2006 ALL MR (Cri) 3077
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(NAGPUR BENCH)

D.S. ZOTING AND A.H. JOSHI, JJ.

Raju Prakash Deolekar Vs. State Of Maharashtra & Anr.

Criminal Writ Petition No.451 of 2005

8th August, 2006

Petitioner Counsel: Shri. S. A. JAISWAL
Respondent Counsel: Shri. S. G. LONEY

Prisons (Bombay Furlough and Parole) Rules (1959), Rr.6, 8 - Grant of furlough to prisoner - No power vests in competent authority to waive conditions as to bond by any relative.

On reading of the scheme of various rules from rule 6 to rule 17, it reveals that it does not provide for any power to vest in the competent authority to waive the conditions as to bond by any relative. [Para 18]

It cannot be lost sight that if there is none to be seen to receive the prisoner on furlough, the serious question arises as to how shall he be maintained during the period of his release on furlough and as to whether he shall be left wide open with a question mark as to his livelihood and being further susceptible for crimes remains unanswered. The question of concession by way of furlough which is made available to the prisoner cannot be one sidedly looked into. It has got a practical side of his survival during the period on furlough, details whereof are always the matter of knowledge of the prisoner and his relatives. However, all these questions will have to be adjudicated only when those questions arise for consideration with proper foundation by the petitioner concerned in a given case whenever occasion arises. [Para 24]

In the instant case, the very claim of furlough raised by the petitioner was not based on a prayer for exemption from execution of bond by near relative. He rather claimed that he had some relative who was willing to be a surety, who denied the factuality of his being related to the prisoner. Since the accused prisoner had not made any application for granting exemption, that point is shall be open for the decision of the competent authority. [Para 25,2]

Cases Cited:
Bharat Wadekar Vs. State of Mah., Criminal Application No.1092/2006 in Cri. W. P. No.340/2005, Dt.12-06-2006 [Para 6]
Nilesh Shantaram Ajgaokar Vs. State, Criminal W. P. No.193/2003, Dt.09-07-2003 [Para 6]
Bhimrao Nathuji Bhoyar Vs. Superintendent, Amravati Central Prison, 2003 ALL MR (Cri) 426=2003(1) Mh.L.J. 567 [Para 6,19(c]
Natia Jiria Vs. State of Gujarat, 1984 Cri.L.J. 936 [Para 6,8,21,22]
Moti Ram Vs. State of Maharashtra, 1978 Cri.L.J. 1703 [Para 6,8,19(d)(III),19(e]
State of Maharashtra Vs. Suresh Pandurang Darvakar, 2006 ALL MR (Cri) 1839 (S.C.) [Para 9,22,26]


JUDGMENT

A. H. JOSHI, J. :- Rule. Rule is made returnable forthwith and is finally heard by consent of parties.

The petitioner herein is a convict of offence under Section 302 of the Indian Penal Code, and is undergoing sentence of life imprisonment. He was transferred to Amravati Jail from Nashik Road Jail. According to him, his appeal is not pending. He has not been granted furlough or parole at any time.

In this petition, the petitioner has urged that his wife has filed a divorce petition, and he has not met his parents for long duration of 9 years. He is very anxious to meet his parents and also try for amicable settlement of matrimonial dispute which is pending in the Family Court at Mumbai. The petitioner is also willing to furnish cash security of a sum of Rs.2,000/-. He undertakes to surrender in time and claimed release.

2. The petitioner's application for furlough was rejected by the respondent no.1 by order dated 27-01-2005 which order is under challenge in this petition.

3. On perusal of order of rejection, it is seen that the rejection is ordered on account of two reasons namely:-

(a) adverse report was received from the Commissioner of Police;

(b) Sachin Gunwant Ingole alleged relative of petitioner i.e. the person shown to be willing to undertake surety is not found to be the cousin (Maternal aunt's son) which relationship is shown by the petitioner.

4. Adverse police report is made on the ground that petitioner is alleged to be a member of Rajan Gang, and also that the said fact is admitted by the prisoner. Prisoner has disputed this statement as involuntarily made. Fact remains that the police has opposed the release.

