drp {1} Cri.W.P.No.962/2010 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO.962 OF 2010 Asaram s/o Vithalrao Gadade PETITIONER VERSUS The State of Maharashtra & Another RESPONDENTS ....... Ms.Meghna Reddy, Advocate for the petitioner (Appointed) Mr.K.S.Patil, APP for respondents State ....... [CORAM : P.V.HARDAS, AND A.V.POTDAR, J.J.] DATE : 15th December 2010 ORAL JUDGMENT (PER P.V.HARDAS, J.): 1. Rule. Rule returnable forthwith. With the consent of the learned counsel for the parties this petition is heard finally at the stage of admission. 2. A communication sent by the petitioner through jail has been registered as Criminal Writ Petition. We had accordingly appointed advocate Ms.Meghna Reddy, learned counsel to represent the petitioner in this petition. The petitioner impugns the order passed by the respondents rejecting the application filed by drp {2} Cri.W.P.No.962/2010 the petitioner, seeking his release on furlough, dated 05.07.2010. 3. The petitioner came to be convicted for a offence punishable u/s 302 of the Indian Penal Code, by judgment dated 18.09.2008. The petitioner has undergone actual imprisonment of 2 years and since the petitioner became entitled to seek his release on furlough, the petitioner had applied for the same. The respondents have rejected the application of the petitioner on two grounds, namely (i) that the surety would not be able to control the movements of the petitioner and (ii) in the event the petitioner was released, the petitioner was likely to create law and order situation and was also likely to cause harm to the witnesses, who had been examined against the petitioner in the trial. For the aforesaid reasons, the respondents rejected the application filed by the petitioner. 4. Learned counsel for the petitioner has placed reliance on the judgment of the Division Bench of this Court, to which one of us, P.V.Hardas, J. was a member, passed in Criminal Writ Petition No.592/2005 “Datta Murti Pawar V/s State”. The Division Bench of this Court came to the conclusion that the authorities ought not to have ipse-dixit. Mere apprehension of the authorities below that in the event the petitioner was released, the petitioner was likely to create law and order problem and also to threaten the prosecution witnesses is no good ground to reject his application seeking furlough. In support of the said proposition urged by the drp {3} Cri.W.P.No.962/2010 learned counsel for the petitioner, she has also placed reliance on the judgment of the Division Bench of this Court in “Sharad Keshav Mehta V/s State of Maharashtra” 1989 Cri.L.C. 681. The Division Bench of this Court came to the conclusion that the apprehension of the respondents that in the event the petitioner was released on furlough, the public peace and tranquility would be affected, should be based on material facts. The learned counsel for the petitioner has further placed reliance on the judgment of the Division Bench of this Court, in “Vijay Ramchandra Nehare V/s State of Maharashtra”, 2008 Bombay Cases Reporter (Cri) 2692. The Division Bench has also held that the apprehension of the respondents could be allayed by putting the prisoner therein to certain strict conditions. 5. Though in the affidavit in reply, the respondents have averred that in the event the petitioner is released on furlough, the petitioner was likely to create law and order situation and also to threaten the prosecution witnesses and that the surety of the petitioner would not be able to control the movements of the petitioner, yet the above averments are not supported by any material. The subjective satisfaction of the respondents has to be arrived at on the basis of some objective material. In the present case, the petitioner was neither on bail nor had he been released either on parole or furlough, earlier. In such circumstances, therefore, according to us, the apprehension expressed by the respondent is totally unfounded. In any event, the aforesaid drp {4} Cri.W.P.No.962/2010 apprehension of the respondents can be allayed by the respondents by putting the petitioner to certain strict conditions, which would ensure that no untoward incident occurs during the release of the petitioner on furlough. 6. For the reasons stated above, we accordingly allow this petition and quash and set aside the impugned order and direct the respondents to release the petitioner on furlough, on such terms and conditions, which the respondents consider it appropriate. 7. Rule is thus made absolute on the above terms, with no order as to costs. We quantify the fees payable to the learned counsel appointed to represent the petitioner at Rs.1,500/- [A.V.POTDAR, J.] [P.V.HARDAS, J.] drp/B10/cwp962-10