BHIKHABHAI DEVSHI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This matter came before the Full Bench on reference from the Division Bench as an important question regarding interpretation of Rule 4 (10) of the Prisons (Bombay Furlough and Parole) Rules 1959 arises as to whether the word shall is mandatory in the context of the provisions of Rule 4(10) and more particularly its later part or whether the word shall can be construed as may so as to enable the prison authorities to consider the request for furlough of prisoner who has surrendered late after release on furlough or parole. Rule 4(10) makes the following reading: Rule 4: When prisoners shall not be granted furlough: The following categories of prisoners shall not be considered for release on furlough: (1) xx xx xx xx (10) Prisoners who have at any time escaped or attempted to escape from lawful custody or have defaulted in any way in surrendering themselves at the appropriate time after release on parole or furlough.

(2.) The contention of the petitioner is that although he had surrendered late by 25 days after he was released on parole he is not totally ineligible for being released on furlough and the authorities have the power and duty to consider his application for furlough on merits and thereafter to grant or refuse furlough on merits and in the present case the authorities have refused to consider his request for furlough without going into the merits only at the threshold on the ground that the petitioner-prisoner is not at all eligible to be considered for being released on furlough and the authorities have mechanically considered the provisions of Rule 4(10) for releasing the petitioner on furlough.

(3.) On behalf of the respondent authorities it is submitted that plain and simple reading of Rule 4(10) is clear and unambiguous and not permitting any discretion to the authorities; namely that the category of defaulters shall not be considered for being released on furlough. The respondents have also relied upon the Division Bench judgment in the case of Juvansingh L. Jadeja v. State of Gujarat 14 (1973) GLR 104. In that case while considering the validity of Rule 4 (2) the scheme of Rule 4(10) was also referred to and the validity of Rule 4 was upheld even while holding the provision to be mandatory in the context of Rule 4(2). Relying on this judgment the respondents authorities have submitted that Rule 4(10) is also mandatory and can not be construed as directory.