The constitutional validity of furlough provisions must account for individual prisoner circumstances, ensuring that previous overstays do not lead to automatic denials of furlough requests.

1. Rule. Rule made returnable forthwith. The writ petitions are heard finally with consent of the parties.

2. Raju @ Rajabhau Bhagwantrao Wankhede is a convict undergoing sentence of life imprisonment for the offence punishable under S.302 of the Indian Penal Code in Central Prison at Amravati. He had sent an application seeking furlough for meeting his family members, which was rejected by the respondent no. 1 on 14.2.2014 inter alia on the ground that on earlier occasion, when the petitioner was released on parole / furlough, he had overstayed the leave and on some of these occasions, he was even required to be arrested and brought back to the prison. Raju Wankhede has challenged this order in Criminal Writ Petition No. 220/2014. That petition is registered on the basis of a letter sent by the said prisoner, in which, we had appointed Ms. S. H. Bhatia to espouse the cause of the petitioner. That petition was amended on 17.4.2014 introducing a challenge to R.4 (10) of the Prisons (Bombay Furlough and Parole) Rules, 1959 (1959 Rules for short) being ultra vires on account of violation of fundamental rights. In that view of the matter, by an order dated 21.4.2014, notice was issued to the learned Advocate General and we had appointed Shri C. S. Kaptan, the learned Senior Counsel, to act as amicus curiae. In other petitions, except Criminal Writ Petition No. 567/2014 [Roshan Harichandra Mhaisekar v. D.I.G. (Prisons) (E)(R), Nagpur and one], the petitioners, who are convicts, are challenging the refusal of furlough leave by the Competent Authority. The furlough is refused on a similar ground, namely the petitioners overstaying the leave previously and on some of such occasions, they having been required to be arrested and brought back to the prison. In Criminal Writ Petition No. 567/2014, although the application is rejected on a similar ground of overstay, it appears that the petitioner was not required to be arrested. In other words, in that case, the petitioner Roshan Harichandra Mhaisekar had surrendered on his own accord, without intervention of the police machinery.

3. We have heard the learned counsels appearing for the petitioners in all these petitions. We have also heard Shri C. S. Kaptan, the learned Senior Counsel appointed to assist the court.

4. It is submitted on behalf of the petitioners that R.4 (10) of the 'Rules', acts to the detriment of the prisoners, although the prisoner may be prevented from circumstances beyond his own control from reporting back to the prison, within time. It is submitted that R.4 (10) of the Rules has the effect of creating two classes of prisoners namely those who although had overstayed, surrender on their own accord and the ones, who are required to be arrested and brought back. It is submitted that at times a person who is required to be arrested might have overstayed for a lesser period, than the prisoner who surrenders on his own accord. However, in the former case, the petitioner would be denied the benefit of furlough. It is submitted that this results into invidious classification, which has no connection with the object sought to be achieved and thus is violative of Art.14 of the Constitution of India. It is also submitted that this results into deprivation of personal liberty, except according to procedure established by law, which is violative of Art.21 of the Constitution of India.

5. The learned APPs appearing for the respondents have submitted that the impugned rule cannot be interpreted to mean that it results into such two classes being formed so as