VALLABH BHURABHAI Vs. POLICE COMMR GREATER BOMBAY

JUDGEMENT

(1.) THIS writ petition is submitted through jail by the petitioner-prisoner who is undergoing a sentence of life imprisonment pursuant to the order of conviction and sentence passed by the Additional Sessions Judge for Greater Bombay on 29-9-1984. This writ petition was placed for hearing before the Division Bench on 31-1-1989. This Court issued rule nisi and directed the office to appoint an advocate as amicus curiae on behalf of the petitioner-accused. Mr. A. R. Shaikh, learned advocate has been appointed to represent the petitioner-accused. This writ petition has been filed under Art. 226 of the Constitution challenging the order dated 4th August 1988 by which the petitioner's application for furlough was rejected by Deputy Inspector General of Police, Prisons, Yeravda, Pune.

(2.) IN the writ petition the petitioner has stated that on earlier occasions he had made applications for furlough to which he was entitled but the same were turned down on one or the other pretexts. We have ourselves gone through the record and it appears that the statement made by the petitioner appears to be correct. Coming to the last application for furlough the petitioner on 21st June 1988 made an application to the jail authorities to grant him furlough. This application was made under R. 2 of the Prisons (Bombay Furlough and Parole) Rules, 1959. On receipt of this application the jail authority called for the report from the Commissioner of Police (Crimes), Greater Bombay. The Additional Commissioner of Police (Crimes) Greater Bombay submitted his report vide his communication dated 14th July 1988 to the jail authority. It is stated in this report that the petitioner's father is the surety and is prepared to keep the petitioner with him and is also prepared to offer the surety. The residential address where the petitioner wants to go on obtaining furlough is situated in the same locality where the parents of the victim are residing. The petitioner has been convicted for an offence of committing murder of his wife. The relations of the victim who are residing in the same locality apprehend danger to their lives in case the petitioner is granted furlough. The report further states that in these circumstances there is strong opposition to the release of the petitioner on furlough and, therefore, no recommendation for granting him furlough can be made. On receipt of this report the Jail Authority vide its order dated 4th August 1988 rejected the furlough application made by the petitioner. It is this order which is sought to be challenged in this writ petition.

(3.) MR. Shaikh learned counsel appearing in support of this petition urged that neither the Commissioner of Police (Crimes) Greater Bombay nor the Jail Authorities have applied their mind to the relevant provisions contained in the rules - Prisons (Bombay Furlough and Parole) Rules, 1959 - hereinafter referred to as "the Rules". He therefore urged that the order dated 4th August 1988 rejecting furlough to the petitioner is illegal and must be quashed and set aside and the authorities be directed to grant furlough to the petitioner. In order to test this argument it would be relevant to reproduce some of the provisions under the Rules. The rules are contained in Chap. XXXVII of the Maharashtra Prison Manual, 1979. Rule 2 specifies the name of the Sanctioning Authority. Rule 3 which is relevant for the purpose of disposal of this petition is as under : "3. (1) 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. (2) 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. Provided that a prisoner sentenced to imprisonment for more than five years but not to imprisonment for life may be released on furlough every year instead of every two years during the last five years of his unexpired period of sentence. Provided further 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. Rule 4 enumerates the circumstances when prisoner shall hot be granted furlough and it reads as under :-