High Court · 2025
Legal Reasoning
wp-789-2025.odtgrounds that their release is prejudicial to public peace, order andtranquility, they are held to be not eligible for furlough. Further, thoughthe rules came into effect from 02.12.2024, yet on 05.02.2025 anotherclarification was issued by the Home Department stating that new ruleswould be applicable to the applications which are for parole and furloughleave and, therefore, rejection by both the authorities is proper.5.Here, it is to be noted that as regards the point in respect ofapplicability of new rules to the pending applications is concerned, it isdealt with in Arun Gulab Gawli (Supra). We agree to the legalproposition that the rules which are framed are always prospective innature and unless they are made retrospectively applicable, they cannotbe made so applicable retrospectively. Further, those rules came intoeffect by way of notification which was issued in exercise of powersconferred by clauses (5) and (28) of Section 59 of the Prisons Act, 1894by the State Government. The State Government while amending therules had not even contemplated for making the provision forapplicability of the same to the pending applications. In other words,while promulgating the notification, there was no specific provision for itsapplicability with retrospective effect. Of course, it was mentioned thatthose provisions or the amendments are in supersession of theMaharashtra Prisons (Bombay Furlough and Parole) Rules, 1959. Now,what has been annexed along with the affidavit-in-reply is the circular[5] wp-789-2025.odtissued by Joint Secretary, Home Department, which appears to be in thenature of clarification. Such clarification cannot take form or shape ofnotification which was issued under the powers conferred under the Actand, therefore, we agree with the opinion and the decision by theCoordinate Bench. The applicability of notification i.e. amendment dated02.12.2024 is prospective in nature and it is not applicable to thepending applications as on that date. 6.The application by the present petitioner was presented in themonth of September 2024. As per the rules, furlough means a shortleave granted to a convicted prisoner after undergoing a specific periodof sentence as an incentive for maintaining good conduct in the prison.The definition of furlough is same in the Rules of 1959 as well as Rulesof 2024. If the leave application for short period is kept pending formonths together, then very purpose of the same is going to frustrate.Now, in the present case, though the application was given inSeptember, 2024, that application was decided by the respondent No.3on 06.03.2025. There is inordinate delay in decision. If the application ofthe petitioner would have been decided immediately within a shortperiod, it would have been prior to coming into force of the Notificationdated 02.12.2024. Now, in new rules, the timelines for processingapplication for furlough or regular parole has been prescribed under Rule23.[6] wp-789-2025.odt7.The another ground on which the application has been rejected isthe negative report by police. Along with the affidavit-in-reply, the reportand the documents have been annexed which state that the sister-in-lawof the present petitioner is ready to stand as surety. However, thestatements of the informant or the widow of the person murdered andthe relatives have been taken. They are all residing at Kathoda Tanda,Taluka Gevrai, whereas the applicant and surety are resident ofRampuri, Taluka Gevrai. Another fact is that on earlier three occasionshe was granted furlough leave. Of course, it appears that only threeinstances have been given by the petitioner and not the earlier and it isthen stated that when he was released on 29.07.2011, he had come latei.e. surrendered himself late by 728 days, however, thereafter on17.09.2024, his furlough was allowed and then the rest three instanceswhere he was granted furlough leave. Therefore, that discretion has notbeen properly used. Negative report without basis and on surmises ofthe then aggrieved persons ought not to have been considered andtherefore, the present writ petition deserves to be allowed to the extentof prayer clause ‘B’. It appears that the petitioner is challenging thevalidity of rule 4(2)(j) of the Maharashtra Prisons (Bombay Furlough andParole) Rules, 2024, however, at this stage, he cannot be said to be theaggrieved person and, therefore, we keep the said challenge open to beconsidered in some other case. Hence, the following order :-[7] wp-789-2025.odtORDERI)Criminal Writ Petition stands partly allowed.II)The impugned orders dated 06.03.2025 and 09.05.2025passed by respondent Nos.2 and 3 respectively are herebyquashed and set aside. III)The respondents are directed to release the petitioner byimposing appropriate conditions and pass the order within a periodof 15 days from today. [ SANJAY A. DESHMUKH ] [ SMT. VIBHA KANKANWADI ] JUDGEJUDGEscm[8]
Arguments
