1 wp.2343.09.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.2343 OF 2009 Subodh Prasad Urf Anil Chotu Jagdish Mahato, Prisoner No.C/3528, Bhishi Barrack, Kolhapur Central Prison, Kalamba (Maharashtra). ...Petitioner Versus The State of Maharashtra ...Respondent WITH CRIMINAL WRIT PETITION NO.459 OF 2010 Jagbir Singh Darbara Singh Jat, Convict No.-C/261, Presently lodged at Yerawada Open Prison, Pune. ...Petitioner Versus The State of Maharashtra ...Respondent ...... Mr.Yug Mohit Chaudhary for Petitioner in WP/2343/2009. Ms.Ameeta Kuttikrishnan for Petitioner in WP/459/2010. Mr.D.P.Adsule, A.P.P. for State in WP/2343/2009. Mr.J.P.Yagnik, A.P.P. for State in WP/459/2010. ...... 2 wp.2343.09.sxw CORAM:- A.M.KHANWILKAR AND U.D.SALVI, JJ. DATED:- SEPTEMBER 7, 2010. JUDGMENT (Per A.M.Khanwilkar, J.): 1. We propose to dispose of both these Petitions by common Judgment, as the issues raised are overlapping. 2. The principal question that arises for our consideration is: whether the condition specified in Government Circular dated 16th December 2008, requiring the prisoners from other States to furnish local surety within the State of Maharashtra, for availing furlough leave, infringes the right of such prisoner? 3. Both these Petitions under Article 226 of the Constitution of India have been filed through jail. Insofar as Writ Petition No.2343 of 2009 is concerned, the Petitioner therein has been convicted vide Judgment of the Sessions Court at Sewri, Mumbai dated 29th December 2005 for offence punishable under Section 302 of the Indian Penal Code and is undergoing sentence of life imprisonment at Kolhapur Central Prison. It is his case that 3 wp.2343.09.sxw when the offence took place, he was about 18 years old. The said Petitioner hails from District Hazaribaug in State of Jharkhand. He came to Mumbai for job. His family continues to stay in Jharkhand. As per the official records, this Petitioner became entitled for furlough leave as per the Rules in vogue, on 28th October 2007. He applied for furlough leave on 6th March 2008 to the Superintendent, Kolhapur Central Prison. In his application, he stated that his brother Narayan Prasad Mehta would offer surety as he would receive him at his home town in District Hazaribaug, Jharkhand. His brother is residing along with his family at District Hazaribaug. The Petitioner’s application was duly processed. The Superintendent, Kolhapur Central Prison wrote to the Deputy Commissioner, Law Department, Hazaribaug requesting to verify the Petitioner’s surety. In response, the Police Superintendent, Hazaribaug vide letter dated 24th January 2009 directed the Station House Officer, Ichak Police Station to inquire into the Petitioner’s antecedents and the desirability of releasing him on furlough. After due inquiry, the Station House Officer, Ichak Police Station by his letter dated 28th January 2009 informed the Police Superintendent, Hazaribaug that no criminal case was registered against the Petitioner in his local Police Station. Further, the Petitioner comes from a very poor family. Moreover, the family is residing in an area which is affected by Naxalite 4 wp.2343.09.sxw activity and for which reason, it may be difficult to keep watch on the Petitioner if he was to be released on furlough leave. The possibility of Petitioner absconding also cannot be ruled out. The letter concludes with a note that it would not be possible to take responsibility of the Petitioner. This position was communicated to the Superintendent of Kolhapur Central Prison by the Deputy Commissioner vide letter dated 18th March 2009 with a remark that releasing the Petitioner on furlough would not be in the interest of the Society. Eventually, the Petitioner was informed that unless the Petitioner was able to furnish local surety residing in Maharashtra, he cannot be released on furlough leave. For taking this view, the Authorities placed reliance on the Government Circular dated 16th December 2008. 4. The case of the Petitioner is that he has no relative in Mumbai, except his cousin. His cousin is also from Jharkhand and is presently working only as a domestic servant in Bandra. The Petitioner contends that he is not in a position to offer any local surety from Maharashtra and as a consequence thereof, would never be released on furlough leave though eligible and entitled in that behalf. The Petitioner has also sought parity with the other outstation prisoners who have been released on furlough leave by the Prison Department pursuant to order passed by the High Court. 5 wp.2343.09.sxw The Petitioner has placed reliance on the affidavit of his brother Narayan Prasad Mehta s/o Jagdish Mehta dated 30th April 2009, wherein, he has taken the responsibility to receive the Petitioner as his surety during the furlough leave period. According to the Petitioner, the condition imposed on the Petitioner of furnishing local surety from Maharashtra is asking the Petitioner to do something which is impossible. Besides, there is no reason as to why the relatives of the convict from other State who are willing to offer surety to receive the convict during furlough leave period cannot be considered as fit persons though the surety offered by them would conform to the stipulations of solvent surety provided under the extant Regulations. The Petitioner besides praying for direction against the Prison Authorities to accept the Petitioner’s brother as a surety and to release him on furlough leave as also prays for striking down the conditions provided in Clause (6) of the Government Circular dated 16th December 2008. 