2010 ALL MR (Cri) 558
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(AURANGABAD BENCH)

P.V. HARDAS AND S.P. DAVARE, JJ.

Abdul Saim S/O. Abdul Bashir Vs. State Of Maharashtra & Ors.

Criminal Writ Petition No.1168 of 2009

18th January, 2010

Petitioner Counsel: Shri. S. M. GANACHARI
Respondent Counsel: Shri. K. S. PATIL

Prisons (Bombay Furlough and Parole) Rules (1959), R.13 - Extension of period of furlough - Extension of one week's furlough leave granted to the petitioner - Another extension is not permissible in a calendar year - Therefore, rejection of further extension of furlough leave, warrants no interference. (Para 9)

JUDGMENT

SHRIHARI P. DAVARE, J.:- Rule. Rule made returnable forthwith. With the consent of the learned counsel for the respective parties, this petition is taken up for final hearing.

2. The subject matter of the present petition is challenge to the letter dated 30.9.2009, issued by the D.I.G. (Prisons) rejecting the claim of the petitioner for post facto sanction of 7 days furlough leave and extension.

3. The petitioner is a convict for the offence punishable under Section 302 of the Indian Penal Code for life imprisonment and he is undergoing the said sentence passed by the learned Additional Sessions Judge, Achalapur, District Amravati in Sessions Case No.100 of 1996 at open prison, Paithan.

4. The petitioner submits that he submitted application for furlough leave to D.I.G. (Prisons) to meet his ailing mother, who is 70 years old and the said application was considered favourably by the respondent and the petitioner was granted 15 days furlough leave from 1.9.2009 to 16.9.2009.

5. The petitioner preferred an application dated 7.9.2009 and sought for extension of furlough leave for the period from 16.9.2009 till 30.9.2009, since his mother was seriously ill and the doctor had asked her to take complete bed rest. However, the petitioner submits that the respondent granted only one week's extension i.e. upto 22.9.2009. The petitioner surrendered himself before the Jail Authorities on 30.9.2009 and his absence from 23.9.2009 to 30.9.2009 was considered the absence without furlough leave, and therefore, the petitioner preferred the present petition for post facto sanction and for extension for the said period i.e. 23.9.2009 to 30.9.2009.

6. Learned A.P.P. opposed the present application vehemently and Shri. Bhaskar Bhaurao Autade, presently working as Superintendent, Open Prison, Paithan, has sworn in the affidavit in reply filed in the present petition. The said affidavit in reply discloses that the petitioner was released on furlough leave on 1.9.2009 and he was to report back to the Jail Authorities on 16.9.2009 i.e. within a period of 2 weeks. However, the petitioner submitted an application on 7.9.2009 for extension of furlough leave on the ground of illhealth of his mother and the medical certificate dated 5.9.2009 was annexed therewith. The respondent further submits that extension was granted for 7 days only and leave was extended for one week i.e. from 16.9.2009 to 22.9.2009. The said affidavit in reply further reveals that as per the said extension, the petitioner was to report to the Jail Authorities on 22.9.2009, but he surrendered late i.e. on 30.9.2009. Hence, the petitioner sought post facto sanction of 7 days furlough leave, since he reported to the Jail Authorities belatedly i.e. on 30.9.2009. The respondent further submits that by letter dated 30.9.2009, D.I.G. (Prisons) has rejected the petitioner's claim for post facto sanction of 7 days furlough leave and the extension. The said affidavit in reply further reveals that the medical certificate produced by the petitioner does not reveal the disease of petitioner's mother and it further reveals that first extension of 7 days was granted to the petitioner on humanitarian ground and there was no good reason to grant another extension of 7 days furlough leave. The respondent further submits that in order to over come the punishment of his late surrender to the jail, the petitioner has submitted the medical certificate of his mother, which does not reveal any serious disease or ailment of his mother. Accordingly, it is submitted that there is no merit and substance in the Writ Petition, and therefore, it be dismissed.

7. We have considered the submissions advanced by the learned counsel for the parties. The respondent has annexed a notification dated 2.12.2003 along with the affidavit in reply, which reflects that the convict can be granted only one extension for furlough leave and no further extension can be granted to the convict.

8. It is necessary to peruse Rule 13 of the Prisons (Bombay Furlough and Parole) Rules, 1959 spells out as under:-

"13. Extension of the period of furlough :- Notwithstanding anything contained in the foregoing rules, the Sanctioning Authority may, on the application of a prisoner or otherwise, by an order in writing extend the period of furlough, the sanctioning authority may determine the extension of furlough leave shall be granted for only 14 days only once in a calendar year and no further extension shall be granted to prisoner."

9. Having considered the contents of the afore said notification dated 2.12.2003 and Rule 13 of the afore said Rules, we are of the considered view that the respondent has exercised the discretion and granted one extension of one week's furlough leave to the petitioner from 16.9.2009 to 22.9.2009, and since another extension is not permissible in a calendar year, the respondent has rejected further extension of furlough leave from 23.9.2009 to 30.9.2009 vide communication dated 30.9.2009 rightly. Moreover, it is apparently clear that the respondent has exercised the discretion in favour of the petitioner by granting extension of one week's furlough leave as afore said once in a calendar year and further extension shall not be granted to the prisoner as per the afore said Rule. Besides, learned counsel for the petitioner was unable to satisfy us that rejection of the petitioner's request for post facto extension of furlough leave from 23.9.2009 to 30.9.2009 vide communication dated 30.9.2009, was arbitrary. Hence, considering the afore said Rule 13 of the Prisons (Bombay Furlough and Parole) Rules, 1959 and the notification dated 2.12.2003 cumulatively, we are of the considered view that the respondent has passed the order dated 30.9.2009 rightly and we do not find any perversity therein.

10. In the circumstances, the present petition bears no substance and same is devoid of any merits and same deserves to be rejected and same stands rejected accordingly. Rule stands discharged in the above terms. Advocate Shri. S. M. Ganachari was appointed in this matter for the petitioner and we quantify his fees at Rs. Three thousand, which be paid to him accordingly.

Petition dismissed.