Mohd. Sagir Bashir Chauhan vs The Deputy Inspector General Of ...
2022 Latest Caselaw 12021 Bom

                                                                  8judg WP 596.2022.odt
                                           1

             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                       NAGPUR BENCH : NAGPUR

               CRIMINAL WRIT PETITION (WP) NO. 596/2022

         Mohd. Sagir Bashir Chauhan,
         aged about 60 years, Occ: Nil,
         Convict No. C-2847,
         Presently at Central Prison, Amravati.                    ..... PETITIONER

                                   // VERSUS //

1.       The Deputy Inspector General of
         Prisons, Eastern Region, Nagpur.

2.       The Superintendent,
         Amravati Central Prison, Amravati.                   .... RESPONDENT(S)

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Mr. Sumit G. Joshi, Advocate (Appointed) for the petitioner Mr. S.M. Ghodeswar, APP for respondent nos. 1 and 2

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CORAM : SUNIL B. SHUKRE AND M. W. CHANDWANI, J.J.

                      DATED      : 23/11/2022

ORAL JUDGMENT : (PER:- SUNIL B. SHUKRE, J.)


               Heard.


2              Rule. Rule made returnable forthwith. Heard finally by

consent.

3. An additional reply of respondent no. 2 is taken on record.

On going through it, it becomes clear that this very petitioner has been

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released by the Authority on furlough on six occasions in the past. These

occasions were of the year, 2008, 2012, 2015, 2016, 2019 and 2021.

The reply further shows that on each of the occasions, the petitioner had

surrendered himself to the Jail Authority on due date. In other words,

there has been not a single occasion when the petitioner has jumped

furlough. If, this is the record of the petitioner, we do not understand as

to why this time the petitioner has been denied the benefit of furlough

leave. We have tried to get some clues in this regard by going through

the impugned order. In the impugned order, however, what is stated are

the stereotyped reasons which do not satisfy us to say that the petitioner

is a kind of person who would not return to Jail, if he is released on

furlough. Past conduct of a person like the petitioner in such a matter is

very important and unfortunately same has not been considered while

passing the impugned order. The impugned order states only generalized

reasons like; the crime committed by the petitioner was heinous, there

still existed public wrath against the petitioner due to which, if the

petitioner was released on furlough, he might face some violence and

that, there would be possibility of disturbance of law and order situation,

if the petitioner was enlarged on furlough. These reasons do not make

any reference to any particular or specific instance on the basis of which

one can make a conclusion that the petitioner may face violence out of

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public outrage that is still going on against him or that there would be

possibility of disturbance of law and order.

4. In Criminal Writ Petition No. 355/2018 filed by this

petitioner challenging the order dated 31.01.2018 passed by the D.I.G.,

Prison, Nagpur rejecting his application for grant of furlough leave for a

period of 28 days, this Court took into account past conduct of the

petitioner and ruled in favour of the petitioner. It also took into account

the nature of proposed sureties and came to the conclusion that the

sureties proposed by the petitioner had already undertaken to return the

petitioner to the Prison on the due date. These very grounds are

available here also and so, we are of the view that this petition too

deserves to be allowed.

5. Before parting with the judgment, we would like to

emphasize upon the nature of functions and duties to be discharged by

respondent no. 1. The petitioner is a prisoner who has been denied

furlough leave not on one occasion but, on several occasions, as pointed

out by the learned Counsel for the petitioner. The petitioner, as

submitted by the learned Counsel for the petitioner, was required to

knock at the doors of the Court, every time when there was rejection of

his furlough application and on each of the occasions, the impugned

order depriving the petitioner of furlough leave has been quashed by this

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Court and the petitioner has been directed to be released on furlough

leave. Our experience has been that on each of the occasions when the

application of furlough leave was rejected, the concerned authority i.e.

Inspector General of Prisons, Nagpur had passed stereotyped orders,

without there being any application of mind to the available facts. In

fact, it is the duty of the Deputy Inspector General of Prisons to exercise

his power and discharge his duties by carefully considering all relevant

facts and circumstances and the applicable Rules. The applicable Rules

are the Prisons (Bombay Furlough and Parole) Rules, 1959 (for short the

"Prisons Rules, 1959"). Rule 2 of the Prisons Rules, 1959 confers

discretion upon the Deputy Inspector General of Prisons (Regional) to

appropriately decide the applications for grant of furlough. The

discretion conferred upon the sanctioning Authority i.e. the Deputy

Inspector General of Prisons, who is respondent no. 1 here, is not

unguided and uncanalized. It is a discretion which is controlled by

various provisions made in the Prisons Rules, 1959 and these provisions

are to be found to be contained in Rules starting from Rule 4 and ending

with Rule 17 of the Prisons Rules, 1959. Detailed procedure is prescribed

in Rule 8 of the Prisons Rules, 1959 as to how the applications for grant

of furlough leave should be dealt with. Sub-rule 7 of Rule 8 of the

Prisons Rules, 1959 makes it mandatory for the Authority to consider the

furlough applications and to record the reasons for rejecting the furlough

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request and cause the same be conveyed to the concerned prisoner. The

requirement of recording of reasons under Rule 8(7) of the Prisons

Rules, 1959 is not an empty formality and certainly, is not a license for

passing an order recording same old reasons almost like a cliché. It is a

well settled principle of law that whenever there is discretion, it comes

with responsibility to exercise it reasonably, fairly and in a manner as to

fulfill the object of legislation under which it is given.

