SHARAD KESHAV MEHTA Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THE petitioner was convicted for committing an offence under S. 302 of the I. P. C. and was sentenced to life imprisonment on Oct. 11, 1983. The petitioner made an application for release on furlough on Oct. 14, 1985 and that application was rejected on Feb. 11, 1986. The prisoner applied for reconsideration on March 8, 1986 and April 21, 1986, but the earlier rejection was confirmed on July 5, 1986. The action denying furlough to the prisoner is under challenge.

(2.) MR. Rane, learned counsel appearing for the prisoner, submitted that the Home Department of the State Government has framed rules relating to grant of furlough and the prisoner, was denied furlough in contravention of the rules. Rules, regarding grant of furlough are included in Chapter XXXVII of the Maharashtra Prison Manual. 1979. R. 3 (2) inter alia prescribes that a prisoner, who is sentenced to imprisonment for a period exceeding five years, may be released on furlough for a period of two weeks at a time of every two years of actual imprisonment undergone. The second proviso to R. 2 prescribes that a prisoner sentenced to life imprisonment may be released on furlough every year instead of every two years after he completes seven years actual imprisonment. The prisoner was convicted on Oct. 11, 1983 and had. admittedly, completed a period of two years on Oct. 14, 1985 and was, therefore. entitled to be released on furlough. It was urged on behalf of the State Government that R. 17 prescribes that the right to be released on furlough is not a legal right conferred on the prisoner and, therefore, even if the conditions are satisfied the Government is not bound to release the prisoner on furlough. In our judgement the submission is entirely devoid of merit. It is not open to the Home Department of the State Government to prescribe rules giving facility of release of the prisoner on furlough by one hand and then providing that the prisoner has no legal right to be released on furlough. In our judgement, R. 17 cannot deprive the prisoner of the substantial right to be released on furlough provided the requirements of the rule are complied with. The submission advanced on behalf of the State Government overlooks the distinction between the right to be released on parole and the right to be released on furlough. Parole is granted for certain emergency and release on parole is a discretionary right while release on furlough is a substantial right and accrues to a prisoner on compliance with certain requirements. The idea of granting furlough to a prisoner is that the prisoner should have an opportunity to come out and mix with the society and the prisoner should not be continuously kept in jail for a considerable long period. The interaction with the society helps the prisoner in realising the folly which he has committed and the liberty which he is deprived of. In modern times the effort is to improve the prisoner and the punishment is to be considered as an action for reformation of an individual. It is futile to suggest that a prisoner should be kept behind the bars continuously and should not be permitted to come but on furlough unless the authorities think it wise. In our judgement, the State Government has framed rules in exercise of the powers conferred by cls. (5) and (28) of S. 59 of the Prisons Act. 1894 and on framing of such rules, R. 17 cannot deprive the prisoner of the right to be released on furlough. In spite of the enactment of R. 17 we held that the right to be released on furlough is a substantial and legal right conferred on the prisoner.

(3.) IT was then urged on behalf of the State Government that R. 4 sets out categories of prisoners who cannot be considered for release on furlough. Sub-rule (4) of R. 4 prescribes that 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 tranquillity shall not be considered for release on furlough. It was urged that the Commissioner of Police, Pune, had informed the Jailer that in case the prisoner is released on furlough, then there is likelihood of disturbance of peace and, therefore, furlough cannot be recommended. We enquired as to what is the material available for the Commissioner of Police which can be the basis for coming to the conclusion that release of the prisoner on furlough would lead to disturbance of public peace and tranquillity. Unless the Commissioner of Police has material from which reasonable inference can be drown the right to release on furlough cannot be deprived by resort to R. 4. In the present case, the prisoner was convicted for committing murder of his wife and it surpasses our imagination as to how the release of such person is likely to disturb public peace and tranquility. The Commissioner of Police must apply his mind to the, facts of each case and should not as a formality submit a report denying the substantial and legal right of the prisoner. In our judgement as the State Government has failed to point out any material to indicate that the release of the prisoner on furlough would disturb public peace and tranquillity, the rejection of the application is misconceived.