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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
V.K. TAHILRAMANI, M.S. SONAK, JJ.
Pundalik G. Gole - Petitioner
Vs.
State of Maharashtra - Respondent
Cri. W.P. No. 1008 of 2018
Decided On : 25-04-2018
Constitution of India -Article 14, 21 - Indian Penal Code, 1860 - 376(2)(c), 377, 307, 304 -II, 354, 420 and 506 - Juvenile Justice (Care and Protection of Children) Act, 2015 – Prisons (Bombay Furlough and Parole) Rules, 1959 - Rule 4 - Rape - Eligible to be granted furlough - petitioner is that he preferred an application for furlough - However, in view of Notification, he was denied furlough. The said notification stated that prisoners who are convicted for rape will not be eligible to be granted furlough. The case of the petitioner appears to be that other prisoners, who had been convicted for offence of rape or for terrorist crimes used to be released earlier on furlough, however, after Notification, prisoners, who are convicted for rape are denied furlough and in view of Notification dated 26th August 2016, prisoners who are convicted for terrorist crimes are denied furlough - Held, main point in the case was that his application for parole was much prior to the Notification hence, fact that he was a bomb blast convict would not have come in the way to be granted parole. It is very clear from the very first para of the decision that his application for parole was prior to the Notification - Important distinction in the case was not brought to the notice of the Court when the case was decided by the Division Bench of the Court at Aurangabad. Hence, it cannot be said that the decision could have been relied upon to hold that even if the application of the prisoner for parole/furlough is after Notification he can still be granted parole/furlough. In view of the Notification, any application for furlough or parole after the notification by a bomb blast convict cannot be granted - Application dismissed.
The case primarily addresses the issue of whether prisoners convicted of certain serious offences, specifically rape and terrorist activities, are entitled to furlough leave under the applicable rules and whether subsequent notifications can retroactively affect such rights. The core facts involve a prisoner convicted of offences under sections 376 and 377 of the Indian Penal Code, who applied for furlough leave prior to the issuance of certain notifications that explicitly deny furlough to prisoners convicted of these offences (!) (!) .
The petitioner contends that, despite the notifications, his application for furlough should be considered on the basis of his conduct and the timing of his application, which was made before the notifications came into effect (!) (!) . The authorities, however, rely on the notifications to deny the furlough, emphasizing that the classification of offences and the purpose of such restrictions are rooted in rational considerations of public safety and societal interest (!) (!) (!) .
The ratio of the case hinges on the interpretation of the rules governing furlough, particularly whether the denial of furlough to prisoners convicted of specific serious offences is arbitrary or discriminatory. The court finds that the classification of offences—such as rape and terrorism—as grounds for denying furlough is rational, based on the need to protect public order and safety. It also affirms that furlough is a privilege, not a right, and that the rules provide the authority to refuse furlough in appropriate cases, especially where public interest and safety are concerned (!) (!) (!) .
Furthermore, the case emphasizes the importance of the timing of the application relative to the notifications and clarifies that notifications issued after the application cannot be applied retrospectively to deny furlough. The court underscores that the principles of legal certainty and non-retroactivity support the view that the petitioner’s application, made prior to the notifications, should be considered on its merits without the influence of subsequent restrictive notifications (!) (!) .
In conclusion, the case establishes that furlough is a conditional privilege that can be legitimately restricted based on the nature of the offence, the conduct of the prisoner, and the overarching need to safeguard societal interests, provided such restrictions are rational and non-discriminatory. The decision confirms that these restrictions do not violate constitutional provisions, such as Articles 14 and 21, when they are based on rational classifications aimed at public safety.
V.K. TAHILRAMANI, J.
Heard both sides.
2. The petitioner had preferred an application for furlough on 7-10-2016. The said application was rejected by order dated 6-3-2017. Being aggrieved thereby, the petitioner has preferred an appeal. The appeal was dismissed by order dated 10-8-2017, hence, this petition.
3. The application of the petitioner for furlough came to be rejected mainly on the ground that he is convicted for an offence under section 376 of Indian Penal Code, 1860. The petitioner has also prayed that direction be issued to respondent – State to rectify the Government Notifications dated 1st December 2015 and 26th August 2016. Both these Notifications are now not in force, they have been substituted by a new Notification dated 16th April 2018. By Notification dated 16th April 2018, necessary amendments and deletions have been carried out as far as earlier Notifications are concerned.
4. By judgment and order dated 5th December 2013, the petitioner was convicted under sections 376(2)(c), 377, 307, 304 -II, 354, 420 and 506 of Indian Penal Code as well as 25 of Juvenile Justice (Care and Protection of Children) Act, 2015. This order was passed by the learned Sessions Judge, Mumbai in Sessions Case No. 669 of 2011. The petitioner has sentenced to life imprisonment under section 376 (2)(c) as well as 377 of Indian Penal Code. In our opinion, the only relevant fact is that the conviction and sentence has been recorded for an offence punishable under section 376 of Indian Penal Code, i.e., rape and section 377, Indian Penal Code.
5. The case of the petitioner is that he preferred an application for furlough on 7th October 2016. However, in view of Notification dated 1st December 2015, he was denied furlough. The said notification stated that prisoners who are convicted for rape will not be eligible to be granted furlough. The case of the petitioner appears to be that other prisoners, who had been convicted for offence of rape or for terrorist crimes used to be released earlier on furlough, however, after Notification dated 1st December 2015, prisoners, who are convicted for rape are denied furlough and in view of Notification dated 26th August 2016, prisoners who are convicted for terrorist crimes are denied furlough.
6. Learned counsel for the petitioner submitted that the petitioner is convicted and sentenced to suffer life imprisonment for offence punishable under sections 376 and 377 of Indian Penal Code. Such a person is not entitled to furlough leave in terms of sub-rule (2) of Rule 4 of the Prisons (Bombay Furlough and Parole) Rules, 1959. Learned counsel for the petitioner submitted that the nature of the offence, its gravity and it being under sections 376 and 377 of Indian Penal Code cannot be said to be a valid ground for rejection of furlough leave. Thus, it appears that the challenge is raised to the provisions by which the authorities are empowered to refuse furlough leave in case of convicts/prisoners, who have been convicted for the offence under section 376/377 of Indian Penal Code. It is not disputed that the petitioner has been convicted for the offence under sections 376 and 377 of Indian Penal Code.
7. Learned counsel for the petitioner submitted that when a person is convicted for rape, then, he would not be released on furlough, 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.
8. It is argued that the selection of section 376 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 376 be denied the right to claim furlough leave? It is urged that the classifica
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