Allowed

Dumya @ Lakhan @ Inamdar Shrimant Bhosale v. the State of Maharashtra and Others

Bombay HC4 Feb 2019WP/5/2019

Case brief

AI extract

What is this about?

The High Court quashed the prison authorities order rejecting the petitioner's furlough application. Ruling that Rule 4(2) regarding Section 395 IPC does not bar release after sentence completion, the Court directed release after procedural formalities and residence at the sister's placement.

What did the court decide?

Impugned order dated 10th July 2018 quashed; Respondents directed to release petitioner on furlough after procedural formalities with condition of residence at sister's village.

Dumya @ Lakhan @ Inamdar Shrimant Bhosale Vs… — Pension and Retirement Benefits | Bombay HC (2019)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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BENCH AT AURANGABAD

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CRIMINAL WRIT PETITION NO.5 OF 2019

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Dumya @ Lakhan @ Inamdar Shrimant Byhosale,
Age-30 years, Occu:Nil, Convict No.7853,
R/o-At present in Central Prison,
Dist-Aurangabad.

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...PETITIONER

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 VERSUS

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1) The State of Maharashtra,

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2) The Deputy Inspector General of
 Central Prison, Aurangabad,

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3) The Superintendent of
 Central Prison, Aurangabad,
 Dist-Aurangabad.

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...RESPONDENTS

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...

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 Mrs.Bharati B. Gunjal Advocate for Petitioner.
 Mr.K.S. Hoke Patil, A.P.P. for Respondent
 Nos. 1 to 3.

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...

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CORAM: S.S. SHINDE AND

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 R.G. AVACHAT, JJ.

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DATE OF RESERVING JUDGMENT : 30TH JANUARY, 2019

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 DATE OF PRONOUNCING JUDGMENT: 4TH FEBRUARY, 2019

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JUDGMENT [PER S.S. SHINDE, J.]:

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1. Rule. Rule made returnable forthwith and

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heard finally with the consent of the learned
counsel appearing for the parties.

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2.This Petition takes exception to the
order dated 10th July, 2018 passed by the Deputy
Inspector General of Prisons, Central Region,
Aurangabad, thereby rejecting the request of the
Petitioner to release him on furlough.

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3.It is the case of the Petitioner that the

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he has been convicted by the Special Judge, MCOC
Act, Aurangabad by order dated 31st July 2014,

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passed in Special Case No.10 of 2009, for the
offence punishable under Section 395 read with
120-B of the Indian Penal Code and sentenced to
suffer rigorous imprisonment for ten years. The
Petitioner has also been convicted for the offence
punishable under Section 3(1)(ii) of the MCOC Act

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read with 120-B of the Indian Penal Code and
sentenced to suffer rigorous imprisonment for ten
years. All the sentences are directed to be run
concurrently. Yet in another sessions case, the
Petitioner has also been convicted by the
Additional Sessions Judge, Barshi by order dated
7th October, 2016, passed in Sessions Case No.86 of
2014, for the offence punishable under Section 325
read with 34 of the Indian Penal Code and
sentenced to suffer rigorous imprisonment for
seven years. Presently the Petitioner is lodged in
Central Prison, Aurangabad, and till today the
Petitioner has undergone 9 years and 6 months of
imprisonment.

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4.It appears that the Petitioner has

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applied for furlough, however by the impugned
order dated 10th July, 2018, his application has
been rejected. In the impugned order, firstly it
is mentioned that the report submitted by the Sub

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Divisional Police Officer, Barshi, is adverse and
therefore furlough cannot be granted. Secondly it
is mentioned in the impugned order that the case
of the Petitioner is not recommended by the
Superintendent of Prison. Thirdly, it is mentioned
in the impugned order that Petitioner is
undergoing sentence for the offence under Section
395 of the Indian Penal Code and for the convicts
of such offence, furlough cannot be granted.
Fourthly, it is mentioned that the Petitioner is
undergoing sentence in serious offence under the
provisions of MCOC Act, and lastly it is mentioned
that furlough it not right of the convict.
Accordingly, by invoking the provisions of Rule
4(2), 4(4) and 4(6) of Chapter 37 of the Prisons
(Bombay Furlough and Parole) Rules, 1959 (for
short “the Rules of 1959”), as amended by the
Notification dated 16th April, 2018, issued by the
Government of Maharashtra in its Home Department,

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the application of the Petitioner came to be

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rejected.

