Bombay High Court: In the present case, petitioners were inmates who challenged the order dated 15-04-2024 passed by Respondent 2-Deputy Inspector of Police (Prison) and prayed for directions to be given to release them on furlough leave. The Division Bench of Vibha Kankanwadi* and S.G. Chapalgaonkar, JJ., noted that earlier in case of a prisoner who had surrendered belatedly by 49 days, was granted furlough leave and observed that the authority was adopting pick and choose policy and thus, opined that the same criteria ought to have been adopted and certainly petitioners in the present case should not to have been discriminated against on the said ground. The Court quashed and set aside the impugned order dated 15-04-2024 and directed that petitioners be released on furlough leave.
Petitioners were serving life imprisonment in Harsool Open Jail, Aurangabad, as they were convicted for the offence punishable under Section 3021 of the Penal Code, 1860. Petitioners submitted that they had preferred applications seeking furlough leave to visit their relatives. Respondent 2 rejected their applications only on the ground that they had overstayed for 194 days and 1122 days respectively when they were released earlier in 2014 and 2015, respectively and they had made application for leave after more than 10 years.
Petitioners submitted that Respondent 2 did not interpret the provisions properly and Rule 4(10) of the Maharashtra Prisons (Mumbai Furlough and Parole) (Amendment) Rules, 2018 (‘2018 Rules’) were not considered properly. On the other hand, respondents submitted that by Government Notification dated 16-04-2018, the Government laid down rules for granting parole and furlough to prisoners. It was also submitted that in view of the various judgments of the Supreme Court and the High Court, the Additional Director General of Police and Inspector General of Prisons have formulated a policy that the applications of the inmates who have surrendered belatedly for leave would be forwarded to the Government for final approval. Thus, if that policy was approved/sanctioned, then it would be applied while deciding the leave applications of the prisoners in the present case.
Rules 4 of the 2018 Rules states that all prisoners whose annual conduct reports were good shall be eligible for furlough except the categories mentioned in Rule 4. Rule 4(10) states that “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.”.
The Court noted that earlier in case of a prisoner who had surrendered belatedly by 49 days, was granted furlough leave and observed that the authority was adopting pick and choose policy and thus, opined that the same criteria ought to have been adopted and certainly petitioners in the present case should not to have been discriminated against on the said ground.
The Court opined that unless there would be changes in the legislation mere circulars or procedural differences would not give proper results and further, uniform policy was required for granting furlough and parole, which could be achieved by amending rules since there were rules in existence which were part of the statute.
The Court relied on Bhikabhai Devshi v. State of Gujarat, 1986 CJ (Guj) 39, wherein it was observed that the context of the latter part of Rule 4(10) of the 2018 Rules would clear that the word ‘shall’ would have to be read as ‘may’ and directory. The Court stated that the policy was not yet finalized and opined that in cases of late surrender with no element of escape but only element of delay in surrendering they could be examined on the facts and circumstances and merits of the case, and the said Rule was directory and not mandatory.
The Court opined that in the present case, petitioners had not even applied for leave for more than 10 years and thus, their applications should have been considered. The Court allowed the petitions, quashed, and set aside the impugned order dated 15-04-2024 passed by Respondent 2 and directed that petitioners be released on furlough leave.
[Bhausaheb Ankush Gade v. State of Maharashtra, 2024 SCC OnLine Bom 3318, decided on 10-10-2024]
*Judgment authored by: Justice Vibha Kankanwadi
Advocates who appeared in this case :
For the Petitioner: M.M. Parghane, Advocate
For the Respondents: Priya R. Bharaswadkar, APP
Buy Penal Code, 1860 HERE
1. Corresponding Section 103(1) of the Nyaya Sanhita, 2023
