The discretionary powers of the sanctioning authority to dispense with the requirement of surety for prisoners confined in open prisons and the significance of sureties in granting parole were the central legal points established in the judgment.

JUDGMENT

Ravindra V. Ghuge, J. - The petitioner prays for a direction to the Jail authorities to grant him emergency parole under Rule 19 (1) (C) of the Maharashtra Prisons (Mumbai Furlough and Parole) Rules, 1959 (for short "the 1959 Rules), on a P. R. Bond without any surety. He is serving out the sentence of life imprisonment at the Aurangabad Central Jail.

2. The present petitioner had approached this Court in Criminal Writ Petition No.1189 of 2020, seeking emergency parole. By Judgment dated 15/10/2019, this Court concluded that the condition set out in the Government Notification dated 08/05/2020 that an applicant should have availed of furlough or parole leave on at least two occasions earlier, so as to make him eligible for the benefit under Rule 19 (1) (C), was unsustainable. This Court concluded that, if a candidate did not avail of furlough or parole leave, in all on two occasions, prior to making an application under Rule 19 (1) (C), it would not amount to an embargo or a disqualification. Since the petitioner had undergone three years behind bars, his petition was allowed and this Court granted him emergency parole on the usual terms and conditions. Furnishing two sureties was a part of such usual terms and conditions.

3. Since this petitioner could not furnish two sureties, he approached this Court in Criminal Writ Petition No.545 of 2021, praying for relaxation in the number of sureties and made a statement that his father was willing to stand surety. Considering his request, this Court, vide order dated 06/05/2021, reduced the number of sureties from two to one. However, now the petitioner has tendered a letter to this Court through the Registrar that as he is unable to furnish even one surety, he should be released on emergency parole on furnishing a personal bond.

4. Rule 6 of the Maharashtra Prisons (Mumbai Furlough And Parole) Rules, 1959 reads as under :

"6. For the Rule 6 of the Principal Rule, the following Rule shall be substituted, namely:-

6. A prisoner shall not be granted furlough unless he can provide a suitable surety willing to receive him. Family members, relatives or friends of the prisoner, if of good antecedents, may stand for him or the Member of local bodies, Police Patil or Registered Medical Practitioner of the home town may if willing and acceptable also be allowed to stand surety. The surety chosen must be willing to enter into a surety bond as in 'Form A' appended to these rules for such amount as may be fixed by the sanctioning authority.

Provided that the sanctioning authority may dispense with the requirement for a surety where prisoners are confined in open prisons as defined in clause (b) of rule 2 of the Maharashtra Open Prison Rules, 1971."

5. The learned Full Bench of this Court dealt with the following issue that was referred to it, in Dipak Sudhakar Wakalekar Vs. State of Maharashtra & ors., (2011) AllMR(Cri) 1933:-

"Whether as per proviso to Rule 6 of The Prisons (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?"

6. This Court concluded that the proviso to Rule 6 of the 1959 Rules vests discretionary powers in the sanctioning authority to dispense with the requirement of surety where prisoners were confined in open prisons. The learned Full Bench answered the issue in the affirmative and held that a convict confined in open prison can be released on parole by the authorities by dispensing with the requirement of execution of bond by the relatives.

7. It does not call for any debate that Rule 6 of the 1959 Rules opens with the sentence "A prisoner shall not be granted furlough unless he can provide a suitable surety willing to receive him". The learned Prosecutor submits that the words "shall not be granted" reflex the mandate of law and unlike the proviso below Rule 6 which grants discretion to the sanctioning authority with the wo