5. Heard oral arguments of learned Advocate Mr. Jaiswal and learned APP Mr. S. G. Loney.

6. Mr. Jaiswal has placed reliance on various Judgments and orders namely:-

(1) Order in Criminal Application No.1092/2006 in Cri. W. P. No.340 of 2005, Bharat Wadekar Vs. State of Mah. (Unreported) decided on 12-06-2006.

(2) Judgment in Criminal Writ Petition No.193 of 2003 (decided on 9th July, 2003), Nilesh Shantaram Ajgaokar Vs. State (Unreported).

(3) 2003(1) Mh.L.J. 567 : [2003 ALL MR (Cri) 426], Bhimrao Nathuji Bhoyar Vs. Superintendent, Amravati Central Prison.

(4) 1984 Cri.L.J. 936, Natia Jiria Vs. State of Gujarat and Others.

(5) 1978 Cri.L.J. 1703, Moti Ram & others Vs. State of Maharashtra.

7. Mr. Jaiswal urged that the petitioner ought to be released on personal bond in the form of cash security of Rs.2,000/-. According to him the grounds of rejection of furlough are not based on Sub-rule (4) and Sub-rule (b) of the rule 4.

According to the learned Advocate Mr. Jaiswal, right or concession of furlough is of substantial nature and is based on fundamental right of life of citizen who is a prisoner. According to Mr. Jaiswal, the obligation of a prisoner to undergo a sentence is coupled with concessions such as parole and furlough. Rules in this regard, therefore, will have to be interpreted with human touch and liberally so as to enable the prisoner to avail of these concessions. The concept of releasing the prisoner on furlough is of restoring him in the society for a limited duration and to prevent him from being cut off from society.

8. According to Mr. Jaiswal, there can be cases where either prisoner has no relative or friend, nor his relatives are willing to be a surety or execute a surety bond as contemplated by rule 6, and in that eventuality, the consequence will be that the prisoners will have to serve the sentence for full period as he is unable to comply with the mandatory conditions for release on furlough. The condition requiring bond by relative is, therefore, extremely harsh if rigidly applied, and needs to be liberally construed so as to include in it the power to grant exemption or to relax the conditions, and for this argument, learned Advocate Mr. Jaiswal had placed reliance on 1984 Criminal Law Journal 936, Natia Jiria Vs. State of Gujarat and others and 1978 Cri.L.J. 1703, Moti Ram & others Vs. State of Maharashtra supra.

According to Mr. Jaiswal the question as to whether exemption from the stipulation of security bond by relative can be relaxed or exempted was not a matter which fell in the compass of adjudication before Hon'ble Supreme Court in the case State of Maharashtra Vs. Suresh Darvakar, and therefore, considering the ratio of full bench of Gujarat High Court in Natia Jiria supra and Moti Ram's case, this Court can hold that the stipulation of surety by relative can be relaxed.

9. Learned APP Mr. S. G. Loney while opposing the submission claim relied upon the Supreme Court Judgment 2006 ALL MR (Cri) 1839 (in Criminal Appeal No.421 of 2006), State of Maharashtra Vs. Suresh Pandurang Darvakar.

In this case, the Apex Court has found that the Rule 6 which lays down that "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" is mandatory.

10. Thus, according to learned APP Mr. S. G. Loney the precedent governing the field is that execution of a bond by the relative is a condition precedent. Unless and until conditions prescribed in the scheme as laid down in the Prisons (Bombay Furlough and Parole) Rules, 1959 namely rule 6 and rule 8 are fulfilled, no furlough can be granted.

11. Learned APP Mr. Loney further submitted that in the aforesaid situation, the petitioner's claim for being released on furlough cannot be considered favourably as the same is not made in conformity with the statutory rules, under which, the petitioner has applied for grant of furlough. It is not the case where the prisoner has applied to the Sanctioning Authority for dispensing with the condition on the ground that his inability to fulfill the conditions, and making out the grounds as to the circumstances due to which, he is not able to get a surety. It is not his case that he does not have relatives or that his relatives are not willing to stand surety. He has offered the surety who has denied both being relative and surety.

