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2017 Supreme(Bom) 385
IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD
S.S. SHINDE, K.K. SONAWANE, JJ.
Sudhakar s/o. Bajirao Kumbhar - Petitioner
Versus
The State of Maharashtra & Anr. - Respondents
Criminal Writ Petition No. 303 of 2017
Decided On : 27-03-2017
For the Petitioner: Mrs. S.G. Chincholkar
For the Respondents/State: Mr. P.G. Borade
Important Point – Court also set aside the consequential action/order of the respondent authorities to confiscate the amount of Rs.2,000/-.
Headnote:Prisons (Bombay Furlough and Parole) Rules, 1959-Rule 10(5)-Reduction in remission.-Since over staying by a single day of a prisoner on furlough is for genuine reason hence remission of 5 days as approved by District Judge just and proper.
Keeping in view the genuine reason stated by the petitioner for his one day overstay as approved by the District Judge-6 and Additional Sessions Judge, Aurangabad, only 5 days remission would have been deducted by the respondent authorities.
Prisons (Bombay Furlough and Parole) Rules, 1959-Rule 10(5)-Reduction in remission.-Since reason for overstaying of prisoner by one day is genuine hence reduction in remission by 5 days unjustified.
Court also set aside the consequential action / order of the respondent authorities to confiscate the amount of Rs. 2,000/-, Court direct respondent No. 2 to consider afresh the prayer of the petitioner to extend furlough leave of one day i.e. on 11th February, 2015, in the light of the discussion in the foregoing paragraphs and also keeping in view the judgments in the cases of Rajendra s/o Shivaji Dongre (cited supra), Sheikh Said Sheikh Najir (cited supra) and also in the case of Raju Natthuji Dhengre (cited supra), as expeditiously as possible, however, within 8 weeks from today and communicate the said decision to the petitioner.
S.S. Shinde, J.
1. Heard.
2. Rule. Rule made returnable forthwith, and heard finally with the consent of the parties.
3. It is the case of the petitioner that he is convict and undergoing life imprisonment in the Open District Prison. He applied for 14 days furlough leave from 13th January, 2015 to 28th January, 2015, and accordingly, the Competent Authority allowed the prayer of the petitioner, and granted furlough leave with effect from 13th January 2015 to 28th January, 2015. The petitioner prayed for extension of furlough leave, and accordingly, the Competent Authority extended furlough leave for further 14 days i.e. till 11th February, 2015.
4. It is the specific case of the petitioner that brother of the petitioner namely Ambadas died on 31st January, 2015, and his funeral and other rites were performed by the petitioner i.e. the 10th day [Dashkriya] on 9th February, 2015, and 13th day on 12th February, 2015. Due to aforesaid unavoided circumstance, he could not report back/surrendered on 11th February, 2015, and surrendered on 12th February, 2015.
5. The learned counsel appearing for the petitioner submits that, after the petitioner surrendered to the Jail Authorities, he applied for extension of furlough leave of 1 day, however, respondent no.2 turned down the request. It is submitted that even the Sessions Court has not properly considered the contention of the petitioner and rejected the prayer for extension of furlough leave of one day i.e. 12th February, 2015.
6. It is submitted that though respondent authorities have power to deduct 5 days remission for each day of overstay by the convict nevertheless the said power is to be exercised judiciously and not arbitrarily. The respondent authorities failed to take into consideration the reason for which the petitioner had stayed back in his house on 11th and 12th February, 2015. In support of her contention that the petitioner has to overstay in his house for genuine reason, and as a result he surrendered one day late, ought to have been considered and accepted by respondent authorities, by extending furlough leave of one day. In support of aforesaid contention, the learned counsel for the petitioner placed reliance on observations made by the Division Bench of the Bombay High Court, Bench at Nagpur, in para 4 and 5 in the case of Rajendra s/o. Shivaji Dongre Vs. State of Maharashtra & Ors., 2013 AllMR[Cri.] 2568 and also further placed reliance on the ratio laid down in the case of Sheikh Said Sheikh Najir Vs. State of Maharashtra & Anr., 2011 [1] BomCR[Cri.] 76. and in the case of Raju Natthuji Dhengre Vs. State of Maharashtra & Ors., 2010 [1] BomCR[Cri.] 910. Therefore, she submits that the petition deserves to be allowed.
7. The learned APP appearing for respondent-State relying upon the averments in the affidavit-in-reply, filed by one Mr. Rajkumar Keshavrao Sali, working as Superintendent of Open District Prison, Paithan, District Aurangabad, made following submissions:
8. The petitioner has undergone total imprisonment of 24 years, 2 months and 16 days [till 28th February, 2017]. The petitioner had applied for furlough leave, while he was confined in Open District Prison, Paithan, through letter No.4916/2014, dated 9th October, 2014. Accordingly, the Deputy Inspector General [Prison], Aurangabad Region, Aurangabad, sanctioned furlough leave for a period of 14 days under certain terms and conditions, by its order dated 8th January, 2015. It is further submitted that as per Chapter No.37 [Parole and Furlough to prisoners] of the Maharashtra Prison Manual, 1979, after accepting and agreeing to the stipulated terms and conditions in the said order such as Form C Rule 10 and the declaration before release on leave, the petitioner was released from the prison for a period of 28 days on 12th January, 2015 [From 14.01.2015 to 10.02.2015], as per prison’s letter No.183/2015, dated 12.01.2015 and the petitioner was given written intimation to surrender back in prison on
