Bombay High Court
Sharad Devaram Shelake vs The State Of Maharashtra on 28 April, 2016
Bench: V.K. Tahilramani
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RMA
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO. 4034 OF 2014
ALONGWITH
CRIMINAL APPLICATION NO. 12 OF 2015
Sharad Devaram Shelake
C/16441, Age - 29 Years,
Convict presently lodged in
Yerawada Central Prison, Pune 06. .. Petitioner
Versus
The State of Maharashtra
(Home Ministry)
ig .. Respondent
...................
Appearances
Mr. Yashpal Thakur Advocate (appointed) for the Petitioner
Mr. A.S. Shitole APP for the State
...................
CORAM : SMT. V.K. TAHILRAMANI &
SMT. ANUJA PRABHUDESSAI, JJ.
Reserved on : APRIL 12, 2016.
Pronounced on : APRIL 28, 2016.
JUDGMENT [ PER SMT. V.K. TAHILRAMANI, J. ] :
1. Rule. Respondents waive service. By consent rule made
returnable forthwith.
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2. A very short question is involved in this petition under
Article 226 of the Constitution of India. It is directed against
the Notification issued by the Home Department dated
23.02.2012. By this Notification, Rule 4 of the Furlough and
Parole Rules was amended and after sub-rule (10), sub-rule
11 to 19 were added.
3.
The petitioner was convicted by the learned Additional
Sessions Judge, Pune under Sections 302 and 364 of IPC by
Judgment and Order dated 31.8.2012 passed in Sessions
Case No. 215 of 2011. The said case arises out of C.R. No.
217 of 2010 of Lonikand Police Station, Pune. In our opinion,
the only relevant fact is that the conviction and sentence has
been interalia recorded for the offence punishable under
Section 364 of IPC i.e kidnapping.
4. The petitioner has stated that he did not apply for
furlough leave because in view of the Notification dated
23.2.2012 whereby sub-rule 13 was added, his application
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for furlough would be rejected by the Competent Authority.
Rule 4 set out the cases when prisoners shall not be granted
furlough. Though the entire Notification is challenged, we
are concerned here only with sub-rule 13 of Rule 4 which
reads as under:-
"4. The following categories of prisoners shall not be
considered for release on furlough:-
(13) Prisoners convicted for offences such as dacoity,
terrorist crimes, kidnapping, smuggling including those
convicted under the Narcotic Drugs and Psychotropic
Substances Act, 1985 (61 of 1985) and foreigner prisoners;
5. Mr. Yashpal Thakur, the learned counsel for the
petitioner submitted that the petitioner is convicted and
sentenced to suffer imprisonment for offence punishable
under Section 364 of Indian Penal Code. Such a person is not
entitled to furlough leave in terms of sub-rule 13 of Rule 4 of
the Prisons (Bombay Furlough and Parole) Rules, 1959.
Learned counsel for the petitioner submitted that the
reasons namely, the nature of the offence, its gravity and it
being under section 364 of Indian Penal Code cannot be said
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to be a valid ground for rejection of furlough leave. Thus, a
challenge is raised to the provisions by which the authorities
are empowered to refuse furlough leave in case of convicts/
prisoners undergoing sentence for the offence of kidnapping.
It is not disputed that the petitioner has been convicted for
the offence under Section 364 of IPC.
6.
Learned counsel for the petitioner submitted that when
a person is convicted for kidnapping, then, he would not be
released on furlough is the present rule and which would
mean that for his entire tenure, as a prisoner/ convict, the
petitioner will never be released on furlough. The petitioner
would, therefore, be permanently deprived of the right to be
released on furlough.
7. It is argued that the selection of Section 364 for being
included in the list of offences in respect of which furlough
leave shall not be granted is arbitrary and that it is not based
on any rational principle. If prisoners convicted for more
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serious offences such as murder are not precluded from
claiming furlough leave, why should prisoners convicted of
offences under Section 364 be denied the right to claim
furlough leave? It is urged that the classification made by
the rule making authority is not rooted in any rational
principle and, therefore, Rule 4(13) must be struck down.
8.
Lastly, it is submitted that the Rules do not mean that
the application for furlough has to be rejected. Such rules
cannot be construed as a mandate or a prohibition or
embargo but will have to be construed as enabling the
authority to refuse furlough in appropriate cases. Further, if
this interpretation is not placed on the provision, then, it is
ultra vires Article 14 of the Constitution of India.
