STATE OF GUJARAT & ANR. versus NARAYAN @ NARAYAN SAI @ MOTA BHAGWAN ASARAM @ ASUMAL HARPALANI on 20 October 2021

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SUPREME COURT REPORTS

[2021] 10 S.C.R.

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STATE OF GUJARAT & ANR.

v.

NARAYAN @ NARAYAN SAI @ MOTA BHAGWANASARAM @ ASUMAL HARPALANI

(Criminal Appeal No. 1159 of 2021)

B

OCTOBER 20, 2021

[DR. DHANANJAYA Y CHANDRACHUD ANDB. V. NAGARATHNA, JJ.]

Bombay Furlough and Parole Rules: Release on furlough –CRespondent was convicted under ss.376(2)(c), 377, 354, 504,506(2), 508 of the IPC – By order dated 8 May 2021, applicationfor furlough was rejected by the Sanctioning Authority on the groundthat the respondent had engaged in illegal activities inside the jail,including keeping a mobile phone and making contacts outside theDjail; has engaged in criminal misconduct to hinder the judicialproceedings during trial by threatening, assaulting and murderingwitnesses; and that in case the respondent is released on furlough,the lives of the witnesses in the original trial would be under threat– Respondent successfully filed petition under s.482 CrPC forsetting aside order dated 8 May 2021 – Aggrieved State filed instantEappeal – Held: r.4(4) of the Rules provides for denial of furloughon grounds of disturbance to public peace and tranquility – Orderdated 8 May 2021 has adduced a number of circumstances whichcumulatively indicated that the release of the respondent onfurlough may lead to a violation of public peace – The order referredFspecifically to the threat he and his followers posed to thecomplainant and other persons who deposed at the trial – An attemptwas made to threaten and suborn the investigating team and thewitnesses – Respondent and his father have a mass following ofpersons who owe loyalty to them and there was a reasonableapprehension of a disruption of public peace and tranquillity –GDuring the trial, attempts were made to bribe public officials – Theconduct after the trial, in jail, was not shown to be above reproach– Thus, the opinion of the Sanctioning Authority under the Rulesdid not suffer from perversity nor did it consider material extraneousto the Rules governing the grant of furlough.H

STATE OF GUJARAT & ANR. v. NARAYAN @ NARAYAN SAI @

Bombay Furlough and Parole Rules: rr.3, 4, 17 – Right ofprisoner to furlough – Held: rr.3,4 and 17 do not confer a legalright on a prisoner to be released on furlough. The grant of furloughis regulated by r.3 and r.4 – While r.3 provides the eligibility criteriafor grant of furlough for prisoners serving different lengths ofimprisonment, r.4 imposes limitations – The use of the expression“may be released” in r.3 indicates the absence of an absolute right– This is further emphasised in r.17 which states that said Rules donot confer a legal right on a prisoner to claim release on furlough– Thus, the grant of release on furlough is a discretionary remedycircumscribed by rr.3 and 4.

Furlough and parole – Distinction between – Held: Furloughand parole envisage a short-term temporary release from custody –While parole is granted for the prisoner to meet a specific exigency,furlough may be granted after a stipulated number of years havebeen served without any reason – The grant of furlough is to breakthe monotony of imprisonment and to enable the convict to maintaincontinuity with family life and integration with society – Althoughfurlough can be claimed without a reason, the prisoner does nothave an absolute legal right to claim furlough – The grant offurlough must be balanced against the public interest and can berefused to certain categories of prisoners.

Allowing the appeal, the Court

Conclusion

Allowing the appeal, the Court

HELD: 1. From a reading of Rules 3, 4 and 17 of the BombayFurlough and Parole Rules, these Rules do not confer a legalright on a prisoner to be released on furlough. The grant offurlough is regulated by Rule 3 and Rule 4. While Rule 3 providesthe eligibility criteria for grant of furlough for prisoners servingdifferent lengths of imprisonment, Rule 4 imposes limitations.The use of the expression “may be released” in Rule 3 indicatesthe absence of an absolute right. This is further emphasised inRule 17 which states that said Rules do not confer a legal righton a prisoner to claim release on furlough. Thus the grant ofrelease on furlough is a discretionary remedy circumscribed byRules 3 and 4. [Para 15][346-A-C]

2. The principles may be formulated in broad, general termsbearing in mind the caveat that the governing rules for parole AB

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Aand furlough have to be applied in each context. The principlesare thus: Furlough and parole envisage a short-term temporaryrelease from custody; While parole is granted for the prisoner tomeet a specific exigency, furlough may be granted after astipulated number of years have been served without any reason;The grant of furlough is to break the monotony of imprisonmentBand to enable the convict to maintain continuity with family lifeand integration with society; Although furlough can be claimedwithout a reason, the prisoner does not have an absolute legalright to claim furlough; The grant of furlough must be balancedagainst the public interest and can be refused to certain categoriesCof prisoners. [Para 20][350-C]

