High Court

Legal Reasoning

CRWP 71 24.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL WRIT PETITION NO. 71 OF 2024Sudam @ Rahul Kaniram Jadhav(C-8959), Age 52 years, Occ. Prisoner,R/o. C-8959, Harsool Jail,Aurangabad.…PetitionerVERSUS1)The State of MaharashtraThrough its Principal Secretary,Home Department, MantralayaMumbai-32.2)The Dy. Inspector General of Prison,Central Prison, Aurangabad,Tq. & Dist. Aurangabad.3)The Additional Director General of Police,Pune, Old Central Building 2 Floor,Pune.…Respondents …Advocate for Petitioner : Mr. M.M. ParghaneA.P.P. for Respondent/State : Mr. V.K. KotechaCORAM: MANGESH S. PATIL & SHAILESH P. BRAHME, JJ.DATE: 29.01.2024PER COURT : (PER : MANGESH S. PATIL, J.) Heard. Rule. Rule is made returnable forthwith. Learned A.P.P. waivesservice for the respondent. 2.The petitioner who is a life convict for an offence punishable underSection 302 of the Indian Penal Code, is seeking furlough leave and isaggrieved by the basic order dated 16.03.2023 passed by the respondent no.2-Deputy Inspector General of Prison [DIG (Prison)] rejecting his application1/6 CRWP 71 24.odton the ground of Rule 4(4), 4(5) and 4(6) of the Prisons (Bombay Furloughand Parole) Rules, 1979 (hereinafter ‘the Rules’), and whose statutoryappeal has been dismissed by the respondent no. 3-Additional DirectorGeneral of Police, Pune, by the impugned order dated 02.08.2023. 3.The learned advocate for the petitioner would submit that there wasno sufficient and cogent reasons or grounds for refusing his furlough leaveapplication. He is suffering incarceration since long. He is ready to furnishappropriate surety and even would abide by the conditions like attendingthe nearest police station on daily basis. The purpose of grant of furlough orparole leave is to enable the prisoners who are suffering incarceration tomaintain societal ties. There are no sufficient and concrete reasons toentertain any apprehension about his possible conduct once released onleave and the petition be allowed.4.Per contra, the learned A.P.P. would support both the orders. Hewould submit that the petitioner’s release has not been recommended by theconcerned authority. He is involved in gruesome murder of a woman andher three children. There is every possibility of his disturbing a peace andtranquility if released on leave. Recently when he was taken to theGovernment Hospital at Aurangabad on 16.02.2023, the applicant turnedviolent. He started arguing with the Medical Officer and even threatenedhim. Such conduct demonstrates his violent mental condition and theauthorities have rightly refused the leave.5.We have considered the rival submissions and perused the papers. Therespondent no. 2 by the impugned order has refused to consider the requestof the petitioner for grant of furlough leave precisely on the groundscontemplated in Rule 4(4), 4(5) and 4(6). Whereas, the respondent no. 3has decided the statutory appeal and has dismissed it without specificallyreferring to these Rules. For the sake of convenience these Rules are as2/6 CRWP 71 24.odtunder :“4(4)Prisoners whose release is not recommended in PoliceCommissionerate area by the Assistant Commissioner of Policeand elsewhere, by the Deputy Superintendent of Police on thegrounds of public peace and tranquility.4(5)Prisoners who, in the opinion of Superintendent ofPrison show tendency towards crime;4(6)Prisoners whose work and conduct are, in the opinionof the Superintendent of the Prison, not satisfactory enough;”6.At the outset, we are pointing the aforementioned circumstances todemonstrate as to how the respondent nos. 2 and 3 are assigning different groundsfor refusing the parole leave except the common ground contained in Rule 4(5)and 4(6). The respondent no. 2 had rejected the petitioner’s application even forthe ground contained in Rule 4(4). The respondent no. 3 while deciding thestatutory appeal has expressly observed that there were no statement of anybodyentertaining some apprehension, in tune with Rule 4(4). 7.As far as the order passed by the respondent no. 2 is concerned, inparagraph no. 5 of the order he has mentioned that the report received from theSuperintendent of Police, Chandrapur was adverse to the petitioner. The suretybeing furnished by him was aged and was found to be incapable of securing hispresence and objecting to release of the petitioner on leave.8.Whereas, the impugned order passed by the respondent no. 3 in appealmerely mentions that the Sub Divisional Police Officer Gadchandur DistrictChandrapur having submitted a report not recommending grant of leave.9.Bearing in mind the specific wording of Rule 4(4) (supra), it should be acase where the Assistant Commissioner of Police or Deputy Superintendent ofPolice are refusing to recommend release on