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IN THE HIGH COURT OF BOMBAY
Ramchandra Raghu Naik
Versus
State of Maharashtra
Decided on 25/2/2005
Prisoners Act, 1894 - Section 48-A - Prisons (Bombay Furlough and Parole) Rules, 1959, Rule 4(10) - Furlough leave. - Section 48-A of Prisoners Act, 1894 provides for punishment for overstay by prisoner after availing furlough leave. - Overstay by prisoner after availing furlough leave - Section 48-A provides for punishment but Rule 4(10) merely curtails the entitlement of benefit of furlough leave to the prisoner.
On account of overstay by the petitioners after availing the furlough leave, they were punished under the said provision of law comprised under Section 48-A of the Prisons Act. However, Rule 4(10) of the Furlough Rules does not speak of any punishment as such.
It merely curtails the entitlement of the benefit of furlough leave to the prisoner. In cases where a prisoner continues to commit default in matter of surrender on expiry of the furlough leave, once having availed the same, the Rule 4(10) provides that prisoners who had at any time escaped or attempted to escape from the lawful custody or defaulted in any way in surrendering themselves at the appropriate time after release on parole or furlough, shall not be released on furlough. Obviously, this does not speak of any punishment as such.
Merely because under certain circumstances the rule provides that a prisoner would not be entitled to furlough leave, that does not amount to a penal provision so as to contend that the implementation of such provision would amount to double jeopardy in the case of a prisoner who is punished under Section 48-A of the Prisons Act. The provisions relating to entitlement or disentitlement of furlough leave do not relate to penal action on the part of the authorities.
Prison (Bombay Furlough and Parole) Rules, 1959 - Rule 4(10) and Notification No. MIS 5157/74036 (XXIV)-IV dated 22.6.1959 - Release of prisoner on parole/furlough. - Overstay by prisoner after availing furlough leave without any justification or reason should not be condoned. - Where a prisoner does not report back to the prison after the expiry of the furlough leave period and overstays for a period of 93 days or 604 days, and even thereafter has to be arrested for the purpose of inducting him against in the prison, undoubtedly, it cannot be said that such a person deserved any leniency as regards the Rule 4(10) is concerned. In case of such a person, certainly the Rule 4(10) would apply invariably. It is not to say that even in the case of such person the authorities cannot exercise their discretion. That, however, would depend on facts of each case. For example, in a case where the prisoner is compelled to overstay on account of some serious ailment or illness, either of himself or his family member, or for some other justifiable cause, certainly an exception can be made. But an overstay without any justification and without any reason can hardly be condoned and, therefore, no unwarranted leniency can be shown to such a person or persons while applying Rule 4(10) of the Furlough Rules.
Prison (Bombay Furlough and Parole) Rules, 1959 - Rule 4(10) - Prisons Act, 1894, Section 48-A - Denial of furlough leave. - Denial of furlough leave to prisoner for breach of conditions under Prisons Act, just and proper. - As far as the provisions of law comprised under Section 48-A of the Prisons Act are concerned, the same relate to punishment for breach of conditions on which either the sentence is suspended or remitted or furlough or released on parole is granted. The clause (3) thereof provides that if any prisoner fails without sufficient cause to observe any of the conditions on which the furlough leave was granted to him, he shall be deemed to have committed a prison offence and the superintendent may, after obtaining his explanation punish for such offence by curtailing the privileges admissible under the remission or furlough or parole system. Undisputedly, in the case in hand, on account of overstay by the petitioners after availing the furlough leave they were punished under the said provision of law comprised under Section 48-A of the Prisons Act. However, Rule 4(10) of the Furlough Rules does not speak of any punishment as such. It merely curtails the entitlement of the benefit of furlough leave to the prisoner. In cases where a prisoner continues to commit default in the matter of surrender on expiry of the furlough leave, once having availed the same the Rule 4(10) provides that prisoners who had at any time escaped or attempted to escape from the lawful custody or defaulted in any way in surrendering themselves at the appropriate time after release on parole or furlough shall not be release on parole or furlough shall not be released on furlough. Obviously this does not speak of any punishment as such. It is well-settled that any entitlement prescribed under the statute can be availed within the parameters prescribed under the Statute. If the statute imposes conditions to claim any such benefit under the statute the same are to be availed on compliance of the conditions and not otherwise. The provisions regarding the entitlement of benefit has to be read alongwith conditions attached to the same. being so, the entitlement has to be read along with the conditions provided for. The entitlement of leave would be to the extent it is permissible and would not be available in cases where it is sought to be curtailed by specific provisions in that regard.