3. The furlough application of the respondent was rejectedby the DGP by an order dated 8 May 2021. The DGP relied onthe concurrent opinion of the ACP, DCP and Jail Superintendentto deny the grant of furlough, based on the followingDcircumstances: the gravity of the offences that the respondenthas been convicted of, including, Sections 376(2)(c), 377, 354,504, 506(2), 508 of the IPC; the criminal misconduct of therespondent, during the trial, including attempts to bribe publicofficials; threatening, assaulting and murdering of witnesses byfollowers of the respondent; threatening police officials andEinspectors of the Income Tax Department; mass following of therespondent willing to commit offences at the instance of therespondent; and illegal activities while in custody, such as keepinga mobile phone and attempting to establish contact with outsiders.[Para 21][350-G-H; 351-A-C]F

4. The DGP has invoked Rules 4(4), 4(6) and 4(10) of theRules to dismiss the furlough leave application. Rule 4(4) of theRules provides that prisoners whose release is not recommendedby the Commissioner of Police on grounds of public peace andtranquillity may not be considered eligible for furlough. Rule 4(6)Gprovides for rejection of furlough leave where the conduct of theprisoner is not satisfactory and Rule 4(10) provides that prisonerswho have escaped, or attempted to escape from lawful custodyor have defaulted in surrendering, may not be eligible for furlough.The record does not show that the respondent has made any H

efforts to escape from lawful custody. After the grant of furloughin December 2020 and interim bail from 31 January 2021 till 3February 2021, the respondent surrendered to the authorities.Thus, Rule 4(10) of the Rules cannot be relied upon to refusefurlough leave to the respondent. [Paras 23, 24][351-E-G]

5. Turning now to Rule 4(6) of the Rules, the JailSuperintendent has given a negative opinion based on the factthat the respondent kept a mobile phone inside the jail illegallyand attempted to make contacts with the outside world. Rule4(4) of the Rules provides for denial of furlough on grounds ofdisturbance to public peace and tranquillity. The order dated 8May 2021 has adduced a number of circumstances whichcumulatively indicate that the release of the respondent onfurlough may lead to a violation of public peace. The order refersspecifically to the threat he and his followers pose to thecomplainant and other persons who deposed at the trial. Anattempt has been made to threaten and suborn the investigatingteam and the witnesses. The respondent and his father have amass following of persons who owe loyalty to them and there is areasonable apprehension of a disruption of public peace andtranquillity. During the trial, attempts have been made to bribepublic officials. The conduct after the trial, in jail, has not beenshown to be above reproach. The respondent was released earlierthis year to accommodate a genuine need to attend to his mother’shealth at the relevant time. The submission that the objectionsmentioned in the order dated 8 May 2021 were raised by theauthorities to the grant of furlough in December 2020 in spite ofwhich the High Court allowed the plea for furlough is meritless.The previous order of the High Court did not deal with thesesubmissions. The order only referred to the fact that therespondent’s mother was suffering on account of a cardiac arrestand granted furlough on this basis. The opinion of the SanctioningAuthority under the Rules does not suffer from perversity nordoes it consider material extraneous to the Rules governing thegrant of furlough. [Paras 25, 26][351-H; 352-A-F]

State of Maharashtra v. Suresh Pandurang Darvakar(2006) 4 SCC 776 : [2006] 3 SCR 1128 ; Asfaq v. State A

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Aof Rajasthan (2017) 15 SCC 55 : [2017] 11 SCR 571;State of Haryana v. Mohinder Singh (2000) 3 SCC 394: [2000] 1 SCR 698 – referred to.

Case Law Reference

CRIMINAL APPELLATE JURISDICTION: Criminal AppealNo.1159 of 2021.

CFrom the Judgment and Order dated 24.06.2021 of the High Courtof Gujarat at Ahmedabad in R/Special Criminal Application No.5199 of2021.

Tushar Mehta, SG, Kanu Agrawal, Aniruddha P. Mayee, Advs.for the Appellants.

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Sanjiv Punalekar, Suvidutt M. S., Ankush Mahajan, Dharma Raj,Mrs. Anu B., Ms. Vijayalakshmi Raju, Mrs. Dhanya C., Advs. for theRespondent.

The Judgment of the Court was delivered by DR. DHANANJAYA Y CHANDRACHUD, J.E

1. The appeal arises from a judgment of a Single Judge of theHigh Court of Gujarat dated 24 June 2021. The Single Judge directedthe release of the respondent on furlough.

A Factual Background

F2. An FIR, C.R. No. I-31/2013, was registered against therespondent on 6 October 2013 at Jahangirpura Police Station for offencesunder Sections 376(2)(c), 377, 354, 344, 357, 342, 323, 504, 506(2), 120-B, 212, 153 and 114 of the Indian Penal Code 1860[1]. Charges wereframed. On the conclusion of the trial, the Sessions Court by a judgmentdated 30 April 2019 convicted the respondent.The conviction and sentenceGare summarised below:

(i) Section 376(2): life imprisonment together with a fine ofRs. 1,00,000/-, and in default, simple imprisonment of oneyear; H1 “IPC”

(ii) Section 377: life imprisonment together with a fine ofRs. 1,00,000/-, and in default, simple imprisonment of oneyear;

(iii) Section 354: three years’ rigorous imprisonment togetherwith a fine of Rs. 25,000/-, and in default, simpleimprisonment of six months;

(iv) Section 504: one year’s rigorous imprisonment together witha fine of Rs. 5,000/-, and in default simple imprisonment ofthree months;

(v) Section 506(2): three years’ rigorous imprisonment togetherwith a fine of Rs. 5,000/- and in default, simple imprisonmentof one month;

(vi) Section 508: one year’s rigorous imprisonment together witha fine of Rs. 5,000/- and in default, simple imprisonment ofone month;

(vii) Section 323: six months’ rigorous imprisonment together witha fine of Rs. 500/- and in default, simple imprisonment ofone month; The respondent was directed to pay compensation ofRs. 5,00,000/- under Section 357(3) of the Code of CriminalProcedure 1973, to the prosecutrix. All sentences weredirected to run concurrently.