9. We are unable to accede to the argument addressed to
us by Mr. Thakur on behalf of the petitioner for reasons
which will become presently evident.
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10. The learned APP on the other hand has submitted that
furlough is not a right of the prisoner and the distinction as
made is not ultra vires Article 14 of the Constitution of India
but consistent with the Legislative scheme of not permitting
such convicts and prisoners whose mingling with the society
will have an adverse effect and who are likely to indulge in
similar acts, if released temporarily.
11. We have perused the notification issued by the Home
Department dated 23rd February 2012 by which the Prisons
(Bombay Furlough and Parole) Amended Rules, 2012 have
been brought into effect.
Rule 4 states thus:-
"4. The following categories of prisoners shall not be
considered for release on furlough:-
(1) Habitual prisoners;
(2) Prisoners convicted of offences under Sections 392
to 402 (both inclusive) of the Indian Penal Code;
(3) Prisoners convicted of offences under the Bombay
Prohibition Act, 1949;
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(4) Prisoners whose release is not recommended in
Greater Bombay by the Commissioner of Police
and elsewhere, by the District Magistrate on the
ground of public peace and tranquility;
(5) Prisoners who, in the opinion of the Superintendent
of Prison show a tendency towards crime;
(6) Prisoners whose conduct is, in the opinion of
Superintendent of the Prison, not satisfactory
enough;
(7) Prisoners confined in the Ratnagiri Special Prison,
(other than prisoners transferred to that prison for
Jail services);
(8) Prisoners convicted of offences of violence against
person or property committed for political motives,
unless the prior consent of the State Government to
such release is obtained;
(9) A prisoner or class of prisoners in whose case the
State Government has directed that the prisoner
shall not be released or that the case should be
referred to it for orders;
(10) Prisoners who have at any time escaped or
attempted to escape from lawful custody or have
defaulted in any way in surrendering themselves at
the appropriate time after release on parole or
furlough.
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12. The amendment as brought about by the Notification
dated 23.2.2012 to the extent of Rule 4, referred to as the
principle Rule reads thus:-
"2. In rule 4 of the Prisons (Bombay Furlough and Parole)
Rules, 1959 after sub-rule (1), the following sub-rules shall
be inserted, namely :-
(11) Prisoners whose presence is considered dangerous or
otherwise prejudicial to public peace and order by the
District Magistrate and Superintendent of Police;
(12) Prisoners who are considered dangerous or have been
involved in serious prison violence alike assault, outbreak,
riot, mutiny or escape or who have been found to be
instigating the serious violation of prison discipline;
(13) Prisoners convicted for offences such as dacoity, terrorist
crimes, kidnapping, smuggling including those convicted
under the Narcotic Drugs and Psychotropic Substances
Act, 1985 (61 of 1985) and foreigner prisoners;
(14) Prisoners convicted for failure to give surety for
maintaining peace or good behaviour;
(15) Prisoners suffering from mental illness, if not certified by
the medical officer to have recovered;
(16) Prisoners whose work and conduct have not been good
during the preceding period of twelve months;
(17) Prisoners convicted of offences against any law relating to
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matters to which the executive power of the Union
Government extends, unless approved by the Union
Government;
(18) Prisoners whose release on leave is likely to have
repercussions elsewhere in the country.
(19) Prisoners whose release on leave is likely to have
repercussions during the period of code of conduct of
local self Government, Legislature and Parliament
elections."
13.
Mr. Thakur submitted that the first ground assigned by
the learned APP that furlough is not a right of the convict is
wholly erroneous and not the correct position in law. He
pointed out that the contention that furlough leave is not the
right of the petitioner is contrary to the judgment of the Full
Bench of Gujarat High Court in the case of Bhikhabhai
Devshi Vs. State of Gujarat and Ors. 1. The Full Bench
has held that furlough is a matter of right and the same
cannot be taken away. In that behalf, he relied upon the
following observations in the Full Bench decision in the case
of Bhikhabhai Devshi (supra):
1 A.I.R. 1987 Gujarat 136.
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"13. The parole and furlough rules are part of the penal and
prison system with a view to humanise the prison system.
These rules enable the prisoner to obtain his release and
to return to the outside world for a short prescribed period.
