Harish Rama Mandvikar @ Ganiga (In Jail) v. Deputy Inspector General Of Police Prisons And ORS.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION WRIT PETITION NO. 646 OF 2015 Harish Rama Mandvikar @ Gainga.

..Petitioner.

Versus

Dy. Inspector General of Police Prisons, Western Regiion, Yerwada Pune, and Others.

..Respondents.

Mr. Milan Desai i/b Saeeda Shaikh for the Petitioner. Mrs. U. V. Kejriwal, learned APP for the State. Coram : RANJIT MORE & R. G. KETKAR, JJ.

Date : October 13, 2015.

P. C. :

.

Heard Mr. Desai, learned Counsel appearing for the Petitioner and Mrs. Kejriwal, learned APP for the State. The Petitioner had applied for furlough leave. Respondent No1 rejected the said application vide its order dated 20th May 2014. The Petitioner challenged the rejection order by filing an appeal before Respondent No.2. The Petitioner's appeal was rejected by the order dated 15th September 2014. Therefore, the Petitioner is before this Court.

2.

The Petitioner's application for furlough leave is 1 / 6

rejected on two grounds, firstly, that one Mr. Suresh Shankar Jadhav who has shown willingness to stand as surety for the Petitioner is not related to the Petitioner; and secondly, that the Petitioner's release is not recommended by the Assistant Commissioner of Police, Malwani Division.

3.

Mr. Desai, learned Counsel appearing for the Petitioner maintains that said Suresh Shankar Jadhav is the Petitioner's maternal brother. Mr. Desai invited our attention to the Rule 6, 4 and 10 of the Prisons (Bombay Furlough and Parole) Rules, 1959. He also relied upon the decision of the Full Bench of Gujarat High Court in Natia Jiria v. State of Gujarat [1984 Cri.L.J. 936] to contend that surety need not be prisoner's relative. 4.

Learned APP for the State on the contrary supported the impugned orders. She relied upon the decision of the Apex Court in State of Maharashtra v. Suresh Pandurang Darvkar [(2006) 4 SCC 776] and submitted that surety must be relative of the prisoner. She also submitted that in terms of the provisions of Rule 9 of said Rules, the Petitioner is always entitled to apply 2 / 6

afresh for furlough.

5.

Under Rule 4 of the said Rules, the prisoner shall not be granted furlough when release is not recommended by the Commissioner of Police on the ground of public peace and tranquility. Admittedly, in the present case the adverse report is not given by the Commissioner of Police, but it is given by the Assistant Commissioner of Police, Malwani Division and secondly the Petitioner's release is not recommended looking into his past background and nature of the crime.

6.

Report of the Assistant Commissioner of Police does not show that the Petitioner's furlough is not recommended on the ground of public peace and tranquility. Therefore, we find substance in the contention of learned Counsel appearing for the Petitioner that the Petitioner's application could not have been rejected on the ground of adverse report of the Assistant Commissioner of Police.

7.

Another ground on which the Petitioner's 3 / 6

application is rejected is that person who has shown willingness to stand as surety is not related to the Petitioner. The Petitioner in this regard relied upon the affidavit of said surety, namely, Mr. Suresh Jadhav dated 22nd February 2014, which is at Exhibit-D to the petition. It is true that in paragraph 3 of the said affidavit, Mr. Jadhav has vaguely stated that the Petitioner is his maternal cousin. However, he has not given any particulars about the name of his mother and the Petitioner's mother. .

Learned APP for the State placed on record, the statement of Mr. Suresh Jadhav recorded on 15th November 2013 by API of Kandiwali Police Station wherein said Suresh has stated that he has shown his willingness to stand as surety for release of the Petitioner on furlough and accordingly the Petitioner has stated so in his application, however, as a matter of fact the Petitioner is not his relative. He has further stated that he knows the Petitioner since his childhood as the Petitioner resides in his vicinity. The Petitioner's appeal was rejected on the similar grounds. The appellate authority has also observed that the Petitioner was called upon to furnish surety of another relative, 4 / 6

however, he refused to do so. It is true that Full bench of Gujarat High Court in Natia Jiria (supra) has held that Rule 10 of the said Rules has to be read and understood as justifying the Sanctioning Authority in waiving the insistence upon a surety bond in cases such as that of Petitioner therein. This Full Bench decision is followed by the Division Bench of this Court in Achyut Dhore v. State of Maharashtra [Judgment dated 5th January 2010 in Criminal W.P. No. 1079 of 2009] and by the learned Single Judge in Bhimrao Nathuju Bhoyar v. Superintendant, Amaravati [2003(1) Mh.L.J. 567].

8.

The Apex Court in State of Maharashtra v. Suresh (supra) examined Rules 4 and 6 of the said Rules and held that twin requirements flowing from Rule 6 are that a relative of the Applicant should be willing to receive him while on furlough, and secondly that he must be ready to enter into a surety bond. In the teeth of this Apex Court decision, the reliance placed by Mr. Desai, learned Counsel for the Petitioner on the decisions of Gujarat High Court and this Court does not advance the case of the Petitioner. Writ Petition is, therefore, dismissed. 5 / 6

9.

It is, however, expressly made clear that the Petitioner would be entitled to apply afresh for grant of furlough in terms of Rule-9. In the event such an application is preferred, the competent authority shall decide the same independently on its own merits and as expeditiously as possible. [R. G. KETKAR, J.] [RANJIT MORE, J.] 6 / 6