High Court
Legal Reasoning
IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL WRIT PETITION NO.1272 OF 2024Bhausaheb Ankush Gade,Age 45 yrs., Occ. Prisoner,R/o C-9687, Harsool Central Jail,Chhatrapati Sambhajinagar. … Petitioner… Versus …1The State of MaharashtraThrough its Principal Secretary,Home Department, Mantralaya,Mumbai – 32. 2The Deputy Inspector of Police (Prison),Central Prison, Harsool,Aurangabad, Dist. Aurangabad. 3The Superintendent of Prison,Central Prison Harsool,Tq. & Dist. Aurangabad. 4The Additional Director General of Police,Pune, Old Central Building - 2nd Floor,Pune, 411 001. … Respondents...Mr. M.M. Parghane, Advocate for petitionerMr. A.V. Lavte, APP for respondent Nos.1 to 4...
Legal Reasoning
2Cri.WP_1272_2024+1CRIMINAL WRIT PETITION NO.1275 OF 2024Pintu Ankush Gade,Age 45 yrs., Occ. Prisoner,R/o C-8935, Harsool Central Jail,Chhatrapati Sambhajinagar. … Petitioner… Versus …1The State of MaharashtraThrough its Principal Secretary,Home Department, Mantralaya,Mumbai – 32. 2The Deputy Inspector of Police (Prison),Central Prison, Harsool,Aurangabad, Dist. Aurangabad. 3The Superintendent of Prison,Central Prison Harsool,Tq. & Dist. Aurangabad. 4The Additional Director General of Police,Pune, Old Central Building - 2nd Floor,Pune, 411 001. … Respondents...Mr. M.M. Parghane, Advocate for petitionerMrs. Priya R. Bharaswadkar, APP for respondent Nos.1 to 4... 3Cri.WP_1272_2024+1CORAM :SMT. VIBHA KANKANWADI &S.G. CHAPALGAONKAR, JJ.RESERVED ON: 26th SEPTEMBER, 2024PRONOUNCED ON : 10th OCTOBER, 2024ORDER :(PER : SMT. VIBHA KANKANWADI, J.)1The petitioners who are inmates invoke the constitutionalpowers of this Court to challenge the order dated 15.04.2024 passed byrespondent No.2. They also pray for directions to be given to respondentauthority to release them on furlough leave. 2Both the petitioners are real brothers, who are servingimprisonment for life in Harsool Open Jail, Aurangabad, as they wereconvicted for the offence punishable under Section 302 of the Indian PenalCode. 3The petitioners contend that they had preferred the applicationsseeking furlough leave for visiting their relatives. Respondent No.2 hasrejected their applications only on the ground that they have overstayed for194 days and 1122 days respectively when they were released earlier in 2014and 2015 respectively. Now, they had made application for leave after morethan 10 years. In the meantime, they were not released on any leave and, 4Cri.WP_1272_2024+1therefore, they submit that respondent No.2 has not considered theirapplication within four corners of law. 4Heard learned Advocate Mr. M.M. Parghane for petitioner inboth matters, learned APP Mr. A.V. Lavte for respondent Nos.1 to 4 in WritPetition No.1272 of 2024 and learned APP Mrs. Priya R. Bharaswadkar forrespondent Nos.1 to 4 in Writ Petition No.1275 of 2024. 5It has been vehemently submitted on behalf of petitioners thatrespondent No.2 has not interpreted the provisions properly. Rule 4(10) ofthe Maharashtra Prisons (Mumbai Furlough and Parole) (Amendment) Rules,2018 have not been considered properly in the light of Full Bench Decision ofGujarat High Court in Bhikabhai Devshi vs. State of Gujarat [1986 CJ (Guj)39], which has also been then taken note of and relied by this Court atPrincipal Seat as well as Bench at Nagpur and this Court in Criminal WritPetition No.960 of 2019 decided on 09.07.2019. 6Learned APP is relying on the affidavit-in-reply by Dr. JalindarSupekar, presently working as Special Inspector General of Police (Prisons),Central Region, Chhatrapati Sambhajinagar. He states that by GovernmentNotification dated 16.04.2018 the Government has laid down the rulesgranting parole and furlough to the prisoners i.e. the amendment. Rule 5Cri.WP_1272_2024+14(10) of the Maharashtra Prisons (Mumbai Furlough and Parole)(Amendment) Rules, 2018 runs thus - “Prisoners who have at any time escaped or attempted to escape fromlawful custody or have defaulted in any way in surrenderingthemselves at the appropriate time after release on parole orfurlough.”He further states that in view of the various Judgments of theHon’ble Supreme Court and the High Court the Additional Director Generalof Police and Inspector General of Prisons have formulated a policy that theapplications of the inmates who have surrendered belatedly for leave wouldbe forwarded to Government for final approval. If that policy isapproved/sanctioned, then it would be applied while deciding the leaveapplications of the prisoners. 