3. The respondent was released on temporary bail for a period ofthree weeks on 16 April 2015 and for a period of two days on 15 February2019. The respondent was granted furlough from 5 December 2020 fora period of fourteen days by the order of the High Court dated 2 December2020. Due to the ill-health of his mother, the respondent was released ontemporary bail from 31 January 2021 to 3 February 2021.

4. On 17 March 2021, the respondent filed an application[2 ]forfurlough through the Surat Lajpore Central Jail. The application wasrejected by the Director General of Police, Jail and ReformativeAdministration[3] on 8 May 2021. The DGP dismissed the applicationbecause:

(i) The Jail Superintendent had given a negative opinion on thefurlough application as the respondent had engaged in illegal 2 Judicial/Furlough/1194/201

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activities inside the jail, including keeping a mobile phoneand making contacts outside the jail; A

(ii) The respondent if released on furlough may violate law andorder;

(iii) The opinion of the Assistant Commissioner of Police[4 ]wasBsought on the grant of furlough and he had raised objectionsfor the following reasons:

(a) During the investigation of the offence, the DeputyCommissioner of Police[5], had guided a team to arrestthe respondent and had disclosed her official cellphone details to the media to solicit information fromthe public regarding the whereabouts of therespondent. On 16 October 2013 and 18 October2013, the DCP received phone calls from a personclaiming to be a ‘sadhak’ of the respondent,threatening to kill the DCP if she continued to searchfor the respondent. On investigation, it was revealedthat he was a resident of Madhya Pradesh and anFIR was registered against him; C

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(b) The administrator of the ashram in Surat visited theErespondent and the respondent gave a chit to him inhis handwriting for giving a bribe of Rs. 1 crore. Theadministrator of the ashram and others gave a bribeto the police officers, medical officers and judicialofficers to weaken the case against the respondent.An FIR against these persons was registered. In caseFthe respondent is released on furlough, he maycontinue such offensive acts;

(c) In order to break the morale of the complainant, herhusband, who was a witness in the trial, was assaultedwith a lethal weapon on 28 February 2014. Acomplaint, ICR No. 50/2014, was registered underSections 307 and 188 of the IPC against personsconnected with the respondent. While these personshave been arrested, they continue to attract a huge G

4 “ACP”H5 “DCP”

crowd of followers in India and may commit offensiveacts in the future. The respondent may also threatenthe husband of the complainant or other witnesses ifhe is released on furlough;

(d) A complaint, ICR No. 31/2014, was registered underSections 324 and 114 of the IPC and Section 135 ofthe Gujarat Police Act 1951, against two unknownpersons for assaulting and injuring one RakeshJayantilal Patel, a witness in the Asaram case, on 10March 2014 on his head with a weapon; (e)A complaint, ICR No. 69/2014, was registered underSections 307, 326(A), and 114 of the IPC againsttwo persons who claimed to be sadhaks of Asaramfor assaulting and injuring one Dinesh Bhagchandani,a witness in the Asaram case, on 16 March 2014 bythrowing acid on him and attempting to murder him; (f)A complaint, ICR No. 133/2014, was registered underSections 307 of the IPC, Sections 25(1)(A)(B) and27 of the Arms Act 1959, and Section 135(1) of theGujarat Police Act 1951, against one unknown personfor assaulting and injuring one Amrut Prajapati, awitness in the Asaram case, on 23 May 2014 by firinga revolver with the intention of causing death. Thewitness suffered severe injury and died duringtreatment; (g)The offences against the witnesses in Asaram’s caseand in the respondent’s case were committed by onePravin Vakil. The offences against these witnessesincreased after this accused visited the respondentin jail on 15 February 2014. Thus, there is a possibilityof the involvement of the respondent in thecommission of these offences; (h)An FIR, CR No. 243/2015, was registered underSections 307, 452, 120B, and 34 of the IPC and Section25(1)(a) of the Arms Act 1959, for assaulting oneMahendra Chavala, a witness in the case against therespondent. The respondent was passively involvedin the said incident; and A

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338SUPREME COURT REPORTS

A(i)In connection with the investigation of the case againstthe respondent, 42 bags were seized from the flat ofasadhak. Pursuant to the direction of the High Court,the bags were handed over to the Income TaxDepartment. A raid was conducted by the IncomeTax Department on sadhaks staying acrossBthecountry and crores of rupees worth of propertieshad been seized. Most of these investments were onbehalf of the respondent and his father, Asaram.During the investigation, an Inspector was threatenedof being murdered and a complaint was lodged; C

(iv) The present DCP agreed with the above opinion of the ACP.Given the conduct of the respondent, his criminal networkand his followers, the DCP objected to the grant of furloughto him;

(v) The respondent was granted furlough in December 2020Don account of his ailing mother. The furlough was grantedwith the permission of the High Court; and

(vi) The first furlough leave application of the respondent wasdismissed in 2019. In response to the said application aswell, the ACP had given a negative opinion to not grantEfurlough, which was corroborated by the then DCP. Thereasons for rejecting the first furlough leave application arethe same as those produced above.

