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SarfuddIn AminuddIn Vs. State of Maharashtra and ors.

SarfuddIn Aminuddin vs State of Maharashtra and ors.

Disposition Petition allowed Court Mumbai Decided Mar 20, 2003
~5 min read
https://sooperkanoon.com/case/359611

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Citation
Court
Mumbai High Court
Judge
Decided On
Case Number
Cri. W.P. No. 34 of 2003
Subject
Criminal
Disposition
Petition allowed

Case Summary

AI-generated summary - not the official court judgment text.

Criminal - furlough - Rules 4 (4) and 4 (10) of Prisons (Bombay Furlough and Parole), 1959 - petitioner made application to competent authority for grant of furlough - application rejected on ground of adverse police report - petitioner was granted parole for 30 days but did not surrender himself - petitioner conten...

Key legal issue
Criminal
Outcome / disposition
Petition allowed
Acts & sections
Prisons (Bombay Furlough and Parole), 1959 - Rule 4(4) and 4(10)

Parties & Advocates

Appellant / Petitioner

SarfuddIn Aminuddin

Advocate S.A. Jaiswal, Adv.

Respondent

State of Maharashtra and ors.

Advocate Mirza, Additional Public Prosecutor

Legal References

Acts
Prisons (Bombay Furlough and Parole), 1959 - Rule 4(4) and 4(10)
Reported In
2003(4)MhLj481

Excerpt

.....under different provisions of the code that the arresting officer should exercise his power or discretion judiciously and should be free of motive. some kind of inbuilt safeguard is available to the accused in the cases where the magistrate directs investigation under section 156 (3) of the code by taking recourse to the provisions of section 438 of the code by approaching the court of session or the high court for such relief. thus, during the course of investigation of a criminal case, an accused is not remediless and that would further buttress the above view. [jagannath singh v dr. ajay upadyay & anr 2006 cri lj 4274; 2006 (5) air bom r held per incuriam]. - he furthercontended that the petitioner was released on parole on 23-11-2001 for thirtydays on the ground of sickness of his mother but he failed to surrender on the duedate and, therefore, was required to be apprehended and brought back to theprison after 29 days. 7. the next ground on which furlough has been refused is sub-rule (4) ofrule 4 of the rules which contemplates as under :(4) prisoners whose release is not recommended in greater bombay bythe commissioner of police and elsewhere, by the district magistrate onthe ground of public peace and tranquility......was not right in rejecting the application of thepetitioner for grant of furlough on this ground especially when it is settled lawthat availment of furlough is the right of the prisoner. 7. the next ground on which furlough has been refused is sub-rule (4) ofrule 4 of the rules which contemplates as under : '(4) prisoners whose release is not recommended in greater bombay bythe commissioner of police and elsewhere, by the district magistrate onthe ground of public peace and tranquility.' it is true that while rejecting the application of the petitioner for grant of furloughthe competent authority has assigned reason that there was adverse policereport, but it is not known as to what type of enquiry has been conducted toarrive at the conclusion that there was a possibility of breach of peace andtranquility in case the petitioner is released on furlough. it is also not known as towhether the statements of the witnesses were recorded in that context. thus, thepetitioner cannot be denied of his right to avail furlough on this ground and thecompetent authority has committed an error in rejecting his application. 8. the petitioner is ready to furnish surety of his son-in-law sk. farid sk.bholu, resident of wathoda, and during the period of furlough leave he intends toreside there only which is within the jurisdiction of police station tiwsa. in suchcircumstances, the impugned order passed by the competent authority is notsustainable in law. in the result, the impugned order dated 23-10-2002 passed by the competent authority is set aside. the petition is allowed. the petitioner isdirected to be released on furlough for fifteen days from the date of his release onfurnishing surety as per rules. the petitioner is directed to attend police stationtiwsa every day at 10-00 a.m. he is further directed to report to the jailauthorities on the due date after availing the furlough leave and in case of default,the jail authorities are directed to apprehend the petitioner and bring.....

Full Judgment

S.T. Kharche, J.

1. Rule. Rule made returnable forthwith.

2. Heard Mr. Jaiswal, learned counsel, for the petitioner and Mr. Mirza,learned A.P.P., for the respondents.

3. The learned counsel for the petitioner contended that the petitioner wasarrested sometimes in January, 1994 by the police personnel of police stationChandur Railway and he was convicted by the learned Additional SessionsJudge, Amravati, for the offence punishable under Section 302 of Indian PenalCode by the order dated 21-1-1995 and is undergoing sentence of lifeimprisonment at Central Prison, Amravati. The appeal preferred by the petitioner,bearing Criminal Appeal No. 251 of 2002, against his conviction has also beendismissed by this Court. It is contended that the brother and father of thepetitioner are also convicted in this case and they are in jail.

