Furlough cannot be refused solely based on default committed by a prisoner in surrendering on the due date, and each prisoner's case needs to be considered separately and justifiably, taking into account the conduct of the prisoner during the intervening period from the date of the lapse.

JUDGMENT :

SUNIL B. SHUKRE, J.

1. Heard. Rule. Rule made returnable forthwith. Heard finally by consent of the learned counsel appearing for the parties.

2. It is true that in the year 2018 the Petitioner, while on furlough, did not surrender to the jail authorities on the due date and was required to be arrested and brought back to the prison, after the delay of about 173 days. It is also true that his earlier furlough application made in the year 2021 was rejected by the Respondent No. 1, which order was confirmed by this Court by it’s order dated 12th August, 2021 in Criminal Writ Petition No. 426 of 2021. But, the question is for how many days the Petitioner can be deprived of furlough only because, he had not surrendered on due date and was required to be arrested and brought back to the prison once in the terms.

3. The Provisions of Rule 4(10) of the Prisons (Bombay Parole and Furlough) Rules, 1959 (for short the “Rules of 1959”) state that a prisoner, who has escaped or attempted to escape from lawful custody or have defaulted in any way in surrendering himself at the appropriate time after release on parole or furlough is not eligible to get the benefit of furlough. This rule has been interpreted by the Division Bench of this Court at Aurangabad in it’s judgment dated 26.11.2019 in Criminal Writ Petition No. 1535 of 2019 (Satish Shankarrao Shinde Vs. The State of Maharashtra and Others) along with another connected matters. The opinion of the Division Bench at Aurangabad is that this rule is not mandatory in nature and in fit cases, in spite of default having been made by a prisoner in surrendering on due date, when on furlough or parole, the prisoner can be considered to be given furlough if, facts and circumstances of the case justify. The Division Bench interpreted rule 4(10) of the Rules of 1959 in this fashion, keeping in view the purpose of the furlough and parole scheme when it observed in paragraph No. 10 of the judgment, as under:

“The purpose behind the scheme is to see that the prisoner is allowed to mix in the society so that at the end when he comes out of the jail after serving the entire sentence, he knows the society well and he can adopt the changes which have taken place in the society. If that opportunity is not there, it will be difficult for prisoner to mix in the society and that will create problems for the society also. If it is presumed that the rule is mandatory then the purpose of the scheme itself will be defeated.”

Thus, the Division Bench held that only because there is a default committed by a prisoner in surrendering on the due date as stated in rule 4(10) of the Rules of 1959, furlough cannot be refused to the prisoner and the case of each of the prisoners needs to be considered separately on its own merits and upon proper justification. The Division Bench also held that if sufficient time has lapsed after the last default, the authority would be duty bound to consider the application of such a prisoner and decide it on the basis of the conduct of the prisoner during the intervening period from the date of the lapse. The relevant observations of the Division Bench appearing in paragraph No. 14 are reproduced thus:

“This Court holds that only for the second ground mentioned in the Rule 4(10) the furlough leave cannot be refused and the case of each prisoner needs to be consider separately on its own merits and proper justification needs to be given for refusal of the furlough leave. At the cost of repetition, this Court is observing that after sufficient time has passed since the date of lapse, it become duty of the authority to consider the applications of such prisoners and on the basis of the conduct of the prisoner during the intervening period, from the date of lapse, the authority can take proper decision.”

4. The view so taken by the Division Bench at Aurangabad in said case of Satish Shankarrao Shinde, accepting the view of the Full Bench of Gujarat High Court in the case of Bhikhabhai D