1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO.1098/2009 Vinod S/o Bapurao Sontakke Age : Major, Occ-Nil R/o At present Central Prison, at Aurangabad, Dist. Aurangabad. ..PETITIONER VS 1] The State of Maharashtra (Copy to be served on GP of High Court Bench at Aurangabad) 2] The Deputy Inspector General Prison, Central region, Aurangabad Dist.Aurangabad. .. RESPONDENTS .... Shri Abhishek Kulkarni. Adv.(appointed) for petitioner. Shri K.G.Patil, APP for respondent. 2 .... CORAM : P.V.HARDAS & R.K.DESHPANDE,JJ. DATE :15/12/2009 ORAL JUDGMENT: [PER HARDAS,J.] 1] Rule. Rule returnable forthwith. With the consent of learned counsel for the parties, this Petition is heard finally at this stage of admission. 2] A communication sent by the petitioner, through jail was registered as Criminal Writ Petition and accordingly, we had appointed Advocate Shri Abhishek Kulkarni, as a counsel, to represent the petitioner in this Petition before us. 3] This Petition under Article 226 of the Constitution of India takes exception of an order passed by the Deputy Inspector General of Prisons, Aurangabad dated 27/10/2009, rejecting the application submitted by the petitioner, for his release on furlough. Undisputedly, 3 the petitioner came to be convicted for an offence punishable under Section 302 of Indian Penal Code, by judgment dated 8/4/2008. On 13/5/2009, the petitioner submitted an application seeking his release on furlough. The police report dated 20/8/2009 was adverse to the petitioner inasmuch as the police report indicates that the petitioner was likely to commit some offence or threaten the prosecution witness/complainant, in the event of his release on furlough. The Deputy Inspector General of Prisons, Aurangabad, accordingly by his order dated 27/10/2009 rejected the aforesaid application. 4] Mr.Abhishek Kulkarni, learned counsel for the petitioner has urged before us that the respondent ought not to have accepted mere ipse dixit of the police, to hold that the petitioner if released on furlough, was likely to threaten or cause harm to the prosecution witnesses. According to the learned counsel for the petitioner, there ought to have some material before the authorities to arrive at the aforesaid conclusion. Before we deal with the aforesaid submission, it has been brought to our notice that the petitioner’s application for his release on furlough was not maintainable in the light of Rule 3(2) of the Prisons (Bombay Furlough and Parole) Rules, 1959, which contemplates a prisoner to be entitled to apply for his release on 4 furlough only in the event he undergoes actual imprisonment of 2 years. Undisputely, the petitioner has not undergone actual imprisonment of 2 years and consequently, the application itself was not maintainable. In the light of the fact that the petitioner was not entitled to in law, for claiming his release on furlough, the reasons as to why the aforesaid application came to be rejected need not be examined by us. 5] We are, therefore, not inclined to interfere with the present Petition for the reasons stated above, but while dismissing the Petition, grant liberty to the petitioner to submit an application, on the petitioner becoming entitled to claim his release on furlough. We further direct the respondents that in the event, the petitioner submits an application seeking his release on furlough, the application be decided on its own merits in accordance with law uninfluenced by the rejection of his application dated 13/5/2009. 6] Writ Petition is accordingly dismissed with the aforesaid liberty and directions, with no order as to costs. 5 7] We quantify the fees payable to Advocate Shri Abhishek Kulkarni, learned counsel appointed on behalf of the petitioner, at Rs. 2000/- [Rs.Two Thousand only]. [R.K.DESHPANDE] [P.V.HARDAS] JUDGE JUDGE umg/criwp1098-09