The objects of such a release of prisoner can be read
from para 101 of the report submitted by the All India Jail
Manual Committee as also the objects mentioned in Model
Prison Manual. These objects are:
(i) to enable the inmate to maintain continuity with his
family life and deal with family matters;
(ii) to save the inmate from the evil effects of
continuous prison life;
(iii) to enable the inmate to maintain constructive hope
and active interests in life."
"14. In the Statement of Objects and Reasons for Bombay
(Prisons Amendment) Act No. 27 of 1953, the Jail
Reforms Committee had recommended and the Govt.
accepted the recommendation that;
"there should be the system of release of prisoners
on furlough under which well behaved prisoners of certain
categories should, as a matter of right have a spell of
freedom occasionally after they undergo a specified period
of imprisonment, so that they may maintain contact with
their near relatives and friends and may not feel uprooted
from society. Government accepted these
recommendations and also decided that the furlough
period should count towards the prisoner's sentence."
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xx xx xx xx
The experience has shown that the system has worked
satisfactorily. The Prisons Act, 1894 does not specifically
provide for the grant of furlough and the remission of
sentence consequent upon it. In order to place the system
on a permanent footing and to enable the Govt. to
delegate its powers to the Inspector General of Prisons, it
is necessary that the Prisons Act, 1894 should be
amended in its application to the State of Bombay."
15. Thus, the Legislature has put the furlough system in the
Act and it is made a matter of right.
16. In furtherance of these objects, the parole and furlough
rules are framed in exercise of powers under Ss.59(5) and
28 of the Prisons Act, 1894. Section 3 defines various
terms in the Act and Cls. (5A) and (5B) of S.3 define
furlough system and parole system CL (5A) added by
Bombay Act XXVII of 1953 reads as under :-
"(5A) :
"furlough system means the system of releasing prisoners
in jail on furlough in accordance with the rules for the
time being in force." Section 59(5) reads as follows :-
"S. 59 : Power to make rules : The State Govt. may make
rules consistent with this Act
.......................
Xx xx xx xx
..........................
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Thus, the rules have to be consistent with the Act as S.59
expressly provides. One more relevant provision is S.48A
(also added by Act 27 of 1953) which reads as follows:-
S. 48 A :Punishment for breach of conditions of
suspension or remission of sentence or of grant of
furlough:- If any prisoner fails without sufficient cause to
observe any of the conditions on which his sentence was
suspended or remitted or furlough or release on parole
was granted to him, he shall be deemed to have
committed a prison offence and the Supdt. may, after
obtaining his explanation, punish such offence by
(i)
a formal warning as provided in CL (i) of S.46;
(2) reduction in grade if such prisoner has been
appointed an officer of prison;
(3) loss of privileges admissible under the
remission or furlough or parole system; or
(4) loss of such other privileges as the State Govt. may
by general or special order, direct."
17. Rule 1287 of the Bombay Jail Manual is also relevant
for our present purpose. It reads as under : -
" In each case of late surrender or breach of
any of the conditions of furlough or parole, the
necessary punishment or punishments should be
awarded by the Supdt. of Prison with due regard to
the circumstances of each case. All the
punishments mentioned below or in S. 48-A of the
Prisons Act, 1894 need not necessarily be awarded
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in each case but it is left to the discretion of the
Supdt. to decide which particular punishment or
punishments should be awarded. If, in certain
cases, the Supdt. is satisfied that the overstay was
for good or sufficient reasons, he may excuse the
prisoner. However, before awarding any
punishment, the Supdt. should invariably obtain a
prisoner's explanation in each case of overstay of
period or breach of any conditions of furlough or
parole.
................
18. From the aforesaid provisions in the Prisons Act, the
definition and the creation of furlough system, there is no
doubt that the prisoners have a privilege admissible to
them under the furlough system as mentioned in R.2(17)
of the furlough rules. Even if furlough is not an absolute
right of the prisoner, nonetheless it is a right and
privilege admissible and regulated under the rules and it
can be granted, refused or withdrawn as per rules.
(Emphasis supplied)
14. Thus, even in the decision of the Full Bench of the
Gujarat High Court in the case of Bhikhabhai Devshi (supra),
it is held, as is clear from paragraph 18 thereof, that furlough
is not an absolute right of the prisoner and furlough can be
granted, refused or withdrawn as per rules. Reference is also
made in this decision to Section 48A which deals with cases
where there is breach of conditions of furlough, parole or
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remission. It is stated that if there is breach of conditions, it
can lead to loss of privilege admissible under the remission,
parole or furlough system. From this, it becomes clear that if
there is a breach, the convict can lose the privilege of
furlough.