4. The learned counsel for the petitioner contended that the petitioner hadmade an application to the Competent Authority on 15-7-2002 for grant offurlough but the said application came to be rejected on the ground of adversepolice report and also on the ground that on earlier occasion the petitioner hadsurrendered late. It is contended that the petitioner has justifiable reason tosurrender late because of sickness of his mother. It is contended that thepetitioner was released on parole for one month from 23-11-2003 and he hadapplied for extension of parole by one month and also he was required to pay Rs.500/- to the police constables Pathan and Matin and that the petitioner was underan impression that the period of parole has been extended. It is further contendedthat the petitioner has been punished for surrendering late by cut in remission inthe ratio of 1:5 days as per the rules. It is contended that the petitioner is ready tofurnish surety and, therefore, he may kindly be granted furlough for a period of15 days.

5. Mr. Mirza, learned A.P.P. does not dispute that the petitioner isundergoing life imprisonment at Central Prison, Amravati, and that he hadapplied for grant of furlough which came to be rejected by the CompetentAuthority on 23-10-2002 on the ground that there was adverse police report andalso on the ground that he had surrendered late in the prison. He furthercontended that the petitioner was released on parole on 23-11-2001 for thirtydays on the ground of sickness of his mother but he failed to surrender on the duedate and, therefore, was required to be apprehended and brought back to theprison after 29 days. The learned A.P.P. contended that the order passed by theCompetent Authority is sustainable in law.

6. I have carefully considered the contentions canvassed by the learnedcounsel for both the sides. The application of the petitioner for grant of furloughappears to have been rejected on the grounds mentioned in Sub-rule (10) of Rule4 of the Prisons (Bombay Furlough and Parole) Rules, 1959 (For short theRules). Sub-rule (10) of Rule 4 reads as under :

'4. The following categories of prisoners shall not be considered forrelease on furlough :--

(1)...

(2)...

(3)...

(4)...

(5)...

(6)...

(7)...

(8)...

(9)...

'(10) Prisoners who have at any time escaped or attempted to escapefrom lawful custody or have defaulted in any way in surrenderingthemselves at the appropriate time after release on parole or furlough.'

It is true that in the present case the petitioner was granted parole for 30 daysfrom 23-11-2001 and he did not surrender before 24-12-2001 and was required tobe apprehended by the jail authorities after 29 days and he was punished for thatas per rules and there was cut in remission in the ratio of 1:5 days. It wouldreveal that the petitioner did not return to the prison on the due date because ofsickness of his mother and, according to him, he had also made an application tothe Competent Authority for extension of parole and it appears that theimpression of the petitioner was not unreasonable and there was a justifiablereason for surrendering late in the jail. In this view of the matter, it is obviousthat the Competent Authority was not right in rejecting the application of thepetitioner for grant of furlough on this ground especially when it is settled lawthat availment of furlough is the right of the prisoner.

7. The next ground on which furlough has been refused is Sub-rule (4) ofRule 4 of the Rules which contemplates as under :

'(4) Prisoners whose release is not recommended in Greater Bombay bythe Commissioner of Police and elsewhere, by the District Magistrate onthe ground of public peace and tranquility.'

It is true that while rejecting the application of the petitioner for grant of furloughthe Competent Authority has assigned reason that there was adverse policereport, but it is not known as to what type of enquiry has been conducted toarrive at the conclusion that there was a possibility of breach of peace andtranquility in case the petitioner is released on furlough. It is also not known as towhether the statements of the witnesses were recorded in that context. Thus, thepetitioner cannot be denied of his right to avail furlough on this ground and theCompetent Authority has committed an error in rejecting his application.

8. The petitioner is ready to furnish surety of his son-in-law Sk. Farid Sk.Bholu, resident of Wathoda, and during the period of furlough leave he intends toreside there only which is within the jurisdiction of police station Tiwsa. In suchcircumstances, the impugned order passed by the Competent Authority is notsustainable in law. In the result, the impugned order dated 23-10-2002 passed by the Competent Authority is set aside. The petition is allowed. The petitioner isdirected to be released on furlough for fifteen days from the date of his release onfurnishing surety as per rules. The petitioner is directed to attend police stationTiwsa every day at 10-00 a.m. He is further directed to report to the jailauthorities on the due date after availing the furlough leave and in case of default,the jail authorities are directed to apprehend the petitioner and bring him back tothe prison.

Rule is made absolute in aforesaid terms. Petition disposed of.

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