1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. CRIMINAL WRIT PETITION NO.576 OF 2010. Mahadev s/o Murlidhar Bonde. ... PETITIONER. Versus The State of Maharashtra. ... RESPONDENT. ... Shri P.M. Nagargoje, Advocate holding for Shri P.R. Katneshwarkar, Advocate for petitioner. Shri N.N. Jadhav, A.P.P. for respondents. ... CORAM : S.B. DESHMUKH AND S.S. SHINDE, JJ. 29th July, 2010. PER COURT: 1. We heard learned Counsel for the parties. 2. Rule. Rule is made returnable forthwith and taken up for hearing by consent of the parties. 3. The petitioner approached this Court with following prayers: “(A) By issuing writ of certiorari or any other 2 writ, order or direction in the like nature, the impugned Order dated 01/06/2010 passed by Deputy Inspector General of Police (Prison), Aurangabad, may kindly be quashed and set aside. And the period spent in the hospital by the petitioner may bet set-off. (b) By issuing writ of mandamus or any other writ, order or direction in the like nature, this Hon’ble High Court may kindly be directed the respondents to extend the parole leave of the petitioner by two months.” 4. This petition is filed by the petitioner on 14th June, 2010. It is the contention of the petitioner that on 24th March, 2010 he was released on furlough leave for 14 days. He applied for extension of said leave and it was extended from 24th March, 2010 till 6th April, 2010. The petitioner was supposed to report to the Jail authorities on 6th April, 2010. According to the learned Counsel for the petitioner, in fact, the petitioner did intend to surrender to jail authorities. He was on his way to the jail. He was travelling by a train. According to the learned 3 Counsel for the petitioner, on 6th April, 2010 the petitioner fainted, fell down the train, sustained accidental injury to his right leg which resulted in amputation of right leg. Since 6th April, 2010, the petitioner is hospitalized in a private hospital at Bhusawal. On this backdrop of facts and circumstances, prayers reproduced in the foregoing paragraph have been made by the petitioner in this petition. 5. In response to the notice, affidavit-in-reply is filed on behalf of respondent No.2. It is sworn in by Smt. Swati Sathe, Superintendent of Prison, Nashik Road Central Prison, Nashik on 29th June, 2010. Along with this affidavit-in-reply, at Exh.R-1 Furlough and Parole Rules have been annexed. In paragraph 7 of the affidavit-in-reply, it is averred that the petitioner was released on furlough leave for 14 days and further extension of 14 days was granted to the petitioner on his application. After extension of 14 days there is no provision in Prison Manual to extend further leave of furlough. The learned Counsel appearing for the petitioner took us through the order dated 1st June, 2010 passed by the Deputy 4 Inspector General of Prison, Central Region, Aurangabad. The fact of petitioner suffering injuries in the accident, amputation of his leg and admission in Sai Pushpa Accident Hospital has also been mentioned in the said communication. Specifically, the prayer of the petitioner that the days which he has spent in the hospital may be treated as the punishment undergone has been rejected in absence of such Rules. Further, it is directed that the petitioner - prisoner shall surrender to the jail authorities. 6. The learned Counsel for the petitioner took us through the amended Rule 13 of the said Rules. Rule 13 provides for extension of the period of furlough. In our opinion, the issue involved in this writ petition is not grant or extension of furlough leave in favour of the present petitioner. In the peculiar facts of the present case, the petitioner has requested for converting the period spent by him in the private hospital to that of punishment undergone in a prison. According to the respondent, there is no such rule and therefore, his application has been rejected. 5 7. The learned Counsel for the petitioner relied upon a judgment of the learned Division Bench of this Court in the case of Ramchandra Raghu Naik & another v/s State of Maharashtra and others [2005(Supp.) Bom.C.R.(Cri.) 589], wherein this Court has considered Rule 4(10) of Prison (Bombay Furlough and Parole) Rules, 1959. The learned Counsel for the petitioner took us through the paragraph 10 of this judgment. This Court has observed that there is discretion with the authority under Rule 4(10). It is not necessary to go into the controversy as to whether the word “shall” should be read as “may” or not. Suffice to observe that even assuming that the provision comprised under Rule 4(10) is held to be directory, fact remains that in such cases the discretion has to be exercised judiciously. This Court has also clarified that it would depend on facts of each case. For example, in a case where the prisoner is compelled to overstay on account of some serious ailment or illness, either of himself or his family member, or for some other justifiable cause, certainly an exception can be made. Suffice to note that these observations have been made by this Court 6 pertaining to factual aspect of overstaying by the petitioner – prisoner in that case. 8. We have considered the petition and the reply filed by the respondent. In our view, the order of the authorities cannot be said to be perverse. 9. Writ Petition stands dismissed with no order as to costs. We however, make it clear that considering the facts and circumstances of petitioner’s case, if the petitioner makes a representation after surrendering himself to the jail authorities, the same shall be considered and decided, in accordance with the provisions of the Prison ( Bombay Furlough and Parole) Rules, 1959. Rule stands discharged. [ S.S. SHINDE ] [ S.B. DESHMUKH ] JUDGE JUDGE Kadam/*