Laxman Bandgeppa Waghmare (Convict No 4796) v. The State Of Mahrashtra

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO. 845 OF 2016 Laxman S/o Bandgeappa Waghmare (C-4796) (Convict) Open Prison, Paithan, Tq. Paithan, Dist. Aurangabad . PETITIONER

VERSUS

1.

The State of Maharashtra Through D.I.G.

Prisons, Aurangabad.

2.

Superintendent, Open Prison, Paithan, Dist. Aurangabad.

. RESPONDENTS ---- Mr. Rupesh A. Jaiswal, Advocate for the Petitioner Mr. A.R. Borulkar, A.P.P. for the respondents/State ---- CORAM : S.S. SHINDE AND SANGITRAO S. PATIL, JJ.

DATE : 16th September, 2016 ORAL JUDGMENT (PER : S.S. SHINDE, J.) :

Rule.

Rule made returnable forthwith. With the consent of the learned counsel for the petitioner and the learned A.P.P., heard finally.

2.

The petitioner is undergoing life imprisonment for the offence punishable under section 302 of the Indian Penal Code (for short, "I.P.C.") in the open prison at Paithan, District Aurangabad. It is the case of the petitioner that the present petitioner applied to Respondent No.2 for his release on furlough. The Deputy Inspector General of Prisons, Central Region, Aurangabad (i.e. Respondent no.1), vide order dated 20th November, 2015, allowed the application filed by the petitioner for grant of furlough. However, the petitioner has been asked to furnish Cash Security of Rs.5000/-, Personal Bond of Rs.5,000/- and solvent surety of Rs.5,000/-. The petitioner was not able to furnish surety. He, thereafter, applied to Respondent no.2 for modification of the terms and conditions of furlough and the said application has been forwarded to Respondent

No.1. Thereafter, Respondent no.1 vide order dated 11.03.2016 partly allowed the application and asked to furnish cash security of Rs.2,000/-, personal bond of Rs.

2,000/- and to execute a surety bond of Rs.2,000/- of his relative. Since the petitioner was not in a position to furnish surety, he again applied to Respondent no.2 on 20.05.2016 for his release on furlough only on Personal Bond. Respondent No.2 forwarded the said application to Respondent No.1, but his application came to be rejected by Respondent No.1 on 02.06.2016. According to the petitioner, since he cannot furnish the requisite surety, he is unable to avail of the furlough.

3.

The learned counsel for the petitioner, in support of his contention that the Authority concerned has discretion to dispense with the requirement of furnishing surety bond of the relative and the

petitioner can be released on execution of personal bond, invited our attention to Rule 6 of the Prisons (Bombay Furlough and Parole) Rules, 1959 and the judgments of the Division Bench of this Court in the cases of Kumar Rama Gowda Vs. The State of Maharashtra and others1 and Dipak Sudhakar Wakalekar V/s State of Maharashtra and others2.

4.

On the other hand, the learned A.P.P., representing the State, submits that a Circular bearing No.

JLM1012/Pra.Kra.85/Prison-2, dated 24th August, 2012 has been issued by the Government of Maharashtra, Department of Home, Mantralaya, Mumbai, wherein it is provided that in case the convict is released on parole/furlough and wishes to go to the other State to avail of the said parole/furlough, he should provide surety of at least one relative or

1. 2016 All MR (Cri) 2809 2 2011 CJ (Bom) 1428

any other competent surety. The learned A.P.P. submits that in case the petitioner is released on furlough, who hails from the State of Karnataka, without obtaining the surety of his relative, he may not be available to undergo the remaining sentence.

5.

We have considered the submissions advanced by the learned counsel for the petitioner and the learned A.P.P. appearing for the State. With their able assistance, we have perused the memo of the writ petition, annexures thereto and the relevant Rule from the Prisons (Bombay Furlough and Parole) Rules, 1959 and also the judgent of the Division Bench of this Court in Kumar Rama Gowda (supra).

6.

It appears that while dealing with somewhat similar fact situation, this Court, in the case of Kumar Rama Gowda (supra), relying upon the judgment of the Full Bench

of Gujarat High Court in the case of Natia Jiria Vs. State of Gujarat and others, 1984 CRI.L.J. 936 and also the judgment of the Full Bench of this Court in the case of Dipak s/o Sudhakar Wakalekar Vs. State of Maharashtra and others (supra), has taken a view that in case the convict is not able to execute the surety of his relative/s, respondent No. 2 has discretion to accept the personal bond submitted by the convict and release him on furlough/parole.

7.

In the light of the discussion in the foregoing paragraphs, we direct the respondents that the period mentioned in the order of release of the petitioner on furlough, dated 20th November, 2015, issued by respondent No. 2, be extended by another four weeks and without insisting for furnishing the surety of petitioner's relative, release the petitioner on execution

of personal bond in the amount of Rs. 5000/- (Rupees five thousand). Needless to observe that respondent No. 2 may impose the condition asking the petitioner to attend the Police Station nearest to the place of his residence during the period of furlough.

8.

Rule is made absolute in the above terms and the writ petition stands disposed of accordingly.

9.

Since the learned counsel Mr. Rupesh A. Jaiswal is appointed as Amicus Curiae to prosecute the cause of the petitioner, his fees be paid as per the schedule of fees maintained by the High Court Legal Service Sub-Committee at Aurangabad.

[SANGITRAO S. PATIL] [S.S. SHINDE] JUDGE JUDGE sga/