1) During the course of arguments advanced in the proceedings of Criminal Writ Petition Nos.848 of 2010 and 954 of 2010, a Division Bench of Bombay High Court at Aurangabad (Coram: P.V. Hardas & A.V. Potdar, JJ.) directed the Registry to place the papers before Hon'ble the Chief Justice for constituting larger bench for referring the following question :

"Whether as per proviso to Rule 6 of The Prison (Bombay Furlough and Parole) Rules, 1959, a convict confined in open prison, can be released on parole/furlough by the Authorities by dispensing with the requirement of execution of bond by the relatives?"

2) In the proceedings of Criminal Writ Petition No. 848 of 2010 the petitioner therein contended that he was confined in Open Jail Paithan, District Aurangabad. The petitioner sought direction against the jail authorities to release him on furlough on executing personal bond.

3) The petitioner in Criminal Writ Petition No.954 of 2010 sought directions against the Superintendent, Open Jail Paithan to release him on furlough as per the order dated 22-7-2010 issue by the D.I.G. (Prisons) wherein the first condition of release of the petitioner on furlough was that he ought have furnished a surety of his relative in the sum of Rs.2000/-.

4) In both these petitions affidavits-in-reply are filed by the respondents - authorities through Padmakar Devidas Bhalerao, Superintendent of Open District Prison Paithan.

In the affidavit filed in the proceedings of Criminal Writ Petition No.848 of 2010 the Superintendent, Open Prison, Paithan has averred in para 8 as under :

"8. I say that, even the order of furlough leave is passed but he petitioner is stubborn and avail the liberty as he has harping of releasing him on executing of P.R. Bond. In view of this, the prayer of the petitioner does not stand in merit as per the Prison Rules and the judgment of the Hon'ble High Curt Bench at Nagpur and the Hon'ble Apex Court, the prayer of the petitioner for furlough leave on executing only P.R. Bond does not stand in merit as there is no provision for release on furlough / parole leave on executing the P.R. Bond."

In the affidavit filed in the proceedings of Criminal Writ Petition No.954 of 2010 the deponent averred in para 4 as under :

"4. I say that, petitioner had tendered proposed surety namely Devai Bali Pawar, mother of petitioner, she had refused to stand as surety. Therefore for want of proper surety the learned authorities are unable to release the petitioner on furlough leave. The petitioner further prayed for release on P.R. bond but as per the ratio laid down by the Hon'ble High Court and the Hon'ble Supreme Court, the convicts may not be released on P.R. bond for the purposes of furlough leave."

5) The jail authorities had adopted a stand that while releasing a person confined in open jail, on furlough, he ought to have furnished a surety bond of the relatives in the light of the order dated 8th March 2010 passed in Criminal Writ Petition No.13 of 2010 by the Division Bench of the Bombay High Court at Nagpur (Coram: A.P. Lavande & P.D. Kode, JJ.) and the judgment of the Apex Court in the case of State of Maharashtra .v. Suresh P. Darvakar, JT 2006 (4) SC 575.

6) The Division Bench at Nagpur disposed of the Criminal Writ Petition No.13 of 2010 by passing following order :

"Heard Mr. Dhabe, learned counsel for the petitioner and Mr. Jaiswal, learned APP for the Respondents.

The grievance of the petitioner who is undergoing sentence of imprisonment for life for having committed offences under Sections 302 and 201 of IPC is that his application for furlough has not been dealt with in accordance with law by the authorities. On behalf of the respondents, the Superintendent, Morshi Open Prison has filed an affidavit stating that by order dated 9.12.2009 the petitioner has been released on furlough upon executing personal bond. A copy of the said order has also been annexed to the affidavit.

We have been informed that pursua