Subhash Hiralal Bhosale Vs the State of Maharashtra and Another - Citation 1103956 - Court Judgment

Judgment:

Oral Order: (Dharmadhikari, J.)

1] Rule. Respondents waive service. By consent rule made returnable forwith.

2] A very short question is involved in this petition under Article 226 of the Constitution of India. It is directed against an order passed by the Competent Authority exercising powers under Prisons (Bombay Furlough and Parole) Rules, 1959.

3] The petitioner is the original accused No.1 in Sessions case No.489 of 2010. He was arrested on 3rd April 2010 by Hinjewadi Police Station for offences punishable under section 376(2), 366, 342, 506(II) read with 120(B) of Indian Penal Code. On 21st October he was convicted and sentenced to suffer life imprisonment by the Sessions Court, Pune. He preferred an appeal before this Court. It appears from the record that his appeal is pending.

4] The petitioner has referred to the prosecution case in some details but what we find is that it is not relevant as the conviction and sentence has been recorded for the offences punishable inter alia under section 366 of Indian Penal Code.

5] The petitioner was lodged in the prison; has undergone substantial sentence. According to him, he applied for furlough leave but that application was rejected on 16th April 2012 by the Competent Authority and a copy of the said order in that behalf is at Annexure âAâ.

6] The petitioner preferred an appeal before the appellate authority namely, Inspector General (Prisons), Pune and the petitioner states that his appeal was rejected by the order dated 30th October 2012.

7] The case of the petitioner is that though his brother in law filed an affidavit that he would stand surety for the petitioner and that he undertakes that the petitioner will surrender after furlough leave period is over, still, the competent authority and the appellate authority ignored this affidavit and rejected his furlough leave application. Aggrieved thereby, this petition has been filed.

8] Mr.M.M.Najmi, learned Counsel appearing for petitioner submitted before us that the competent authority has rejected petitioner's application on the ground that the Assistant Commissioner of Police (Crime-II), Additional Commissioner of Police (Crime) Pune City have given an adverse report and that the petitioner is likely to abscond if released on furlough leave. The appellate authority has travelled much beyond this and held that firstly, the furlough leave is not the right of the prisoner. The petitioner is a habitual offender and there are ten crimes registered against him at the Hinjewadi police station. Thirdly, there are adverse reports of the above two authorities dated 29^th March 2012.

9] Finally, Mr.Najmi submits that the rejection is also on the ground that the petitioner is convicted and sentenced to suffer imprisonment for offences punishable under section 366 of Indian Penal Code. Such a person is not entitled to furlough leave in terms of Rule 4 of the Prisons (Bombay Furlough and Parole) Rules, 1959 (for short 1959 rules). Mr.Najmi submits that the reasons namely, the nature of the offence, its gravity and it being under section 366 of Indian Penal Code cannot be said to be a valid ground for rejection of furlough leave. Mr.Najmi has also handed over written submissions in which there is a challenge raised to the provisions by which the authorities are empowered to refuse furlough leave in case of convicts/ prisoners undergoing sentence for the offences of kidnapping. Mr.Najmi submits that the main offence for which the petitioner has been convicted is under section 376(2)(g) and directed to undergo life imprisonment. Other offences punishable are under section 366 and for which sentence is of 10 years. The petitioner is, therefore, undergoing only one sentence and that is for the main offence. The lesser offences merge into the main offence. The petitioner cannot be taken to be undergoing two separate sentences and, therefore, the doctrine of merger is applicable.

10] Mr.Najmi submits 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 deprived of that right although, his conviction and sentence is prior to the amendment to Rule 4. Therefore, that amendment should not be held to be applicable to the petitioner. That should be given prospective effect.

11] Lastly, it is submitted that the Rules do not mean that the application for furlough has to be dismissed. 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. Mr.Najmi has urged that in conviction for serious offences like murder, the prisoner is not prevented from applying for furlough and the authority can grant such leave. Therefore, why the petitioner and prisoners like him are denied this leave is not explained at all. In such circumstances, the amendment be held to be ultra vires Article 14 of the Constitution of India.

12] The learned APP on the other hand has submitted that the reasons for denial of furlough leave have been set out. We have also had the benefit of the argument of learned Advocate General and he has pointed out to us that 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. The learned Advocate General has pointed out that the petitioner applied for furlough leave to the Deputy Inspector General of Prisons in February 2012. The adverse reports noted above resulted in rejection of his application by the competent authority and, thereafter, he approached the appellate authority.

