2021 (11) TMI 723 - SC - Indian Laws

Frequency of release on furlough - matter of right or not - offences under Sections 376(2)(c), 377, 354, 344, 357, 342, 323, 504, 506(2), 120-B, 212, 153 and 114 of the Indian Penal Code 1860 - HELD THAT - The Bombay Furlough and Parole Rules were made pursuant to Section 59 of the Prisons Act 1894 and are applicable in the State of Gujarat. Under sub-Section 5 of Section 59 of the Prisons Act 1894, the State Government may make rules for the award of marks and shortening of sentences. Sub-Section 28 of Section 59 also grants power to the State Governments to make rules for carrying out the purposes of the Act. It is evident that the Bombay Furlough and Parole 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. 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 was released earlier this year to accommodate a genuine need to attend to his mother s health at the relevant time. Based on this, we are unable to agree with the line of reasoning of the High Court. 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 - Appeal allowed - decided in favor of appellant.

Summary

Issues Involved:
1. Legality of the High Court's order granting furlough.
2. Applicability of the Bombay Furlough and Parole Rules.
3. Grounds for rejecting furlough by the Director General of Police (DGP).
4. Distinction between furlough and parole.
5. Public interest and safety concerns.

Detailed Analysis:

1. Legality of the High Court's Order Granting Furlough:
The appeal arises from a judgment of a Single Judge of the High Court of Gujarat dated 24 June 2021, which directed the release of the respondent on furlough. The High Court granted furlough based on the respondent's good behavior during previous releases and the provisions of the Bombay Furlough and Parole Rules. However, the Supreme Court found that the High Court did not adequately consider the objections raised by the authorities regarding public peace and safety.

2. Applicability of the Bombay Furlough and Parole Rules:
The Bombay Furlough and Parole Rules, made under Section 59 of the Prisons Act 1894, regulate the grant of furlough. Rule 3 provides eligibility criteria, while Rule 4 imposes limitations. Rule 17 clarifies that these rules do not confer a legal right to claim furlough. The Supreme Court emphasized that the grant of furlough is discretionary and must be balanced against public interest.

3. Grounds for Rejecting Furlough by the Director General of Police (DGP):
The DGP rejected the respondent's furlough application based on:
(i) Negative opinion from the Jail Superintendent due to illegal activities inside the jail.
(ii) Concerns that the respondent might violate law and order if released.
(iii) Objections from the Assistant Commissioner of Police (ACP) and Deputy Commissioner of Police (DCP) citing threats to public officials and witnesses, and attempts to bribe officials.
(iv) The respondent's involvement in organized crime and having a network of followers willing to commit offences.

4. Distinction Between Furlough and Parole:
Furlough and parole are temporary releases from custody but serve different purposes. Furlough is granted periodically without a specific reason to maintain family and social ties, while parole is conditional and granted for specific reasons. The Supreme Court reiterated that furlough is not an absolute right and can be denied in the interest of society.

5. Public Interest and Safety Concerns:
The Supreme Court highlighted the importance of considering public interest and safety when granting furlough. The respondent's criminal history, including attempts to bribe officials and threats to witnesses, posed a significant risk to public peace and safety. The Court found that the High Court did not adequately address these concerns in its order.

Conclusion:
The Supreme Court allowed the appeal, setting aside the High Court's order granting furlough. The Court emphasized that the grant of furlough must be balanced against public interest and safety concerns, and the respondent's criminal activities and influence posed a significant risk. The decision underscores the discretionary nature of furlough and the need to consider public peace and safety in such matters.