TaxTMI 
TaxTMI 
2021 (11) TMI 723
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....f one year; (ii) Section 377: life imprisonment together with a fine of Rs. 1,00,000/-, and in default, simple imprisonment of one year; (iii) Section 354: three years' rigorous imprisonment together with a fine of Rs. 25,000/-, and in default, simple imprisonment of six months; (iv) Section 504: one year's rigorous imprisonment together with a fine of Rs. 5,000/-, and in default simple imprisonment of three months; (v) Section 506(2): three years' rigorous imprisonment together with a fine of Rs. 5,000/- and in default, simple imprisonment of one month; (vi) Section 508: one year's rigorous imprisonment together with a fine of Rs. 5,000/- and in default, simple imprisonment of one month; (vii) Section 323: six months' rigorous imprisonment together with a fine of Rs. 500/- and in default, simple imprisonment of one month; The respondent was directed to pay compensation of Rs. 5,00,000/- under Section 357(3) of the Code of Criminal Procedure 1973, to the prosecutrix. All sentences were directed to run concurrently. 3 The respondent was released on temporary bail for a period of three weeks on 16 April 2015 and for a period....
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....rsons connected with the respondent. While these persons have been arrested, they continue to attract a huge crowd of followers in India and may commit offensive acts in the future. The respondent may also threaten the husband of the complainant or other witnesses if he is released on furlough; (d) A complaint, ICR No. 31/2014, was registered under Sections 324 and 114 of the IPC and Section 135 of the Gujarat Police Act 1951, against two unknown persons for assaulting and injuring one Rakesh Jayantilal Patel, a witness in the Asaram case, on 10 March 2014 on his head with a weapon; (e) A complaint, ICR No. 69/2014, was registered under Sections 307, 326(A), and 114 of the IPC against two persons who claimed to be sadhaks of Asaram for assaulting and injuring one Dinesh Bhagchandani, a witness in the Asaram case, on 16 March 2014 by throwing acid on him and attempting to murder him; (f) A complaint, ICR No. 133/2014, was registered under Sections 307 of the IPC, Sections 25(1)(A)(B) and 27 of the Arms Act 1959, and Section 135(1) of the Gujarat Police Act 1951, against one unknown person for assaulting and injuring one Amrut Prajapati, a witness in the As....
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.... to the main offence, the respondent has engaged in criminal misconduct to hinder the judicial proceedings during trial by threatening, assaulting and murdering witnesses; (iii) frequent assaults on witnesses have been registered against the followers of the respondent and seven offences have been registered against him; (iv) one of these seven offences is being supervised by an IPS officer, Shoba Bhutada, who has been threatened by the followers of the respondent; (v) the respondent is not a normal prisoner who may be considered for grant of furlough. He has a group of thousands of head strong followers, spanning across the country who are willing to commit offences at the instance of the respondent; (vi) in case the respondent is released on furlough, the lives of the witnesses in the original trial will be under threat. The respondent may interrupt the judicial proceedings for prosecution of the seven offences pending against him; and (vii) the respondent is engaged in dangerous activities of organized crime and has a network of persons and a financial background. 6 The respondent moved the High Court under Section 482 CrPC for set....
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....h Court. B Rival Submissions 10 Assailing the order of the High Court, Mr Tushar Mehta, Solicitor General appearing on behalf of the State of Gujarat, has made the following submissions: (i) Rules 3 and 4 of the Bombay Furlough and Parole Rules indicate that furlough cannot be allowed mechanically as a matter of right. Rule 3 creates an option for the prisoner to be released on furlough and the said Rule is subject to Rule 4; (ii) Under sub-Rules 4, 6 and 10 of Rule 4 of the Bombay Furlough and Parole Rules, prisoners whose release is not recommended by the Commissioner of Police or the District Magistrate on grounds of public peace and tranquility; prisoners whose conduct is not satisfactory in the opinion of Superintendent of the Prison; and prisoners who have escaped or attempted to escape from custody or have defaulted in surrendering after release on parole or furlough, shall not be considered for release on furlough; (iii) Rule 17 of the Bombay Furlough and Parole Rules provides that the Rules do not confer a legal right on the prisoner to claim release on furlough; (iv) In State of Maharashtra v. Suresh Pandurang Darvakar (2006) 4 SC....
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.... ailments and suffered from septic shock and pulmonary embolism in June 2021; (ii) There is no family member around the respondent's father and his condition is critical. The respondent is the only son of his father. The respondent's mother is also severely ill and is being taken care of by her daughter. Thus, the respondent is required to be released on furlough to take care of his father's medical care and treatment; (iii) The appeal against the respondent's conviction and the application for suspension of sentence are pending for hearing before the High Court; (iv) The respondent has been released on temporary bail and furlough leave on four occasions and no untoward incident was reported during his release; (v) The furlough leave is a matter of right and is granted periodically to prisoners to continue their association with their families; (vi) Apart from the present case, the respondent is an accused in two criminal cases and has been granted bail in both the cases; (vii) With respect to the other offences mentioned in the order dated 8 May 2021, the respondent is not associated with the attacks, his name has not been ment....