13] The petitioner has been convicted for offences punishable under section 376, 366, 342, 120B and 506 of the Indian Penal Code. The guidelines and particularly Rule 4(1), 4(4), 4(6) and Rule 4, amended sub-rule (13) were applied. Apart from the cases registered against the petitioner, what has been pointed out is that there is a threat to the life of the complainant. The surety furnished by the petitioner is a Rickshaw Driver and would not be in a position to control the activities of the convict. There is every possibility of the convict not surrendering in time and possibility of his absconding is not ruled out. Therefore, all such rules have been applied and as noted above, the application has been rightly rejected.

14] With the assistance of the learned Counsel appearing for parties, we have perused the writ petition and the annexures thereto and the affidavit placed on record. We have also 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.

15] The amendment to the extent of Rule 4, referred to as the principle Rule reads thus:-

â2. In rule 4 of the Prisons (Bombay Furlough and Parole) Rules, 1959 after sub-rule (1), the following sub-rules shall be inserted, namely :-

â(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 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.â

16] Strictly speaking it is not necessary for us to decide the questions of constitutional validity of the Rule because the application of the petitioner has been rejected on several grounds. However, Mr.Najmi submits that the first ground assigned is wholly vitiated in law. The conclusion 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., reported in A.I.R. 1987 Gujarat 136. He submits that the distinction between furlough leave and parole is not at all appreciated. 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.

â13. 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."

â14. 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.â

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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 (SA) added by Bombay Act XXVII of 1953 reads as under :-

â(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 â

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(5) for the award of marks, the suspension or remission and consequent shortening of sentences, and the grant of release on parole or furlough and determining the conditions on which and the authority by which the sentences may be suspended or remitted and the prisoners may be released on parole or furlough."

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.48A: 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."

â18. 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.â

17] However, the petitioner has attempted to challenge the second reason by filing an affidavit. In the affidavit what the petitioner's wife has urged is that the petitioner is convicted in C.R.No.87 of 2010 and is undergoing imprisonment for life. He is acquitted in C.R.No.3070 of 2007 and other cases which are referred to in the affidavit of the respondents are non-cognisable in nature and for the same he could not be denied furlough and by terming him as a habitual offender.

18] As far as third reason assigned is concerned that is with regard to the adverse report. We have noted the contents of the affidavit filed by the Joint Secretary of Home Department, Maharashtra State in reply to this petition. We do not find that the reasons assigned namely an adverse report against the petitioner can be said to be vitiated by any error of law or perversity. We are not concerned as to in how many cases the petitioner was acquitted or convicted. The adverse police report is based upon the registration of 10 cases against the petitioner by the very police station namely Hinjewadi Police Station. Therefore, the adverse report refers to the registration of cases and further the threat to the life of the complainant. It, then, recommends that the petitioner's furlough leave application should be dismissed or rejected. Such a reason is relevant because it is the authorities who are the best Judge of the situation. If the petitioner's antecedents and record is not conducive or favourable to his release on furlough leave, then, such an opinion of the authorities cannot be interfered with by us in our writ jurisdiction. Even if another view is possible, we cannot substitute the subjective satisfaction of the competent authority by our own judgment or opinion. More so, when it is not vitiated by arbitrariness, unreasonableness and malafides.

19] However, what we find is that the competent authority rejected the application of the petitioner only on this ground and further that it is apprehended that if enlarged on furlough leave, the petitioner will abscond. The appellate Authority travelled much beyond and also rejected the application on the ground that the petitioner is dis-entitled for furlough leave because of the stringent provisions reproduced above.

20] Since that also is a ground assigned Mr.Najmi urged that the petitioner wants this Court to give a ruling on this aspect, because once this sub-rule 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 right itself is taken away by virtue of the amendment. He, therefore, prays that the amendments be held to be prospective. It is not possible to accept this contention. There is no question of such amendment being termed as prospective in its application or applied retrospectively. Apart therefrom, we find that in this case, the petitioner applied for furlough leave in February 2012 by which time, the rules were brought into effect. Further, when the petitioner's application was placed before the competent authority and when it passed an order on 16th April 2012, the amendment was very much in force. Therefore, the first submission of Mr.Najmi that the amendment should be given retrospective effect and must not be applied to the petitioner should fail.