15. In this regard useful reference may be made to a
decision of the Supreme Court in the case of State of
Maharashtra Vs. Suresh Pandurang Darvakar 2 wherein
it is observed that, " .............. But release on furlough cannot
be said to be an absolute right of the prisoner as culled out
from Rule 17". Rule 17 reads as under:-
" 17. Nothing in these rules shall be construed as conferring a
legal right on a prisoner to claim release on furlough."
16. The learned counsel for the petitioner urged that once
sub-rule 13 is applied, then, the petitioner will not be ever
entitled to be released on furlough. All other reasons then
are insignificant and irrelevant, once the benefit of furlough
is taken away by virtue of the amendment. It was further
2 AIR 2006 SC 2471 : 2006 ALL M.R. (Cri) 1839 (S.C.)
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contended that the incident occurred in 2010 and the
Notification / Circular is dated 23.2.2012 which brought
about the amendment to Rule 4. Therefore, Mr. Thakur
submitted that the amendment cannot be given
retrospective effect and cannot be applied to the petitioner.
17. Mr. Thakur submitted that in a decision dated
18.2.2014, the division Bench of this Court, Aurangabad
Bench in the case of Balu s/o. Savleram Ubale Vs The
State of Maharashtra3 has held that the rules would apply
prospectively and not retrospectively and as the convict in
the said case was convicted in the year 2002, the Circular of
23.2.2012 would not apply to the convict. As far as the issue
of prospective or retrospective effect of the circular is
concerned, the Government by Circular No. sankirn
0913/1074/CR 593/13/PRS-31 dated 13.6.2014 has clarified
that the Government Notification dated 23.2.2012 would
apply with prospective effect. Thus, now there cannot be
any dispute about the circular being retrospective or
3 Criminal Writ Petition No. 432 of 2013
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prospective as it has been clarified that the said notification would
apply with prospective effect. Mr. Thakur submitted that in view
of Balu Ubale (supra) which holds that the notification will apply
prospectively and as the offence took place prior to the circular,
the circular which is stated to apply prospectively would not be
attracted in the case of the petitioner. We find this submission to
be incorrect because in Balu Ubale (supra), the relevant date was
held to be the date of conviction and if the date of conviction was
prior to the notification, it was held that the notification would not
apply. In the present case, the petitioner was convicted after the
notification, hence, the notification would in fact apply to him.
However for reasons stated in paragraph 19 of this decision, we
are of the opinion that the decision in the case of Balu Ubale
(supra) would not be good law.
18. Reliance was also placed by Mr. Thakur on the decision
dated 5th March, 2014 of the Division Bench of this Court,
Aurangabad Bench in the case of Sardar Shahwali Khan Vs.
State of Maharashtra & Ors. 4. Mr. Thakur pointed out that in
4 Cri. Writ Petition No. 48 of 2014
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the said case, the judgment convicting the prisoner was dated
6.4.2007. The Division Bench held that the Rules amended by
Circular dated 23.2.2012 are prospective in nature and the order
rejecting the application for furlough was set aside and the matter
was relegated to the concerned authority for fresh consideration.
19. The Division Bench of this Court in the case of Subhash
Hiralal Bhosale Vs. State of Maharashtra & Anr. 5 has held
that the relevant date is the date of application for furlough and
not the date of conviction. It, therefore, follows that the relevant
date is the date of application and not date of offence or date of
conviction. Thus, it is not the date on which the offence was
registered or the prisoner was convicted and sentenced which is
relevant but the date on which he applied for furlough leave. If
the application is after 23.2.2012, the Notification / Circular
dated 23.2.2012 would apply. The decision in the case of
Subhash Bhosale (supra) is dated 4.9.2013 and the decision
in the case of Balu Ubale (supra) is dated 18.2.2014 and the
decision in the case of Sardar Khan (supra) is dated
5 2014 ALL M.R. (Cri) 4330
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5.3.2014. Both these decisions were rendered in ignorance
of the earlier decision of the Division Bench of this Court in
the case of Subhash Bhosale (supra) by which the issue was
concluded that the relevant date to be considered in relation
to the Circular dated 23.2.2012 is the date of application.
