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2011 DIGILAW 663 (BOM)

Raju Bihari @ Rajesh Kumar v. State of Goa

2011-06-14

A.P.LAVANDE

body2011
JUDGMENT : Heard Mrs. Dessai, learned Counsel for the petitioner and Mr. Ferreira, learned Public Prosecutor for the respondents. 2. Rule. By consent of learned Counsel for the petitioner and Mr. Ferreira, learned Public Prosecutor for the respondents, heard forthwith. 3. By this Writ Petition under Articles 226 and 227 of the Constitution of India, the petitioner challenges the order dated 5th May, 2011 passed by respondent no.2 by which the application filed by Shri Vibhuti Patil, the father of the petitioner herein for modification of the order dated 24th December, 2010 has been rejected. 4. Briefly, the facts leading to filing of the present petition are as under : The petitioner is undergoing the sentence of imprisonment of life for having committed an offence punishable under Section 302 of Indian Penal Code. By order dated 24th December, 2010, respondent no.2 granted furlough to the petitioner on the condition that he should execute a personal bond in the sum of Rs.1 Lac with one surety in the like amount. The petitioner was also directed to furnish local surety. The petitioner filed Criminal Writ Petition No.14/2011 challenging the condition imposed by respondent no.2 of executing bail bond in the sum of Rs.1 Lac and one surety in the like amount on the ground that the amount of bond was highly excessive. The Writ Petition was allowed by judgment and order dated 30th March, 2011 and the amount of the bond was reduced to Rs.10,000/-. 5. Thereafter, on 2nd May, 2011, the father of the petitioner filed an application stating that the applicant hails from Uttar Pradesh and the petitioner could not offer any surety having property in Goa. The father of the petitioner herein, therefore, prayed that he may be permitted to furnish surety bond and the condition of local surety be modified. 6. By order dated 5th May, 2011, respondent no.2 rejected the application by placing reliance upon the judgment of this Court dated 30th March, 2011 in Criminal Writ Petition No.14/2011. 7. Mrs. Dessai, learned Counsel for the petitioner submitted that respondent no.2 could not have insisted upon local surety and such a condition is contrary to law and affects the right of the petitioner to get released on furlough pursuant to order passed by respondent no.2. 7. Mrs. Dessai, learned Counsel for the petitioner submitted that respondent no.2 could not have insisted upon local surety and such a condition is contrary to law and affects the right of the petitioner to get released on furlough pursuant to order passed by respondent no.2. According to learned Counsel, although the petitioner had not challenged the said condition in the earlier writ petition, the petitioner is entitled to file present petition in as much as the principle of res judicata and or the principles analogous thereto are not applicable in the matters pertaining to liberty of convict. In support of her submission, Mrs. Dessai placed reliance upon the judgment of the Division Bench of this Court in the case of Subodh Prasad Urf Anil Chotu Jagdish Mahato and another Versus the State of Maharashtra; 8. Mr. Ferreira, learned Public Prosecutor appearing for the respondents fairly conceded that considering that the impugned order affects the liberty of the petitioner and that by the impugned order the petitioner has been deprived of the benefit of an order of furlough passed by respondent no.2 in his favour, the principle of res judicata is not applicable. Mr. Ferreira fairly submitted that such a condition could not have been insisted upon by respondent no.2 in view of the judgment of the Apex Court in the case of Moti Ram and others Vs. State of Madhya Pradesh; (1978)4 SCC 47 . 9. I have carefully considered the rival submissions and perused the record and the judgments relied upon. 10. In my considered opinion, the submission made Mrs. Dessai that principle of res judicata and/ or the principles analogous thereto are not applicable in such matters, which has been fairly conceded by Mr. Ferreira, learned Public Prosecutor for the respondents, deserves to be accepted. Indisputably, respondent no.2 has passed order of furlough and this Court has reduced the amount of bond from Rs.1 lac to Rs.10,000/-. In so far as the condition of local surety is concerned, the issue is covered by the judgment of the Apex Court in the case of Moti Ram (supra). In the said case, the Apex Court while dealing with the question as to whether while granting bail in criminal matters the Court/ Magistrate can insist upon the local surety, has held that such a condition can never be imposed. In the said case, the Apex Court while dealing with the question as to whether while granting bail in criminal matters the Court/ Magistrate can insist upon the local surety, has held that such a condition can never be imposed. The Apex Court has held that the law does not prescribe geographical discrimination implicit in asking for sureties from the person within the jurisdiction of the Court. The Apex Court has further held that Article 14 of the Constitution of India protects all the Indian within the territory of India. In the said case, the Apex Court has observed that what if Malayalee, Kannadiga, Tamil or Telugu to do if he is arrested for alleged misappropriation or theft or criminal trespass in Bastar, Port Blair, Pahalgam or Chandni Chowk. He may not be in a position to get bail in case he does not offer sureties owing properties in these distant places. The Apex Court has, therefore, held that the condition imposed by the Magistrate/ Court directing the accused to offer local sureties would be violative of Article 14 of the Constitution of India. Though the observations are made in the context of bail sought by a person outside his State, on principle, the same are applicable in the case of grant of furlough to a convict. In the present case, the petitioner, who hails from Uttar Pradesh, cannot be expected to have surety, who has property in the State of Goa. 11. Moreover, the Division Bench of this Court in the case of Subodh Prasad Urf Anil Chotu Jagdish Mahato (supra) while dealing with the condition imposed by the Competent Authority while granting furlough, to furnish local solvent surety from the State of Maharashtra, after considering the various legal provisions and the judgment of the Apex Court in the case of Moti Ram (supra) has held that such a condition could not have been imposed. 12. In view of the above discussion, it is evident that respondent no.2 was not justified in insisting upon local surety as a condition for releasing the petitioner on furlough. Therefore, the condition imposed by respondent no.2 that the petitioner should submit local surety is set aside. Respondent no.2 shall not insist on local surety and shall consider whether the surety offered by the petitioner is fit to stand surety. Therefore, the condition imposed by respondent no.2 that the petitioner should submit local surety is set aside. Respondent no.2 shall not insist on local surety and shall consider whether the surety offered by the petitioner is fit to stand surety. Respondent no.2 shall take appropriate decision expeditiously and in any case within a period of three weeks from today. 13. Rule is made absolute in aforesaid terms. No order as to costs.