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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
V.K. TAHILRAMANI & ANUJA PRABHUDESSAI, JJ.
Santosh Namdeo Bhukan – Petitioner
Versus
State of Maharashtra (Home Ministry) – Respondent
Criminal Writ Petition No. 3325 of 2014
Decided On : 05-05-2016
The case involves a petitioner who was convicted under Sections 364, 302, and 201 of the Indian Penal Code, primarily for offences related to kidnapping and murder. The core facts are that the petitioner sought furlough leave but was denied based on a notification that amended the rules governing furloughs, specifically excluding prisoners convicted of grave offences such as kidnapping, terrorist crimes, and offences under the Narcotic Drugs and Psychotropic Substances Act from being granted furlough (!) (!) .
The petitioner contends that the exclusion of prisoners convicted under Section 364 (kidnapping) from furlough is arbitrary and violates principles of equality and fairness under the Constitution. He argues that such a classification lacks rational basis, especially when more serious offences like murder are not similarly excluded, and that furlough should be a right, not a privilege arbitrarily denied based on the offence committed (!) (!) (!) .
The respondents defend the rule by emphasizing the legislative intent to restrict furlough for offences that pose a higher risk to public safety and societal order. They argue that the classification of offences in the rules is rational, based on the potential danger to society, and aims to prevent the release of prisoners whose conduct and offence nature could jeopardize public peace. They also highlight that furlough is a privilege, not a right, and that the rules are designed to balance humane treatment of prisoners with societal security (!) (!) (!) (!) (!) .
The ratio of the case is that the classification of prisoners who are ineligible for furlough based on the nature of their offences, particularly grave offences like kidnapping, terrorism, and smuggling, is rational and serves a legitimate state interest in safeguarding public peace and security. The rules do not violate constitutional provisions as they are reasonable, non-discriminatory, and rooted in the objective of protecting society from potential harm caused by certain categories of offenders. Furthermore, furlough remains a privilege that can be lawfully restricted by valid rules, and the amendments made to the furlough rules are valid and within the legislative competence (!) (!) (!) (!) (!) (!) (!) .
In summary, the case underscores that the denial of furlough to prisoners convicted of specific serious offences is constitutionally valid, rational, and aimed at protecting societal interests, and that such classifications are permissible within the framework of the law.
V.K. TAHILRAMANI, J.
1. Rule. Respondent waives 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 364, 302 and 201 of IPC by Judgment and Order dated 24.5.2013 passed in Sessions Case No. 105 of 2011. 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.
3(A) The case of the petitioner is that he preferred an application for furlough, however, in view of the notification dated 23.02.2012, he took it back. The petitioner took his application for furlough back because in view of the notification dated 23.02.2012 whereby sub-rule 13 was added to Rule 4, his application for furlough would be rejected by the competent authority. The case of the petitioner is that other prisoners also who had been convicted for the offences of kidnapping or for terrorist crime or under the Narcotic Drugs and Psychotropic Substances Act used to be earlier released on furlough, however, after the circular, they have not been granted furlough. The petitioner has thus prayed that he be released on furlough.
4. Rule 4 set out the cases when prisoners shall not be granted furlough. Though the entire Notification is challenged, we are concerned mainly 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. 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
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