The decision in the case of Subhash Bhosale (supra) was not
pointed out when the case of Balu Ubale (supra) and Sardar
Khan (supra) were decided. Thus, it will have to be held that
these two decisions are per incuriam. In this view of the
matter, reliance on these decisions would not advance the
case of the petitioner.
20. Then, coming to the main submission of the learned
APP that if furlough leave is to be refused to prisoners
convicted for offences such as dacoity, terrorist activities,
kidnapping, smuggling, including those convicted under
NDPS Act (61 of 1985) and foreigner prisoners, then, that
has a definite nexus with the object sought to be achieved.
In introducing penal reforms, the State that runs the
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administration on behalf of the society and for the benefit of
the society at large cannot be unmindful of safeguarding the
legitimate rights of the citizens in regard to their security in
the matters of life and liberty. It is for this reason that in
introducing such reforms the authorities cannot be oblivious
of the obligation to the society to render it immune from
those who are prone to criminal tendencies and have proved
their susceptibility to indulge in criminal activities by being
found guilty (by a Court) of having perpetrated a criminal
act. One of the discernible purposes of imposing the penalty
of imprisonment is to render the society immune from the
criminal for a specified period. It is, therefore,
understandable that while meting out humane treatment to
the convicts, care is taken to ensure that kindness to the
convicts does not result in cruelty to the society. Naturally
enough the authorities would be anxious to ensure that the
convict who is released on furlough does not seize the
opportunity to commit another crime when he is at large for
the time-being under the furlough leave granted to him by
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way of a measure of penal reform. This appears to be the
object underlying Rule 4 which enjoins that prisoners of the
specified categories shall not be enlarged on furlough. It
would not be safe from the point of view of the society to
throw such a person in the midst of it thereby exposing the
society to further crimes by him. The same idea appears to
run through most of the clauses of Rule 4. It would be
dangerous to the society to release such a person on
furlough merely out of consideration of penal reform and
humane treatment. As observed earlier, consideration of
sympathy for him cannot be permitted to overshadow the
consideration regarding security of the society.
21. It was argued by Mr. Thakur that if a more serious crime
like murder was not included in the list, there was no rational
basis for including offences relating to kidnapping in sub-rule 13 of
Rule 4. Here again, the argument ignores the fact that murder
may be a crime against society but by and large an offence of
murder is committed by a person under some real or imagined
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provocation or in a moment of passion and the perpetrator of
the crime usually has a motive or animus against a particular
individual or individuals and not against the society at large.
There is, therefore, less danger of his committing a similar
crime when he is on leave on furlough whereas offences of
dacoity, terrorism, kidnapping & under NDPS Act are
offences which are directed against the entire society at
large and the entire society is exposed to the danger
emanating from them. In case of murder only that person
against whom the perpetrator has a motive or animus alone
is exposed to danger from him and not others. So far as
kidnapping, dacoity, acts of terrorism and under the NDPS
Act are concerned, any victim is a good victim and the entire
society is exposed to the risk. It is, therefore, clear that these
offences fall in a different category. Whether or not the
offence is more serious is not the relevant consideration for
withholding furlough. The relevant consideration is whether
his release will expose the society to the very danger to
shield from which the criminal is imprisoned. Therefore, the
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fact that murder may be by and large considered to be a
more serious crime is not a circumstance which in any way
impairs the reasoning underlying the selection of the
offences falling under the class specified in sub-rule 13.
22. The learned counsel for the petitioner does not dispute
that the legislature in its wisdom can make a classification of
prisoners and their conviction for serious offences. If all sub-
rules are read together and harmoniously, then, it is evident
that the Legislature intended that such of the prisoners
whose presence is considered dangerous or otherwise
prejudicial to the public peace and order or who have been
considered dangerous because of their involvement in
serious prison violence or offences which have an impact on
the entire society should not be released on furlough, then
that classification cannot be held to be arbitrary,
unreasonable, unfair and discriminatory to say the least. The
prisoners, whose conviction is for such offences, which
affect larger public interest and public good so also public
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peace cannot claim to mingle with the society as a matter of
right. Further the classification made does not suffer from
any irrationality, more so, when it is not vitiated by
arbitrariness, unreasonableness and malafides. One has to
also keep the object sought to be achieved in mind that is
to protect the larger public interest, public good and public
peace.
