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Judgment
M.G. Giratkar, J
Rule. Rule made returnable forthwith. Heard finally with the consent of learned Counsel for the parties.Â
The petitioner had applied for furlough leave. Vide order, dated 07th March, 2017, furlough leave was granted. The petitioner had given the
name of his sisterÂinÂlaw namely Mrs. Shabana Mohd Usman Shaikh as his surety. Since his surety Shabana died, he applied to change the name
of surety vide application dated 03rd April, 2017. Report was called from ACP, Kurla Division, Mumbai. Vide order dated 28.07.2017,
respondent No.1 rejected application for furlough on the ground that the police report is adverse as he was a convict for the offence punishable under
Section 392 of the Indian Penal Code and surety is not competent. On these grounds, application for furlough came to be rejected. The petitioner
has challenged the impugned order dated 28/29.07.2017.Â
It is submitted that the petitioner was convicted for the offence punishable under Sections 302 and 392 of the Indian Penal Code. The petitioner
has undergone approximately 17 years' imprisonment. The petitioner was sentenced to suffer imprisonment for four years for the offence
punishable under Section 392 of the Indian Penal Code and life imprisonment for the offence punishable under Section 302 of the Indian Penal
Code. Previously, the petitioner was released on furlough and parole leave on ten occasions. It is submitted that impugned order passed by
respondent No.1 is illegal and liable to be quashed and set aside. It is submitted that respondents be directed to release the petitioner on furlough
leave in accordance with law.
Heard Shri Ali, learned Counsel for the petitioner. He has pointed out the reason for rejection of furlough leave mentioned in order dated 07th
March, 2017 passed by respondent No.1. By the said order, respondent No.1 allowed the application for furlough leave. Before passing of said
order, the petitioner had given the name of his sisterÂinÂlaw as surety, but she died. Therefore, he requested the respondents to change the name
of his surety. He has suggested the name of Ms. Alfia d/o Mohd. Usman Shaikh who is teacher by profession and the nearest relative of the
petitioner.
Learned Counsel has further submitted that the petitioner was convicted for the offence punishable under Sections 302 and 392 of the Indian Penal
Code. He was sentenced to suffer imprisonment for four years for the offence punishable under Section 392 of the Indian Penal Code. He has
undergone imprisonment about 17 years. Therefore, he is no more convict for the offence punishable under Section 392 of the Indian Penal
Code. Learned Counsel for the petitioner has pointed out the decision of the Division Bench of this Court in the case of Gorakh @ Baba Patole .v.
Government of Maharashtra and others (1993 (2) Mh.L.J., 1423).
Heard Smt. M.H. Deshmukh, learned Additional Public Prosecutor for the respondents. She has supported the impugned order.
There is no dispute that the petitioner was convicted for the offence punishable under Sections 302 and 392 of the Indian Penal Code. He was
sentenced to suffer life imprisonment for the offence punishable under Section 302 of the Indian Penal Code and four years imprisonment for the
offence punishable under Section 392 of the Indian Penal Code. There is also no dispute that the petitioner has undergone imprisonment for about
17 years. Therefore, it is clear that the sentence awarded to him for the offence punishable under Section 392 of the Indian Penal Code is already
over.
This Court in the case of Gorakh @ Baba Patole .v. Government of Maharashtra and others (cited supra), has observed as under :Â
“It will be seen from the above Rule that while the prisoner convicted of an offence of robbery under section 397 of the Indian Penal Code is
debarred from getting furlough, the prisoner convicted of an offence of murder under section 302 of the Indian Penal Code is not. The two offences
are quite distinct for which different punishments have been prescribed. Only because these two offences have been committed in one incident and,
therefore tried in one case, they do not cease to be distinct. Section 31 of Criminal Procedure Code provides that when a person is convicted at one
trial of two or more offences, the Court can sentence him for such offences to the different punishments prescribed therefore. Such punishments
when consisting if imprisonment commence consecutively i.e. one after the expiry of the other. But the Court has discretion to order them to run
concurrently. Only because the Court exercised the discretion of ordering the sentences to run concurrently, the independent character of those
sentences does not disappear. On undergoing the imprisonment of seven years, the petitioner would cease to be a convict under section 397, Indian
Penal Code. Had he been convicted only of offence under section 397, he would have been a free bird. His continuation in the portals of jail is
because of sentence under section 302, Indian Penal Code. He does not continue to be prisoner falling under category (2) of Rule 4 only because of
concurrent nature of the other sentence undergoing which does not disqualify him from furlough leave. Contrary interpretation of Rule 4(2) would
be against the letter as well as spirit of the Rules. Thus, in our view, the furlough cannot be denied to the petitioner only on the ground that he
continues to be in jail as a result of concurrent sentence for other offence.â€
The respondent No.1 allowed the application for furlough vide order dated 07th March, 2017, but during that period surety named by the petitioner,
was died. Therefore, he applied to change the name of surety vide his application dated 03rd April, 2017. Instead of allowing the said surety,
respondent No.1 rejected the application for furlough leave of the petitioner. It is pertinent to note that the surety named in the application is the
nearest relative of the petitioner. She is a teacher by profession and having permanent residential address. Earlier, the petitioner was released on
furlough and parole leave for about ten occasions. Nothing adverse is shown by the respondents. The ground for rejection of furlough leave is not
proper. Because petitioner has already completed four years imprisonment for the offence punishable under Section 392 of the Indian Penal Code.Â
Therefore, he cannot be said to be convict  for the offence punishable under Section 392 of the Indian Penal Code. Hence, the impugned order
is liable to be quashed and set aside. With these findings, we proceed to pass the following order.
The petition is allowed. The respondents are directed to release the petitioner on furlough leave for the period of 28 days within a period of 15
days from the date of receipt of this order, in accordance with law. The petitioner shall report the jail authorities on due date.
Rule is accordingly made absolute in the aforesaid terms.