Prison (Bombay Furlough and Parole) Rules, 1959 - Rule 9 - Rejection of application for grant of furlough leave. - Prisoner can make a fresh application for grant of furlough leave after a period of 6 months from date of rejection of his earlier application.
R. M. S. KHANDEPARKAR, J.
( 1 ) IN both these petitions common questions of law and facts arise and therefore they were heard together and are being disposed of by this common judgment.
( 2 ) RULE. By consent, the rule is made returnable forthwith.
( 3 ) THE petitioners challenge the orders passed by the authorities below rejecting their applications for furlough leave. The said leave has been rejected mainly on the ground that both the petitioners, who were earlier granted the said leave, had not surrendered themselves and the petitioner in criminal Writ Petition No. 2300 of 2004 came to be arrested after 93 days' of overstay whereas the petitioner in Criminal Writ petition No. 81 of 2005 came to be arrested after 604 days' of overstay.
( 4 ) AT the outset, the learned advocates for the petitioners have drawn attention to Rule 2-II (k) of the Bombay High court Appellate Side Rules, 1960, hereinafter referred to as "the said Rules", while submitting that such matters are required to be placed before the learned single Judge and cannot be dealt with by a Division Bench.
( 5 ) THE Rule 2-II (k) of the said rules reads thus :- "applications/petitions, for furlough or parole under Prison (Bombay Furlough and Parole) Rules, 1959, or for temporary bail in the matter pending before Division bench or a Single Judge shall be placed before the respective fora. Applications/ petitions of aforesaid nature arising out of matters already disposed of shall be placed before the Single Judge assigned with Criminal matter. " the said Clause (k) was incorporated in the said Rules pursuant to the Notification published in the Maharashtra Government gazette Part IV-C, dated 29-7-1999. Obviously, it came into force from the said day. Plain reading of the said Clause discloses that all the matters relating to furlough or parole leave and bail applications arising in any matter which is pending before division Bench or a Single Judge, the same should be placed for hearing and disposal thereof before the respective bench and in cases where such applications are filed in the matters already disposed of, then those applications for their disposal are to be placed before the single Judge dealing with criminal matters. Considering the said clause itself, the Advocate for the petitioner would be justified in contending that the present matters which are filed in the disposed of matters, ought to have been placed before a learned single Judge. However, it cannot be done so, as the issue raised on behalf of the petitioners cannot be decided by merely referring to the said clause.
( 6 ) IN fact, the said clause cannot be read ignoring the main portion of Rule 2 of chapter-I of the said Rules. The same reads that :-
"2. Matters disposed of by a single Judge- save as otherwise expressly provided by these rules, a single Judge may dispose of the following matters :- i. Civil- ii. Criminal. . . . . . . . . . "the Clause (k) is to be found under the heading "criminal" of Rule 2. The Rule 2 thereof provides that the jurisdiction of a single Judge to deal with the matters enumerated thereunder would be "save as otherwise expressly provided" that is to say, subject to the express provision to the contrary in the said Rules,
( 7 ) THE said Rules comprise of various Chapters and Chapter XVII thereof deal with the subject of writ petitions under articles 226 and 227 of the Constitution of india. The Rule 1 of Chapter XVII provides that :-
"l. (I) Applications for issue of writs, directions, etc. under Article 226 of the constitution.- Every application for the issue of a direction, order or writ under article 226 of the Constitution shall, if the matter in dispute is or has arisen substantially outside Greater Bombay, be heard and disposed of by a Division Bench to be appointed by the Chief Justice. . . . . . . "further, Rule 18 of the said Chapter deals with the powers of the single Judge to deal with the writ petitions and it provides that :-
"18. Single Judge's
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