23. In addition to sub-rule 13 of Rule 4, all prisoners who
are convicted can be denied furlough if they fail to give
surety for maintenance of peace or good behaviour. All
prisoners irrespective of the offences for which they are
convicted can be denied furlough if they are mentally ill or
whose presence is considered dangerous or their conduct
and work has not been good during the preceding period of
12 months of their application. There are also prisoners,
whose cases are covered by sub-rule 17, 18 and 19 of Rule
4, which deny furlough leave. In these cases, there is no
distinction made in relation to the offences for which they
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are convicted. Thus what is paramount is the impact and
repercussions on the society at large, if the prisoners are
enlarged on furlough leave. The impact or release on
furlough on the society and the country as a whole,
therefore, is a very relevant and germane consideration. It is
well settled that the nature of the offences committed, for
consideration of furlough leave application, is germane and
relevant factor. This has been held by the Division Bench of
this Court in Subhash Bhosale (supra).
24. The maintenance of peace or good behaviour and
good conduct is necessary because there are crimes which
will affect the society and would be prejudicial to the
interest of public peace. Sub-rule 13 outlines such crimes
and they are heinous in nature. One cannot, therefore,
ignore that if the conviction is for offences like terrorism,
kidnapping, smuggling or under the NDPS Act, then, release
of such prisoners on furlough should be considered to be
dangerous or otherwise detrimental to public peace and
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order. They may harm the victim/complainant or the
witnesses who have deposed against them. The tendency to
take revenge cannot be ruled out. Therefore, mingling of
such persons with the society will not be in the interest of
society and that is a valid reason for this categorization.
25. If the rules provide for furlough leave and equally
contain the provisions enabling imposition of conditions for
being released on furlough leave, then, the prisoner cannot
claim it to be a matter of right. A prisoner cannot urge that
despite the provisions in the rules and contrary thereto, his
case for furlough must be considered and granted. His case
can be considered provided it falls within four corners of the
rules. The petitioner before us has understood this position
and, therefore, has raised a challenge to the validity of sub-
rule 13 of rule 4. However, we find that his challenge is not
well founded.
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26. Mr. Thakur submitted that a convict who falls under
Rule 4 can be released on parole but not on furlough, this is
highly discriminatory. However, from the Rules relating to
furlough, it is clear that furlough is to be granted for no
particular reason, hence, it can be denied in the interest of
the Society, whereas parole can be granted only on account
of sufficient cause such as case of severe illness or death
of any member of the prisoner's family or for other
sufficient cause. Therefore, parole is not a matter of right
and only when there is sufficient and serious cause the
Society and the jail administration may sometimes, have to
take some risk to release the prisoner on parole, but that
would be no ground for releasing the prisoner on routine
furlough irrespective of his past conduct and performance.
In fact parole may be denied to a prisoner even when he
makes out sufficient cause for release on parole if the
competent authority is satisfied on valid grounds that the
release of a prisoner on parole would be against the interest
of the society or the prison administration. For example, a
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prisoner who has once escaped or attempted to escape or
who is likely to escape, may be denied parole because the
competent authority has discretion ("may") to grant or not to
grant parole even when cause is shown. Therefore,
comparison of release on parole and furlough is absolutely
uncalled for.
27.
In the case of Ramchandra Raghu Naik v/s State of
Maharashtra6, the Furlough Rules have been referred to
and the Division Bench held that the Furlough Rules provide
for terms and conditions thereby, curtailing the entitlement
of furlough leave to the prisoners. Such Rules are not penal
in character. The Division Bench opined that any entitlement
prescribed under the statute can be availed within the
parameters prescribed under the statute. It was further held
that if the statute imposes a condition to claim any such
benefit under the statute, same are to be availed on
compliance of conditions and not otherwise. The provisions
regarding the entitlement of benefit has to be read along
6 2005(3) Mh.L.J. 933
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with conditions attached to the same. Being so the
entitlement has to be read along with conditions provided for
the same. The entitlement of leave would be to the extent
permissible and would not be available in cases where it is
sought to be curtailed by specific provisions in that regard.
