendation or otherwise on the application made by the petitioner for furlough leave.

¶36

08. There is no dispute, that the very circular 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.

¶37

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

¶38

(Judgment) (7) Cri. W.P. No. 0243 of 2018 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 :

¶39

"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.

¶40

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

¶41

(Judgment) (8) Cri. W.P. No. 0243 of 2018

¶42

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 Veerappa Shetty Vs. State of Maharashtra [1986(1) Bom.C.R.311 = 1986 Cri.L.J. 1298]. "

¶43

Thus, we find that this reason cannot be a hurdle in
the way of the petitioner.

¶44

10.In the facts and circumstances of the case,
learned Counsel for the petitioner has made out a
case for grant of relief as prayed in the petition.

¶45

11.In the result, the criminal writ petition is
allowed.

¶46

The impugned order dated 03.06.2017, passed by
respondent no.03 i.e. Deputy Inspector General of
Prisons, Aurangabad, so also, order dated 27.11.2017,
passed by respondent no.02 i.e. Addl. D.G.P. &
Inspector General of Prisons, Pune, are quashed and
set aside. The petitioner is directed to be released
on furlough leave after complying necessary
formalities.

¶47

( Smt. Vibha Kankanwadi ) ( Prasanna B. Varale )
JUDGE JUDGE

¶48

...........

¶49

puranik / CRIWP243.18

Deepak S/O. Maruti Ghate (C-8292) v. the State of Maharashtra and Others

Case brief

What is this about?

What did the court decide?

Deepak S/O. Maruti Ghate (C-8292) v. the State of Maharashtra and Others

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Nivruti Sopan Mali Vs Pankaj Deshmukh, the Superintendent of Police, Osmanabad and Others

Kishan Ranba Kure and Others Vs the Union of India and Others

Ashrabai Bansi Ghumare (C-7691) Central Prison, Aurangabad Vs Bapu Ramrao More through Superintendent Central Prison, Aurangabad and Another

Sitaram Dada Sarode C-8996 Vs the State of Maharashtra

Hanumat Venkat Kadam (C - 4657) Open Prison Paithan Vs Sandeep Kamble , Secretary Home Department, Mantralaya, Mumbai and Another

Girish Bhaurao Salunke Vs the State of Maharashtra and Anr.