wp-789-2025.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL WRIT PETITION NO.789 OF 2025Sanjay s/o Sahebrao @ Natha PawarAge: 48 years, Occu.: Convict,R/o. At present confined in HarsoolJail, Chhatrapati Sambhajinagar.Permanent Address Village Rampuri,Beside Pandurang Temple, Tq. Gevrai,District Beed. .. PetitionerVersus1.State of MaharashtraThrough SuperintendentHarsool Jail, Chhatrapati Sambhajinagar2.State of MaharashtraThrough D.I.G. Prisons,Central Division, Chhatrapati Sambhajinagar.3.Inspector General of Prison,Yerwada, Pune. .. Respondents…Mr. Rupesh A. Jaiswal, Advocate for the petitioner.Mrs. R. P. Gour, APP for the respondents/State.... CORAM : SMT. VIBHA KANKANWADI & SANJAY A. DESHMUKH, JJ. RESERVED ON : 24 JULY 2025 PRONOUNCED ON : 19 AUGUST 2025[1] wp-789-2025.odtORDER (Per Smt. Vibha Kankanwadi, J.) :-.The petitioner, who is a convict, takes an exception to challengethe order dated 06.03.2025 and 09.05.2025 passed by respondentNos.2 and 3 respectively whereby they had rejected the application forfurlough leave filed by the present petitioner.2.Heard learned Advocate Mr. Rupesh A. Jaiswal for the petitionerand learned APP Mrs. R. P. Gour for the respondents/State.3.Learned Advocate for the petitioner submits that the petitionercame to be arrested in 2008 and was under trial prisoner till he wasconvicted on 30.10.2010 by the learned Sessions Judge, Beed inSessions Case No.56 of 2009 for the offences punishable underSections 302, 397, 394, 376, 506 of Indian Penal Code. Theimprisonment that has been awarded is life imprisonment till death.According to the petitioner, he has undergone 15 years and 01 monthincarceration approximately and including remission, it is 17 years and 7months. The petitioner on the earlier occasions was released on furloughleave on 05.10.2022, 14.07.2023 and 06.03.2024 respectively and hesurrendered himself to the jail authorities in time. Now, when he hadapplied for grant of furlough leave dated _.09.2024 on the ground that heis entitled to be released on furlough leave, however, in view of theamendment in the Maharashtra Prisons (Furlough and Parole) Rules,[2] wp-789-2025.odt2024 which came into effect on 02.12.2024, as per Rule 4(j) and (l) ofthe said Government Notification dated 02.12.2024, he is not entitled.The petitioner preferred appeal and in that it has been stated that thepolice report is negative. Learned Advocate for the petitioner submitsthat the report of the police being negative was without basis. Earlierthree times he was released on furlough leave and at no point of timeany offence is stated to have been registered because of any act on thepart of the petitioner. The liberty that was granted to the petitioner wasnever misused by him. Further, the application which he had filed wasprior to the coming into force of the amendment and ought to have beendealt with as per the old provisions and not as per the new provisions.He relies on the decision of the Division Bench of this Court in ArunGulab Gawli vs. Deputy Inspector General (Prisons) (East) Nagpurand another, [Criminal Writ Petition No.899 of 2024 decided on07.01.2025], wherein it has been held thus :-“6.We have appreciated the aforesaid submissions.Firstly, we are required to deal with the embargothat is created under the amended Rule 4(2)(e) of thePrisons Rules, 2024 which is sought to be relied by thelearned Additional Public Prosecutor as was notified by theState Government on 02.12.2024. The said Rules areprospective in nature and as such shall be applicable from02.12.2024 onwards. The application of the petitioner forgrant of furlough was received by the respondent Jail[3] wp-789-2025.odtSuperintendent on 19.08.2024. As a sequel of above, theposition of law on the date of the petitioner’s application isrequired to be taken into account and not the date onwhich the amended Rules were notified which have aprospective effect from 02.12.2024. In such aneventuality, the embargo created in regard to grant offurlough to such accused persons who are convictedunder the provisions of MCOCA by virtue of the Rulesnotified on 02.12.2024, would not be attracted to the caseat hand. As such the contention of the learned AdditionalPublic Prosecutor to that effect is liable to be rejected.”He therefore prays for setting aside the impugned orders andgrant of furlough leave to the petitioner.4.Learned APP relies on the affidavit-in-reply by Mr. Sachin RameshSalve, Superintendent of Chattrapati Sambhajinagar Central Prison,wherein it has been stated that considering the police report andamendment in the rules dated 02.12.2024, the application of thepetitioner has been rejected. The learned APP submits that now in viewof rule 4 of the amended rules, categories of eligibility of prisoners forfurlough has been given and rules 4(2)(g)(j) and (l) prescribe that theprisoners who are convicted for the offence of rape or rape with murderor attempt to rape with murder, prisoners sentenced to death orsentenced to imprisonment till death, prisoners, whose release is notrecommended by an officer not below the rank of the AssistantCommissioner of Police or Deputy Superintendent of Police, on the[4]