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2018 DIGILAW 1179 (BOM)

Firoz Abdul Ajil Pathan v. State Of Maharashtra

2018-05-02

M.S.SONAK, V.K.TAHILRAMANI

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JUDGMENT V.K. Tahilramani, A.C.J. - Heard both sides. 2. The petitioner preferred an application for furlough on 9.3.2017. The said application was rejected by order dated 20.6.2017. Being aggrieved thereby, the petitioner preferred an appeal. The appeal was dismissed by order dated 12.9.2017, hence, this petition. 3. The application of the petitioner for furlough came to be rejected on the following grounds:- i. The appeal preferred by the petitioner against his conviction is pending before the higher forum; ii. If the petitioner is released on furlough, there would be danger to the life of the complainant and witnesses; iii. When the co-accused of the petitioner was released on parole, he committed another crime during the period that he was on parole; iv. If the petitioner is released on furlough, he will not report back to the prison in time and he may abscond; and v. If the petitioner is released on furlough, there would be law and order problem and possibility of the petitioner committing crime. 3. The first ground that is the appeal preferred by the petitioner against his conviction is pending before the higher forum which means that the case of the petitioner falls in Category 4 (11) of the Prisons (Bombay Furlough & Parole) Rules. Rule 4 (11) of the Rules states that a prisoner whose appeal is pending before the higher forum shall not be eligible to be released on furlough. This appears to be the main reason for rejecting the application of the petitioner for furlough, however, it is seen that the Government has issued a new notification dated 16.4.2018 in relation to Rule 4. As per the new notification, the criteria that the prisoner whose appeal is pending before the higher forum shall not be eligible for furlough, has been deleted from the Rules. In this view of the matter, now this ground would not come in the way of the petitioner. 4. As far as the other four grounds i.e grounds (ii) to (v) mentioned above are concerned, we would like to refer to the jail record of the petitioner. It shows that in the year 2014, 2015 and 2016, the petitioner was released on furlough and on all occasions, he has reported back on his own on the due date to the prison. It shows that in the year 2014, 2015 and 2016, the petitioner was released on furlough and on all occasions, he has reported back on his own on the due date to the prison. The jail record of the petitioner further shows that on 17.9.2015 and on 13.5.2016, the petitioner was granted parole and on both the occasions, he reported back on his own on the due date to the prison. Thus, it is seen that from the year 2014, the petitioner has been released from jail on five occasions i.e three times on furlough and two times on parole and during these periods, he has reported back on his own on the due date to the prison. Thus, the ground that if the petitioner is granted furlough, he will not report back to the prison in time and may abscond, is not a good ground. As far as these five period of furlough and parole are concerned, there is no record to show that the petitioner has indulged in any activity which would cause law and order problem or he has indulged in any crime. There is no material to show that he has threatened any of the witnesses during these periods of furlough and parole. Thus, the other grounds are also not good grounds to deny furlough to the petitioner. 5. In view of the above facts, we set aside the orders dated 20.6.2017 and 12.9.2017 and we grant furlough to the petitioner. The petitioner to be released on furlough on usual terms and conditions which would be imposed by the Sanctioning Authority. 6. Rule is made absolute in the above terms. 7. In view of disposal of the Writ Petition, nothing further survives in the Criminal Application. The same is disposed of accordingly. Order accordingly.