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5.Learned counsel appearing for the

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Petitioner submits that though the Petitioner is
convicted for the offence punishable under the
provisions of 395 of the Indian Penal Code and
under the provisions of MCOC Act, and sentenced to
suffer ten years rigorous imprisonment, but till
today the Petitioner has undergone most of the
sentence, i.e. the Petitioner has undergone the
imprisonment of nine years and six months and
therefore his application for furlough should not
have been rejected on the said ground. Learned
counsel further submits that in the police report
it is mentioned that if the Petitioner is released
on furlough, there is possibility that some
untoward incident would take place and further it
is mentioned that after completion of furlough the

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Petitioner may not surrender before jail
authorities. It is submitted that till today the

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Petitioner has never been released on furlough or
parole and therefore the apprehension expressed by
the police report is baseless. It is submitted
that sister of the Petitioner has agreed to stand
as surety and submitted Hamipatra on the stamp
paper of Rs.100/- and has taken the responsibility
to produce the Petitioner before the jail
authorities within time in case the Petitioner is
released on furlough. It is submitted that if the
Petitioner would be released on furlough, he would
not reside at his native place and would reside at
village Pangari, Taluka-Barshi, District-Solapur,
where his sister resides. Learned counsel
therefore prayed that the Petition deserves to be
allowed.

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6.On the other hand, learned A.P.P.

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appearing for the State, relying upon the
affidavit in reply filed on behalf of Respondent
Nos.2 and 3, submits that the Special Judge, MCOC

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Act, Aurangabad, by an order dated 31st July, 2014

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has convicted the Petitioner for the offence
punishable under Section 395 read with 120-B of
the Indian Penal Code and sentenced to suffer
rigorous imprisonment for the period of ten years.
The Special Judge also convicted the Petitioner
for the offence punishable under Section 3(1)(ii),
3(2) and 3(4) of the MCOC Act and sentenced him to
suffer rigorous imprisonment for ten years. All
the sentences are directed to be run concurrently.
It is further submitted that in another Sessions
Case, the Sessions Court, Barshi has also
convicted the Petitioner for the offence
punishable under Section 325 read with 34 of the
Indian Penal Code and sentenced to suffer rigorous
imprisonment for the period of seven years.

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7.Learned A.P.P. further submits that the
Petitioner has been lodged at Harsul Prison,
Aurangabad and has completed actual imprisonment

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of nine years and six months and 29 days, as on
31st December, 2018. Learned A.P.P. referring to
the provisions of amended Rule 4 (2) of the Rules
of 1959, submits that as per the said Rule, the
prisoners convicted of the offences under Sections
392 to 402 of the Indian Penal Code shall not be
entitled to be released on furlough. Learned
A.P.P. further submits that the Petitioner has not
deposited fine amount as directed by the Special
Court, Aurangabad and therefore the petitioner is
not entitled for grant of furlough. It is further
submitted that the Judgment and order passed by
the Sessions Court at Barsi was later in point of
time and the Sessions Court has not directed that
the sentences should run concurrently. Learned
A.P.P., therefore, submits that the Petitioner is
not entitled for grant of furlough leave in view
of the express bar provided under amended Rule 4
(2) of the Rules, 1959. Hence it is prayed that
the Petition is liable to be rejected.

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8.We have given careful consideration to

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the submissions of the learned counsel appearing
for the Petitioner and learned A.P.P. appearing
for the State. We have carefully perused the
pleadings, grounds taken in the Petition,
annexures thereto, reply filed on behalf of
Respondent nos.2 and 3, also annexures thereto and
the relevant provisions of the Rules of 1959.

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9.While rejecting the application of the
petitioner to release him on furlough, the
Respondent authorities have placed reliance upon
the provisions of amended Rule 4(2), 4(4) and 4(6)
of the Rules, 1959, which read as under:

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“4.Eligibility of furlough

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All Indian prisoners except from
following categories whose annual conduct
reports are good shall be eligible for
furlough.

