GORAKH @ BABA PATOLE Vs. GOVERNMENT OF MAHARASHTRA

JUDGEMENT

(1.) Gorakh Patole, the petitioner, has been tried of two offences---murder and robbery--- in Sessions Case No. 19 of 1985 and has been sentenced to undergo life imprisonment under section 302, Indian Penal Code and to seven years imprisonment under section 397, Indian Penal Code. These two sentences have been ordered to run concurrently. The petitioner is in the portals of jail ever since his arrest on 17th October, 1985. He applied for furlough which is denied to him on the basis of Rule 4 of the Prisons (Bombay Furlough and Parole) Rules, 1959 framed under section 59 of the Prisons Act, 1894 (IX of 1894).

(2.) Under Rule 3, a prisoner, who is sentenced to imprisonment for a period exceeding one year but not exceeding five years, may be released on furlough for a period of two weeks at a time for every year of actual imprisonment undergone. Under Rule 4, certain categories of prisoners fall out of range of consideration for furlough. We reproduce Rule 4 for ready reference :--

(3.) It will be seen from the above Rule that while the prisoner convicted of an offence of robbery under section 397 of the Indian Penal Code is debarred from getting furlough, the prisoner convicted of an offence of murder under section 302 of the Indian Penal Code is not. The two offences are quite distinct for which different punishments have been prescribed. Only because these two offences have been committed in one incident and, therefore tried in one case, they do not cease to be distinct. Section 31 of Criminal Procedure Code provides that when a person is convicted at one trial of two or more offences, the Court can sentence him for such offences to the different punishments prescribed therefore. Such punishments when consisting of imprisonment commence consecutively i.e. one after the expiry of the other. But the Court has discretion to order them to run concurrently. Only because the Court exercised the discretion of ordering the sentences to run concurrently, the independent character of those sentences does not disappear. On undergoing the imprisonment of seven years, the petitioner would cease to be a convict under section 397, Indian Penal Code. Had he been convicted only of offence under section 397, he would have been a free bird. His continuation in the portals of jail is because of sentence under section 302, Indian Penal Code. He does not continue to be prisoner falling under category (2) of Rule 4 only because of concurrent nature of the other sentence undergoing which does not disqualify him from furlough leave. Contrary interpretation of Rule 4(2) would be against the letter as well as spirit of the Rules. Thus, in our view, the furlough cannot be denied to the petitioner only on the ground that he continues to be in jail as a result of concurrent sentence for other offence.