5. Based on the above opinion, the DGP rejected the grant offurlough for the following reasons:F

(i) The respondent is accused of high profile cases of rapeand atrocities punishable under provisions of Sections376(2)(c), 377, 354, 504, 506(2), 508 of the IPC;

(ii) The opinions of the ACP and DCP indicate that in additionto the main offence, the respondent has engaged in criminalGmisconduct to hinder the judicial proceedings during trial bythreatening, assaulting and murdering witnesses;

(iii) frequent assaults on witnesseshave been registered againstthe followers of the respondent and seven offences havebeen registered against him;H

(iv) one of these seven offences is being supervised by an IPSAofficer, Shoba Bhutada, who has been threatened by thefollowers of the respondent;

(v) the respondent is not a normal prisoner who may beconsidered for grant of furlough. He has a group ofthousands of head strong followers, spanning across theBcountry who are willing to commit offences at the instanceof the respondent;

(vi) in case the respondent is released on furlough, the lives ofthe witnesses in the original trial will be under threat. Therespondent may interrupt the judicial proceedings forprosecution of the seven offences pending against him; and C

(vii) the respondent is engaged in dangerous activities oforganized crime and has a network of persons and a financialbackground.

6. The respondent moved the High Court under Section 482 CrPCfor setting aside the order dated 8 May 2021. The respondent relied onthe proviso to Rule 3(2) of Prisons (Bombay Furlough and Parole) Rules1959[6 ]and urged that a prisoner sentenced to life imprisonment may bereleased on furlough every year instead of every two years, after hecompletes seven years of imprisonment. It was also submitted thatfurlough leave is granted as a matter of right.

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7. Allowing the application of the respondent, the Single Judge ofthe High Court held that:

(i) The reasons furnished by the DGP for denying furloughwere considered by the High Court in its previous orderdated 2 December 2020, pursuant to which the respondentwas released on furlough for a period of two weeks; F

(ii) No untoward incident took place after the respondent wasreleased in December 2020 and the respondent did notmisuse the liberty granted to him during the period offurlough; G

(iii) Although the respondent was involved in criminal activitiesearlier, no illegal activity has been reported since therespondent was released in December 2020; 6 “Bombay Furlough and Parole Rules” or “Rules”

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A(iv)The reasons furnished by the DGP have already beenconsidered by the High Court and are not reasonable orjustified;

(v) The respondent has been under imprisonment for a periodof seven and a half years. Under the Bombay Furlough andBParole Rules, he is entitled for furlough leave once everyyear.

8. Based on the above reasons, the Single Judge allowed therespondent to be released on furlough leave with police escort for aperiod of fourteen days from the date of his release on the execution ofCa personal bond of Rs. 1,00,000/- before the Jail Authority and otherconditions that the authority may deem fit. The respondent was to resideat the residence of his mother in Ahmedabad and was directed to surrenderon the expiry of his leave. On the request of the Additional PublicProsecutor, the Single Judge of the High Court stayed the impugnedorder for a period of three weeks. By an order dated 6 August 2021, theDimplementation of the impugned order was stayed until 13 August 2021.

9. A Special Leave Petition[7] was filed by the State of Gujaratagainst this order. On 12 August 2021, a bench comprising of one of us,(Justice DY Chandrachud) and Justice MR Shah stayed theimplementation of the order of the High Court.

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B Rival Submissions

10. Assailing the order of the High Court, Mr Tushar Mehta,Solicitor General appearing on behalf of the State of Gujarat, has madethe following submissions:

F(i)Rules 3 and 4 of the Bombay Furlough and Parole Rulesindicate that furlough cannot be allowed mechanically as amatter of right. Rule 3 creates an option for the prisoner tobe released on furlough and the said Rule is subject to Rule4;

G(ii)Under sub-Rules 4, 6 and 10 of Rule 4 of the BombayFurlough and Parole Rules, prisoners whose release is notrecommended by the Commissioner of Police or the DistrictMagistrate on grounds of public peace and tranquility;prisoners whose conduct is not satisfactory in the opinion H7 SLP (Crl.) No. 5699 of 2021

of Superintendent of the Prison; and prisoners who haveescaped or attempted to escape from custody or havedefaulted in surrendering after release on parole or furlough,shall not be considered for release on furlough; A

(iii) Rule 17 of the Bombay Furlough and Parole Rules providesthat the Rules do not confer a legal right on the prisoner toclaim release on furlough; B

