1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO.1078 OF 2009 Raju Shivaji Sable Convict No.1999, Dhule District Prison Class-1, Dhule. .. Petitioner Versus The State of Maharashtra .. Respondent Shri V.R.Autade, Advocate (appointed) for the petitioner Shri K.S.Patil, Assistant Public Prosecutor for respondent-State CORAM : P.V. HARDAS AND SHRIHARI P. DAVARE, JJ DATE : 28th JANUARY 2010 ORAL JUDGMENT (Per Shrihari P.Davare, J.) 1. Rule. Rule made returnable forthwith. With the consent of learned Counsel for the parties, this petition is heard finally at the stage of admission. 2. A communication dated 16.10.2009 sent by the convict through jail was treated as Criminal Writ Petition by which the petitioner prayed for grant of furlough leave. The petitioner- convict was convicted on 22.1.2008 by learned Additional Sessions Judge, Basmatnagar for the offence punishable under 2 Section 302 of the Indian Penal Code and was sentenced to suffer imprisonment for life and accordingly, he is undergoing the sentence in District Prison, Class-I at Dhule. The subject matter of the present petition is challenge to the order dated 30.9.2009 passed by the Special Inspector General (Prisons), Central Division, Aurangabad rejecting the furlough leave application filed by the applicant. 3. It is alleged that the applicant had preferred an application for furlough leave on 27.5.2009. Accordingly, the said application was forwarded to District Superintendent of Police for the Police report. Accordingly, the Police report was received which was adverse to the petitioner. In the said Police report it was apprehended that in case the petitioner is released, he is likely to commit the offence and the petitioner may not return back to the jail. The said report further states that the statements of the complainant and witnesses and their family members were recorded who expressed danger to their respective lives at the hands of the petitioner if released on furlough leave. Moreover, the said report also reveals that the Police Patil has also stated in his statement that the petitioner may not be released. Pursuant to the said Police report, the Special Inspector General (Prisons), Central Division, Aurangabad passed the impugned order and rejected the application of the petitioner for furlough leave on 3 30.9.2009 invoking the provisions of Rule 4(4) of the Prisons (Bombay Furlough and Parole) Rules, 1959 which is under challenge in the present petition. 4. The respondents opposed the present application vehemently and filed the affidavit-in-reply which has been sworn in by Shri Sahebrao s/o Bajirao Neware, presently working as Senior Jailor, Group-I, Nashik Road Central Prison, Nashik, District Nashik. The said affidavit-in-reply reflects that although the father-in-law of the petitioner has expressed his willingness to take surety, he would not be in a position to control the prisoner since he is an old person. The said reply also reveals that the application preferred by the convict on 18.5.2009 seeking furlough leave was forwarded to District Superintendent of Police for the Police report and the said authority has submitted the report which is adverse to the petitioner and apprehension has been posed if the petitioner is released on furlough leave, he may commit the offence. The said report also states that the statements of the witnesses, complainant and Police Patil have been recorded which also expressed apprehension of threats if the petitioner is released on furlough. Accordingly, the said reply supported the impugned order dated 30.9.2009 rejecting the furlough leave of the petitioner, passed by the Special Inspector General (Prisons), Central Division, Aurangabad. 4 5. We have perused the record produced by the learned Assistant Public Prosecutor as well as we have considered the submissions advanced by the learned Counsel for the parties. The learned Counsel for the petitioner canvased that the apprehension posed by the respondents in respect of the alleged threats to complainant and witnesses had not been supported by any objective material. It is also submitted by the learned Counsel for the petitioner that no other offence has been registered against the petitioner except the offence for which the petitioner is undergoing the sentence of imprisonment for life. Hence, according to the learned Counsel for the petitioner since the Police report which is adverse to the petitioner has not been supported by any objective material, the consequent order passed by the Special Inspector General (Prisons), Central Division, Aurangabad has not been passed on the concrete material against the petitioner herein. 6. The learned Assistant Public Prosecutor supported the impugned order passed by the Special Inspector General (Prisons), Central Division, Aurangabad and submitted that the concerned authority has recorded the statements of the witnesses and complainant as well as Police Patil which are adverse to the petitioner and, therefore, urged that present petition being devoid of any merit be dismissed. 5 7. Considering the rival submissions, we find that except the statements of the complainant and his family members and Police Patil, recorded by the concerned authority, there is no other objective material to support the apprehension posed by the respondents in respect of the alleged threats to the complainant and his family members. Moreover, it is also pertinent to note that no any other offence is registered against the petitioner except the offence for which the petitioner is undergoing the sentence of imprisonment. Besides, conditions can be imposed upon the petitioner while releasing him on furlough that he should not reside in the vicinity where the complainant resides during his furlough leave and the said so called apprehension can be met with accordingly. 8. In the result, present petition succeeds and the impugned order dated 30.9.2009 passed by the Deputy Inspector General (Prisons), Central Prison, Aurangabad stands quashed and set aside and it is directed that the petitioner be released on furlough leave forthwith, in accordance with law and regulations on the condition that the petitioner shall not enter into the village where the complainant resides, during the period of the said furlough leave. 6 9. We quantify the fees payable to the learned Counsel Shri V.R.Autade, appointed by this Court on behalf of the petitioner at Rs.2,000/- (Rs.Two thousand). 10. Rule is thus made absolute on the terms indicated above with no orders as to costs. ( SHRIHARI P.DAVARE ) ( P.V.HARDAS ) JUDGE JUDGE (vvr/criwp1078.09)