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....fe imprisonment may be released on furlough every year instead of every two years after he completes seven years actual imprisonment. Note 1: The period of imprisonment in this rule includes the sentence or sentences awarded in lieu of fine in case the amount of fine is not paid. Provided that if fine is paid during the period of imprisonment and the total sentence is reduced to a term not exceeding 5 years he shall thereafter be eligible for release in accordance with sub-rule (1) instead of every two years under sub-rule (2). Note 2: For the purposes of this rule, the period of imprisonment shall be computed as the total period for which a prisoner is sentenced even though one or more sentences be concurrent. Note 3: If at any time a prisoner who could have been granted furlough is either not granted or is refused the same the period for which he could have been granted the furlough shall not be carried forward but shall lapse. Note 4: The period of two weeks may be initially extended up to three weeks in the case of prisoners desiring to spend the furlough outside the State of Bombay. Note 5: An order sanctioning the release ....
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.... grant of furlough for prisoners serving different lengths of imprisonment, Rule 4 imposes limitations. The use of the expression "may be released" in Rule 3 indicates the absence of an absolute right. This is further emphasised in Rule 17 which states that said Rules do not confer a legal right on a prisoner to claim release on furlough. Thus the grant of release on furlough is a discretionary remedy circumscribed by Rules 3 and 4 extracted above. 16 The applicability of these Rules was considered by a two judge Bench of this Court in State of Maharashtra v. Suresh Pandurang Darvakar (2006) 4 SCC 776. Justice Arijit Pasayat, speaking for the Bench held that: "5. According to the learned counsel for the appellants, the High Court has not kept in view Rules 4(4) and 6 of the Prisons (Bombay Furlough and Parole) Rules, 1959 (in short "the Rules"). The said Rules have been framed in exercise of powers conferred by clauses (5) and (28) of Section 59 of the Prisons Act, 1894 (in short "the Act") in its application to the State of Maharashtra as it stood then. The expression "furlough system" is defined in clause (5-A) of Section 3 of the Act, while the expression "parole sys....
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.... therefore, are not quite helpful. In this connection we may refer to the Haryana Good Conduct Prisoners (Temporary Release) Act, 1988 which has repealed the Punjab Good Conduct Prisoners (Temporary Release) Act, 1962. The Punjab Act was earlier applicable in the State of Haryana. The language of both the Acts is same and it may be useful to refer to Sections 3 and 4 of any of these two Acts to understand the difference between parole and furlough: [...] 18. It would be thus seen that when a prisoner is on parole his period of release does not count towards the total period of sentence while when he is on furlough he is eligible to have the period of release counted towards the total period of his sentence undergone by him." 19 In Asfaq v. State of Rajasthan (2017) 15 SCC 55, Justice AK Sikri, speaking for the two-judge Bench observed that: "11. There is a subtle distinction between parole and furlough. A parole can be defined as conditional release of prisoners i.e. an early release of a prisoner, conditional on good behaviour and regular reporting to the authorities for a set period of time. It can also be defined as a form of conditional pardon by w....
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....ng the convict on one hand and the public purpose and interests of society on the other: "19. Having noted the aforesaid public purpose in granting parole or furlough, ingrained in the reformation theory of sentencing, other competing public interest has also to be kept in mind while deciding as to whether in a particular case parole or furlough is to be granted or not. This public interest also demands that those who are habitual offenders and may have the tendency to commit the crime again after their release on parole or have the tendency to become a threat to the law and order of the society, should not be released on parole. This aspect takes care of other objectives of sentencing, namely, deterrence and prevention. This side of the coin is the experience that great number of crimes are committed by the offenders who have been put back in the street after conviction. Therefore, while deciding as to whether a particular prisoner deserves to be released on parole or not, the aforesaid aspects have also to be kept in mind. To put it tersely, the authorities are supposed to address the question as to whether the convict is such a person who has the tendency to commit such....
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....s have been refuted by the respondent on the ground that apart from the present case, he is accused in two other offences in which he has been granted bail. It has been urged that in the offences relating to intimidation and injury to the witnesses mentioned in the order dated 8 May 2021, the police has not charged him and he was not involved in any manner. It has been urged that even otherwise, these offences occurred prior to 2016, after which there have been no complaints against or in relation to the respondent. The respondent has laid emphasis on the fact that when he was granted furlough in December 2020, he did not violate the conditions of furlough, nor was there any disruption of law and order. 23 The DGP has invoked Rules 4(4), 4(6) and 4(10) of the Rules to dismiss the furlough leave application. Rule 4(4) of the Rules provides that prisoners whose release is not recommended by the Commissioner of Police on grounds of public peace and tranquillity may not be considered eligible for furlough. Rule 4(6) provides for rejection of furlough leave where the conduct of the prisoner is not satisfactory and Rule 4(10) provides that prisoners who have escaped, or attempted to e....