5. Insofar as Writ Petition No.459 of 2010 is concerned, the Petitioner has been convicted for offence and is undergoing sentence of life imprisonment passed by the Sessions Court at Mumbai dated 5th July 2000. It is stated in the Petition, sent through jail, dated 10th January 2010, that he has already undergone 13 years of actual imprisonment since his arrest 6 wp.2343.09.sxw on 23rd December 1996. Even this Petitioner is resident of Village Dhundwa, Tahsil Kalayat, District Kaithal in State of Haryana. In the past, on four occasions, he was released on furlough leave to visit his father at his native place in Haryana State. At that time, his relatives who are residents of State of Haryana and staying outside Maharashtra stood surety to receive him on furlough leave. It is also stated that the Petitioner is presently confined in an open prison since 2006 and has availed of furlough leave twice thereafter. Inspite of the above, the appropriate Authority has now rejected the Petitioner's request to release him on furlough leave on the ground that he is not in a position to furnish local surety residing in the State of Maharashtra as is mandated by the Government Circular dated 16th December 2008. 6. Both these Petitions are resisted by the Respondents primarily on the ground that unless the Petitioners were to comply with the requirement under the Government Circular dated 16th December 2008 of furnishing local surety from Maharashtra, they cannot be released on furlough leave. 7. Having considered the rival submissions, we have no difficulty in restating the well established position that to be released on furlough is a 7 wp.2343.09.sxw substantial and legal right conferred on the prisoner. At the same time, it will have to be borne in mind that the said right is not an absolute right. The Apex Court in the recent decision in the case of State of Maharashtra & Anr. vs. Suresh Pandurang Darvakar reported in (2006) 4 SCC 776 had occasion to observe that on bare reading of Rule 4(4) of the Prisoners (Bombay Furlough and Parole) Rules 1959, it indicates that release can be refused when the same is not recommended by the designated Authority on the ground of public peace and tranquility. It has also adverted to Rule 6 of the same Rules which provides that a prisoner shall not be granted furlough unless he has a relative willing to receive him while on furlough and is ready to enter into a surety bond in Form `A’ appended to Rules for such amount as may be fixed by the sanctioning Authority. Further, the proviso authorises the sanctioning Authority to dispense with the requirement of execution of such bond by relatives of prisoners confined in open prisons as defined in Rule 2(b) of the Maharashtra Open Prisons Rules, 1971. The Court went on to hold that the twin requirements flowing from Rule 6 are: (a) a relative of the applicant should be willing to receive him while on furlough, and (b) he must be ready to enter into a surety bond. 8. The question is: whether the Circular pressed into service by the 8 wp.2343.09.sxw Respondent State dated 16th December 2008 impinges upon the right of the prisoner in any manner. The relevant portion of the Circular, English translation whereof has been furnished, reads thus: "Two) The procedure to be followed from the time of the receipt of the prisoner's application till the final decision must be completed within the time stipulated in Annexure 1. Three) A report on the application for furlough and parole leave is called from the Commissioner of Police/Superintendent of Police. If the convict resides in a village, the concerned District Magistrate submits the report to the Deputy Inspector General/Divisional Commissioner, which shows that whether he agrees or disagrees with the report of the Superintendent of the Police. In the case of residents of a city, the commissioner of police submits his report directly to the concerned Deputy Inspector-General of Prison/Divisional Commissioner. In this report, it is necessary to mention whether the reasons for leave are genuine or not, and also information about the eligibility of the surety given by the prisoner. Information must also be given about the conduct of the prisoner during his earlier furlough/parole leave, the possibility of the disruption of peace and security if he is released and whether it is proper to release him on parole or not, and if so how. In submitting the report, it is necessary for the police to investigate the following points regarding the surety given by the prisoner, and to submit the report through the District Magistrate who will submit it to the concerned officers. It is hereby notify to all the Superintendent of the Police, District Magistrates and Commissioner of Police, that they should make an inquiry about the prisoner and whether it is positive or negative, they should also make an independent inquiry about the surety. 1. The surety's statement about whether the surety is ready to stand as a surety. 2. Name, Address, age and occupation of the Surety. 3. How many year the surety has been resident of that place. 4. The relationship between surety and the concerned prisoner. 9 wp.2343.09.sxw 5. Whether any offence has been registered against the surety. 6. It is necessary to provide the local surety if the convict is from outside the State. 7. Whether the Surety is capable to keep control on the convict. Four) The Superintendent of Police shall send his report with his opinion to the office of the Commissioner/the office of Deputy General Inspector and one more copy shall be sent immediately to the concerned Superintendent of Prison for further action. Five) On receipt of the report of eligibility of the surety from District Magistrate the concerned Superintendent shall call the Surety and demand the necessary documents to ascertain his financial capacity before he fills up the Surety Bond (for example: documents relating to Seven/twelve extract, house ownership certificate, salary slip, income tax receipt etc.) The Superintendent will take the necessary documents and surety bond from the surety and shall release the convict on their responsibility." (emphasis supplied). 