1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO.10 OF 2010 Nagnath Bapurao Sontakke, Age major, Occu.Nil, r/o at present Central Prison, at Aurangabad, Aurangabad .. PETITIONER VERSUS 1. The State of Maharashtra, 2. The Deputy Inspector General (Prisons), Central Region, Aurangabad, Aurangabad .. RESPONDENTS Shri S.P.Katneshwarkar, Advocate (appointed) for the petitioner Shri S.D.Kaldate, Assistant Public Prosecutor for respondents 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. The subject matter of the present writ petition is challenge to the order dated 26th/27th October 2009 passed by the Special Inspector General (Prisons), Central Division, Aurangabad rejecting the furlough leave sought by the petitioner herein. 2 3. The petitioner namely Nagnath Bapurao Sontakke is a convict and has been convicted by learned Additional Sessions Judge Basmat, District Hingoli for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code on 8.4.2008 and was sentenced to undergo the imprisonment for life and accordingly, is detained at Central Prison at Aurangabad. The petitioner applied for furlough leave on 4.6.2009 and the said application was forwarded to Superintendent of Police, Hingoli for Police report. Accordingly, the Superintendent of Police, Hingoli forwarded the Police dated 20.8.2009 which expressed the apprehension that there would be danger to the lives of complainant as well as witnesses, if the petitioner-convict is released on furlough. It is also stated in the said Police report that the petitioner is having relations with political party namely “Shivsena”. The said Police report further reflects that the statements of complainant, witnesses, Sarpanch and Police Patil were recorded who disclosed that there is danger to the lives of complainant as well as witnesses, if the petitioner is released on furlough leave. Relying upon the said Police report, the Special Inspector General (Prisons), Central Division, Aurangabad rejected the application of the petitioner of furlough leave on 26th/27th October 2009 which is under challenge in the present petition. 3 4. The learned Counsel for the petitioner submitted that there is no objective material produced by the respondents to substantiate the alleged apprehension posed in the Police report. It is also confessed by the learned Counsel for the petitioner that no offence has been registered against the petitioner except the offence for which the petitioner is undergoing the imprisonment. Hence, according to the learned Counsel for the petitioner the alleged adverse Police report and consequent order passed by Special Inspector General (Prisons), Central Division, Aurangabad rejecting the application of the petitioner for furlough based upon merely on the statements of the witnesses who have deliberately given the statements against the petitioner herein. 5. The learned Assistant Public Prosecutor opposed the present petition and the respondent filed affidavit-in-reply which is sworn in by Bharat Mahadeo Bhosle, working as Additional Superintendent, Central Jail, Aurangabad and thereby supported the impugned order dated 26th/27th October 2009 passed by the Special Inspector General (Prisons), Central Division, Aurangabad and submitted that the said order has been based upon the Police report which is adverse to the petitioner. It is also canvased by the learned Assistant Public Prosecutor that the said Police report was forwarded on the basis of statements of the witnesses and complainant recorded by the concerned authorities and it is 4 submitted that if the petitioner is released on furlough, there would be danger to the lives of the complainant and witnesses and there is possibility of disturbance of public peace and hence, it is urged that the present petition be dismissed. 6. Considering the rival submissions advanced by learned Counsel for the parties, at the outset except the statements of the complainant and the witnesses allegedly recorded by the concerned authority, there is no objective material to substantiate the apprehension posed by the respondents in respect of the alleged danger to the complainant and the witnesses. Moreover, it is also significant to note that there is no other offence registered against the petitioner herein except the offence for which he is undergoing the imprisonment. 7. Apart from that the petitioner-convict has filed the undertaking before this Court which is taken on record and marked as document “X” for identification purpose and the contents of the said undertaking disclose that the petitioner has undertaken that if he is released on furlough by the orders of this Court, he would not enter into village Khandegaon, Taluka Basmat, District Hingoli during the period of the said furlough leave. He has also undertaken that he would abide by all the terms and conditions which may be imposed upon him by this 5 Court. Basing upon the said undertaking the condition can be imposed upon the petitioner that he shall not enter into the village Khandegaon, Taluka Basmat, District Hingoli during the period of his furlough leave, if released accordingly, and such condition would meet the apprehension posed by the respondents. 7. In the result, present petition succeeds and impugned order dated 26th/27th October 2009 passed by the Special Inspector General (Prisons), Central Division, Aurangabad rejecting the furlough leave of the petitioner stands quashed and set aside and it is directed that the petitioner be released on furlough leave forthwith, in accordance with law, as per rules and regulations with a direction to the petitioner that he shall not enter into the village Khandegaon, Taluka Basmat, District Hingoli during the said period of furlough leave. The petition stands disposed of accordingly and Rule is made absolute in aforesaid terms. 8. We quantify the fees payable to the learned Counsel Shri S. P. Katneshwarkar, appointed on behalf of the petitioner at Rs. 2,000/- (Rs.Two thousand). ( SHRIHARI P.DAVARE ) ( P.V.HARDAS ) JUDGE JUDGE (vvr/criwp10.10)