7In the affidavit of respondent No.2 there is no answer as to whyvarious decisions of this Court are not followed. The said affidavit ismainly in view of order passed by this Court on 19.08.2024. Whensubmission was made that when another inmate by name Mansing PrabhuRathod had also surrendered belatedly and an offence under Section 224 ofthe Indian Penal Code has been registered against him; yet, he was grantedleave, thereby the authority is adopting pick and choose policy. In affidavit 6Cri.WP_1272_2024+1Dr. Jalindar Supekar, the Special Inspector General of Police (Prisons),Central Region, Chhatrapati Sambhajinagar accepts that when said MansingRathod was released on Covid Parole, he had surrendered belatedly by 49days i.e. on 15.07.2022 and then he accepts that he applied for leave on23.12.2022 and his proposal was forwarded to Deputy Director General ofPrison, Central Region, Chhatrapati Sambhajinagar on 11.01.2023, then hisoffice had granted furlough leave on 11.04.2023. Now, it is tried to be statedthat he had accepted the explanation given by Mansing Rathod for reportingthe jail belatedly. However, when offence was already registered against himunder Section 224 of the Indian Penal Code, we are of the opinion that thesame criteria ought to have been adopted and certainly the presentpetitioners ought not to have been discriminated on the said ground. 8The first and the foremost fact to be noted is that the rejection isstated to be in view of Rule 4(10) of the Maharashtra Prisons (MumbaiFurlough and Parole) (Amendment) Rules, 2018. Dr. Supekar himself acceptsabout the various decisions given by the Full Bench of Gujarat High Court aswell as this Court. In fact, in strong words this Court at Principal Seat inSubhash Pralhad Ghogare vs. The State of Maharashtra and others inCriminal Writ Petition No.1926 of 2024 decided on 20.06.2024 and PratapTukaram Godse vs. The State of Maharashtra and others in Criminal Writ 7Cri.WP_1272_2024+1Petition No.2595 of 2024 decided on 01.07.2024 has observed that they areamongst those cases when without adherence to the law laid down by theFull Bench of the Gujarat High Court and decision by this Court relying uponGujarat High Court interpreting Section 4(10) of the said Rules the petitionerhas been denied the benefit of furlough leave. When the authorities areaware about these decisions, still they are not implementing. Now, in theaffidavit Dr. Jalindar Supekar had stated that some steps are taken, however,we are afraid that unless there would be changes in the legislation merecirculars or procedural difference will not give the proper results. Here,uniform policy is required, which can be achieved by amending rules in viewof the fact that there are rules in existence which are part of the statute. Atpresent, as the so called policy is not yet finalized, the respondents are boundby the pronouncements in the field which are referred above. In clear termsit is held that in cases of late surrender with no element of escape but onlyelement of delay in surrendering they can be examined on the facts andcircumstances as well as merits of the case. That rule is directory and notmandatory. The Full Bench of Gujarat High Court has specifically observedthat the context of the latter part of Rule 4(10) of the said Rules would clearthat the word ‘shall’ will have to be read as ‘may’ and directory. 9In the present both cases the petitioners had not even applied for 8Cri.WP_1272_2024+1leave for more than 10 years, therefore, their applications ought to have beenconsidered. Hence, we pass following order. ORDERi)Both Criminal Writ Petitions stand allowed.ii)Impugned order dated 15.04.2024 passed by respondent No.2 inrespect of both petitioners stand quashed and set aside.iii)Petitioners be released on furlough leave for admissible days,which respondent No.2 to clarify upon executing two sureties in addition totheir own bond to the extent of Rs.50,000/- (Rupees Fifty Thousand only).iv)Needless to clarify that petitioners once released on furlough,shall report to the Police Station, within whose jurisdiction they intend tostay, on every Monday and Thursday, between 10.00 a.m. to 11.00 a.m.,during the period the leave has been granted.v)Petitioners should furnish entire details of their stay during thesaid period to the prison authorities as well as to the Police Station. (S.G. CHAPALGAONKAR, J.)( SMT. VIBHA KANKANWADI, J. )agd