Jvs. WP.660.2012.doc IN THE HIGH COURT OF JUDICATURE AT BOMBAY

APPELLATE SIDE

CRIMINAL WRIT PETITION NO. 660 OF 2012

Prabhakar Raghu Shetty :- Petitioner versus

The State of Maharashtra & Ors. :- Respondents Mr. Niranjan Mogre, Amicus Curiae, for the Petitioner. Mrs. M. M. Deshmukh, APP , for Respondent State. CORAM: A.M.KHANWILKAR &

A.R.JOSHI,JJ.

DATED : 2nd July, 2012

P.C. :-

This Petition, received through Jail, takes exception to the decision of the District Judge, dated 18 th November, 2011, imposing punishment of deduction of 30 days of remission period, as a result of overstay of Furlough period, by the Petitioner, for about 16 days.

2) It is not in dispute that the Petitioner was released on Furlough on 8th August, 2010 and the period was to expire on 31 st August, 2010. However, the Petitioner applied for extension of Page 1 of 5

Jvs. WP.660.2012.doc time, to the Appropriate Authority. The Appropriate Authority rejected the said application on the finding that the Petitioner has already availed of one extension in the year 2010. That finding was on the basis of the factual position that the Petitioner had availed of Furlough in February, 2009, which was to expire on 12 th March, 2009, but, at his request, it was extended from 13 th March, 2009 till 26th March, 2009. He was again released on Furlough on 8th December, 2009, which period was to expire on 21 st December, 2009. But, once again, it was extended from 22 nd December, 2009 till 4th January, 2010. As a matter of fact, considering the sweep of Rule 13 of the rules of 1959, the Appropriate Authority was not competent to grant extension for the second time in the same calendar year i.e. 2009. Be that as it may, since the extension of the second Furlough, granted to the Petitioner, in the year 2009 fell in the year 2010, the Authority assumed that it would result in second extension, which was not permissible under Rule 13 of Rules 1959. Rule 13 reads thus:

"13. 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. Page 2 of 5

Jvs. WP.660.2012.doc The Sanctioning Authority may determine the extension of furlough leave which shall be granted for 14 days only once in a Calendar year and no

further extension shall be granted to a prisoner on the same conditions."

3) On plain reading of this Rule, it is obvious that the Sanctioning Authority is competent to grant extension of Furlough Leave up to 14 days only once in a "calendar year" and no further extension can be granted to the prisoner on the same conditions. The question is, whether the second extension given to the Petitioner in December, 2009, which incidentally spilled over upto 4th January, 2010, in calendar year 2010, can be reckoned for the purposes of considering the request of the Petitioner for extension of Furlough Leave, granted in August, 2010. The expression "once in a calendar year" would and ought to mean in the same English calendar year in which it is made and granted. In our opinion, since the said extension granted in December, 2009 was in the previous calendar year, which incidentally spilled over to the calender year 2010 upto 4th January, 2010, that cannot be reckoned for considering the request made in 2010. In other words, the request for grant of extension of Furlough period, Page 3 of 5

Jvs. WP.660.2012.doc made by the Petitioner in August, 2010, ought to have been considered as the first request made in the calender year 2010. 4) Thus understood, the subject Application of the Petitioner must be considered by the Appropriate Authority on its own merits. The District Judge has imposed penalty on the assumption that the Petitioner over stayed the Furlough period from 1st September, 2010 and returned back to Jail only on 16 th September, 2010. Since the Application for extension has been rejected on untenable ground, we would set aside the impugned decision and relegate the Petitioner before the First (Appropriate) Authority, who is required to consider the Application for extension of Furlough period in the first place. If the Petitioner's Application for extension from 1st September, 2010 till 16th September, 2010 was to be rejected, only then he can be proceeded for imposing of penalty for overstaying Furlough period. Assuming that the Petitioner succeeds in the proceeding, the Appropriate Authority is competent to extend the Furlough period only for a period of 14 days, as per Rule 13 and not further. Page 4 of 5

Jvs. WP.660.2012.doc In that case, extension of Furlough period can be given only till 14th September, 2010 and not till 16th September, 2010, which is the date on which the Petitioner reported back to the Jail. The Petitioner, in that case, may have to face action for overstaying Furlough period for two days. All these aspects will have to be considered by the Appropriate Authority, on its own merits, in accordance with law. The Appropriate Authority shall consider the request of the Petitioner expeditiously.

5) Accordingly, the Petition is disposed of. 6) The Court expresses word of gratitude for the able assistance given by the Learned Amicus Curiae.

7) Copy of the order be forwarded to the Petitioner, who is in Jail, for information.

(A.R.JOSHI,J.) (A.M.KHANWILKAR,J.)

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