21] It is not the date on which the petitioner was convicted and sentenced which is relevant but the date on which he applied for furlough leave. The furlough leave provisions will apply when the petitioner is undergoing sentence and applies for leave, that being within the period of the notification the amended rules have been rightly applied.

22] Then, coming to the main contention that if furlough leave is to be refused to prisoners convicted for offences such as dacoity, terrorist, 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. Mr.Najmi 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, 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 peace, then, they cannot claim to mingle with the society as a matter of right. Further the classification made does not suffer from any irrationality and has a definite object sought to be achieved because such of the prisoners who are likely to escape would not then be available for serving their remaining sentence, cannot be released on parole. 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 their conduct and work has not been good during the preceding period of 12 months of their application.

23] There are also prisoners, whose cases are covered by sub-rule 17, 18 and 19 of Rule 4, which deny furlough leave. Therefore, there is no distinction made for 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. The maintenance of peace or good behaviour and 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 including under the NDPS Act, then, release of such prisoners on furlough should 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.

24] To our mind, the distinction between the furlough and parole is also important. The furlough means leave of absence whereas parole means a conditional and revocable release of prisoner serving unexpired sentence.

25] In a decision reported in 2004(1) B.C.R. (Criminal), 453, the learned Single Jude of this Court held that all the prisoners as of right are entitled to furlough leave on furnishing appropriate and competent surety. While there could be no debate on this conclusion of the learned Single Judge what we find is that the rules themselves do not create an absolute right but the release on furlough is subject to compliance with the requirements stipulated in the rules themselves. 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.

26] As early as in 1994, in a decision reported in 1996(1) Bombay C.R. 522 (PralhadDnyanoba Gajbhiye v/s The State of Maharashtra and another), a challenge was raised to Rule-3 of the Furlough Rules and essentially on the ground that distinction will have to be made in the matter of furlough leave between Under trial Prisoners and post convict Prisoners by the Jail Authorities. In dealing with that, this is what the Division Bench has observed:-

â6. The scheme of grant of furlough is that after a convict has been sentenced, on completion of a particular period of imprisonment undergone, he should be provided to have a social interaction with an intention that he forgets bitterness and sufferings for a while.

In (Bhikhabhai Devshi v. State of Gujarat and others), 1987 Cri. L.J. 1932, the Full Bench of the Gujarat High Court while construing the provisions of the Prisons Act, 1894 and provisions of Rule 4 of the Furlough Rules, held as under:-

"The learned Counsel for the petitioner has submitted that the prisoners surrendering late are disqualified for furlough only under Rule 4(10) and they are not disqualified for parole. If they can be released on parole and if there is no danger to the society emanating from them, there is no reason why furlough should be denied to them. It is to be noted that furlough and parole have two different purposes. Furlough is a matter of right, parole is not so. Furlough is to be granted periodically under Rule 3 irrespective of any particular reason merely with a view to enable the prisoner to have family and social ties and to avoid ill effects of continuous prison life, and the period of furlough is treated as remission of sentence, since furlough is to be granted for no particular reason, it can be denied in the interest of the Society, whereas parole is to be granted only on a sufficient cause (Rule 19) such as cases of severe illness or death of any member of the prisoner's family or of his nearest relative 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. Even 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 of the prison administration. For example, a prisoner who has once escaped or attempted to escape or who is likely to escape or has such means and resources, may be denied parole because under Rule 19, 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. This contention of the petitioner deserves to be rejected."

7. The Division Bench of this Court in (Sharad Keshav Mehta v. State of Maharashtra and others), 1989 Cri. L.J. 681, held that the right to be released on furlough is a substantial and legal right conferred on the prisoner and Rule 17 cannot deprive the prisoner of the substantial right to be released on furlough provided the requirements of the rule are complied with. This Court held thus:-

"The right to be released on furlough is a substantial and legal right conferred on the prisoner. Rule 17 cannot deprive the prisoner of the substantial right to be released on furlough provided the requirements of the rule are complied with. It is not open to the Home Department of the State Government to prescribe rules giving facility of release of the prisoner on furlough by one hand and then providing that the prisoner has no legal right to be released on furlough. The view that even if the conditions prescribed by the rules are satisfied the Government is not bound to release the prisoner on furlough overlooks the distinction between the right to be released on parole and the right to be released on furlough. Parole is granted for certain emergency and release on parole is discretionary right while release on furlough is a substantial right and accrues to a prisoner on compliance with certain requirements. The idea of granting furlough to a prisoner is that the prisoner should have an opportunity to come out and mix with the society and the prisoner should not be continuously kept in jail for a considerable long time".