9. On fair reading of this Circular, it appears to us, that the appropriate Authority is expected to make an inquiry about the prisoner and to report whether it is positive or negative, including cause to make an independent inquiry about the surety on certain matters. One of that is as to local surety to be provided, if the convict is from outside State. This requirement referred to in Clause (6) of Paragraph (Three) of the Circular if construed to mean that the appropriate Authority has to ascertain- “is it necessary to provide a local surety” if the convict is from outside the State; then, it would not affect the right of the prisoner. Because that inquiry and 10 wp.2343.09.sxw subjective satisfaction may be germane before the prisoner, who incidentally happens to be convict from outside the Maharashtra State, but lodged in jail in Maharashtra, is released on furlough leave, so as to secure his presence. It is possible to construe the said clause in that manner, considering the tenor of Paragraph (Five) of the Circular which prescribes the nature of inquiry to be undertaken by the Designated Authority to verify the surety offered for releasing the prisoner on furlough leave. The fact that the surety is resident of State of Maharashtra or outside Maharashtra would make no difference to the said inquiry. It is only upon being satisfied that the surety offered is solvent surety for releasing the prisoner on furlough leave, the prisoner can be allowed to avail of the furlough leave on the responsibility of the surety. 10. The difficulty, however, arises because of the stand taken by the Respondents. According to the Respondents, it is mandatory to offer local surety from Maharashtra to avail of furlough leave by the convict/prisoner from outside State. To examine this aspect, we may refer to the relevant provisions in the Prisons Act, 1894. Section 3(5A) defines the term “furlough system" which means the system of releasing prisoners in jail on furlough in accordance with the rules for the time being in force. The rules 11 wp.2343.09.sxw regarding furlough system have been framed by the State Government in exercise of power to make rules under Section 59, in particular, sub-clause (1), (2) and (5) of sub-section (1) thereof. Section 61 of the Act mandates that the copies of the Rules so framed under Section 59 so far as they affect the government of prisons shall be exhibited both in English and in regional language, in some place to which all persons employed within a prison have access. As aforesaid, the State Government has framed Rules known as the Prisons (Bombay Furlough & Parole) Rules, 1959. Rule 3 deals with when prisoners may be granted furlough? The same reads thus: “3. When prisoner may be granted furlough - (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 for 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 for 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. 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 : 12 wp.2343.09.sxw Provided that if fine is paid during the period of imprisonment and the total sentence thereby reduced to a term not exceeding 5 years, he shall thereafter be eligible for release every year 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 of a prisoner on furlough shall cease to be valid if not given effect to within a period of two months of the date thereof." (emphasis supplied) The above Note 4 below Rule 3 presupposes that prisoners desiring to spend the furlough outside State of Maharashtra are entitled to and have a right to be released on furlough. Rule 4 deals with the categories of prisoners who should not be considered for release on furlough. The said Rule reads thus: "4. When prisoners shall not be granted furlough:- The following categories of prisoners shall not be considered for release on furlough : (1) Habitual prisoners. (2) Prisoners convicted of offences under sections 392 to 402 (both inclusive) of the I.P.C. (3) Prisoners convicted of offences under the Bombay Prohibition Act, 1949. 13 wp.2343.09.sxw (4) Prisoners whose release is not recommended in Greater Bombay by the Commissioner of Police and elsewhere by the District Magistrate, on the ground of public peace and tranquility. (5) Prisoners who, in the opinion of the Superintendent of the Prison, show a tendency towards crime. (6) Prisoners whose conduct is, in the opinion of the Superintendent of the Prison, not satisfactory enough. (7) Prisoners confined in the Ratnagiri Special Prison (other than prisoner transferred to that prison for jail services). (8) Prisoners convicted of offences of violence against person or property committed for political motives, unless the prior consent of the State Government to such release is obtained. (9) A prisoner or class of prisoners in whose case the State Government has directed that the prisoner shall not be released or that the case should be referred to it for orders. (10) Prisoners who have at any time escaped or attempted to escape from lawful custody or, have defaulted in any way in surrendering themselves at the appropriate time after release on parole or furlough." Rule 5 stipulates that ordinarily furlough should not be granted to prisoners within a period of six months from the date of return from Parole. The Rule relevant for considering the efficacy of impugned Government Circular is Rule 6. The same reads thus: “6. Furlough not to be granted without surety:- A prisoner shall not be granted furlough unless he has a relative willing to receive him while on furlough and ready to enter into a surety bond in Form A appended to these rules for such amount as may be fixed by the Sanctioning Authority. [Provided that the Sanctioning Authority may dispense with the requirement of execution of such bond by relatives of prisoners confined in Open Prisons as defined in clause (b) of rule 2 of the Maharashtra Open Prisons Rules 1971.] 