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IN THE HIGH COURT OF BOMBAY
S.S. Shinde, Prakash D. Naik, N.J. Jamadar, JJ.
MOHD. RAEES S/O SHAHZADE ANSARI – Petitioner
Vs.
STATE OF MAHARASHTRA – Respondent
Cri. W.P. Nos. 1518, 3011 of 2021, Cri. Interim Application Nos. 2442 to 2444 of 2021
Decided On : 06-05-2022
Furlough Leave - MCOC Act - Rule 4 of The Prisons (Bombay Furlough and Parole) Rules, 1959 - The judgment discusses the eligibility for furlough leave for prisoners convicted under the MCOC Act and the interpretation of Rule 4. The court analyzes the provisions of Rule 4 and the circumstances under which furlough leave can be granted, considering the specific offences mentioned in the rule. The court also examines conflicting decisions and concludes that there is no conflict in the decisions on the issue referred by the Division Bench, returning the reference for deciding the petition in accordance with the law.
Fact of the Case:
The petitioner sought furlough leave, challenging the rejection of the application based on adverse police report and the possibility of absconding. The Division Bench referred the issue to the larger Bench to decide whether the circumstance of being behind bars for an offence under the MCOC Act can be considered against the prisoner in view of the furlough rules.
Finding of the Court:
The court found that there was no conflicting decision in the field and the reference was made without inconsistent views. It concluded that there is no conflict in the decisions on the issue referred by the Division Bench and returned the reference for deciding the petition in accordance with the law.
Issues: The main issue was whether the circumstance of being behind bars for an offence under the MCOC Act can be considered against the prisoner in view of the furlough rules.
Ratio Decidendi: The court held that there was no conflicting decision in the field and the reference was made without inconsistent views. It concluded that there is no conflict in the decisions on the issue referred by the Division Bench and returned the reference for deciding the petition in accordance with the law.
Final Decision: The court returned the reference made by the Division Bench for deciding the petition in accordance with the law.
The facts of the case involve a prisoner convicted under the MCOC Act who sought furlough leave, but his application was rejected primarily due to adverse police reports and concerns about the possibility of absconding. The petitioner challenged this rejection, leading to a referral to a larger Bench to determine whether being incarcerated for an offence under the MCOC Act could be considered a factor that disqualifies a prisoner from receiving furlough, similar to other specific offences listed in the relevant rules.
The core issue presented is whether the circumstance of being behind bars for an offence under the MCOC Act can be considered against the prisoner in the context of furlough eligibility, and whether this circumstance can be treated as an exception akin to other offences explicitly excluded by the furlough rules.
The ratio of the decision emphasizes that there is no conflicting legal decision in the field regarding this issue. It clarifies that the existing rules do not specifically exclude prisoners convicted under the MCOC Act from eligibility for furlough leave. The rules primarily exclude prisoners convicted for certain offences, notably those involving violence, serious prison violations, or other specific crimes, but do not explicitly mention offences under the MCOC Act. The court underscores that the authority's consideration of adverse police reports or the potential risk of absconding is within its subjective discretion, and the absence of a specific exclusion in the rules indicates that such prisoners are not categorically barred from furlough.
Consequently, the court concluded that there is no legal basis to treat incarceration under the MCOC Act as an automatic disqualification, and no conflict exists in the law. Therefore, the matter was returned to the original bench for a decision on the merits, affirming that the eligibility of prisoners convicted under the MCOC Act for furlough leave remains open unless explicitly excluded by law or regulation.
ORDER :
1. The Petitioner in Criminal Writ Petition No. 1518 of 2021 (Initially registered as Criminal Writ Petition No. 1512 of 2020) had preferred the petition before the Aurangabad Bench of this Court with the prayer that the petitioner be released on furlough leave by setting aside orders dated 5th October, 2020 and 11th September, 2019, passed by respondent No. 1, refusing furlough leave.
2. The factual matrix of the petition indicate as follows:
(ii) The petitioner preferred an application before respondent No. 3 for releasing him on furlough leave. The application was rejected by respondent No. 2 vide dated 11th September, 2019 on the ground that there is possibility of threat to life of witnesses. The said order was challenged before the respondent No. 1 by preferring Appeal. The Appeal was rejected by order dated 5th October, 2020, on the ground of negative police report and possibility of absconding.
(iii) The petition was listed before the Division Bench of this Court at Aurangabad bench. Vide order dated 18th January, 2021, the Division Bench was pleased to refer the matter to the larger Bench on the following issue:
“Whether the circumstance that the prisoner is behind bars for offence punishable under provisions of MCOC Act can be considered against him, in view of the furlough rules and whether that can be treated as exception, like other specific offences mentioned in Rule 4.”
(iv) The petition was then transferred to the principal seat for constitution of a larger bench to decide the Reference. The papers were placed before the Hon’ble the Chief Justice to constitute a larger bench to decide issue under reference. Vide administrative order dated 25th January, 2021, the Hon’ble the Chief Justice was pleased to constitute the larger Bench. Subsequently, one of the member of the bench was not available at the principal seat, the larger Bench was reconstituted upon the directions of the Hon’ble the Chief Justice dated 29th July, 2021. In view of that, the petition is placed before us to decide the issue under reference.
(v) It is necessary to note that the petitioner had preferred an application before this Court viz. Interim Application No. 337 of 2021 in Criminal Appeal No. 432 of 2016, for temporary bail on medical ground. The said application was allowed by this Court by order dated 29th March, 2022, and, the petitioner has been directed to be released on temporary bail for a period of six months from the date of his release.
3. We have perused the order dated 18th January, 2021, by which the Division Bench has referred the issue to the larger Bench. The reference order reads as follows:
2. Heard both the sides for sometime.
3. The furlough application is rejected by respondents on following grounds:
(i) There is adverse police report against the petitioner.
(ii) The prisoner is likely to abscond, after getting released on furlough.
(iii) Furlough is not vested right of the prisoner.
4. The other portion of the order shows that the petitioner is convicted for the offences punishable under section 307, 506(II), 397 and 387 read with 34 of the Indian Penal Code and section 3(1) (ii) of MCOC Act. The sentence of 10 years rigorous imprisonment and fine of rupees five lakh for the offence punishable under section MCOC Act is imposed. There is sentence for the offence punishable under sections 307,
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