the ground of public peace andtranquility. Apart from the fact as to the sanctity and binding nature of such report,it is also imperative that such a negative recommendation should be substantiatedby pointing out precisely the circumstances which would weigh with the police3/6 CRWP 71 24.odtofficers to entertain apprehension that granting leave to the prisoner would beprejudicial to the public peace and tranquility.10.Obviously, the respondent nos.2 and 3 who are the prison authorities maynot be in a position to undertake any objective scrutiny of the grounds beingfurnished by the police officer while forwarding the recommendation under Rule4(4). However, in our considered view, it is imperative for the jail authorities to atleast examine whether the negative recommendation coming from the policeofficer is substantiated or supported by some objective material demonstrating asto how the prisoner being at large on leave would be prejudicial to public peaceand tranquility. This precisely has not happened in the matter in hand. Therespondent nos. 2 and 3 have merely referred to the fact that there is somenegative report from the concerned police officer, while resorting to ground of Rule4(4).11.There is absolutely no whisper in both the orders to demonstrate objectivematerial, if any, referred to by the police officer while forwarding the negativerecommendation under Rule 4(4). Even there is conspicuous absence about thenegative recommendations containing any statement touching the aspect of publicpeace and tranquility. In the absence of which, in our considered view, therespondent nos. 2 and 3, have clearly overlooked the aforementioned aspects andhave readily accepted the negative recommendation while resorting to Rule 4(4) inturning down the request of the petitioner for furlough leave. Therefore theimpugned orders refusing the furlough leave on the ground contained in Rule 4(4)are not legally sustainable. 12.Coming to the ground contained in Rules 4(5) and 4(6), the respondentnos. 2 and 3 in their respective orders have referred to a specific instance wherein,when the petitioner was taken to the Government Hospital he allegedlymisbehaved and threatened the medical officer, which is a misconduct asdescribed in Chapter XXVI of the Maharashtra Prisons (Discipline)Amendment Rules, 2015 contained in Maharashtra Prisons Rule, 1979.However, both the orders are conspicuously silent in respect of the material4/6 CRWP 71 24.odtto substantiate this stand. There is no reference to any grievance havingbeen made by the concerned medical officer or any statement having beenrecorded or even any enquiry having been undertaken pursuant to thealleged misconduct. Mere vague and omnibus statements in the impugnedorder referring to the incident without even extending an opportunity to thepetitioner to meet these allegations would be contrary to the principles ofnatural justice.13.The respondent nos. 2 and 3 have been vested with certain powers toconsider the requests for grant of furlough and parole leave. It is expectedof them to have followed the principles of natural justice and to haveassigned cogent and convincing reasons, duly substantiated by thematerial/evidence, before drawing any inference much less touching thealleged misconduct. That would include even some enquiry into thoseallegations and collection of material therefor. The statement in theimpugned orders that the petitioner has indulged in some misconductcannot be taken as a gospel truth. Precisely in this respect both the ordersare sans any objective material to enable this Court to examine theinference drawn by these authorities and to ascertain whether thoseinferences are justifiable.14.In the circumstances, in our considered view, it is a matter which if fitto be remanded to the respondent no. 2 for passing a fresh order on thepetitioner’s application for furlough leave, in the light of the aboveobservations.15.The Criminal Writ Petition is partly allowed. Both the impugnedorders, passed by the respondent nos. 2 and 3 dated 16.03.2023 and02.08.2023 respectively, are quashed and set aside. The matter is remittedback to the respondent no. 2, who shall consider the petitioner’s applicationfor furlough leave on its own merits in the light of the above observations5/6 CRWP 71 24.odtand only on the touchstone of Rules 4(5) and 4(6), by extending anopportunity to the petitioner to explain the circumstances in respect of thealleged misconduct mentioned in the report dated 16.02.2023 submitted bythe Superintendent of Police Aurangabad Central Prison vide letter no.1089/2023.16.The respondent no.2 shall pass a fresh order in the light of the above,as expeditiously as possible, and in any case within four weeks. ( SHAILESH P. BRAHME, J.) (MANGESH S. PATIL, J.)mkd/-6/6