(iv) In State of Maharashtra v. Suresh Pandurang Darvakar[8]this Court has held that furlough can be refused in caseswhere there are concerns of public peace and tranquility; C

(v) Furlough can be denied if it is not in the interest of thesociety as held in Asfaq v. State of Rajasthan[9];

(vi) The facts of the case indicate the gross nature of crime,which disentitles the respondent to any discretionary relief.The DGP has noted that the respondent had attempted tobribe public officials; caused injury to the husband of theDcomplainant and other witnesses; threatened to murderpolice inspectors and an inspector of the Income TaxDepartment; and attempted to derail the judicial process;

(vii) The reliance placed by the High Court on its previous orderdated 2 December 2020 is misplaced as the order did notdeal with the objections of the authorities on denial offurlough. The grant of furlough under Rule 3 is subject toRule 4 of the Bombay Furlough and Parole Rules whichaccords weight to the opinion of the authorities for grant offurlough. Unless this subjective satisfaction of theauthorities, which is susceptible to judicial review, is takenaway, furlough cannot be granted. The High Court has,neither in its previous order dated 2 December 2020 nor inthe impugned order, made any observation on thecorrectness of the objections of the authorities against thegrant of furlough; and E

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(viii) The purpose of furlough is to enable the prisoner to meetfamily needs and to maintain a connection with society. Evenif it is accepted that the prisoner is entitled to a furlough of 8 (2006) 4 SCC 776

9 (2017) 15 SCC 55

fourteen days in a year after serving a sentence of sevenyears, in this case the respondent was granted furlough on2 December 2020 and was granted interim bail from 31January 2021 to 3 February 2021. Thus, the respondentcannot be granted furlough again in the month of July 2021.

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B11. Opposing the submissions of the Solicitor General, Mr SanjivPunalekar, counsel for the respondent, urged that:

(i) On 5 May 2021, the father of the respondent, Asaram Bapu,tested positive for COVID-19 and is suffering from multiplecolonic diverticulosis gastrointestinal bleeding. On 16February 2021, the respondent’s father was admitted to thehospital, where it was found that he had an attack of unstableangina or acute coronary syndrome. The respondent’s fatheris suffering from 11 major chronic ailments and sufferedfrom septic shock and pulmonary embolism in June 2021; C

(ii) There is no family member around the respondent’s fatherDand his condition is critical.The respondent is the only sonof his father. The respondent’s mother is also severely illand is being taken care of by her daughter. Thus, therespondent is required to be released on furlough to takecare of his father’s medical care and treatment;

E(iii)The appeal against the respondent’s conviction and theapplication for suspension of sentence are pending forhearing before the High Court;

(iv) The respondent has been released on temporary bail andfurlough leave on four occasions and no untoward incidentFwas reported during his release;

(v) The furlough leave is a matter of right and is grantedperiodically to prisoners to continue their association withtheir families;

(vi) Apart from the present case, the respondent is an accusedGin two criminal cases and has been granted bail in both thecases;

(vii) With respect to the other offences mentioned in the orderdated 8 May 2021, the respondent is not associated withthe attacks, his name has not been mentioned in the FIRsHand there is no proof to show that the respondent is connected to the accused in those cases. Since he hasalready been convicted, there is no question of threateningthe witnesses; A

(viii) The infractions referred to by the Superintendent of Prisonto the grant of furlough to the respondent are minor andhave no nexus to respondent’s behaviour once he is releasedBon furlough;

(ix) The difference between grant of furlough and parole is thatfurlough is granted to prisoners after they have undergonea specified period of sentence, parole is a conditionaltemporary release on ground of good conduct for asituational relief; and C

(x) Rule 3(2) of the Bombay Furlough and Parole Rules providesthat a prisoner sentenced to life imprisonment may bereleased on furlough “every year” after he completes sevenyears of imprisonment. The phrase “every year” must beinterpreted to mean every calendar year.

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12. Having adverted to the rival submissions of the parties, weshall now address the issue at hand.

C Analysis

13. The Bombay Furlough and Parole Rules were made pursuantto Section 59 of the Prisons Act 1894 and are applicable in the State ofGujarat. Under sub-Section 5 of Section 59 of the Prisons Act 1894, theState Government may make rules for the award of marks and shorteningof sentences. Sub-Section 28 of Section 59 also grants power to theState Governments to make rules for carrying out the purposes of theAct.

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14. Rule 3 of the Bombay Furlough and Parole Rules provides forthe grant of furlough to prisoners and reads as follows:

“3. When Prisoner may be granted furlough.

(1) A Prisoner, who is sentenced to imprisonment for a periodexceeding one year but not exceeding five years, may be releasedon furlough for a period of two weeks at a time for every year ofactual imprisonment undergone.

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(2) A Prisoner, who is sentenced to imprisonment for a periodexceeding five years may be released on furlough for a H

Aperiod of two weeks at a time for every two years of actualimprisonment undergone:

Provided that a prisoner sentenced to imprisonment for more thanfive years but not to imprisonment for life may be released onfurlough every year instead of every two years during the lastBfive years of his unexpired period of sentence:

Provided further that a prisoner sentenced to lifeimprisonment may be released on furlough every yearinstead of every two years after he completes seven yearsactual imprisonment.

