A Petition under Article 226 of the Indian Constitution was filed by a convict seeking quashing of orders passed by the Deputy Inspector and Inspector General who refused to grant leave. The Bombay HC quashed the aforementioned orders and directed the Deputy Inspector to reconsider the application as expeditiously as possible.
The petitioner was arrested on 3rd February 2013 for an offence punishable under Section 302 and Section 14 of the Indian Penal Code in respect of CR No. 14 of 2013. By an order dated 1st December 2014 purportedly passed by a trial court, the petitioner was released on bail. Later, it was found out that the bail described above order was forged. The petitioner surrendered on 11th February 2014, and a separate case for forging a bail order was instituted against him. In this matter, he was convicted under Section 224 of the Indian Penal Code. Furthermore, he was sentenced to two years of rigorous imprisonment along with a fine. The petitioner completed this sentence on 17th June 2017 after which he was tried for the offence arising out of CR No. 14 of 2013. The petitioner was convicted under Section 302 of IPC and sentenced to life imprisonment on 11th June 2019. The petitioner’s applications for furlough were denied, which led to the present petition.
The petitioner submitted that the Deputy Inspector (Respondent 2) is not justified in rejecting the furlough application on the ground that Clause 10 of Rule 4 disentitled the petitioner from claiming furlough. As per the petitioner, Clause 10 Rule 4 only applies to prisoners who have escaped or attempted to escape from lawful custody or have defaulted in surrendering themselves after release on parole or furlough. It is argued that since the petitioner was released based on a forged bail order as against escaping from lawful custody, the issue of breach of earlier parole or furlough doesn’t arise. The petitioner had already been convicted and has completed the sentence imposed due to the infraction of Section 224 of the IPC. Thus, he must not be vexed for the same cause twice in light of the principle of double jeopardy. Moreover, furlough is a matter of right, and a mere adverse report by the Superintendent of Police cannot be the basis for rejecting the petitioner’s application of furlough.
The respondent submitted that the rules cannot be construed in a manner that confers a legal right on a prisoner to claim release in furlough in light of Rule 17. In light of the petitioner’s conviction under Section 224 of IPC on account of having forged a bail order and the adverse report from the Superintendent, the request for furlough has been rightly denied. The Superintendent of Police has recorded the statement of the witnesses about their apprehension of threat to their lives if the petitioner is granted furlough.
The Court accepted the submissions of the petitioner that Clause 10 Rule 4 cannot be a ground for rejecting the furlough of the petitioner. The petitioner neither escaped nor attempted an escape from lawful custody and therefore, the question of default in surrendering doesn’t arise in the present case. For Clause 10, Rule 4 to apply, it must be shown that the prisoner has escaped or attempted to escape from lawful custody. Since the petitioner has already completed the sentence for forging a bail order, the rejection of a furlough on the aforementioned ground is unsustainable. Moreover, there is nothing on record to indicate that the petitioner’s conduct was not good.
The second ground on which furlough was rejected due to the report of the Superintendent that there was a likelihood of a threat to the life of witnesses. The Court held that the present order couldn’t be sustained as the petitioner was already convicted for the offence under Section 302 of the IPC. Therefore, the question of tampering with witnesses wouldn’t arise. Furthermore, there is nothing on record regarding conduct on the part of the petitioner while in custody. Further, the Petitioners’ cousin brother has agreed to take responsibility and is willing to stand as a surety for the petitioner. The petitioner hasn’t been released on furlough so far, and it would be unjust and unfair to deprive the petitioner of the benefit of furlough based on the statement made by the witnesses. The Court relied on the judgment passed by the Supreme Court in Asfaq v State of Rajasthan and Ors. where it was held that furlough is a way to ensure that the prisoners maintain their links with society.
The Court quashed the orders dated 26th December 2019 and 24th June 2020 passed by the Deputy Inspector and Inspector General rejecting the application for furlough. It directed the respondent no. 2 to re-examine the case of the petitioner and release him if found eligible. The application couldn’t be rejected on the grounds contended above. The Court also directed the respondent’s to conduct the entire exercise as expeditiously as possible and in any case within three weeks from the date of receipt of a copy of the present order.
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