Research › Search › Judgment

Bombay High Court · body

2005 DIGILAW 802 (BOM)

Raju Namdeorao Ambere v. State Bank of India

2005-06-30

K.J.ROHEE, P.S.BRAHME

body2005
Judgment - P. S. BRAHME ( 1 ) ( 2 ) RULE. Rule returnable forthwith. Heard finally by consent of the learned counsel for the parties. ( 3 ) BY this petition, the petitioner is seeking for grant of furlough leave as his application for furlough leave came to be rejected by the Competent Authority by its order dated 23-3-2005 on the ground of adverse police report. The learned counsel for the petitioner submitted that the petitioner is convicted for an offence punishable under section 302 of I. P. C. and is sentenced to life imprisonment. The petitioner has preferred criminal appeal against his conviction and sentence awarded and the said appeal is pending before this Court for final hearing. It is further submitted that petitioner was arrested on 15-8-2002 and that since after conviction by Sessions Court is undergoing sentence. The petitioner had applied for grant of furlough leave before Competent Authority but Competent Authority by its order dated 23-3-05 rejected same on ground of adverse police report. ( 4 ) THE learned Counsel for the petitioner submitted that the adverse police report was simply based on the statement of persons who were examined by the prosecution as prosecution witnesses in the criminal trial of the petitioner. It is contended that merely apprehension expressed by those witnesses in their statements as to conflict and breach of peace cannot be a ground for rejecting the furlough leave application and as such rejection of furlough leave application by the Competent Authority is not sustainable in law as the contingencies which are required to be considered while deciding furlough leave application as mentioned in Rule 4 of the Prisons (Bombay Furlough and Parole) Rules, 1959, are not considered by the Competent Authority. The learned Counsel further submitted that the petitioner is prepared to furnish surety to the satisfaction of the Competent Authority. It is contended that furlough leave can be availed by convict as of right and that is much more so in case of the present petitioner when he is languishing in jail since about three years. He, therefore, contended that the petitioner be released on furlough leave. ( 5 ) THE learned Counsel for the petitioner to substantiate his contentions placed reliance on a decision of our High Court reported in 2004 (1) bom. C. R. (Cri.) (N. B.)758 : 2004 All. He, therefore, contended that the petitioner be released on furlough leave. ( 5 ) THE learned Counsel for the petitioner to substantiate his contentions placed reliance on a decision of our High Court reported in 2004 (1) bom. C. R. (Cri.) (N. B.)758 : 2004 All. M. R. (Cri.) 407 (Sanjay Kisan Kadse v. State of Maharashtra and others ). In that case in similar state of facts and circumstances furlough leave application of the prisoner whose appeal was pending challenging conviction came to be rejected on the ground of adverse police report based on the statements of witnesses who were examined as witnesses in the trial against the prisoner. This Court observed that mere opposition to release of prisoner by the witnesses on the ground of likelihood of harm simplicitor, would not be sufficient to deny furlough leave to the petitioner and the Court is entitled to consider and assess the situation independently. This Court further observed that after taking into consideration the facts and circumstances of the case involved, the Court is of the view that if a prisoner is released on furlough leave, an untoward incident is likely to happen, which ultimately may result in breach of public peace and tranquility, then the court would be justified in rejecting the prayer for grant of furlough leave. However, it would be proper that the Competent Authority should take into consideration all these factors and it is only thereafter, required to pass appropriate orders in such matters. The Competent Authorities, who are entrusted with the powers of grant or refusal of furlough leave, are expected to apply their mind to the facts and circumstances of the case keeping in view the contingencies mentioned in Rule 4 of the Prisons (Bombay Furlough and parole) Rules, 1959 and only thereafter should express their opinion in that regard. Similarly, mere observations in the police report that there is a likelihood of breach of peace if prisoner is released on furlough leave should not be the formal expression only to deprive the prisoner from availing the furlough leave. The Police authorities should be in a position to substantiate their opinion by giving valid reasons for the same. ( 6 ) MR. The Police authorities should be in a position to substantiate their opinion by giving valid reasons for the same. ( 6 ) MR. Mirza, the learned A. P. P. vehemently contended that the Competent authority was justified in rejecting the application of the petitioner for furlough leave having regard to the statement of witnesses recorded by the Police Officer in which it is reflected that release of the petitioner on furlough leave is likely to result into breach of peace because of conflict between the prisoner/petitioner and the witnesses. He further submitted that all these witnesses have unequivocally expressed in their statements apprehension that there is likelihood of danger to their lives in case the petitioner is released on furlough leave. He, therefore, submitted that the petitioner has not made out a case for grant of furlough leave. ( 7 ) IN Rule 4 of the Prisons (Bombay Furlough and Parole) Rules, 1959 with the caption "when Prisoners shall not be granted furlough" enumerated the categories of the prisoners who shall not be considered for release on furlough. It is crystal clear that the case of the petitioner is not covered by any of the categories in the sense neither the petitioner is a habitual prisoner nor he is convicted for the offences under sections 392 to 402 nor he is convicted for the offence under the bombay Prohibition Act. However sub-rule (4) of Rule 4 which reads "prisoners whose release is not recommended in Greater Bombay by the Commissioner of police and else where, by the District Magistrate on the ground of public peace and tranquility" is the basis for rejecting furlough leave by the Competent Authority. So the crucial question that falls for consideration is whether in the facts and circumstances of the case the adverse police report as has been given by the Police officer which is taken into consideration by the Competent Authority is in tune with the facts and circumstances of the case. It is needless to say that the adverse police report is based on the statements of witnesses who have expressed apprehension to their lives and it is only on the basis of that the Police Officer has submitted adverse police report and that too drawing inference that the release of the petitioner would be likely to cause public peace and tranquility. In our opinion, in the facts and circumstances of the case, having regard to the fact that the witnesses have merely expressed apprehension as to danger to their lives, in the absence of anything more as also any other material indicating criminal tendency of the petitioner as also his likelihood of involvement in crime, we do not think that there was justification for the Competent Authority to reject the furlough leave application of the petitioner. To say the least, the Competent Authority has rejected the application without proper application of mind. We are, therefore, of the opinion that in the facts and circumstances of the case, the order of rejection of furlough leave by the Competent Authority is not sustainable in law. In addition to this, on our thoughtful consideration of the facts and circumstances of the case, we are of the opinion that even apprehended danger to the lives of the witnesses could be avoided by releasing the petitioner on furlough leave by putting stringent conditions like reporting to the concerned Police Station every day and also asking him to furnish solvent surety to the satisfaction of the Competent authority. Hence we pass the following order : ( 8 ) THE petitioner be released on furlough leave for a period of 15 days from the date of release as per rules on conditions that the petitioner shall furnish surety to the satisfaction of the Competent Authority and further he shall visit the Police Station Daryapur everyday during his stay at Daryapur in the morning at about 9 am and on further condition that he shall not leave daryapur village without informing the concerned Police Station Officer of the police Station, Daryapur, during the period of his say and further he shall surrender before the Police Authorities on or before completion of period of 15 days. If petitioner fails to surrender as directed or commits breach of any of the conditions, the Jail Authorities are directed to take appropriate steps forthwith to apprehend him. ( 9 ) THE Rule is made absolute in the aforesaid terms. Rule made absolute.