Writ Petition No. 598 of 2025 · The High Court
Case Details
1 17criwp598.25IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD17 CRIMINAL WRIT PETITION NO. 598 OF 2025GANESH LAXMAN PURIVERSUSTHE ADDITIONAL DIRECTOR GENERAL AND INSPECTOR GENERALPRISON AND CORRECTIONAL SERVICES MAHARASHTRA...Advocate for the Petitioner : Mr. Prashant Prabhakar Giri (ThroughLegal Aid)APP for Respondent Nos. 1 to 3/State : Mrs. P.R. Bharaswadkar... CORAM : SMT. VIBHA KANKANWADI AND SANJAY A. DESHMUKH, JJ. DATE : 04.07.2025 PER COURT : 1.The petitioner by invoking the Constitutional powers ofthis Court, challenges the order dated 18.09.2024, passed byrespondent No. 2 and order dated 18.12.2024 passed by respondentNo. 1, thereby rejecting his application for releasing him on furloughleave.2.Heard learned Advocate Mr. Giri, who has been appointedto represent the petitioner by giving Legal Aid and the learned APP.3.Perused the affidavit-in-reply filed by Shri DattatrayGanpat Gawade, Superintendent of Chhatrapati Sambhaji NagarCentral Prison.4.Facts disclose that the petitioner has been convicted bythe learned Additional Sessions Judge, Beed on 23.09.2019 in 2 17criwp598.25Sessions Case No. 77 of 2018 for the offence punishable underSection 302 of the Indian Penal Code and has been sentenced tosuffer imprisonment for life. The petitioner is lodged in the CentralPrison at Chhatrapati Sambhajinagar. He had applied for furloughleave and the said application was forwarded to the Office of DeputyInspector General of Prison, Central Region, ChhatrapatiSambhajinagar on 09.02.2024. Police inquiry was done and thereport was submitted on 30.07.2024.5.In the application the petitioner has stated that oneVithal Dhanraj Thombre, resident of Umachiwadi, Taluka Bhum,District Dharashiv, has expressed his willingness to stand as a suretyfor him but in the police report it was informed that said VitthalThombre has refused to stand as surety. It appears that, thereafter,an opportunity was given to the petitioner to suggest name of anotherperson to stand as surety alongwith affidavit in reply. The documentsthose have been given would show that the petitioner had made anapplication that he is unable to arrange for another surety andtherefore, he be allowed to proceed on leave on bond, as well asminimum cash security. Though the said application appears tohave been sent to the Special I.G., of Prison, on 02.09.2024 by theSuperintendent of Police, Central Prison, in the said letter itself hehas stated that he is not recommending to release of the petitioner ona bond and/or cash security. Alongwith affidavit, there is no finalorder on the said application/request of petitioner to release him on abond and/or cash security appears to have been passed. It has beenstated that in Government Notification dated 16.04.2018, Rule 6, it isstated that prisoner should not be granted furlough leave unless hecan provide suitable surety, who is willing to receive him. The Rulescame to be amended with effect from 02.12.2024 and in categorical 3 17criwp598.25terms it is then stated that no prisoner shall be granted furlough orparole leave unless petitioner provides suitable surety willing toreceive him and therefore, application was rejected and also appealhas been rejected.6.At the outset, we will say that, even if we consider RuleNo. 6 of Government Notification dated 16.04.2018, though it isstated that prisoner shall not be granted furlough unless applicanthas provided suitable surety willing to receive him, it is thereafter,stated that the Police Patil or the Registered Medical Practitioner ofHome Town, may be willing and acceptable and they may also beallowed to stand as surety. It can be seen that Rules added on02.12.2024 came into force when an appeal preferred by presentpetitioner was pending before respondent No. 1. Therefore, whenrespondent No. 2 had rejected the application for furlough on18.02.2024, then it will have to be presumed that earlier Rules wereprevailed. 7.In connection with those Rules, it appears thatrespondent No. 2 has not considered Full Bench decision of thisCourt in Dipak s/o Sudhakar Wakalekar Vs. State of Maharashtraand Ors. (2011 ALL MR (Cri.) 1933), wherein said Rule No. 6 andspecial proviso to the same was interpreted as discretionaryprovision. The proviso was in respect of prisoners in Open Prison. Atthe appellate stage then amended rules cannot be made applicablebecause the order which was under challenge under appeal was asper old rules.8.Another fact that requires to be noted here is that thisCourt in Criminal Writ Petition No. 332 of 2025 (Narsingh Shankar 4 17criwp598.25Talnikar and Ors. Vs. State of Maharashtra and Ors.), decided on11.06.2025, has interpreted Rule 24 (1) of new Rules i.e., which cameinto force by Government Notification dated 02.12.2024. Thoughthis Court refused to quash and set aside Rule 16 (1) of Rule 24 (1) ofRules, 2024 as not voidable of Article 14 and 21 of the Constitution ofIndia, as they are not contrary to the meaning and objects of theRules as well as contrary to the Full Bench decision in Dipak s/oSudhakar Wakalekar (supra), yet it was interpreted, taking intoconsideration the other provisions of the new Rules itself, that theword ‘shall’ has not been used in the notification, in the context ofpassing of order in respect of surety. It is only stated that thesanctioning authority shall make the order even specified limits, afterconsidering inquiry report and other material. The word ‘shall’ has tobe taken into consideration as ‘may.’9.Thus, taking into consideration the interpretation andthe decision, the Sanctioning Authority on furlough as well as parolerules will not be justified in straight way rejecting parole or furloughrules, the basic purpose for which such facility is made available toinmates would get then frustrated. 10.In the present case, the petitioner is in jail, at least sincethe date of conviction i.e. 23.09.2019. He was not released on anytype of leave prior to the application made by him. It would bedifficult for him to then get another surety and therefore, theappropriate sanctioning authority ought to have considered takingcash security instead surety. Except on the point of bond that suretynamed by the petitioner has refused to stand as surety, applicationcould not have been rejected. It was then stated by the petitionerthat he is unable to provide surety, the said fact ought to have been
Decision
5 17criwp598.25considered. There is no explanation in the affidavit-in-reply, as towhy upon said representation forwarded alongwith letter dated02.09.2024, respondent No. 1 has not passed any final order. Wepresume that the said application is still pending before theconcerned authority and, therefore, we direct respondent No. 2 todecide the said application within a period of one week, on the basisof earlier police report itself, except the fact that named surety hasrefused to stand as surety. We set aside the order passed byrespondent No. 1 dated 18.12.2024. We also direct respondent No. 2to take note of decision of this court in Criminal Writ Petition No. 332of 2025 decided on 11.06.2025. 11.With these directions we dispose of the Writ Petition.(SANJAY A. DESHMUKH) (SMT. VIBHA KANKANWADI) JUDGE JUDGE mahajansb/