Dr. A. P. Thaker, J
1. The present Application has been filed by the convict through his father under the Article 226 of the Constitution of India and various provisions of
The Prisons (Bombay Furlough and Parole) Rules, 1959 (hereinafter referred to as “the Rulesâ€) contending that he has been convicted and
sentenced for life imprisonment in Sessions Case No. 78 of 2006 by the learned Additional Sessions Judge, Court No.7, City Sessions Court,
Ahmedabad vide judgment and order dated 21.4.2012. It is submitted that against the judgment and order, the applicant has preferred Criminal Appeal
No. 1748 of 2012 before this Hon'ble Court, which is pending for final hearing.
1.1 It is contended by the convict that he has preferred application for his 9th furlough leave to the authority however, his request have been rejected
by I.G. Prison on 5.7.2020 mainly on the grounds as under:Â
(i) Police opinion is negative;
(ii) Prisoner is facing cases for five offences;
(iii) Prisoner's Jail Conduct is not good;
(iv) Prisoner absconded earlier and was arrested by police after 378 days;
(v) Prisoner has killed another inmate in jail.
1.2 It is submitted by the convict that for the jail offences he has been properly punished and, therefore, there cannot be any further punishment in the
shape of rejection of his 9th th furlough leave. While referring to the judgment of this Court in the case of Rodaji Mahaji vs. State of Gujarat passed in
Special Criminal Application No. 1213 of 1990 as well as in the case of Bhikhabhai Devshi vs. State of Gujarat and Others, reported in (1987) 2 GLR
1178 and in case of Atulji Magaji Vs. State of Gujarat, reported in 1984 GLH 139, it is averred that in view of the decisions of this Court, the refusal
of furlough by the authority is clearly illegal and is required to be quashed and setÂaside. The convict has prayed to direct his release for his 9th
furlough leave on appropriate terms and conditions by setting aside the order dated 5.7.2020 passed by the respondent no.3 and for necessary direction
to the respondent authority to consider the grant of convict's 9th furlough leave at the earliest.
2. Heard Ms. Jayshree Bhatt, learned advocate for the applicant and Ms. Moxa Thakkar, learned APP for the respondent State through VideoÂ‐
conferencing.
3. Ms.Bhatt, learned advocate for the applicant has submitted the same facts which are narrated in the Memo of Application. She has contended that
there cannot be two punishments for the same offence and has further submitted that for the jail offence, the convict has already been punished and at
the same time fulough leave is also forfeited. According to her submission, this exercise and the decision of the Authority is illegal and she has prayed
to allow the application.
4. Per contra, learned APP for the respondent State has submitted that there is Rule 4(6) of the Prisons (Bombay Furlough and Parole) Rules, 1959
(hereinafter referred to as 'Rules') for the forfeiture of the furlough. As per the impugned order, furlough has not been rejected permanently but liberty
has been granted to the applicant to apply after 6 months for furlough. She has also submitted that in view of the jail remarks, it appears that the
present convict has habit of committing offences. She has also contended that there is no illegality conducted by the authority by passing the impugned
order, which is under challenge. She has prayed to dismiss the application.
5. Now it is well settled law by catena of decisions of this Court that Parole and Furlough Rules are part of the penal and prison reform with a view to
humanize the prison system. These rules enable the prisoner to obtain his release and to return to the outside world for a short prescribed period. The
object of such a release of prisoner are:
(i) to enable the inmate to maintain continuity with his family life and deal with family matters.
(ii) to save the inmate from the evil effects of continuous prison life.
(iii) to enable the inmate to maintain constructive hope and active interests in life.
6. In view of the Prisons Act read with Rules, it appears that the Parole and Furlough system has been incorporated with specific object as referred to
hereinabove. However, the Parole is not an absolute right of the prisoner. Under the provisions of the Act and the Rules, it can be granted or refused
or withdrawn as per rules. At the same time, for furlough leave, there is no need of any ground. But, at the same time for granting Parole Leave, there
must be some reason.
7. As observed in the case of Bhikabhai Devshi vs. State of Gujarat and Others (supra), the full bench of this Court has observed in ParaÂ23 as
under:
“23. Rule 1316 of the Bombay Jail Manual provides that no prisoner shall be punished twice for the same offence. Therefore, once a prisoner is
punished for his prison offence of late surrender by the Superintendent the matter of prison offence will rest there and any other punishment thereafter
for the same Act or misconduct is barredâ€.
7.1 In Para-27 and 28 of the said judgment, the full bench has observed as under:
“The rationale and principle behind Rule 4 is clear. The furlough system has been introduced as a measure of penal reform and to harmonise the
penal system and to enable the prisoner to maintain continuity with his family life and to deal with the family matters and to save him from evil effects
of continuous jail life and to enable him to gain confidence and to maintain constructive hopes and active interest in life. ......It is not possible to hold
that irrespective of all these circumstances such a prisoner surrendering late have to be examined on merits and the prison authority will have to
power duty and discretion to consider and to grant or refuse furlough.
