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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
V.K. TAHILRAMANI & ANUJA PRABHUDESSAI, JJ.
Sharad Devaram Shelake – Petitioner
Versus
State of Maharashtra (Home Ministry) – Respondent
Criminal Writ Petition No. 4034 of 2014 & Criminal Application No. 12 of 2015
Decided On : 28-04-2016
Result—Writ Petition dismissed.
The case primarily addresses the issue of whether a prisoner convicted of specific serious offences, such as kidnapping under Section 364 of the Indian Penal Code, can be denied furlough leave based on statutory rules and amendments. The core facts involve a prisoner convicted of kidnapping, who contends that the amended rules, which prohibit granting furlough to prisoners convicted of offences like kidnapping, are arbitrary, unreasonable, and violate constitutional rights. The petitioner argues that such classification and denial of furlough are not based on rational principles and that prisoners should have a right to furlough as a matter of humanized treatment and humane prison reform.
The legal ratio established in this case is that the entitlement to furlough is not an absolute right but a privilege that is regulated by rules. These rules can provide for classification of prisoners and impose restrictions based on the nature of the offence, the danger posed to society, and the conduct of the prisoner. The rules, including amendments, are valid if they have a rational basis and serve the legitimate purpose of safeguarding public interest and maintaining public peace. The court held that the classification of offences, such as kidnapping, terrorism, and smuggling, as grounds for denying furlough, is rational and rooted in the objective of protecting society from potential harm. Furthermore, the rules do not violate constitutional principles such as equality or non-arbitrariness when they are based on rational classification and serve a legitimate state interest.
In summary, the facts involve a prisoner convicted of a serious offence challenging the validity of rules that deny him furlough, and the ratio confirms that such restrictions are constitutionally valid when they are rationally connected to the objective of public safety and order. The entitlement to furlough remains a privilege, and the rules can lawfully restrict this privilege for certain categories of prisoners based on the nature of their offences and potential threat to society.
V.K. TAHILRAMANI, J.
1. Rule. Respondents waive service. By consent rule made returnable forthwith.
2. A very short question is involved in this petition under Article 226 of the Constitution of India. It is directed against the Notification issued by the Home Department dated 23.02.2012. By this Notification, Rule 4 of the Furlough and Parole Rules was amended and after sub-rule (10), sub-rule 11 to 19 were added.
3. The petitioner was convicted by the learned Additional Sessions Judge, Pune under Sections 302 and 364 of IPC by Judgment and Order dated 31.8.2012 passed in Sessions Case No. 215 of 2011. The said case arises out of C.R. No. 217 of 2010 of Lonikand Police Station, Pune. In our opinion, the only relevant fact is that the conviction and sentence has been interalia recorded for the offence punishable under Section 364 of IPC i.e. kidnapping.
4. The petitioner has stated that he did not apply for furlough leave because in view of the Notification dated 23.2.2012 whereby sub-rule 13 was added, his application for furlough would be rejected by the Competent Authority. Rule 4 set out the cases when prisoners shall not be granted furlough. Though the entire Notification is challenged, we are concerned here only with sub-rule 13 of Rule 4 which reads as under:-
"4. The following categories of prisoners shall not be considered for release on furlough:-
(13) Prisoners convicted for offences such as dacoity, terrorist crimes, kidnapping, smuggling including those convicted under the Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985) and foreigner prisoners.
5. Mr. Yashpal Thakur, the learned counsel for the petitioner submitted that the petitioner is convicted and sentenced to suffer imprisonment for offence punishable under Section 364 of Indian Penal Code. Such a person is not entitled to furlough leave in terms of sub-rule 13 of Rule 4 of the Prisons (Bombay Furlough and Parole) Rules, 1959. Learned counsel for the petitioner submitted that the reasons namely, the nature of the offence, its gravity and it being under section 364 of Indian Penal Code cannot be said to be a valid ground for rejection of furlough leave. Thus, a challenge is raised to the provisions by which the authorities are empowered to refuse furlough leave in case of convicts/ prisoners undergoing sentence for the offence of kidnapping. It is not disputed that the petitioner has been convicted for the offence under Section 364 of IPC.
6. Learned counsel for the petitioner submitted that when a person is convicted for kidnapping, then, he would not be released on furlough is the present rule and which would mean that for his entire tenure, as a prisoner/convict, the petitioner will never be released on furlough. The petitioner would, therefore, be permanently deprived of the right to be released on furlough.
7. It is argued that the selection of Section 364 for being included in the list of offences in respect of which furlough leave shall not be granted is arbitrary and that it is not based on any rational principle. If prisoners convicted for more serious offences such as murder are not precluded from claiming furlough leave, why should prisoners convicted of offences under Section 364 be denied the right to claim furlough leave? It is urged that the classification made by the rule making authority is not rooted in any rational principle and, therefore, Rule 4(13) must be struck down.
8. Lastly, it is submitted that the Rules do not mean that the application for furlough has to be rejected. Such rules cannot be construed as a mandate or a prohibition or embargo but will have to be construed as enabling the authority to refuse furlough in appropriate cases. Further, if this interpretation is not placed on the provision, then, it is ultra vires Article 14 of the Constitution of India.
9. We are unable to accede to the argument addressed to us by Mr. Thakur on behalf of the petitioner for reasons which will become presently evident
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