Bombay Furlough and Parole Rules: Release on furlough – Respondent was convicted under ss.376(2)(c), 377, 354, 504, 506(2), 508 of the IPC – By order dated 8 May 2021, application for furlough was rejected by the Sanctioning Authority on the ground that the respondent had engaged in illegal activities inside the jail, including keeping a mobile phone and making contacts outside the jail; has engaged in criminal misconduct to hinder the judicial proceedings during trial by threatening, assaulting and murdering witnesses; and that in case the respondent is released on furlough, the lives of the witnesses in the original trial would be under threat – Respondent successfully filed petition under s.482 CrPC for setting aside order dated 8 May 2021 – Aggrieved State filed instant appeal – Held: r.4(4) of the Rules provides for denial of furlough on grounds of disturbance to public peace and tranquility – Order dated 8 May 2021 has adduced a number of circumstances which cumulatively indicated that the release of the respondent on furlough may lead to a violation of public peace – The order referred specifically to the threat he and his followers posed to the complainant and other persons who deposed at the trial – An attempt was made to threaten and suborn the investigating team and the witnesses – Respondent and his father have a mass following of persons who owe loyalty to them and there was a reasonable apprehension of a disruption of public peace and tranquillity – During the trial, attempts were made to bribe public officials – The conduct after the trial, in jail, was not shown to be above reproach – Thus, the opinion of the Sanctioning Authority under the Rules did not suffer from perversity nor did it consider material extraneous to the Rules governing the grant of furlough.
Bombay Furlough and Parole Rules: rr.3, 4, 17 – Right of prisoner to furlough – Held: rr.3,4 and 17 do not confer a legal right on a prisoner to be released on furlough. The grant of furlough is regulated by r.3 and r.4 – While r.3 provides the eligibility criteria for grant of furlough for prisoners serving different lengths of imprisonment, r.4 imposes limitations – The use of the expression “may be released” in r.3 indicates the absence of an absolute right – This is further emphasised in r.17 which states that said Rules do not confer a legal right on a prisoner to claim release on furlough – Thus, the grant of release on furlough is a discretionary remedy circumscribed by rr.3 and 4.
Furlough and parole – Distinction between – Held: Furlough and parole envisage a short-term temporary release from custody – While parole is granted for the prisoner to meet a specific exigency, furlough may be granted after a stipulated number of years have been served without any reason – The grant of furlough is to break the monotony of imprisonment and to enable the convict to maintain continuity with family life and integration with society – Although furlough can be claimed without a reason, the prisoner does not have an absolute legal right to claim furlough – The grant of furlough must be balanced against the public interest and can be refused to certain categories of prisoners.
Allowing the appeal, the Court
HELD: 1. From a reading of Rules 3, 4 and 17 of the Bombay Furlough and Parole Rules, these Rules do not confer a legal right on a prisoner to be released on furlough. The grant of furlough is regulated by Rule 3 and Rule 4. While Rule 3 provides the eligibility criteria for grant of furlough for prisoners serving different lengths of imprisonment, Rule 4 imposes limitations. The use of the expression “may be released” in Rule 3 indicates the absence of an absolute right. This is further emphasised in Rule 17 which states that said Rules do not confer a legal right on a prisoner to claim release on furlough. Thus the grant of release on furlough is a discretionary remedy circumscribed by Rules 3 and 4. [Para 15][346-A-C]
2. The principles may be formulated in broad, general terms bearing in mind the caveat that the governing rules for parole and furlough have to be applied in each context. The principles are thus: Furlough and parole envisage a short-term temporary release from custody; While parole is granted for the prisoner to meet a specific exigency, furlough may be granted after a stipulated number of years have been served without any reason; The grant of furlough is to break the monotony of imprisonment and to enable the convict to maintain continuity with family life and integration with society; Although furlough can be claimed without a reason, the prisoner does not have an absolute legal right to claim furlough; The grant of furlough must be balanced against the public interest and can be refused to certain categories of prisoners. [Para 20][350-C]
3. The furlough application of the respondent was rejected by the DGP by an order dated 8 May 2021. The DGP relied on the concurrent opinion of the ACP, DCP and Jail Superintendent to deny the grant of furlough, based on the following circumstances: the gravity of the offences that the respondent has been convicted of, including, Sections 376(2)(c), 377, 354, 504, 506(2), 508 of the IPC; the criminal misconduct of the respondent, during the trial, including attempts to bribe public officials; threatening, assaulting and murdering of witnesses by followers of the respondent; threatening police officials and inspectors of the Income Tax Department; mass following of the respondent willing to commit offences at the instance of the respondent; and illegal activities while in custody, such as keeping a mobile phone and attempting to establish contact with outsiders. [Para 21][350-G-H; 351-A-C]
4. The DGP has invoked Rules 4(4), 4(6) and 4(10) of the Rules to dismiss the furlough leave application. Rule 4(4) of the Rules provides that prisoners whose release is not recommended by the Commissioner of Police on grounds of public peace and tranquillity may not be considered eligible for furlough. Rule 4(6) provides for rejection of furlough leave where the conduct of the prisoner is not satisfactory and Rule 4(10) provides that prisoners who have escaped, or attempted to escape from lawful custody or have defaulted in surrendering, may not be eligible for furlough. The record does not show that the respondent has made any efforts to escape from lawful custody. After the grant of furlough in December 2020 and interim bail from 31 January 2021 till 3 February 2021, the respondent surrendered to the authorities. Thus, Rule 4(10) of the Rules cannot be relied upon to refuse furlough leave to the respondent. [Paras 23, 24][351-E-G]
5. Turning now to Rule 4(6) of the Rules, the Jail Superintendent has given a negative opinion based on the fact that the respondent kept a mobile phone inside the jail illegally and attempted to make contacts with the outside world. Rule 4(4) of the Rules provides for denial of furlough on grounds of disturbance to public peace and tranquillity. The order dated 8 May 2021 has adduced a number of circumstances which cumulatively indicate that the release of the respondent on furlough may lead to a violation of public peace. The order refers specifically to the threat he and his followers pose to the complainant and other persons who deposed at the trial. An attempt has been made to threaten and suborn the investigating team and the witnesses. The respondent and his father have a mass following of persons who owe loyalty to them and there is a reasonable apprehension of a disruption of public peace and tranquillity. During the trial, attempts have been made to bribe public officials. The conduct after the trial, in jail, has not been shown to be above reproach. The respondent was released earlier this year to accommodate a genuine need to attend to his mother’s health at the relevant time. The submission that the objections mentioned in the order dated 8 May 2021 were raised by the authorities to the grant of furlough in December 2020 in spite of which the High Court allowed the plea for furlough is meritless. The previous order of the High Court did not deal with these submissions. The order only referred to the fact that the respondent’s mother was suffering on account of a cardiac arrest and granted furlough on this basis. The opinion of the Sanctioning Authority under the Rules does not suffer from perversity nor does it consider material extraneous to the Rules governing the grant of furlough. [Paras 25, 26][351-H; 352-A-F]
State of Maharashtra v. Suresh Pandurang Darvakar (2006) 4 SCC 776 : [2006] 3 SCR 1128 ; Asfaq v. State of Rajasthan (2017) 15 SCC 55 : [2017] 11 SCR 571; State of Haryana v. Mohinder Singh (2000) 3 SCC 394 : [2000] 1 SCR 698 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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