Criminal Writ Petition No. 4034 of 2014 and Criminal Application No. 12 of 2015. Case: Sharad Devaram Shelake Vs The State of Maharashtra (Home Ministry). High Court of Bombay (India)

Case NumberCriminal Writ Petition No. 4034 of 2014 and Criminal Application No. 12 of 2015
CounselFor Appellant: Yashpal Thakur, Advocate and For Respondents: A.S. Shitole, APP
JudgesV. K. Tahilramani and Anuja Prabhudesai, JJ.
IssueConstitution of India - Articles 14, 20(2), 21, 226; Indian Penal Code 1860, (IPC) - Sections 302, 364, 392, 393, 394, 395, 396, 397, 398, 399, 400, 401, 402; Prisons Act, 1894 - Sections 28, 3, 46, 59, 59(5)
Judgement DateApril 28, 2016
CourtHigh Court of Bombay (India)

Judgment:

V. K. Tahilramani, J.

  1. Rule. Respondents waive 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 23.02.2012. By this Notification, Rule 4 of the Furlough and Parole Rules was amended and after sub-rule (10), sub-rule 11 to 19 were added.

  3. The petitioner was convicted by the learned Additional Sessions Judge, Pune under Sections 302 and 364 of IPC by Judgment and Order dated 31.8.2012 passed in Sessions Case No. 215 of 2011. The said case arises out of C.R. No. 217 of 2010 of Lonikand Police Station, Pune. In our opinion, the only relevant fact is that the conviction and sentence has been inter alia recorded for the offence punishable under Section 364 of IPC i.e., kidnapping.

  4. The petitioner has stated that he did not apply for furlough leave because in view of the Notification dated 23.2.2012 whereby sub-rule 13 was added, his application for furlough would be rejected by the Competent Authority. Rule 4 set out the cases when prisoners shall not be granted furlough. Though the entire Notification is challenged, we are concerned here only with sub-rule 13 of Rule 4 which reads as under:--

    4. The following categories of prisoners shall not be considered for release on furlough:--

    (13) Prisoners convicted for offences such as dacoity, terrorist crimes, kidnapping, smuggling including those convicted under the Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985) and foreigner prisoners;

  5. Mr. Yashpal Thakur, the learned counsel for the petitioner submitted that the petitioner is convicted and sentenced to suffer imprisonment for offence punishable under Section 364 of Indian Penal Code. Such a person is not entitled to furlough leave in terms of sub-rule 13 of Rule 4 of the Prisons (Bombay Furlough and Parole) Rules, 1959. Learned counsel for the petitioner submitted that the reasons namely, the nature of the offence, its gravity and it being under section 364 of Indian Penal Code cannot be said to be a valid ground for rejection of furlough leave. Thus, a challenge is raised to the provisions by which the authorities are empowered to refuse furlough leave in case of convicts/ prisoners undergoing sentence for the offence of kidnapping. It is not disputed that the petitioner has been convicted for the offence under Section 364 of IPC.

  6. Learned counsel for the petitioner submitted that when a person is convicted for kidnapping, then, he would not be released on furlough is the present rule and which would mean that for his entire tenure, as a prisoner/ convict, the petitioner will never be released on furlough. The petitioner would, therefore, be permanently deprived of the right to be released on furlough.

  7. It is argued that the selection of Section 364 for being included in the list of offences in respect of which furlough leave shall not be granted is arbitrary and that it is not based on any rational principle. If prisoners convicted for more serious offences such as murder are not precluded from claiming furlough leave, why should prisoners convicted of offences under Section 364 be denied the right to claim furlough leave? It is urged that the classification made by the rule making authority is not rooted in any rational principle and, therefore, Rule 4(13) must be struck down.

  8. Lastly, it is submitted that the Rules do not mean that the application for furlough has to be rejected. Such rules cannot be construed as a mandate or a prohibition or embargo but will have to be construed as enabling the authority to refuse furlough in appropriate cases. Further, if this interpretation is not placed on the provision, then, it is ultra vires Article 14 of the Constitution of India.

  9. We are unable to accede to the argument addressed to us by Mr. Thakur on behalf of the petitioner for reasons which will become presently evident.

  10. The learned APP on the other hand has submitted that furlough is not a right of the prisoner and the distinction as made is not ultra vires Article 14 of the Constitution of India but consistent with the Legislative scheme of not permitting such convicts and prisoners whose mingling with the society will have an adverse effect and who are likely to indulge in similar acts, if released temporarily.

  11. We have perused the notification issued by the Home Department dated 23rd February 2012 by which the Prisons (Bombay Furlough and Parole) Amended Rules, 2012 have been brought into effect.

    Rule 4 states thus:--

    4. The following categories of prisoners shall not be considered for release on furlough:--

    (1) Habitual prisoners;

    (2) Prisoners convicted of offences under Sections 392 to 402 (both inclusive) of the Indian Penal Code;

    (3) Prisoners convicted of offences under the Bombay Prohibition Act, 1949;

    (4) Prisoners whose release is not recommended in Greater Bombay by the Commissioner of Police and elsewhere, by the District Magistrate on the ground of public peace and tranquility;

    (5) Prisoners who, in the opinion of the Superintendent of Prison show a tendency towards crime;

    (6) Prisoners whose conduct is, in the opinion of Superintendent of the Prison, not satisfactory enough;

    (7) Prisoners confined in the Ratnagiri Special Prison, (other than prisoners transferred to that prison for Jail services);

    (8) Prisoners convicted of offences of violence against person or property committed for political motives, unless the prior consent of the State Government to such release is obtained;

    (9) A prisoner or class of prisoners in whose case the State Government has directed that the prisoner shall not be released or that the case should be referred to it for orders;

    (10) Prisoners who have at any time escaped or attempted to escape from lawful custody or have defaulted in any way in surrendering themselves at the appropriate time after release on parole or furlough.

  12. The amendment as brought about by the Notification dated 23.2.2012 to the extent of Rule 4, referred to as the principle Rule reads thus:--

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

    (11) Prisoners whose presence is considered dangerous or otherwise prejudicial to public peace and order by the District Magistrate and Superintendent of Police;

    (12) Prisoners who are considered dangerous or have been involved in serious prison violence alike assault, outbreak, riot, mutiny or escape or who have been found to be instigating the serious violation of prison discipline;

    (13) Prisoners convicted for offences such as dacoity, terrorist crimes, kidnapping, smuggling including those convicted under the Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985) and foreigner prisoners;

    (14) Prisoners convicted for failure to give surety for maintaining peace or good behaviour;

    (15) Prisoners suffering from mental illness, if not certified by the medical officer to have recovered;

    (16) Prisoners whose work and conduct have not been good during the preceding period of twelve months;

    (17) Prisoners convicted of offences against any law relating to matters to which the executive power of the Union Government extends, unless approved by the Union Government;

    (18) Prisoners whose release on leave is likely to have repercussions elsewhere in the country.

    (19) Prisoners whose release on leave is likely to have repercussions during the period of code of conduct of local self Government, Legislature and Parliament elections.

  13. Mr. Thakur submitted that the first ground assigned by the learned APP that furlough is not a right of the convict is wholly erroneous and not the correct position in law. He pointed out that the contention that furlough leave is not the right of the petitioner is contrary to the judgment of the Full Bench of Gujarat High Court in the case of Bhikhabhai Devshi v. State of Gujarat and Ors. A.I.R. 1987 Gujarat 136. The Full Bench has held that furlough is a matter of right and the same cannot be taken away. In that behalf, he relied upon the following observations in the Full Bench decision in the case of Bhikhabhai Devshi (supra):

    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...

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