1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO.710 OF 2010 Erun s/o Elichand Chavan, Age 26 years, Occu.Nil, R/o Ajnale, Taluka and Dist.Dhule at Present Central Jail, Nashik ..PETITIONER (Orig.Accused) VERSUS The State of Maharashtra through the Superintendent of Central Jail, Nashik ..RESPONDENT Mr.V.M.Humbe, Advocate (appointed) for the petitioner Mr.D.R.Kale, Assistant Public Prosecutor for respondent-State CORAM : P.V. HARDAS AND A.V. POTDAR, JJ DATE : 14th OCTOBER 2010 ORAL JUDGMENT (PER P.V.HARDAS, J.) 1. Rule. Rule returnable forthwith. With the consent of learned Counsel for the parties, this petition is heard finally at the stage of admission. 2. A communication sent by the petitioner through jail was registered as Criminal Writ Petition and we had accordingly appointed Advocate Mr H.M.Humbe to represent the petitioner in this petition before us. 3. A limited grievance of the petitioner is that his application seeking his release on furlough has been rejected by the respondents on the grounds (i) if the petitioner if released on 2 furlough, the petitioner was likely to threaten the witnesses, who had been examined against him during the trial; and (ii) that the petitioner had failed to submit the surety from a different place other than the one where the petitioner normally resides. 4. According to the respondents the incident had occurred at village Ajnale, Taluka and District Dhule. The petitioner has been convicted for an offence punishable under Section 302 of the Indian Penal Code and the appeal filed by the petitioner has also been dismissed. Undisputedly, during the trial the petitioner was not on bail. On an application being submitted by the petitioner, the Police report was called for and the Police report discloses that the witnesses had expressed their apprehension that in the event the petitioner was released on furlough the petitioner was likely to threaten the witnesses or cause harm to them. The affidavit-in-reply filed on behalf of the respondents does not disclose that the behaviour of the petitioner in the prison is objectionable. There is nothing in the affidavit-in-reply to indicate that during the trial the petitioner had threatened the prosecution witnesses. Since the petitioner is resident of village Ajnale, it would be extremely harsh to expect the petitioner to furnish the surety of persons who are residents of different place. 5. According to us the mere ipse dixit of the witnesses who had been examined during the trial that they apprehend danger at the hands of the petitioner would not be made a touchstone for rejecting the application for furlough. The petitioner is entitled to have his application considered in accordance with law, particularly in the light of the fact that his behaviour in prison is not objectionable and there are no instances of the petitioner threatening the prosecution witnesses during the trial. We have seen the paper book of Criminal Appeal, which was filed by the 3 present petitioner and we have noticed that a large number of witnesses had not supported the prosecution case. In that light of the matter, therefore, according to us, the application of the petitioner ought to have been allowed. 6. Accordingly, this writ petition is allowed, the impugned order is hereby quashed and set aside and the respondents are directed to release the petitioner on furlough on such terms and conditions, which the respondents may consider it appropriate. 7. Rule made absolute on the above terms with no order as to costs. We quantify the fees payable to the learned Counsel appointed on behalf of the petitioner at Rs.1,500/- (Rs.One thousand five hundred). ( A.V. POTDAR ) ( P.V.HARDAS ) JUDGE JUDGE (vvr/710.10criwp) 4