According to learned APP Mr. Loney, the petition does not contain a clarification or circumstance as to why the requirement of Rules 6 to 10 is otherwise unjust or is to be by-passed, which provides for such bond.

12. Learned APP has further pointed out that the question of validity, striking down or reading down of rules 6 and 8 so as to include the power to exempt or grant relaxation is not brought for adjudication before this Court in the form of challenging in the Writ Petition directly or indirectly. According to Mr. Loney, Petitioner's argument is not advanced even suggestively that these rules namely Rules 6 to 10 aforesaid requiring bond by relative are violative of fundamental rights or otherwise ultra vires.

13. After considering the submissions of both sides, this Court finds that question which falls for determination of this Court is as follows:-

Whether on facts of the case, the application for furlough was rejected on the ground that the Prisoner cannot be released on personal bond or cash security?

14. For enabling this Court to answer the question in the foregoing para, it is necessary to take a resume of all various provisions contained in Prisons (Bombay Furlough and Parole) Rules, 1959.

15. The scheme of release on furlough is laid down in Rules 6 to 10.

(a) Rule 6:-Rule 6 provides for a mandatory condition that a relative has to be willing to receive the prisoner on furlough and ready to enter into a bond in Form 'A' for such amount as may be refixed by the Sanctioning Authority.

(b) Rule 7:-Rule 7 requires the prisoner to execute the personal bond in Form-B.

(c) Rule 8:-Rule 8 lays down the procedure of submitting the form and enquiry and that the sanctioning authority can prescribe conditions.

(d) Rule 10:-Rule 10 provides as to the manner of execution of bond to be executed or giving cash security.

(e) Rule 17:-Rule 17 provides that furlough is not to be construed as a legal right.

16. It is seen on perusal of Rule 8 of the Prisons (Bombay Furlough and Parole) Rules, 1959 that it has been laid down that the application must be submitted two months before a prisoner becomes eligible to be considered for the release on furlough. He has to give clearly the name and full address of the place where he desires to spend furlough and the full name of the relative "willing to receive him on furlough and prepared to execute the surety bond, and shall also state whether he is in a position to bear the expenses of the journey both ways or either way, and if any amount of expenses that may be required by him for such journey".

17. The information so furnished thus forms the basis of enquiry and lends material or objective basis on which the decision as to release is to be arrived at by the competent authority. This enquiry is to be initially conducted by the District Magistrate or the Commissioner of Police of Greater Bombay, as the case may be and after receiving the remarks, the competent authority has to take a decision as to grant or refusal.

18. On plain reading of the scheme of various rules from rule 6 to rule 17, it reveals that it does not provide for any power to vest in the competent authority to waive the conditions as to bond by any relative.

19. On perusal of citations relied upon by the learned Advocate Mr. Jaiswal which are referred to in para 6 above, what this Court observes is as follows:-

(a) The judgment in Writ Petition No.340 of 2005 (Sr. No.1) was challenged before Hon'ble Supreme Court and the Special Leave Petition was dismissed, however, there is no speaking order or judgment either of this Court or of Hon'ble Supreme Court rendered therein to operate as a precedent.

(b) It is seen that in the judgment at Sr. No.2 directing the release on furnishing cash security does not contain any reasons thereto.

(c) The order of release on cash security was also made by this Court in Writ Petition No.193 of 2003 and Bhimrao Bhoyar's (2003(1) Mh.L.J. 567 : [2003 ALL MR (Cri) 426]) case.

(d) In so far as the Judgment of Full Bench of Gujarat High Court rendered in 1984 in case of Natia Jiria is concerned, Gujarat High Court is concerned, it is seen that a direct judgment of Rule 6 and 10 of Prisons (Bombay Furlough and Parole) Rules, 1959. The view taken by the Gujarat High Court in this case supra can be summarised as follows:-

(I) the condition relating to furnishing a surety bond by a relative as well as cash securities can be waived, as said stipulation is not mandatory.

