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Decision related to furlough leave to be given by the division bench as there no conflict in the decisions on the issue: Bombay High Court

The decision that the judgement related to furlough leave is to be given by the division bench as there no confict in the decisions on the issue is upheld by the High Court of Bombay through the learned bench led by HONOURABLE MR. JUSTICE S. S. SHINDE, HONOURABLE MR. JUSTICE PRAKASH D. NAIK & HONOURABLE MR. JUSTICE N. J. JAMADAR in the case of Mohd. Raees S/o Shahzade Ansari Versus The State of Maharashtra and Ors. (CRIMINAL WRIT PETITION NO. 1518 OF 2021).

FACTS OF THE CASE- Brief facts of the case are that the petitioner was detained on April 7, 2014, and was found guilty of violating Sections 307 and 34 of the Indian Penal Code (“IPC”), Sections 387 and 34 of the IPC, Section 506(II) of the IPC, and Section 326 of the IPC. The petitioner was also found guilty under Section 3(1)(ii) of the MCOC Act. On each count, he received a sentence of jail and a fine. The petitioner preferred to file an application with respondent no. 3 for furlough leave. The application was denied by respondent no. 2 in a letter dated September 11, 2019, on the grounds that there is a risk to the witnesses’ lives. The abovementioned order was appealed to respondent no. 1 before the court of appeals. On the basis of a negative police report and the potential of absconding, the appeal was dismissed by decision dated October 5, 2020. The petition was assigned to the Bombay High Court’s Division Bench at Aurangabad. The Division Bench was pleased to refer the matter to the larger Bench by order dated January 18, 2021. Hence this petition was to be decided upon.

The matter that arouse before the court in this case is whether the fact that the prisoner is incarcerated for an offence punishable under the MCOC Act can be used against him in light of the furlough rules, and whether this can be treated as an exception, similar to the other specific offences listed in Rule 4 of the Prison (Bombay Furlough and Parole) Rules, 1959.

The counsel for petitioner, Mr.Rupesh Jaiswal, submitted that there is no need to send the case to the bigger Bench, according to the petitioner’s learned lawyer, because there are no conflicting rulings in the field. The case of Randhir Singh Vs. State of Maharashtra (Criminal Writ Petition No.1999 of 2019) was decided based on the facts of the case. The reference could be made if the Court’s decision expresses an inconsistent view on a question of law, but not otherwise. In the case of Vinayak Hari Kulkarni Vs. State of Maharashtra and Others, learned counsel relied on the decision of this Court’s Full Bench.

The counsel for respondents, Mrs. A.S. Pai stated that no controversial decisions had been made in the field. The two decisions referred to in the Reference order were reached based on the facts of the instances at hand. The Court had no occasion in any of the decisions to interpret Rule 4 of The Prisons (Bombay Furlough and Parole) Rules, 1959, and to conclude that the MCOC Act offenders are not eligible for furlough. Since the petitioner was granted interim bail on medical grounds by the learned Single Judge of this Court, the petition has become infructuous.

JUDGEMENT- After considering the submissions of both the sides, the court concluded and gave the judgement that that there is no conflict in the Division Bench’s decisions on the subject referred by the Court, and hence, returned the reference to the Court’s Division Bench for decision in line with law.

JUDGEMENT REVIEWED BY- ATIVA GOSWAMI

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