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TMI Blog2021 (11) TMI 723X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 reason ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... three weeks on 16 April 2015 and for a period of two days on 15 February 2019. The respondent was granted furlough from 5 December 2020 for a period of fourteen days by the order of the High Court dated 2 December 2020. Due to the ill-health of his mother, the respondent was released on temporary bail from 31 January 2021 to 3 February 2021. 4 On 17 March 2021, the respondent filed an application Judicial/Furlough/1194/201 for furlough through the Surat Lajpore Central Jail. The application was rejected by the Director General of Police, Jail and Reformative Administration DGP on 8 May 2021. The DGP dismissed the application because: (i) The Jail Superintendent had given a negative opinion on the furlough application as the respondent had engaged in illegal activities inside the jail, including keeping a mobile phone and making contacts outside the jail; (ii) The respondent if released on furlough may violate law and order; (iii) The opinion of the Assistant Commissioner of Police ACP was sought on the grant of furlough and he had raised objections for the following reasons: (a) During the investigation of the offence, the Deputy Commissioner of Police DC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Asaram case, on 23 May 2014 by firing a revolver with the intention of causing death. The witness suffered severe injury and died during treatment; (g) The offences against the witnesses in Asaram s case and in the respondent s case were committed by one Pravin Vakil. The offences against these witnesses increased after this accused visited the respondent in jail on 15 February 2014. Thus, there is a possibility of the involvement of the respondent in the commission of these offences; (h) An FIR, CR No. 243/2015, was registered under Sections 307, 452, 120B, and 34 of the IPC and Section 25(1)(a) of the Arms Act 1959, for assaulting one Mahendra Chavala, a witness in the case against the respondent. The respondent was passively involved in the said incident; and (i) In connection with the investigation of the case against the respondent, 42 bags were seized from the flat of a sadhak. Pursuant to the direction of the High Court, the bags were handed over to the Income Tax Department. A raid was conducted by the Income Tax Department on sadhaks staying across the country and crores of rupees worth of properties had been seized. Most of these investments were on behalf of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to Rule 3(2) of Prisons (Bombay Furlough and Parole) Rules 1959 Bombay Furlough and Parole Rules or Rules and urged that a prisoner sentenced to life imprisonment may be released on furlough every year instead of every two years, after he completes seven years of imprisonment. It was also submitted that furlough leave is granted as a matter of right. 7 Allowing the application of the respondent, the Single Judge of the High Court held that: (i) The reasons furnished by the DGP for denying furlough were considered by the High Court in its previous order dated 2 December 2020, pursuant to which the respondent was released on furlough for a period of two weeks; (ii) No untoward incident took place after the respondent was released in December 2020 and the respondent did not misuse the liberty granted to him during the period of furlough; (iii) Although the respondent was involved in criminal activities earlier, no illegal activity has been reported since the respondent was released in December 2020; (iv) The reasons furnished by the DGP have already been considered by the High Court and are not reasonable or justified; (v) The respondent has been under impriso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y; (v) Furlough can be denied if it is not in the interest of the society as held in Asfaq v. State of Rajasthan (2017) 15 SCC 55 ; (vi) The facts of the case indicate the gross nature of crime, which disentitles the respondent to any discretionary relief. The DGP has noted that the respondent had attempted to bribe public officials; caused injury to the husband of the complainant and other witnesses; threatened to murder police inspectors and an inspector of the Income Tax Department; and attempted to derail the judicial process; (vii) The reliance placed by the High Court on its previous order dated 2 December 2020 is misplaced as the order did not deal with the objections of the authorities on denial of furlough. The grant of furlough under Rule 3 is subject to Rule 4 of the Bombay Furlough and Parole Rules which accords weight to the opinion of the authorities for grant of furlough. Unless this subjective satisfaction of the authorities, which is susceptible to judicial review, is taken away, furlough cannot be granted. The High Court has, neither in its previous order dated 2 December 2020 nor in the impugned order, made any observation on the correctness of the obje ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g the witnesses; (viii) The infractions referred to by the Superintendent of Prison to the grant of furlough to the respondent are minor and have no nexus to respondent s behaviour once he is released on furlough; (ix) The difference between grant of furlough and parole is that furlough is granted to prisoners after they have undergone a specified period of sentence, parole is a conditional temporary release on ground of good conduct for a situational relief; and (x) Rule 3(2) of the Bombay Furlough and Parole Rules provides that a prisoner sentenced to life imprisonment may be released on furlough every year after he completes seven years of imprisonment. The phrase every year must be interpreted to mean every calendar year. 12 Having adverted to the rival submissions of the parties, we shall now address the issue at hand. C Analysis 13 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 grant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en prisoners shall not be granted furlough.- The following categories of prisoners shall not be considered for release on furlough:- (1) Habitual prisoners. (2) Prisoners convicted of offenses under sections 392 to 402 (both inclusive) of the Indian Penal Code. (3) Prisoners convicted of offence under the Bombay Prohibition Act, 1949 (4) Prisoners whose release is not recommended in Great Bombay by the Commissioner of Police and elsewhere, the District Magistrate on the ground of public peace and tranquility. (5) Prisoners who, in the opinion of the Superintendent of the 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 rele ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 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 Rules 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. Period 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. [ ] 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 tranquillity. (emphasis supplied) 17 In Suresh Darvakar (supra), the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s mere suspension of the sentence for time being, keeping the quantum of sentence intact. Release on parole is designed to afford some relief to the prisoners in certain specified exigencies. [ ] 14. Furlough, on the other hand, is a brief release from the prison. It is conditional and is given in case of long-term imprisonment. The period of sentence spent on furlough by the prisoners need not be undergone by him as is done in the case of parole. Furlough is granted as a good conduct remission. Summarising the difference between parole and furlough, the Court noted that 16. [ ] (i) Both parole and furlough are conditional release. (ii) Parole can be granted in case of short-term imprisonment whereas in furlough it is granted in case of long-term imprisonment. (iii) Duration of parole extends to one month whereas in the case of furlough it extends to fourteen days maximum. (iv) Parole is granted by Divisional Commissioner and furlough is granted by the Deputy Inspector General of Prisons. (v) For parole, specific reason is required, whereas furlough is meant for breaking the monotony of imprisonment. (vi) The term of imprisonment is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aspire to live as law-abiding citizens. Thus, parole programme should be used as a tool to shape such adjustments. (emphasis supplied) 20 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: (i) Furlough and parole envisage a short-term temporary release from custody; (ii) 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; (iii) 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; (iv) Although furlough can be claimed without a reason, the prisoner does not have an absolute legal right to claim furlough; (v) The grant of furlough must be balanced against the public interest and can be refused to certain categories of prisoners. 21 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 Superintenden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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