7.2 At the same time, In ParaÂ29 of the said judgment, the full bench has observed as under:
“However, in cases of late surrender where there is no element of escapte but merely there is a delay in surrendering the question will have to be
examined on the facts and circumstances and merits of each case. In given case of a prisoner defaulting in timely surrender who is wanted by the jail
authorities and who is not available at the place where ordinarily he should be and who is apprehended by the Police or who surrenders because of the
chase by the authority may fall under the first part where he cannot be trusted to be released on furlough again. But such cases are at the other
extremeâ€.
7.3 In ParaÂ34 and 35 of the aforesaid judgment, the full bench has also observed as under:
“34. It is to be noted that furlough and parole have two different purposes. Furlough is a matter of right, parole is not so. Furlough is to be granted
periodically under Rule 3 irrespective of any particular reason merely with a view to enable the prisoner to have family and social ties and to avoid
illÂeffects of continuous prison life and the period of furlough is treated as remission of sentence. Since furlough is to bge grantd for no particular
reason, it can be denied in the interest of the Society; whereas parole is to be granted only on a sufficient cause (RuleÂ19) such as cases of severe
ilness or death of any member of the prisoners family or his nearest relative or for other sufficient cause. Therefore, Parole is not a matter of right and
only when there is a sufficient and serious cause the Society and the Jail authority may sometime have to take some risk to release the prisoner on
parole but that would be no ground for releasing the prisoner on routine furlough irrespective of his past conduct and performance. Even parole may
be denied to a prisoner even when he makes out sufficient cause for release on parole if the competent authroity is satisfied on vaild grounds that
release of a prisoner on parole will be against the interest of the society or the prison administrationâ€.
“35. The prison authorities cannot reject as ineligible the request of due furlough of the prisoners who have surrendered late in pastâ€.
8. It is pertinent to note that Rule 3 of the The Prisons (Bombay Furlough and Parole) Rules, 1989 provides for the provisions as to when prisoner may
be granted furlough. The said Rule 3 reads thus:
“3. When Prisoner may be granted furlough.Â
(1) A Prisoner, who is sentenced to imprisonment for a period exceeding one year but not exceeding five years, may be released on furlough for a
period of two weeks at a time for every year of actual imprisonment undergone.
(2) A Prisoner, who is sentenced to imprisonment for a period exceeding five years may be released on furlough for a periodof two weeks at a time
for every two years of actual imprisonment undergone:
Provided that a prisoner sentenced to imprisonment for more than five years but not to imprisonment for life may be released on furlough every year
instead of every two years during the last five years of his unexpired period of sentence:
Provided further that a prisoner sentenced to life imprisonment may be released on furlough every year instead of every two years after he completes
seven years actual imprisonment.â€
Note 1:The period of imprisonment in this rule includes the sentence or sentences awarded in lieu of fine in case the amount of fine is not paid.
Provided that if fine is paid during the period of imprisonment and the total sentence thereby reduced to a term not exceeding 5 years he shall
thereafter be eligible for release every year in accordance with subÂrule (1) instead of every two years under subÂrule (2).
Note 2.ÂFor the purposes of this rule, the period of imprisonment shall be computed as the total period for which a prisoner is sentenced even though
one or more sentences be concurrent.
Note 3. If at any time a prisoner who could have been granted furlough is either not granted or is refused the same the period for which he could
have been granted the furlough shall not be carried forward but shall lapse.
Note 4.ÂThe period of two weeks may be initially extended up to three weeks in the case of prisoners desiring to spend the furlough outside the State
of Bombay.
Note 5. An order sanctioning the release of a prisoner on furlough shall cease to be valid if not given effect to within a period of two months of the
date thereof.
9. On the analysis of the aforesaid provisions of Rule 3, it is clearly found from the NoteÂ3 thereof makes provisions that if at any time a prisoner
who could have been granted furlough is either not granted or is refused, the same the period for which he could have been granted the furlough shall
not be carried forward but shall lapse. Now in the present case, this is not the ground of rejection of the application of Furlough. The jail authority has
simply rejected his prayer on the three grounds which has been reproduced hereinabove. Now, in view of the decision of the full bench referred to
hereinabove and the facts that the prisoner has already been undergone the sentence by the concerned Court for the Jail offences, the Authority ought
to have taken into consideration the other facts available on record.
10. In view of the aforesaid observation, the impugned order passed by the competent authority is required to be quashed and setÂaside and the
authority needs to reÂconsider the request of the convict for granting him 9th Furlough Leave.
11. For the reasons above, the Application succeeds. Rule is made absolute by quashing and setting aside the refusal of furlough due to the convict
prisoner by directing the respondent authority to consider the grant of furlough/ furloughs due to the convict in accordance with law within a period of
one month from today.