The Division Bench held that there are Furlough Rules which
speak of the categories of prisoners who shall not be
considered for release on furlough. In turning down the
challenge raised before it that denial of furlough would
amount to a punishment or double jeopardy, the Division
Bench observed thus:-
14. Evidently, the rules make elaborate provisions regarding
entitlement as well as disentitlement of furlough leave to the
prisoner. Merely because under certain circumstances the rule
provides that a prisoner would not be entitled to furlough leave,
that does not amount to a penal provision so as to contend that
the implementation of such provision would amount to double
jeopardy in the case of a prisoner who is punished under Section
48A of the Prisons Act. The provisions relating to entitlement or
disentitlement of furlough leave do not relate to penal action on
the part of the authorities. Besides, punishment for jail offence by
the Jail Superintendent would not even bar the prosecution and
punishment in a Court for the same offence because the powers
of the jail superintendent are in the nature of administrative
authority for maintenance of discipline and to inflict summary
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punishment for breach of discipline and those proceedings are
not judicial proceedings. In a case where a military personnel
was tried in Court martial proceedings and being found guilty
was sentenced to rigorous imprisonment for one year and
subsequently was dismissed from service in an action taken
under the service Rules, the decision was upheld by the Apex
Court in Union of India v. Sunil Kumar Sarkar, reported in AIR
2001 SC 1092 holding that it does not amount to double jeopardy
under Article 20(2) of the Constitution of India and two
proceedings operate in two different fields though the crime or
the misconduct might arise out of the same act. Hence the
contention sought to be raised that on account of the punishment
having been imposed under Section 48A of the Prisons Act, the
respondents would not be entitled to deny the furlough leave by
taking resort to the provisions of law comprised under Rule 4(10)
of the Furlough Rules is devoid of substance and has to be
rejected.
28. In the case of State of Maharashtra v/s Suresh
Pandurang Darvakar (supra), the Supreme Court held thus:-
"5. ........................ But release on furlough cannot be said to
be an absolute right of the prisoner as culled out from Rule 17. It
is subject to the conditions mentioned in Rule 4(4) and 6.
..................... Since the furlough is granted for no particular
reason, it can be denied in the interest of society.
6. ..........................
7. A bare reading of Rule 4(4) indicates that release can be
refused when the same is not recommended by the
Commissioner of Police in Greater Bombay and elsewhere, by
the District Magistrate on the ground of public peace and
tranquility.
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29. In sub-rule 13, furlough is denied on the basis of gravity
of offence. In the case of Sunil Batra v. Delhi
Administration and Ors.7, the Apex Court upheld the
validity of a classification based on the gravity of the offence.
30. Useful reference may be made to a decision of the
Supreme Court in the case of State of Haryana Vs.
Jaising8.
In that case, what the Supreme Court was
considering was a case of remission to prisoners / convicts.
However, a notification giving the benefit of remission made
certain prisoners and convicts ineligible for the same. The
classification was that the convicts who have been convicted
for rape, dowry death, abduction and murder of children
below 14 years, offences of robbery, prisoners sentenced
under NDPS Act, TADA and Foreigners Act and those
detained under detention laws and found guilty of violation
of Jail Manual shall not be given such remission. That
provision came to be challenged before the Punjab and
Haryana High Court. The High Court held that it is not open
7 AIR 1978 SC 1675
8 AIR 2003 SC 1696
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to the State Government while granting general remission to
carve out special exception to cases which according to it,
could be terms as heinous offences and deny benefit of
remission to such class of convicts. Therefore, the petition of
Jail Singh was allowed.
The State of Punjab and Haryana appealed to the
Supreme Court and the Supreme Court held as under:-
"8.
The answer to the said question, in our opinion, should be
in the negative. This Court in a catena of decisions has
recognized that the gravity of an offence and the quantum of
sentence prescribed in the Code could be a reasonable basis for
a classification. This Court in State of Haryana & Ors. Vs.
Mohinder Singh etc. 2000(3) SCC 392 held : Prisoners have no
absolute right for remission of their sentence unless except what
is prescribed by law and the circular issued thereunder. That
special remission shall not apply to a prisoner convicted of a
particular offence can certainly be a relevant consideration for
the State Government not to exercise power of remission in that
case."
31. Having come to the conclusion that the gravity of the
offence can be the basis for a valid classification, we will
now consider whether the offences excluded from the
impugned notification can be said to be such offences which
have been wrongly excluded from the benefit of furlough.
