Late Surrender Cases To Be Assessed On Merits; Rule 4(10) Of Maharashtra Prisons (Mumbai Furlough and Parole) (Amendment) Rules Is Directory: Bombay HC
The Bombay High Court has clarified that in cases of late surrender by prisoners, where there is no indication of escape but merely a delay in surrendering, each case should be evaluated based on its specific facts and circumstances.
The Court emphasized that the relevant rule is directory rather than mandatory.
The case involved brothers who are serving life sentences in Jail for murder. Their requests for furlough were denied by the Deputy Inspector of Police (Prison) solely on the grounds of their prior overstays.
In their appeal to the High Court, the brothers argued that they had not sought furlough in over a decade and that their applications had not been evaluated according to the legal standards established by prior court rulings. They also highlighted their efforts at rehabilitation while incarcerated, asserting that these warranted a reevaluation of their requests.
A Division bench of Justice Vibha Kankanwadi and Justice S.G. Chapalgaonkar specifically addressed the issue of denying parole applications based on Rule 4(10) of the Maharashtra Prisons (Mumbai Furlough and Parole) (Amendment) Rules, 2018. This rule allows for rejection of applications if a prisoner has previously overstayed their furlough.
Advocate M.M. Parghane appeared for the petitioners, while Additional Public Prosecutors Priya R. Bharaswadkar appeared for the Respondent.
The Court referenced a judgment from the Gujarat High Court in Bhikabhai Devshi vs. State of Gujarat, which it had previously relied upon. The Court said, “In clear terms, it is held that in cases of late surrender with no element of escape but only element of delay in surrendering they can be examined on the facts and circumstances as well as merits of the case. That rule is directory and not mandatory.”
The Court expressed the need for a uniform policy, suggesting that amendments to the current rules could facilitate this. They cautioned, however, that mere procedural modifications would not be sufficient to address the underlying issues. “We are afraid that unless there would be changes in the legislation mere circulars or procedural difference will not give the proper results. Here, uniform policy is required, which can be achieved by amending rules in view of the fact that there are rules in existence which are part of the statute," the Court noted.
The Court pointed out inconsistencies in the application of the rules, noting that another inmate with a similar history of delayed surrender had been granted furlough, which illustrated a "pick and choose" policy by prison authorities leading to unfair treatment of certain inmates. The Court referenced its previous decisions in cases such as Subhash Pralhad Ghogare vs. The State of Maharashtra and Pratap Tukaram Godse vs. The State of Maharashtra, emphasizing that prisoners should not be arbitrarily denied furlough based on past overstays if there were no escape attempts.
The Court expressed frustration over the non-implementation of a policy set forth by the Additional Director General of Police and Inspector General of Prisons, which would allow applications from inmates who surrendered late to be sent to the government for final approval. As this policy remains unfinalized, the Court stated that prison authorities are still obliged to follow prior judgments that prohibit arbitrary denials of furlough in such scenarios.
The Court overturned the Deputy Inspector's rejection of their furlough applications and ordered that they be granted furlough leave for the permissible duration, subject to certain conditions.
Cause Title: Bhausaheb Ankush Gade & Anr. v. State of Maharashtra, [2024:BHC-AUG:24460-DB]
Appearance:
Respondent: Additional Public Prosecutors Priya R. Bharaswadkar and A.V. Lavte
