The Bombay High Court quashed orders rejecting furlough leave, holding that overstay does not permanently bar such leave and authorities relied on incorrect facts regarding the petitioner's return to prison.
Impugned orders quashed; furlough application restored; directive to pass appropriate order within four weeks.
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.
Digitally signed by SMITA SMITA JOHNSONGONSALVES JOHNSON GONSALVESDate: 2022.07.21 14:19:10+0530
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
WRIT PETITION NO.1332 OF 2022
Aarif S/O Ayub Salar .. Petitioner v/s.
The State of Maharashtra & Ors. .. Respondents
Mr. Rupesh A. Jaiswal, for the Petitioner.
Mrs. A.S. Pai, PP, for State.
CORAM: NITIN JAMDAR & N.R. BORKAR, JJ.
DATE : 15 JULY 2022.
P.C:-
Heard learned Counsel for the parties. Taken up for
disposal.
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dated 3 June 2011 for offences under Section 302 of Indian Penal Code and is sentenced to undergo imprisonment for life. After having completed 13 years 6 months imprisonment, including remission of 14 years and 7 months, the Petitioner has applied for furlough leave, which is rejected by the impugned order. The impugned order is passed on three grounds. Firstly, that when the Petitioner was released on furlough in the year 2011, he had threatened the witnesses and the complainant and an FIR was lodged under Section 506 of Indian Penal Code. Secondly, the Petitioner is a hardened criminal whose release will affect law and order. Thirdly, that the Petitioner was released in the year 2012. He overstayed for 331days and was arrested and brought back to the prison. Fourthly, there is an adverse police report against the Petitioner. The authorities, accordingly, stated that the Petitioner is not entitled to furlough leave and the impugned orders were passed.
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fact that the Petitioner himself returned is not denied. The Petitioner has explained the reasons for delay in surrendering. Therefore, what remains is that the apprehension of the authority that the release of the hardened criminal will affect the law and order. The Petitioner was released on furlough in the year 2012, thereafter, period of decade has passed.
1 2019 CJ (Bom) 2287
2 Criminal Writ Petition No.794 of 2020 dated 17 December 2021.
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facts and circumstances for invocation of Rule 4(10). According to us, the incident of 2011 would loose his relevance once the Petitioner was released immediately next year and did not commit any untoward incident. As regards the factum of overstay, it cannot be stated that it can permanently bar the Petitioner and also the facts of the case will have to be examined. Wrong fact has been taken into consideration while invoking Rule 4(10). The decision will have to be taken considering the correct facts as stated above.
(N.R. BORKAR, J.)
(NITIN JAMDAR, J.)
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3 issues framed by the court
Whether Rule 4(10) of Prisons Rules can permanently bar furlough leave due to overstay.
Whether findings of fact regarding voluntary return despite arrests were correctly considered.
Whether previous incidents of threat making witnesses affect current furlough eligibility after decade.
Colour shows how this judgement treated each authority
Satish Shankarrao Shinde vs. The State of MaharashtraReferred¶27
Satish Shankarrao Shinde vs. The State of Maharashtra (Criminal Writ Petition No.1535 of 2019 dated 26 November 2019 of Aurangabad Bench)
Arif @ Baba Ayub Salar vs. State of Maharashtra & Ors.Referred¶27
Arif @ Baba Ayub Salar vs. State of Maharashtra & Ors. (Criminal Writ Petition No.794 of 2020 dated 17 December 2021)
1 provisions across 1 enactments
Aarif S/O Ayub Salar
The State of Maharashtra
Nitin Jamdar
N.R. Borkar
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