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(2)Prisoners convicted of offences under

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Sections 392 to 402 (both inclusive) of the
Indian Penal Code (Prisoners may be eligible
for furlough after completion of stipulated
sentence in the respective section),

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(4)Prisoners whose release is not
recommended in Police Commissionerate area
by the Assistant Commissioner of Police and
elsewhere, by the Deputy Superintendent of
Police on the grounds of public peace and
tranquility;

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(6)Prisoners whose work and conduct are,
in the opinion of the Superintendent of the
Prison, not satisfactory enough.”

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10.Admittedly, the Petitioner has been

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convicted for the offence punishable under Section
395 of the Indian Penal Code and sentenced to
suffer rigorous imprisonment for ten years. The
petitioner has almost completed the said sentence,
as the documents placed on record reveals that
the Petitioner has completed actual imprisonment
of nine years six months and twenty nine days as

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on 31st December, 2018. Therefore, the bar

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provided under Rule 4 (2) of the Rules of 1959,
would not be applicable in the case of the
Petitioner.

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11.It is the contention of the Respondents

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that, it is mentioned in the police report that if the Petitioner would be released on furlough, he may not surrender to the jail authority after completion of the period of furlough. The said apprehension of the Respondents is baseless, as till today the petitioner has never been released either on parole or furlough. It is pertinent to note that sister of the petitioner has agreed to stand as surety and submitted Hamipatra on the

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stamp paper of Rs.100/-, and has taken

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responsibility to produce the Petitioner before
the jail authorities within time, in case he would
be released on furlough.

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12.So far as the apprehension expressed in

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the police report that if the petitioner is
released on furlough, there is possibility that
some untoward incident may happen, the same can be
taken care of by directing the Petitioner to
reside at the place of her sister. Further, it is
significant to note that though police report is
adverse, no specific statements of the witnesses
are recorded by the police, stating therein that
if the Petitioner would be released on furlough,
he would not surrender back to the jail authority.

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13.Admittedly, as observed earlier, the

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Petitioner has never been released either on
parole or furlough, and therefore his prayer to
release him on furlough deserves to be considered.
The Supreme Court in the case of Asfaq vs. State

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of Rajasthan and others¹ , in Para-12 of the Judgment, held thus:

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12.A convict, literally speaking, must

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1[2017] 15 SCC 55

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remain in jail for the period of sentence or
for rest of his life in case he is a life
convict. It is in this context that his
release from jail for a short period has to
be considered as an opportunity afforded to
him not only to solve his personal and
family problems but also to maintain his
links with society. Convicts too must
breathe fresh air for at least some time
provided they maintain good conduct
consistently during incarceration and show a
tendency to reform themselves and become
good citizens. Thus, redemption and
rehabilitation of such prisoners for good of
societies must receive due weightage while
theyareundergoingsentenceof
imprisonment.”

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14.In the light of discussion made in

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forgoing paragraphs, we proceed to pass the
following order:

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O R D E R

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(I) The impugned order dated 10th July,

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2018, passed by the Deputy Inspector

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General of Prisons, Central Region,
Aurangabad, is quashed and set aside.

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(II) We direct the Respondent Authorities
to re-examine the case of the Petitioner
and release the Petitioner on furlough,
after completion of usual procedural
formalities. The Respondent Authorities
shall put a condition in the order that,
during the period of furlough the
Petitioner would reside at village
Pangari, Taluka-Barshi, District-Solapur,
where his sister resides, and would not
leave the said place.

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(III) The Respondent Authorities shall
complete the entire exercise as
expeditiously as possible, however, in
any case within three weeks from the date
of receipt of copy of this order.

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(IV) Rule is made absolute in above

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terms. The Writ Petition stands disposed

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of accordingly.

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[R.G. AVACHAT, J.] [S.S. SHINDE, J.]

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asb/JAN19

Dumya @ Lakhan @ Inamdar Shrimant Bhosale v. the State of Maharashtra and Others

Case brief

What is this about?

What did the court decide?

Dumya @ Lakhan @ Inamdar Shrimant Bhosale v. the State of Maharashtra and Others

Case brief

What is this about?

What did the court decide?

What the court decided

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