Bombay High Court
Santosh N. Bhukan vs The State Of Maharashtra on 5 May, 2016
Bench: V.K. Tahilramani
1. cri wp 3325-14.doc
RMA
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO. 3325 OF 2014
Santosh Namdeo Bhukan
C/16658, Age - 38 Years,
Convict, Presently lodged in
Yerawada Central Prison, Pune. .. Petitioner
Versus
The State of Maharashtra
(Home Ministry) .. Respondent
ig ...................
Appearances
Ms. Rupali Manik Shinde Advocate (appointed) for the Petitioner
Mrs. A.S. Pai APP for the State
...................
CORAM : SMT. V.K. TAHILRAMANI &
SMT. ANUJA PRABHUDESSAI, JJ.
Reserved on : APRIL 12, 2016.
Pronounced on : MAY 5, 2016
JUDGMENT [ PER SMT. V.K. TAHILRAMANI, J. ] :
1. Rule. Respondent waives service. By consent rule made
returnable forthwith.
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
jfoanz vkacsjdj 1 of 36
1. cri wp 3325-14.doc
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 364, 302 and 201 of
IPC by Judgment and Order dated 24.5.2013 passed in
Sessions Case No. 105 of 2011.
ig 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.
3A. The case of the petitioner is that he preferred an
application for furlough, however, in view of the notification
dated 23.02.2012, he took it back. The petitioner took his
application for furlough back because in view of the
notification dated 23.02.2012 whereby sub-rule 13 was
added to Rule 4, his application for furlough would be
rejected by the competent authority. The case of the
jfoanz vkacsjdj 2 of 36
1. cri wp 3325-14.doc
petitioner is that other prisoners also who had been
convicted for the offences of kidnapping or for terrorist crime
or under the Narcotic Drugs and Psychotropic Substances Act
used to be earlier released on furlough, however, after the
circular, they have not been granted furlough. The petitioner
has thus prayed that he be released on furlough.
4.
Rule 4 set out the cases when prisoners shall not be
granted furlough. Though the entire Notification is
challenged, we are concerned mainly 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. 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
jfoanz vkacsjdj 3 of 36
1. cri wp 3325-14.doc
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 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.
jfoanz vkacsjdj 4 of 36
1. cri wp 3325-14.doc
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
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.
jfoanz vkacsjdj 5 of 36
1. cri wp 3325-14.doc
9. We are unable to accede to the argument addressed to
us by the learned counsel on behalf of the petitioner for
reasons which will become presently evident.
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;
jfoanz vkacsjdj 6 of 36
1. cri wp 3325-14.doc
(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;
(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
jfoanz vkacsjdj 7 of 36
1. cri wp 3325-14.doc
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.
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;
jfoanz vkacsjdj 8 of 36
1. cri wp 3325-14.doc
(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
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
ig period of code of conduct of
local self Government, Legislature and Parliament
elections."
13. The learned counsel for the petitioner 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. She 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, she relied upon the following observations in the
1 A.I.R. 1987 Gujarat 136.
jfoanz vkacsjdj 9 of 36
1. cri wp 3325-14.doc
Full Bench decision in the case of Bhikhabhai Devshi (supra):
"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
jfoanz vkacsjdj 10 of 36
1. cri wp 3325-14.doc
recommendations and also decided that the furlough
period should count towards the prisoner's sentence."
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."
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
..........................
jfoanz vkacsjdj 11 of 36
1. cri wp 3325-14.doc
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
jfoanz vkacsjdj 12 of 36
1. cri wp 3325-14.doc
Prisons Act, 1894 need not necessarily be awarded
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.
................
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
jfoanz vkacsjdj 13 of 36
1. cri wp 3325-14.doc
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.)
jfoanz vkacsjdj 14 of 36
1. cri wp 3325-14.doc
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, the learned
counsel for the petitioner submitted that the amendment
cannot be given retrospective effect and cannot be applied
to the petitioner.
17.
Ms. Shinde, the learned counsel for the petitioner
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 Maharashtra 3 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
3 Criminal Writ Petition No. 432 of 2013
jfoanz vkacsjdj 15 of 36
1. cri wp 3325-14.doc
prospective effect. Thus, now there cannot be any dispute
about the circular being retrospective or prospective as it
has been clarified that the said notification would apply with
prospective effect. Ms. Shinde 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.
jfoanz vkacsjdj 16 of 36
1. cri wp 3325-14.doc
18. Reliance was also placed by Ms. Shinde 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. Ms. Shinde pointed
out that in 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
4 Cri. Writ Petition No. 48 of 2014
5 2014 ALL M.R. (Cri) 4330
jfoanz vkacsjdj 17 of 36
1. cri wp 3325-14.doc
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
5.3.2014. 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.