6. The Prison Rules, 1959, primarily, have three objects to

fulfill, which have been pointed out by the Full Bench of the Gujrat High

Court in the case of Bhikabai Vs. State of Gujrat and others [AIR 1987

Guj 136]. They are as follows:-

"(i) to enable the inmate to maintain continuity with his family life and deal with the 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 interest in the life."

7. In the case of Pralhad D. Gajbhiye Vs. State of Maharashtra

[1994 Cri L J 2555], the co-ordinate Bench of this Court has reiterated

the view taken in the case of Bhikabai (supra) wherein, the Division

Bench said that the principle object of grant of furlough is to enable the

prisoner to have family association and to avoid ill-effects of continuous

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prison life. This view has been reiterated in several other judgments of

this Court. Thus, the object of Rules relating to grant of furlough to a

prisoner is to enable him to communicate himself with his family

members intermittently, so that he does not loose his sense of sociability

and either becomes a distressed and disturbed man or develops into a

hardened criminal. Both these states are dangerous to the welfare of the

society. That is the reason why the Hon'ble Shri Justice V. R. Krishna Iyer,

in the case of Indersingh Vs. State of Delhi [AIR 1978 SC 1091], found

that there was need for issuing certain positive directions in the matter

of grant of parole and said "responsible as the court is to ensure that the

deprivation of liberty is accompanied by curative strategy and human

dignity."

8. The law governing the subject of furlough, as discussed

earlier, requires no further elaboration of it here except in saying that the

exercise of the discretion in the matter of grant of furlough leave must

accord itself to the principles of reasonableness, fairness and also the

object of the Rules and it must be exercised for reasons properly

recorded with due application of mind to the relevant facts and

circumstances of the case.

9. We may point out here some of the consequences of not

recording proper reasons with due application of mind by sanctioning

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Authority. Whenever, such mechanical orders are passed, inconvenience

to the petitioner, delay in finally disposing of such matters and putting

additional burden on the State exchequer because of the requirement of

the prisoner being provided with Legal Aid at the State expense for

challenging the order come as inevitable consequences and casualty of

justice follows, which can be avoided. We are, therefore, of the view

that the sanctioning Authority under the Prisons Rules, 1959 must

ensure to exercise due care and caution in deciding applications for

furlough leave, while keeping in view the settled principles of law.

10. However, a request is made by the learned Counsel for the

petitioner that as the petitioner has been compelled to approach this

Court because of passing of the impugned order in a mechanical manner

by respondent no. 1, the costs of the petition should be borne by the

concerned Prison Authority. Considering the manner in which the

impugned order has been passed, recording some worn out reasons,

thereby revealing non-application of mind to the important and relevant

facts of the case and also the fact that, this is not the first occasion when

the petitioner has been required to experience inconvenience, delay and

injustice, we are of the view that prayer made by the learned counsel for

the petitioner is reasonable and deserves to be granted.

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11. For the reasons stated above, the criminal writ petition is

allowed with costs, which shall be paid by respondent no. 2 by

depositing it with High Court Legal Services Sub-Committee, Nagpur,

with right to recover the same from the concerned officer, in accordance

with law. The impugned order is hereby quashed and set aside.

12. Respondent no. 1 is directed to release the petitioner on

furlough leave as per his entitlement, subject to such reasonable

conditions as may be imposed in the discretion of respondent no. 1

within a period of seven days from the date of receipt of the copy of this

order.

13. We direct the High Court Legal Services Sub-Committee,

Nagpur to quantify the costs of the petition and inform the same to

respondent no. 2 for its due payment by respondent no. 2.

14. We further direct respondent no. 2 to make the payment of

quantified costs within a period of seven days from the date of the

receipt of the communication in that regard by it.

15. We grant liberty to the Inspector General of Prisons, Pune to

consider the recovery of the costs of the petition, in accordance with law,

from the concerned officer, if thought fit.

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16. Legal remuneration be paid to the learned Advocate

(Appointed) for the petitioner as per rules.

17. Rule is made absolute in the aforesaid terms.

                         (M. W. CHANDWANI, J.)               (SUNIL B. SHUKRE, J.)




           Personal
           Assistant to the
           Hon'ble Judge
SANDIP     Digitally signed
           by SANDIP
MAHADEV    MAHADEV
GATE       GATE
           Date:
           2022.11.24
           17:54:25 +0530




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