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CASE NO.: Appeal (crl.)  421 of 2006

PETITIONER: State of Maharashtra & Anr.

RESPONDENT: Suresh Pandurang Darvakar

DATE OF JUDGMENT: 13/04/2006

BENCH: ARIJIT PASAYAT & S.H. KAPADIA

JUDGMENT: J U D G M E N T

(Arising out of SLP (Crl) No. 417 of 2006)

ARIJIT PASAYAT, J

       Leave granted.         Heard counsel for the appellants.         None appears for the respondent in spite of service of notice.         The State of Maharashtra and the Superintendent, District  Prison, Akola, Maharashtra challenge the order  passed by learned  Single Judge of the Bombay High Court, Nagpur Bench accepting  respondent’s prayer for release on furlough.  By the impugned  order, learned Single Judge directed release of the respondent on  furnishing his surety of Rs.500/- lying in deposit with the jail  authorities.         According to the learned counsel for the appellants, the High  Court has not kept in view Rules 4(4) and 6 of the Prison (Bombay  Furlough and Parole) Rules, 1959 (in short, the ’Rules’).  The said  Rules have been framed in exercise of powers conferred by Clauses  (5) and (28) of Section 59 of the Prisons Act, 1894 (in short the  ’Act’) in its application to the State of Maharashtra as it stood  then.  The expression ’Furlough System’ is defined in Clause 5(A)  of Section 3 of the Act, while the expression ’Parole System’ is  defined in Clause 5(B) of the said provision.  The underlying object  of the Rules relating to ’Parole’ and ’Furlough’ have been  mentioned in the report submitted by All India Jail Manual  Committee and the objects mentioned in Model Prison Manual.   The ’Furlough’ and ’Parole’ have two different purposes.  It is not  necessary to state the reasons while releasing the prisoner on  furlough, but in case of parole reasons are to be indicated in terms  of Rule 19.  But release on furlough cannot be said to be an  absolute right of the prisoner as culled out from Rule 17.  It is  subject to the conditions mentioned  in Rule 4(4) and 6.  Furlough  is allowed periodically under Rule 3 irrespective of any particular  reason merely with a view to enable the prisoner to have family  association, family and social ties and to avoid ill effect of  continuous prison life. Prison of furlough is treated as a period  spent in the prison.  But Rule 20 shows that period spent on  parole is not to be counted as remission of sentence.  Since the  furlough is granted for no particular reason, it can be denied in  the interest of society; whereas parole is to be granted only on  sufficient cause being shown.         Rule 4(4) and 6 read as follows : Rule 4: When prisoners shall not be granted furlough.

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The following categories of prisoners shall not be  considered for release on furlough:         xx                              xx                      xx

(4) Prisoners whose release is not recommended  in Greater Bombay by the Commissioner of Police  and elsewhere, by the District Magistrate on the  ground of public peace and tranquility.

Rule 6: Furlough not to be granted without surety:

       A prisoner shall not be granted furlough  unless he has a relative willing to receive him  while on furlough and ready to enter into a surety  bond 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 of execution  of such bond by relatives of prisoners confined in  Open Prisons as defined in clause (b) of rule 2 of  the Maharashtra Open Prisons Rules 1971.]

       A bare reading of Rule 4(4)  indicates that release can be  refused when the same is not recommended by the Commissioner  of Police in Greater Bombay and elsewhere, by the District  Magistrate on the ground of public peace and tranquility.

       Rule 6, inter alia, provides that a prisoner shall not be  granted furlough unless he has a relative willing to receive him  while on furlough and is ready to enter into a surety bond in Form  A appended to the Rules for such amount as may be fixed by the  Sanctioning Authority.  The proviso authorizes the Sanctioning  Authority to dispense with the requirement of execution of such  bond by relatives of prisoners confined in Open Prisons as defined  in clause (b) of rule 2 of the Maharashtra Open Prisons Rules,  1971.  Therefore, the twin requirements flowing from Rule 6 are (a)  a relative of the applicant should be willing to receive him while on  furlough and (b) he must be ready to enter into a surety bond.  In  the instant case, the relatives refused to execute such surety  bond.  The verification reports received by the police from the  District Magistrate, Amravati and Superintendent of Police,  Amravati indicate that the sister of the respondent refused to  stand surety as the respondent allegedly committed rape on his  step mother and has been convicted for offences punishable under  Sections 376and 354 of the Indian Penal Code, 1860 and  sentenced to suffer imprisonment for seven years with fine.  In  view of the adverse police report and non-compliance with the  requirements stipulated under Rules 4(4) and 6, the Competent  Authority rejected the application for grant of furlough by order  dated 18.07.2005.

       Unfortunately, the High Court does not appear to have  addressed itself to these relevant aspects.  It took note of the fact  that nobody was willing to stand surety for release of the  respondent. The High Court directed that he can be released on  furnishing surety of amount lying in deposit with the jail  authorities.  That is not the only condition for release on furlough.   There is another requirement.  Even if it is held for the sake of  argument that furnishing of surety of any amount lying in deposit  with the jail authorities can be construed to be in compliance with  the requirements of Rules 6, Rule 4(4) mandates that the prisoner  who seeks to be released cannot be released if not recommended

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by the concerned authority on the ground of public peace and  tranquility.  The High Court has not recorded any finding that the  report of the District Magistrate and/or Superintendent of Police  had not objected to the release on furlough on the ground of  public peace and tranquility.

       Looked at from any angle, the High Court’s order is  indefensible.  The same is set aside.  It is, however, open to the  respondent to apply for release on fulfillment of the requisite  conditions as prescribed in the Rules.  Needless to say that the  same shall be considered in its own perspective in accordance with  law.  The appeal is allowed.