CNote 1: The period of imprisonment in this rule includes thesentence or sentences awarded in lieu of fine in case the amountof fine is not paid.

Provided that if fine is paid during the period of imprisonment andthe total sentence is reduced to a term not exceeding 5 years heDshall thereafter be eligible for release in accordance with sub-rule(1) instead of every two years under sub-rule (2).

Note 2: For the purposes of this rule, the period of imprisonmentshall be computed as the total period for which a prisoner issentenced even though one or more sentences be concurrent.

ENote 3: If at any time a prisoner who could have been grantedfurlough is either not granted or is refused the same the period forwhich he could have been granted the furlough shall not be carriedforward but shall lapse.

Note 4: The period of two weeks may be initially extended up toFthree weeks in the case of prisoners desiring to spend the furloughoutside the State of Bombay.

Note 5: An order sanctioning the release of a prisoner on furloughshall cease to be valid if not given effect within a period of twomonths of the date thereof.”

GRule 4 further stipulates the conditions when furlough shall not begranted:

“4. When prisoners shall not be granted furlough.- The following categories of prisoners shall not be considered forHrelease on furlough:-

STATE OF GUJARAT & ANR. v. NARAYAN @ NARAYAN SAI @MOTA BHAGWAN [DR. DHANANJAYA Y CHANDRACHUD, J.]

(1) Habitual prisoners.

(2) Prisoners convicted of offenses under sections 392 to 402(both inclusive) of the Indian Penal Code.

(3) Prisoners convicted of offence under the Bombay ProhibitionAct, 1949

(4) Prisoners whose release is not recommended in GreatBombay by the Commissioner of Police and elsewhere, theDistrict Magistrate on the ground of public peace andtranquility.

(5) Prisoners who, in the opinion of the Superintendent of theprison show a tendency towards crime.

(6) Prisoners whose conduct is in the opinion ofSuperintendent of the Prison, not satisfactory enough.

(7) Prisoners confined in the Ratnagiri Special Prison [other thanprisoners transferred to that prison for jail services.]

(8) Prisoners convicted of offences of violence against person orproperty committed for political motives, unless the prior consentof the State Government to such release is obtained.

(9) A prisoner or class of prisoners in whose case the StateGovernment has directed that the prisoner shall not be releasedor that the case should be referred to it for orders.

(10) Prisoners who have at any time escaped or attemptedto escape from lawful custody or have defaulted in any wayin surrendering themselves at the appropriate time afterrelease on parole on furlough.

(11) Prisoners convicted of offences under the Narcotic Drugsand Psychotropic Substance Act, 1985.”

Rule 17 of the Rules clarifies the nature of the grant of furlough:“Nothing in these rules shall be construed as conferring alegal right on a prisoner to claim release on furlough.”

(emphasis supplied)

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A15. From a reading of the above provisions it is evident that theBombay Furlough and Parole Rules do not confer a legal right on aprisoner to be released on furlough. The grant of furlough is regulatedby Rule 3 and Rule 4. While Rule 3 provides the eligibility criteria forgrant of furlough for prisoners serving different lengths of imprisonment,Rule 4 imposes limitations.The use of the expression “may be released”Bin Rule 3 indicates the absence of an absolute right. This is furtheremphasised in Rule 17 which states that said Rules do not confer a legalright on a prisoner to claim release on furlough. Thus the grant of releaseon furlough is a discretionary remedy circumscribed by Rules 3 and 4extracted above.C16. The applicability of these Rules was considered by a twojudge Bench of this Court in State of Maharashtra v. Suresh PandurangDarvakar[10]. Justice Arijit Pasayat, speaking for the Bench held that:

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“5. According to the learned counsel for the appellants, the HighCourt has not kept in view Rules 4(4) and 6 of the Prisons (BombayDFurlough and Parole) Rules, 1959 (in short “the Rules”). The saidRules have been framed in exercise of powers conferred byclauses (5) and (28) of Section 59 of the Prisons Act, 1894 (inshort “the Act”) in its application to the State of Maharashtra as itstood then. The expression “furlough system” is defined in clauseE(5-A) of Section 3 of the Act, while the expression “parole system”is defined in clause (5-B) of the said provision. The underlyingobject of the Rules relating to “parole” and “furlough” havebeen mentioned in the report submitted by All-India JailManual Committee and the objects mentioned in ModelPrison Manual. The “furlough” and “parole” have twoFdifferent purposes. It is not necessary to state the reasonswhile releasing the prisoner on furlough, but in case of parolereasons are to be indicated in terms of Rule 19. But releaseon furlough cannot be said to be an absolute right of theprisoner as culled out from Rule 17. It is subject to theGconditions mentioned in Rules 4(4) and 6. Furlough is allowedperiodically under Rule 3 irrespective of any particular reasonmerely with a view to enable the prisoner to have family association,family and social ties and to avoid ill-effect of continuous prisonlife. Period of furlough is treated as a period spent in the prison.

But Rule 20 shows that period spent on parole is not to be countedas remission of sentence. Since the furlough is granted for noparticular reason, it can be denied in the interest of society;whereas parole is to be granted only on sufficient causebeing shown.