14 wp.2343.09.sxw 11. On going through the Act of 1894 and the Statutory Rules framed by the State Government being Rules of 1959, there is no express provision which obligates the prisoner/convict from other States to offer local surety from Maharashtra. Such condition cannot be introduced by way of Government Circular. More so, when there is no express provision in the Act or for that matter the statutory Rules authorising the Executive to issue executive instructions to provide for additional conditions. (See Laxman Dundappa Dhamanekar & Anr. vs. Management of Vishwa Bharata Seva Samiti & Anr. reported in (2001) 8 SCC 378- Paragraph 9. Also see Ex.Captain K.Balasubramanian & Ors. vs. State of Tamil Nadu and Anr. reported in (1991) 2 SCC 708 Paras 6, 7 & 9 and Mannalal Jain vs. State of Assam & Ors. reported in AIR 1962 SC 386 – para 12). Insofar as the surety is concerned, the Criminal Manual provides for verification of solvency of sureties. The same reads thus: “Verification of Solvency of Sureties 14. (1) The responsibility for accepting the surety as solvent for the required amount is primarily that of the presiding Officer of the Court and in ordinary cases he should discharge it himself by making such summary inquiry as in the circumstances of the case he may think fit. (2) The production of a solvency certificate from the Revenue Authorities is not always essential and may be insisted upon only in cases of doubt and cases involving large sums. (3) For the purpose of determining whether the sureties are solvent, the 15 wp.2343.09.sxw Court may, if it thinks fit, accept affidavits in proof of the facts contained therein relating to the solvency of the sureties, or may make such further inquiry as it deems necessary. (4) Insistence upon the possession of immovable property by sureties in bonds of small amounts not exceeding Rs. 1,500 would cause serious inconvenience to the accused in procuring a surety. The Judge or Magistrate may, therefore, in suitable cases, where the amount of the bond does not exceed Rs. 1,500 assess the solvency of the surety even upon the basis of his movable property and assets. The intending surety should present his application for surety ship in the model form which is prescribed below for guidance. The Clerk of the Court in the Sessions Court or Nazir or Senior Clerk in the Magisterial Courts should check the proofs accompanying the applications, and thereafter place the matter before the Judge or Magistrate with his remarks. The Judge or Magistrate should consider the application in the light of the proofs produced and, if necessary, examine the surety personally and may also call for further and better proof. The Judge or Magistrate after holding a summary inquiry may pass an order either accepting the surety or rejecting the application as he deems fit. (5) To facilitate checking one person standing surety in several cases, a declaration form should be appended to the surety bond and intending surety should be asked to sign a declaration stating whether he has stood surety in any other pending cases. Such a declaration would enable the Police Officer or the Magistrate concerned to decide whether the surety should be accepted or not. If the declaration thus signed by a surety is found to be false subsequently, necessary action can be taken against him for such a false declaration. (5A). To avoid abscondence of accused due to furnishing of bogus surety or surety, bond by a stock surety, in addition to the proof as mentioned in sub-clause 3 of the Format of Application of surety, the surety, in all cases under the NDPS Act, the cases in which offence is serious and sentence provided is more than 10 years imprisonment or the cases under the Special enactment like POTA/MOCCA etc., shall furnish at least one of the document, amongst following:- 1. Passport. 2. Identity Card Issued by the Election Commission of India. 3. Permanent Account Number Card, i.e. PAN card issued by the Income Tax Department . 4. ATM/Debit Card, or Credit Card issued by any Nationalised or Private Bank on Standing at the National Level, having photograph of the holder thereon. 5. Identity Card issued by the Government Authorities or the Public Statutory Corporations. 6. Any such document, which is ordinarily issued by an Authority after due 16 wp.2343.09.sxw verification of the identity of the person and his address, which the Judge or the Magistrate may think just and proper, in the interest of justice, by recording specific reason. (5B) The Surety shall submit two copies of his latest passport size photograph which is not older than six months before the date of submission, of which one copy shall be retained in the court record and one copy to be retained by the concerned police station. FORM In the Court of the .................................Judge/Magistrate...................... ........................ Application No....................... of 19................. ............. (In re: Case No........................of 19............... Remand Application of the ..................... Police Station). State ( Or as the case may be Complainant. v. ........................................Accused ............................ I (Name of Surety ) ..................................................... Solemnly affirm and state as