Bombay High Court calls for uniform policy for granting furlough and parole to prisoners

The Bombay High Court recently called for a uniform policy for granting furlough and parole to prisoners. [Bhausaheb Ankush Gade and Anr v. State of Maharashtra]

A division bench of Justices Vibha Kankanwadi and S G Chapalgaonkar of the Aurangabad bench of the High Court specifically pointed to the practice of denying applications for parole and furlough based on Rule 4 (10) of the Maharashtra Prisons (Mumbai Furlough and Parole) (Amendment) Rules, 2018, which allows rejection if a prisoner has previously overstayed their furlough.

However, citing the judgment of the Gujarat High Court in Bhikabhai Devshi vs. State of Gujarat which was later relied on by the Bombay High Court itself, the Court made it clear that Rule 4(10) is directory and not mandatory.

"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 stated.

The Court opined that a uniform policy can be achieved by amending the existing rules. However, it also said that mere procedural changes would not suffice.

"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 said in its order.

The Court was considering petitions filed by Bhausaheb Ankush Gade and Pintu Ankush Gade, who are brothers serving life sentences in Harsool Open Jail after they were convicted for murder.

Their applications for furlough leave were rejected by the Deputy Inspector of Police (Prison) solely due to their prior overstays—194 days for Bhausaheb and 1,122 days for Pintu—during earlier releases in 2014 and 2015.

Before the High Court, the Gade brothers argued that they had not sought any leave for over a decade and that their applications were not considered within the legal framework established by previous court rulings.

They contended that their efforts at rehabilitation during their imprisonment warranted a reconsideration of their requests.

The Court noted that in another case, an inmate with a similar history of belated surrender, was granted furlough.

The Court opined that this inconsistency in the application of the Rules illustrated the "pick and choose" policy by prison authorities, leading to unfair treatment of certain inmates.

The Court cited its judgments in cases such as Subhash Pralhad Ghogare vs. The State of Maharashtra and Pratap Tukaram Godse vs. The State of Maharashtra, in which it was held that prisoners should not be arbitrarily denied furlough based on past overstays when no escape attempts were involved.

"When the authorities are aware of these decisions, they are still not implementing them," the Court said, underscoring discrepancies in decision-making.

The bench further expressed dissatisfaction with the non-implementation of a policy formulated by the Additional Director General of Police and Inspector General of Prisons, which allows applications from inmates who have surrendered belatedly to be forwarded to the government for final approval.

Since this policy has not yet been finalised, the Court held that prison authorities are bound by previous judgments which do not permit arbitrary denial of furlough in such cases.

In the case of the Gade brothers, the Court quashed the Deputy Inspector's rejection of their furlough applications, and directed that they be released on furlough leave for the admissible days, subject to certain conditions.

Advocate MM Parghane appeared for both the petitioners.

Additional Public Prosecutors Priya R Bharaswadkar and AV Lavte appeared for the State.

[Read order]