[…]

7. A bare reading of Rule 4(4) indicates that release can berefused when the same is not recommended by theCommissioner of Police in Greater Bombay and elsewhere,by the District Magistrate on the ground of public peaceand tranquillity.”

17. In Suresh Darvakar (supra), the Court distinguished parolefrom furlough. While both parole and furlough are temporary releasesfrom confinement, parole is granted only for a specific purpose. A prisoneris entitled to apply for furlough once he has served the minimum yearsof sentence as stipulated in Rule 3.

18. The difference between bail, furlough and parole was alsoconsidered by a two-judge Bench of this Court in State of Haryana v.Mohinder Singh[11]. Justice DP Wadhwa, referring to the Haryana GoodConduct Prisoners (Temporary Release) Act 1988 and the Punjab GoodConduct Prisoners (Temporary Release) Act 1962, observed that “17. ”Furlough” and “parole” are two distinct terms now beingused in the Jail Manuals or laws relating to temporary release ofprisoners. These two terms have acquired different meanings inthe statute with varied results. Dictionary meanings, therefore,are not quite helpful. In this connection we may refer to theHaryana Good Conduct Prisoners (Temporary Release) Act, 1988which has repealed the Punjab Good Conduct Prisoners(Temporary Release) Act, 1962. The Punjab Act was earlierapplicable in the State of Haryana. The language of both the Actsis same and it may be useful to refer to Sections 3 and 4 of any ofthese two Acts to understand the difference between parole andfurlough:

[…]

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A18. It would be thus seen that when a prisoner is on parole hisperiod of release does not count towards the total period ofsentence while when he is on furlough he is eligible to have theperiod of release counted towards the total period of his sentenceundergone by him.”

B19. In Asfaq v. State of Rajasthan[12], Justice AK Sikri, speakingfor the two-judge Bench observed that:

“11. There is a subtle distinction between parole and furlough. Aparole can be defined as conditional release of prisoners i.e. anearly release of a prisoner, conditional on good behaviour andCregular reporting to the authorities for a set period of time. It canalso be defined as a form of conditional pardon by which theconvict is released before the expiration of his term. Thus, theparole is granted for good behaviour on the condition that paroleeregularly reports to a supervising officer for a specified period.Such a release of the prisoner on parole can also be temporarilyDon some basic grounds. In that eventuality, it is to be treated asmere suspension of the sentence for time being, keeping thequantum of sentence intact. Release on parole is designed to affordsome relief to the prisoners in certain specified exigencies.

[…]E

14. Furlough, on the other hand, is a brief release from the prison.It is conditional and is given in case of long-term imprisonment.The period of sentence spent on furlough by the prisoners neednot be undergone by him as is done in the case of parole. Furloughis granted as a good conduct remission.”FSummarising the difference between parole and furlough, the Courtnoted that “16. […]

(i) Both parole and furlough are conditional release.

G(ii) Parole can be granted in case of short-term imprisonmentwhereas in furlough it is granted in case of long-term imprisonment.

(iii) Duration of parole extends to one month whereas in the caseof furlough it extends to fourteen days maximum.

H12 (2017) 15 SCC 55

(iv) Parole is granted by Divisional Commissioner and furlough isgranted by the Deputy Inspector General of Prisons.

(v) For parole, specific reason is required, whereas furlough ismeant for breaking the monotony of imprisonment.

(vi) The term of imprisonment is not included in the computationof the term of parole, whereas it is vice versa in furlough.

(vii) Parole can be granted number of times whereas there islimitation in the case of furlough.

(viii) Since furlough is not granted for any particular reason, itcan be denied in the interest of the society.

(See State of Maharashtra v. Suresh Pandurang Darvakar[State of Maharashtra v. Suresh Pandurang Darvakar, (2006)4 SCC 776 : (2006) 2 SCC (Cri) 411] and State ofHaryana v. Mohinder Singh [State of Haryana v. MohinderSingh, (2000) 3 SCC 394 : 2000 SCC (Cri) 645] .)

After noting the purpose of parole on the one hand and furloughon the other, the Court indicated the need fora balance to be maintainedbetween two competing interests while granting parole or furlough- thatof reforming the convict on one hand and the public purpose and interestsof society on the other:

“19. Having noted the aforesaid public purpose in granting paroleor furlough, ingrained in the reformation theory of sentencing, othercompeting public interest has also to be kept in mind while decidingas to whether in a particular case parole or furlough is to be grantedor not. This public interest also demands that those who arehabitual offenders and may have the tendency to committhe crime again after their release on parole or have thetendency to become a threat to the law and order of thesociety, should not be released on parole. This aspect takescare of other objectives of sentencing, namely, deterrence andprevention. This side of the coin is the experience that great numberof crimes are committed by the offenders who have been putback in the street after conviction. Therefore, while deciding asto whether a particular prisoner deserves to be released on paroleor not, the aforesaid aspects have also to be kept in mind. To putit tersely, the authorities are supposed to address the question as A

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Ato whether the convict is such a person who has the tendency tocommit such a crime or he is showing tendency to reform himselfto become a good citizen.