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We notice that the convicts who have been excluded from
the benefit of said notification, are those convicts who have
been sentenced for offences of kidnapping, dacoity, terrorist
activities etc. The said offences can be categorized as grave
offences, therefore, they can be aptly classified as grave
offences, which classification will be a valid classification for
the purpose of deciding whether the persons who have
committed such offences should be granted furlough or not.
On this basis, we are of the opinion that the State
Government having decided not to grant furlough to these
offenders is justified in doing so.
32. Similarly, the offences under the NDPS Act, apart from
carrying heavy penal sentences are offences which could be
termed as offences having serious adverse effect on the
society, cognizance of which is required to be taken by the
State while granting furlough. Therefore, they can also be
classified as offences which should be kept out of the
purview of furlough and in our opinion, can be classified for
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exclusion from the benefit of furlough. Therefore, we are of
the opinion that the offences excluded from the benefit of
furlough under the impugned notification have been properly
classified which classification, in our opinion, is a valid
classification for the purpose of making them ineligible for
the grant of furlough.
33.
In view of the decision of the Supreme Court in Jaising
(supra), we do not see how we can take a different view in
the cases of furlough leave. If remission in sentence can be
denied as held by the Supreme Court on the ground of
gravity of offences and that can form the basis of a valid
classification, then, all the more in the case of furlough leave
we cannot take a different view. At this stage, Notification
dated 1.12.2015 was brought to our notice. By this
Notification, Rule 4 was further amended to include offence
of rape. In our opinion, the same reasoning as in the case
of sub-rule 13 to Rule 4 would apply to cases of rape.
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34. Mr. Thakur, thereafter, submitted that Clause 26.4 of
the Parole / Furlough Guidelines 2010 which were approved
by Lt. Governor, Government of NCT of Delhi which are
applicable in the case of convicts undergoing sentence in
prison was challenged before the Delhi High Court. Clause
26.4 reads as under:-
"26. In order to be eligible to obtain furlough, the prisoner must
fulfill the following criteria:-
26.1 .......
26.2. .......
26.3 .......
26.4. The prisoner should not have been convicted of
robbery, dacoity, arson, kidnapping, abduction,
rape and extortion."
Mr. Thakur pointed out that Clause 26.4 is similar to
sub-rule 13 of Rule 4 of Bombay Parole and Furlough Rules.
Mr. Thakur pointed out that the Delhi High Court held that
Clause 26.4 of the guidelines of 2010 does not stand judicial
scrutiny which makes prisoner ineligible for furlough merely
on the basis of the nature of the crime committed by them. It
would amount to snatching their right to at least consider
their cases for grant of furlough. Mr. Thakur stated that
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observing thus, guideline 26.4 was struck down as
unconstitutional. As far as this contention is concerned, the
vires of sub-rule 13 was challenged before this Court in the
case of Subhash Bhosale (supra). The Division Bench after
considering the issue in detail, negated the contention that
sub-rule 13 of Rule 4 violates the mandate of Articles 14 and
21 of the Constitution of India. The decision of the Delhi
High Court at the most can only have persuasive value and it
is not binding on this court. Moreover, when we have a
decision of this Court on the issue in the case of Subhash
Bhsale (supra), we are bound to follow the decision of this
Court.
35. In view of the above, there is no substance in the
argument that the mandate of Articles 14 and 21 of the
Constitution of India is violated and sub-rule 13 of Rule 4 falls
foul of that mandate. It is not possible to uphold the
contention that sub-rule 13 of Rule 4 is discriminatory in
character and is violative of Article 14 of the Constitution of
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India. We are of the opinion that the classification has a
rational basis and has a distinct nexus with the underlying
object of the legislation and that it does not introduce any
element of hostile discrimination. In the result, we come to
the conclusion that sub-rule 13 of Rule 4 is valid and intra
vires and not vulnerable to the charge of being violative of
Article 14 of the Constitution of India.
36. For all the above reasons, we do not find any substance
in the challenge to the validity of sub-rule 13 of Rule 4. As a
result, the Writ Petition fails. Rule is discharged.
37. In view of disposal of the Writ Petition, nothing survives
in the Criminal Application, the same is disposed of
accordingly.
[ SMT. ANUJA PRABHUDESSAI, J ] [ SMT. V.K. TAHILRAMANI, J. ]
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