(II) the amount of surety bond should be so fixed that it does not render the person called to execute the bond unable to comply with; and

(III) in view of judgment 1978 Criminal Law Journal 1703 (Supreme Court Motiram's case, a person should be denied his right of being released on bail due to deterrent condition of bail, as due to his penury and his absence of influence in the Society, he would be unable to furnish his surety bond.

(e) In 1978 Cri.L.J. 1703, Moti Ram and others Vs. State of Madhya Pradesh, the Hon'ble Apex Court, was considering the question as to propriety and reasonableness of conditions, as to surety vis-a-vis the capacity of the person directed to furnish. In the case before the Hon'ble Supreme Court, the person concerned was found eligible to be released on bail. The Court ordered surety of Rs.10,000/-. The person concerned was a mason. He had offered the surety which belonged to different district. The Magistrate concerned had declined to accept the surety bond tendered by the accused. It is in these circumstances, the Court found that the conditions of surety bond ought not be too harsh to render the right and liberty available to the under trials nugatory. It is in this background, the Judgment of Hon'ble Supreme Court in Motiram's case supra. In this situation, Judgment of Supreme Court in case of Motiram supra does not lend any support to the petitioner.

20. It is necessary to deal with the submission of learned Advocate Mr. Jaiswal that the matter of granting release on furlough requires to be seen with human aspect and with the point of view of right of life.

Direct judgments on this point rendered by this Court are in the form of orders and no reasons or basis thereof is revealed there from.

21. According to learned Advocate Mr. Jaiswal, contingency that has been discussed in the judgment of the Hon'ble Supreme Court in Motiram's case and as discussed in Natia Jiria supra needs to be adverted.

22. It is clearly seen that Natia Jiria (Supra) is a direct judgment on rules 6 and 10, however, it is rendered by Gujarat High Court. Gujarat High Court judgment consists of reasoning thereto.

This Court is now faced with the situation where there is a Judgment of Apex Court in State of Maharashtra Vs. Suresh Darvakar [2006 ALL MR (Cri) 1839] (supra) directly on rule 6 which consists of a dictum that rule 6 is mandatory will have to be followed as it stands.

23. It is true that the question as to whether power to grant exemption exists was not addressed before the Hon'ble Supreme Court in aforesaid Suresh Darvakar's case, nor has it been adjudicated upon, however, Judgment of Hon'ble Supreme Court in State of Maharashtra Vs. Suresh Darvakar a direct judgment on the nature of bond required under Rule 8 and, therefore, it will have to be followed. This is more particularly when there was no prayer for exemption from applying condition as to execution of a bond by relative is concerned on the ground whatsoever.

24. It cannot be lost sight that if there is none to be seen to receive the prisoner on furlough, the serious question also arises as to how shall he be maintained during the period of his release on furlough and as to whether he shall be left wide open with a question mark as to his livelihood and being further susceptible for crimes remains unanswered. The question of concession by way of furlough which is made available to the prisoner cannot be one sidedly looked into. It has got a practical side of his survival during the period on furlough, details whereof are always the matter of knowledge of the prisoner and his relatives. However, all these questions will have to be adjudicated only when those questions arise for consideration with proper foundation by the petitioner concerned in a given case whenever occasion arises.

25. It is also seen that the very claim of furlough raised by the petitioner was not based on a prayer for exemption from execution of bond by near relative. He rather claimed that he had some relative who was willing to be a surety, who denied the factuality of his being related to the prisoner. Under such circumstances, this Court finds that whether or not exemption can be granted is not a matter coming forward for adjudication.

26. In these circumstances, this Court finds that there was no case for exemption pending or pleaded before the competent authority. Moreover, considering the view taken by the Hon'ble Supreme Court, in State of Mah. Vs. Suresh Pandurang Darvakar [2006 ALL MR (Cri) 1839] supra, this Court finds that there are no grounds for interference on the facts as are borne on record.

27. On facts of the case, this Court finds that the present Writ Petitioner had not made any application for granting exemption and, therefore, whether exemption could be granted seems to this Court to be a point which is still open for the decision by the competent authority.

In the circumstances, this Court finds no option than to dismiss the Writ Petition and accordingly same is dismissed, and Rule is discharged.

Petition dismissed.