20. Thus, not all people in prison are appropriate for grant offurlough or parole. Obviously, society must isolate those who showBpatterns of preying upon victims. Yet administrators ought toencourage those offenders who demonstrate a commitment toreconcile with society and whose behaviour shows that they aspireto live as law-abiding citizens. Thus, parole programme should beused as a tool to shape such adjustments.”

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20. The principles may be formulated in broad, general termsbearing in mind the caveat that the governing rules for parole and furloughhave to be applied in each context. The principles are thus:

(i) Furlough and parole envisage a short-term temporary releaseDfrom custody;

(ii) While parole is granted for the prisoner to meet a specificexigency, furlough may be granted after a stipulated numberof years have been served without any reason;

(iii) The grant of furlough is to break the monotony ofEimprisonment and to enable the convict to maintain continuitywith family life and integration withsociety;

(iv) Although furlough can be claimed without a reason, theprisoner does not have an absolute legal right to claimfurlough;F

(v) The grant of furlough must be balanced against the publicinterest and can be refused to certain categories ofprisoners.

21. The furlough application of the respondent was rejected byGthe DGP by an order dated 8 May 2021. The DGP relied on theconcurrent opinion of the ACP, DCP and Jail Superintendent to deny thegrant of furlough, based on the following circumstances:

(i) the gravity of the offences that the respondent has beenconvicted of, including, Sections 376(2)(c), 377, 354, 504,H506(2), 508 of the IPC;

(ii) the criminal misconduct of the respondent, during the trial,including attempts to bribe public officials; threatening,assaulting and murdering of witnesses by followers of therespondent; threatening police officials and inspectors ofthe Income Tax Department;

(iii) mass following of the respondent willing to commit offencesat the instance of the respondent; and

(iv) illegal activities while in custody, such as keeping a mobilephone and attempting to establish contact with outsiders.

22. These allegations have been refuted by the respondent on theground that apart from the present case, he is accused in two otheroffences in which he has been granted bail. It has been urged that in theoffences relating to intimidation and injury to the witnesses mentioned inthe order dated 8 May 2021, the police has not charged him and he wasnot involved in any manner. It has been urged that even otherwise, theseoffences occurred prior to 2016, after which there have been nocomplaints against or in relation to the respondent. The respondent haslaid emphasis on the fact that when he was granted furlough in December2020, he did not violate the conditions of furlough, nor was there anydisruption of law and order.

23. The DGP has invoked Rules 4(4), 4(6) and 4(10)of the Rulesto dismiss the furlough leave application. Rule 4(4) of the Rules providesthat prisoners whose release is not recommended by the Commissionerof Police on grounds of public peace and tranquillity may not be consideredeligible for furlough. Rule 4(6) provides for rejection of furlough leavewhere the conduct of the prisoner is not satisfactory and Rule 4(10)provides that prisoners who have escaped, or attempted to escape fromlawful custody or have defaulted in surrendering, may not be eligible forfurlough.

24. The record does not show that the respondent has made anyefforts to escape from lawful custody. After the grant of furlough inDecember 2020 and interim bail from 31 January 2021 till 3 February2021, the respondent surrendered to the authorities. Thus, Rule 4(10) ofthe Rules cannot be relied upon to refuse furlough leave to the respondent.

25. Turning now to Rule 4(6) of the Rules, the Jail Superintendenthas given a negative opinion based on the fact that the respondent kepta mobile phone inside the jail illegally and attempted to make contacts A

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Awith the outside world. Rule 4(4) of the Rules provides for denial offurlough on grounds of disturbance to public peace and tranquillity. Theorder dated 8 May 2021 has adduced a number of circumstances whichcumulatively indicate that the release of the respondent on furlough maylead to a violation of public peace. The order refers specifically to thethreat he and his followers pose to the complainant and other personsBwho deposed at the trial. An attempt has been made to threaten andsuborn the investigating team and the witnesses. The respondent and hisfather have a mass following of persons who owe loyalty to them andthere is a reasonable apprehension of a disruption of public peace andtranquillity. During the trial, attempts have been made to bribe publicCofficials. The conduct after the trial, in jail, has not been shown to beabove reproach. The respondent was released earlier this year toaccommodate a genuine need to attend to his mother’s health at therelevant time. Based on this, we are unable to agree with the line ofreasoning of the High Court.

D26. It has been urged that the objections mentioned in the orderdated 8 May 2021 were raised by the authorities to the grant of furloughin December 2020 in spite of which the High Court allowed the plea forfurlough. We do not find merit in this submission. The previous order ofthe High Court did not deal with these submissions. The order onlyreferred to the fact that the respondent’s mother was suffering on accountEof a cardiac arrest and granted furlough on this basis. The Solicitor Generalin fact stated that the earlier proceedings were not contested before theHigh Court since the ground for furlough then was the ill-health of themother of the respondent. The opinion of the Sanctioning Authority underthe Rules does not suffer from perversity nor does it consider materialFextraneous to the Rules governing the grant of furlough.

27. For the above reasons, we allow the appeal and set aside theimpugned judgment and order of the High Court dated 24 June 2021.

28. Pending application (s), if any, stand disposed of.

GDevika Gujral

Appeal allowed.

H