DIPAK HARI KIVKALWAR Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) RULE. By consent rule is made returnable forthwith.

(2.) THIS is a writ petition impugning an order dated 1-4-2002 passed by the Deputy Inspector General of Prison (Eastern Region), Nagpur rejecting the furlough sought by the present petitioner. The petitioner is undergoing sentence since 16-10-1998 for an offence under section 302 of the Indian Penal Code. He had applied for grant of furlough leave on 27-9-2001. Initially one Ashabai Sundarsingh Thakur was cited by the petitioner as his surety but the said Ashabai refused to stand surety. The authorities gave the prisoner another chance and the prisoner named one Prakash Natthuji Nakhore as his surety. The said Prakash Nakhore however informed the police that he do not know the petitioner, and therefore, he could not be accepted as surety. In the present petition, the petitioner has stated that his wifes sister Koushlyabai Mahadeo Gaikwad is willing to stand as surety for him. However, the return filed on behalf of the respondents indicates that when the police made enquiry with Koushlyabai, it was found that she was not having any property and that she was residing in Zopadpatti. His husband is undergoing sentence in Central Prison, Nagpur for the offence under Narcotic Drugs and Psychotropic Substances Act. That, she had come in the contact of the petitioner when she had visited the prison. The return further reveals that Koushlyabai is not willing to stand as surety for the petitioner.

(3.) MY attention has been drawn to a judgment of this Court delivered in Criminal Writ Petition No. 353 of 2002 by my learned brother J. A. Patil, J. , on 29-10-2002 reported in 2003 Bom. C. R. (Cri.) 477 (Bhimrao Nathuji Bhoyar v. Superintendent, Amravati Central Prison) In the said judgment this Court has taken a view that on a co-joint reading of Rules 6 and 10 of the Prisons (Bombay Furlough and Parole) Rules, 1959, the requirement of surety can be waived by the Sanctioning Authority. The learned Single Judge of this Court has relied upon a Full Bench decision of the Gujrat High Court in the case of (Natia Jiria v. State of Gujrat)1984 Cri. L. J. 936.