8. In (Sharad Bhiku Marchande v. State of Maharashtra and others), 1991 Cri.L.J. 2109 : 1990(3) Bom. C.R. 633, the Division Bench of this Court followed the aforesaid judgment in the case of Sharad Keshav Mehta v. State of Maharashtra and others, 1989 Cri. L.J. 681 cited supra and held as under:-

"With respect we agree with the view taken by the Division Bench in the case of Sharad Keshav Mehta (1989 Cri LJ 681) (Bombay) (supra). It must, therefore, follow that under the Furlough Rules the prisoner has got a substantial and legal right subject to Rule 17 and whenever the prisoner makes an application for furlough under the Furlough Rules, the authority must consider the said application on merits and pass appropriate orders".

9. It is thus well settled that grant of furlough is a substantial legal right which a prisoner is entitled on fulfilment of the conditions provided in Furlough Rules. â¦........â

27] In a later decision while applying the Prisons (Bombay Furlough and Parole) Rules, 1959 and in dealing with an argument as to whether parole is restricted to a serious illness or death of any member of the Prisoner's family or his close relative only, a Division Bench of this Court in a decision reported in (2002) 3 Mh.L.J. 226 (ManjulabaiKisna Gulabe v/s State of Maharashtra), observed as under:-

â13. In the instant cases before us the Competent Authority has declined to release the prisoners on parole only on the ground that Rule 19 of the said Rules which is reproduced hereinabove, does not in terms state that the prisoner would be entitled to be released on parole on account of attending the marriage of his nearest relatives. Rule 19, in its present form, has been substituted by Maharashtra vide Notification No. PAR. 4582/1/PRS-2, dated 21-11-1989. Prior to the amendment, the prisoner was entitled to be released on the ground of serious illness or death of any member of the prisoner's family or of his close relatives or for any other sufficient cause. It is submitted by the learned A.P.P. appearing on behalf of the State that the 'words' or for any other sufficient cause, have been omitted and, therefore, the ground of attending the marriage of the relatives would not be covered under Rule 19.

14. It is pertinent to note that the Government of Gujarat where the said rules of parole and furlough are applicable, has issued a Circular No. MISC-1065-2064-Sachivalaya Ahmadnagar dated 31-12-1968 providing guiding principles for the release of the prisoner on parole as provided under Rule 19 of the Prison (Bombay Furlough and Parole) Rules, 1959, in which the sufficient causes, for grant of parole, have been enumerated from Clause (a) to (f). Clause (a) reads as follows :

"Marriage of the prisoner himself or any of his children or the marriage of the prisoner's sister if he has no living partner".

15. We have perused the various Acts and the Rules, Notifications issued by the Government from time to time and also the Judgment of the Apex Court, the decision of the Gujarat High Court, Judgments of this Court. In our view, under the peculiar facts of the present cases, the petitioners would be entitled to be released on parole for a period of 4 weeks in the case of the mother and for 2 weeks in the case of the brother and father. In our view, the Competent Authority has construed the provisions of Rule 19 in a very narrow manner. The purpose of Rule 19 is to afford an opportunity to the prisoner to meet his relatives and to take part in not only the moment of sorrow, illness or death but also in the moment of joy such as a occasion of marriage of his daughter or sister. In the present case, father, mother and son i.e. the entire family is in jail and the marriage of the daughter is being performed. In our view, under the peculiar facts of the present case, the petitioners are entitled to be released on parole for a short period. It is not a case of the Competent Authority that the prisoners the petitioners herein are likely to abscond or misuse that liberty. The past record of the prisoners petitioners herein, is good inasmuch as they have returned on the due date at the end of the period of their furlough. There are no criminal antecedents in respect of these three prisoners. Distinction will have to be made in the case of the persons who have committed offence under peculiar circumstances, for the first time, in their life and they will have to be classified as offenders and not mere criminals and those persons, who have lived a life as criminals and are hardened criminals, would, therefore, fall under the different category and stringent rules will have to be applied and the provisions of Furlough and Parole which are provided will also have to be strictly complied with in their case. In the instant cases, it is submitted that so far as Manjulabai the petitioner in Criminal Writ Petition No. 165/02 is concerned, she was in jail throughout and on conviction she surrendered to the Police and the only role which is attributed to her in the said case, was that she had pelted stones. Be that as it may, the fact remains that the present petitioners are not hardened criminals and, therefore, the Competent Authority has clearly erred in applying the provisions of Rule 19 strictly in the letter and not in its spirit.

