IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.87 OF 2009 Abdul Rauf Daud Merchant .. Petitioner V/s. The State of Maharashtra ..Respondents Miss.Farana Shah for the Petitioner. Mrs.U.V.Kejariwal, A.P.P. for the State. CORAM : BILAL NAZKI and A.R.JOSHI, JJ. DATED : MARCH 2ND, 2009. P.C. The Petitioner was not granted furlough therefore, he approached this Court. The Public Prosecutor has tried to justify the impugned order on the ground that Rule 4(2) of the Bombay Furlough 1 and Parole Rules excludes granting of furlough to certain prisoners and those prisoners include prisoners convicted under sections 392 to 402 of the Indian Penal code. Since the Petitioner has been convicted under section 302 of I.P.C. and also under section 392, 397, 307 read with section 34 of the I.P.C. and section 27 of the Arms Act he could not be granted leave on furlough. 2. Miss Shah, learned counsel was asked to assist the Court has drawn our attention to various Judgments of this Court including the Judgment of the Division Bench of this Court, in writ petition No.1987 of 2008 (Wilson B.Castelino v/s.The State of Maharashtra & Ors.) dated 12th November, 2008 presided over by justice S.B.Mhase and R.V.More, JJ. 3. The law laid down by this Court is that if 2 a prisoner convicted of offences punishable under sections 392 to 402, suffered the sentence under these offence, but he was not able to come out of the Jail because he was convicted for, some other offences, like the offence under section 302 as he has to undergo life imprisonment, the rule could not be applied. The logic behind this is that if a person had been convicted under section 397 for a period of 7 years and acquitted under any other offence, after completion of 7 years, he would be released. On the other hand, if a person is convicted under section 397 of the Indian Penal Code for a period of 7 years and also is convicted for murder for life, even after serving sentence of 7 years he would not be able to get furlough. In the present case, the petitioner had been convicted under section 302 of the Indian Penal Code and sentenced to life imprisonment. He had also been sentenced under section 397 of the Indian Penal 3 Code to undergo imprisonment of 7 years. Both the sentences had to run concurrently. The Petitioner has already served sentence of 8 years. Therefore, in our view the rules relied upon by the respondents will not apply to him. 3. Following the earlier Judgment of this Court, relied herein above, we direct the Petitioner be released on furlough subject to usual conditions. 4. The writ Petition is, accordingly, disposed of. (BILAL NAZKI,J.) (A.R. JOSHI, J.) 4 5