[Bombay Furlough and Parole Rules] The grant of furlough leave is subject to eligibility criteria and limitations: Supreme Court.

The grant of furlough release is a discretionary remedy circumscribed by Rules 3 and 4 of Bombay Furlough and Parole Rules.

 The Bench of Justice Dr. Dhananjaya Y Chandrachud and Justice B Nagarathna has set aside the impugned judgment and order of the Single Judge of High Court of Gujarat which directed for the release of respondent on furlough. The respondent was charged 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 which are serious in nature. 

The Learned Counsel of appellant, the State, vehemently opposed the release of respondent, who is accused of high profile cases and atrocities, on furlough.

In a layman's words furlough means granting leave of absence. In legal term it refers to granting leave of absence to break the monotony of life in the prison and to retain family and social life.

 

Prior to filing of an application for furlough before the High Court, it was rejected by the subordinate authority on the ground:

• the respondent is accused of high profile cases of rape and atrocities. punishable under Sections 376 (2) (c), 377, 354, 504, 506 (2), 508 of the IPC;

• the respondent has engaged in criminal misconduct to hinder the judicial proceedings during the trial by threatening, assaulting and murdering witnesses;

• frequent assaults on witnesses have been registered against the followers of the respondent and seven offences have been registered against him;

•  an IPS officer has been threatened by the followers of the respondent;

• the respondent is not normal prisoner. He has a group of thousands of head strong followers who are willing to commit offences at the instance of the respondent;

• in case the respondent is released on furlough, the lives of the witnesses in the original trial will  be under threat. The respondent may interrupt the judicial proceedings for prosecution of the seven offences pending against him; and

• the respondent is engaged in dangerous activities of organized crime and has a network of persons and a financial background.

The respondent moved the High Court under Section 482 Cr.PC for setting aside the order relying the proviso to Rule 3(2) of Prisons (Bombay Furlough and Parole) Rules 1959 and urged that a prisoner sentenced to life imprisonment may be released on furlough every year after he completes seven years of imprisonment a matter of right.  

 

The Single Judge of the High Court allowed the respondent to be released on furlough leave with police escort for a period of fourteen days primarily on the following reasons - 

• that the reasons furnished by the DGP for furlough was considered by the High Court pursuant to which the respondent was released on furlough for a period of two weeks;

•  that no untoward incident took place after the respondent was released  and the respondent did not misuse the liberty granted to him during the period of furlough;

• that the respondent/accused did not misuse the liberty or involved in illegal activities earlier;

• that the reasons furnished by the DGP are not reasonable or justified;

• that the respondent has been under imprisonment for a period of seven years and a half. Under the Bombay Furlough and Parole Rules, he is entitled for furlough leave once a year.

But on the request of the Additional Public Prosecutor, the Single Judge of the High Court had stayed the impugned order for a period of three weeks.

 

SUBMISSION OF THE STATE (APPELLANT)

 

i)       Rules 3 and 4 of the Bombay Furlough and Parole Rules indicate that furlough cannot be allowed mechanically as a matter of right. Rules 3 creates an option for the prisoner to be released on furlough and the said is subject to Rule 4.

 

 

ii)        Under sub-Rules 4, 6 and 10 of Rule 4 of the Bombay Furlough and Parole  Rules,

a)         prisoners whose release is not recommended by the Commissioner of Police or the District Magistrate on grounds of public peace and tranquillity;

b)        prisoners whose conduct is not satisfactory in the opinion of Superintendent of the Prison; and

c)         prisoners who have escaped or attempted to escape from custody or have defaulted in surrendering after release on parole or furlough, shall not be considered for release on furlough;

(iii)     Rule 17 of the Bombay Furlough and Parole Rules provides that the Rules do not confer a legal right on the prisoner to claim release on furlough;

 

(iv)      In State of Maharashtra v. Suresh Pandurang Darvakar (2006) 4 SCC 776

                  Supreme Court has held that furlough can be refused in cases where there are concerns of public peace and tranquillity;

(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 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. All these The facts of the case indicate the gross nature of crime, which disentitles the respondent to any discretionary relief;

(vii) The reliance placed by the High Court on its previous order 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 nor in the impugned order, made any observation on the correctness of the objections of the authorities against the grant of furlough.

 

SUBMISSIONS OF THE RESPONDENT

i)      The respondent’s father is suffering from 11 major chronic ailments and suffered from septic shock and pulmonary embolism;

(ii) There is no family member around the respondent’s father and his condition is critical. The respondent is the only son of his father. The respondent’s mother is also severely ill and is being taken care of by her daughter. Thus, the respondent is required to be released on furlough to take care of his father’s medical care and treatment;

(iii) The appeal against the respondent’s conviction and the application for suspension of sentence are pending for hearing before the High Court;

(iv) The respondent has been released on temporary bail and furlough leave on four occasions and no untoward incident was reported during his release;

(v) The furlough leave is a matter of right and is granted periodically to prisoners to continue their association with their families;

(vi) Apart from the present case, the respondent is an accused in two criminal cases and has been granted bail in both the cases;

(vii) With respect to the other offences mentioned in order  the respondent is not associated with the attacks, his name has not been mentioned in the FIRs and there is no proof to show that the respondent is connected to the accused in those cases. Since he has already been convicted, there is no question of threatening 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.

The analysis of the Provisions of Rules 3, 4 and 17 of the Bombay Furlough and Parole Rules made the Apex Court come to the conclusion that the grant of furlough is not  absolute right. It does not confer a legal right on a prisoner to be released on furlough. The provisions contain in above Rules provides for eligibility criteria, limitations. The grant of furlough release is a discretionary remedy circumscribed by Rules 3 and 4.

The High Court, inspite of the objection raised by the Jail Superintendent, allowed the grant of furlough only on the basis that the respondent’s mother was ill, but did not deal with the submission of the respondent. Apex Court cannot agree with the reasoning of the High Court for granting furlough leave

 Thus 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.

 

The respondent is the son of infamous religious leader, Asaram Bapu, who is also  accused in multiple offences like his son. He was convicted in 2019 for charge of rape unnatural offences, assault, criminal intimidation and criminal conspiracy by Session Court in Surat.

 

Case: 

State of Gujarat & Anr. vs Narayan @ Narayan Sai @ Mota Bhagwan Asaram @ Asumal Harpalani (Criminal Appeal No. 1159 of 2021)

Date of Judgment: 20.10.2021

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