jfoanz vkacsjdj 18 of 36
1. cri wp 3325-14.doc
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 as set out in
sub-rule 13 or those prisoners whose presence is considered
dangerous as set out in sub-rules 11 and 12 or those whose
release is likely to have repercussions elsewhere is the
country, then, that has a definite nexus with the object
sought to be achieved. In introducing penal reforms, the
State that runs the 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
jfoanz vkacsjdj 19 of 36
1. cri wp 3325-14.doc
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
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 including those
added by Notification dated 23.02.2012. It would be
jfoanz vkacsjdj 20 of 36
1. cri wp 3325-14.doc
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 Ms. Shinde that if a more serious
crime like murder was not included in the list, there was no
rational basis for including offences stated in sub-rules 11 to
19 of Rule 4. Here again, the argument ignores the fact that
though 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 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
jfoanz vkacsjdj 21 of 36
1. cri wp 3325-14.doc
the entire society at large and the entire society is exposed
to the danger emanating from them. Same is the case with
prisoners who are considered dangerous as stated in sub-
rule 11, 12 and 18. Similarly, release of mentally ill persons
who have not recovered would be dangerous to society. 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 any danger. Therefore,
the 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-rules 11, 12,
jfoanz vkacsjdj 22 of 36
1. cri wp 3325-14.doc
13, 15, 17 to 19. As far as sub-rule 14 is concerned, it would
not be advisable to release a person on furlough who cannot
give surety for maintaining peace or good behaviour. Same
is the case with sub-rule 16. If a prisoner when under
constant check in prison does not maintain good conduct,
then such a person when released on furlough would all the
more not maintain good conduct because when he is
released, there would not be a constant check on him.
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
jfoanz vkacsjdj 23 of 36
1. cri wp 3325-14.doc
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
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
jfoanz vkacsjdj 24 of 36
1. cri wp 3325-14.doc
12 months of their application. We have already observed in
paragraph 21 above why we are of the opinion that release
of prisoners falling under these categories is not advisable.
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 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
jfoanz vkacsjdj 25 of 36
1. cri wp 3325-14.doc
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 would be considered to be
dangerous or otherwise detrimental to public peace and
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
jfoanz vkacsjdj 26 of 36
1. cri wp 3325-14.doc
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
notification dated 23.02.2012 and more particularly sub-rule
13 of rule 4 which covers the case of the petitioner.
However, we find that his challenge is not well founded.
26.
The learned counsel for the petitioner 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
jfoanz vkacsjdj 27 of 36
1. cri wp 3325-14.doc
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
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
6 2005(3) Mh.L.J. 933
jfoanz vkacsjdj 28 of 36
1. cri wp 3325-14.doc
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
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
jfoanz vkacsjdj 29 of 36
1. cri wp 3325-14.doc
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
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:-
jfoanz vkacsjdj 30 of 36
1. cri wp 3325-14.doc
"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.
29. In sub-rules 12 & 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
7 AIR 1978 SC 1675
8 AIR 2003 SC 1696
jfoanz vkacsjdj 31 of 36
1. cri wp 3325-14.doc
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
to the State Government while granting general remission to
carve out special exception to cases which according to it,
could be termed 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.
jfoanz vkacsjdj 32 of 36
1. cri wp 3325-14.doc
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.
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
jfoanz vkacsjdj 33 of 36
1. cri wp 3325-14.doc
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
ig should be kept out of the
purview of furlough and in our opinion, can be classified for
exclusion from the benefit of furlough. In State of Haryana
Vs Jaisingh (supra), the Supreme Court upheld the provision
whereby prisoners found guilty of violation of Jail Manual
were excluded from remission. In such case, exclusion of
prisoners from furlough if their conduct has not been good
for the last one year can be upheld. Moreover, in paragraph
21 of this judgment, we have already observed why release
of a prisoner in cases covered by sub-rules 11 to 19 is not
advisable. Therefore, we are of the opinion that the offences
excluded from the benefit of furlough under the impugned
jfoanz vkacsjdj 34 of 36
1. cri wp 3325-14.doc
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
ig Supreme Court on the ground of
gravity of offences or the conduct of the prisoner 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.
34. 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-rules 11 to 19 of
Rule 4 and more specifically sub-rule 13 of Rule 4 fall foul of
that mandate. It is not possible to uphold the contention
that sub-rules 11 to 19 of Rule 4 is discriminatory in
jfoanz vkacsjdj 35 of 36
1. cri wp 3325-14.doc
character and is violative of Article 14 of the Constitution of
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-rules 11 to 19 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.
35. For all the above reasons, we do not find any substance
in the challenge to the validity of sub-rules 11 to 19 of Rule
4. As a result, the Writ Petition fails. Rule is discharged.
[ SMT. ANUJA PRABHUDESSAI, J ] [ SMT. V.K. TAHILRAMANI, J. ]
jfoanz vkacsjdj 36 of 36