16. Under these peculiar circumstances, the petitioners are entitled to be released on parole. It must, however, be clarified that the petitioners herein are being released on parole and on temporary bail for a limited period of two weeks and four weeks. It must be clarified that there cannot be a straitjacket formula or hard and fast rule for the purpose of laying down any specified category of the cases which would amount to sufficient cause as has been observed by the Full Bench of the Gujarat High Court in the case of Bhikhabhai cited supra. The Competent Authority therefore will have to be taken into consideration the facts and circumstances of each case and accordingly decide the application for parole, in the instant cases, however, we are inclined to interfere with the order passed by the Competent Authority, by exercising our power under Article 226 of the Constitution of India and allow the instant criminal writ petitions.â

28] Finally in the case of RamchandraRaghu Naik v/s State of Maharashtra, reported in 2005(3) Mh.L.J. 933, the Furlough Rules have been referred to and the Division Bench held that the Furlough Rules provide for terms and conditions and 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. The settled rule was applied and 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 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. There are further rules which make elaborate provisions in relation to furlough leave. (see paragraphs 12 and 13). In turning down the challenge raised before it, the Division Bench observed thus:-

â14. 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 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 vs. 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.â

29] It appears that this legal position is noted with approval in a decision reported in AIR 2006 SC 2471 (State of Maharashtra v/s Suresh Pandurang Darvakar) and the Honourable Supreme Court held thus:-

â5. According to the learned counsel for the appellants, the High Court has not kept in view Rules 4(4) and 6 of the Prison (Bombay Furlough and Parole) Rules, 1959 (in short, the 'Rules'). The said Rules have been framed in exercise of powers conferred by Clauses (5) and (28) of Section 59 of the Prisons Act, 1894 (in short the 'Act') in its application to the State of Maharashtra as it stood then. The expression 'Furlough System' is defined in Clause 5(A) of Section 3 of the Act, while the expression 'Parole System' is defined in Clause 5(B) of the said provision. The underlying object of the Rules relating to 'Parole' and 'Furlough' have been mentioned in the report submitted by All India Jail Manual Committee and the objects mentioned in Model Prison Manual. The 'Furlough' and 'Parole' have two different purposes. It is not necessary to state the reasons while releasing the prisoner on furlough, but in case of parole reasons are to be indicated in terms of Rule 19. 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. Furlough is allowed periodically under Rule 3 irrespective of any particular reason merely with a view to enable the prisoner to have family association, family and social ties and to avoid ill effect of continuous prison life. Prison of furlough is treated as a period spent in the prison. But Rule 20 shows that period spent on parole is not to be counted as remission of sentence. Since the furlough is granted for no particular reason, it can be denied in the interest of society; whereas parole is to be granted only on sufficient cause being shown.

6. â¦...

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.

8. Rule 6, inter alia, provides that a prisoner shall not be granted furlough unless he has a relative willing to receive him while on furlough and is ready to enter into a surety bond in Form A appended to the Rules for such amount as may be fixed by the Sanctioning Authority. The proviso authorizes the Sanctioning Authority to dispense with the requirement of execution of such bond by relatives of prisoners confined in Open Prisons as defined in clause (b) of rule 2 of the Maharashtra Open Prisons Rules, 1971. Therefore, the twin requirements flowing from Rule 6 are (a) a relative of the applicant should be willing to receive him while on furlough and (b) he must be ready to enter into a surety bond. In the instant case, the relatives refused to execute such surety bond. The verification reports received by the police from the District Magistrate, Amravati and Superintendent of Police, Amravati indicate that the sister of the respondent refused to stand surety as the respondent allegedly committed rape on his step mother and has been convicted for offences punishable under Sections 376and 354 of the Indian Penal Code, 1860 and sentenced to suffer imprisonment for seven years with fine. In view of the adverse police report and non-compliance with the requirements stipulated under Rules 4(4) and 6, the Competent Authority rejected the application for grant of furlough by order dated 18.07.2005.

9. Unfortunately, the High Court does not appear to have addressed itself to these relevant aspects. It took note of the fact that nobody was willing to stand surety for release of the respondent. The High Court directed that he can be released on furnishing surety of amount lying in deposit with the jail authorities. That is not the only condition for release on furlough. There is another requirement. Even if it is held for the sake of argument that furnishing of surety of any amount lying in deposit with the jail authorities can be construed to be in compliance with the requirements of Rules 6, Rule 4(4) mandates that the prisoner who seeks to be released cannot be released if not recommended by the concerned authority on the ground of public peace and tranquility. The High Court has not recorded any finding that the report of the District Magistrate and/or Superintendent of Police had not objected to the release on furlough on the ground of public peace and tranquility.â

30] Hence, our above view and conclusion is in accord with the legal position set out above.

31] In that regard, a decision of the Supreme Court in the case of State of Haryana Vs. Jaising reported in A.I.R. 2003 S.C. 1696 is relevant. In that case, what the Supreme Court was considering was a case of remission. 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 and abduction and murder of children below 14 years unnaturally, 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 Jai Singh was allowed.

32] The State of Punjab and Haryana appealed to the Supreme Court and the Supreme Court held as under:-

â8. The answer to the said question, in our opinion, should be in the negative. This Court in a catena of decisions has recognised 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 and Ors. v. Mohinder Singh etc. (2000 (3) SCC 394) 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." (emphasis supplied)

â9. In Maru Ram etc. etc. v. Union of India and Anr. (1981 (1) SCR 1196), this Court while repelling an argument of discrimination in regard to the sentence to be imposed in murder cases, held :

"The logic is lucid although its wisdom, in the light of penological thought, is open to doubt. We have earlier stated the parameters of judicial restraint and, as at present advised, we are not satisfied that the classification is based on an irrational differentia unrelated to the punitive end of social defence. Suffice it to say here, the classification, if due respect to Parliament's choice is given, cannot be castigated as a capricious enough to attract the lethal consequence of Art. 13 read with Art. 14."

â10. In Sunil Batra v. Delhi Administration and Ors. (AIR 1978SC 1675), this Court upheld the validity of a classification based on the gravity of the offence.â

â11. From the above observations of this Court, it is clear that the gravity of the offence can form the basis of a valid classification if the object of such classification is to grant or not to grant remission.â

â12. 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 remission. 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 rape, dowry death, abduction and murder of a child below 14 years, offences coming under Sections 121 to 130 IPC, dacoity, robbery, etc. These are the offences for which the Code has prescribed the sentence of rigorous imprisonment extending up to life, therefore, from the very nature of the sentence which the offence entails, the said offences can be categorised 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 remission or not. On this basis, we are of the opinion that the State Government having decided not to grant remission to these offenders/offences which carry life imprisonment, should not be granted remission, is justified in doing so.â

â13. Similarly, the offences under the NDPS and the TADA Acts, apart from carrying heavy penal sentences are offences which could be termed as offences having serious adverse effect on the society, cognisance of which is required to be taken by the State while granting remission, therefore, they can also be classified as offences which should be kept out of the purview of remission.

â14. The offences enumerated in Sections 121 to 130 IPC are the offences against the State, though some of them may not be punishable with life imprisonment, still taking into consideration the nature of offence which undermines the security of the State, in our opinion, can be classified for exclusion from the benefit of remission.â

â15. Again the offences under the Foreigners Act, Passport Act, Official Secrets Act also being offences against the State, they can be classified as offences which will not be entitled to the benefit of remission. The persons who have indulged in the breach of mandate of the Jail Manual can also be classified as the offenders who should not be granted the incentive of remission because of their conduct during the period of their conviction. Therefore, we are of the opinion that the offences excluded from the benefit of remission 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 remission.â

33] Therefore, 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 Honourable 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.

34] Hence, 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. All the more when Mr.Najmi does not dispute that there is a power in the Government to amend the furlough Rules from time to time. Further, his reliance on the Full Bench decision of the Gujarat High Court would show that the right is not absolute and to such an extent as is incapable of being denied.

35] For all these reasons we do not find any substance in the challenge to the validity of this sub-rule.

36] As a result of the above discussion, the Writ Petition fails. Rule is discharged.

Court	Mumbai High Court
Decided On	Sep-04-2013
Case Number	Criminal Writ Petition No.4187 of 2012
Judge	S.C. DHARMADHIKARI & K.R. SHRIRAM
Appellant	Subhash Hiralal Bhosale
Respondent	The State of Maharashtra and Another

Subhash Hiralal Bhosale Vs. the State of Maharashtra and Another - Court Judgment