Dilip Premnarayan Tiwari vs State Of Maharashtra on 8 May, 2026

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    Bombay High Court

    Dilip Premnarayan Tiwari vs State Of Maharashtra on 8 May, 2026

    Author: Madhav J. Jamdar

    Bench: Madhav J. Jamdar

    2026:BHC-KOL:3805-DB
    
                                                                                        902 Cri WP-883-2025.doc
    
    
    
                                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                           CIRCUIT BENCH AT KOLHAPUR
                                         CRIMINAL APPELLATE JURISDICTION
    
                                         CRIMINAL WRIT PETITION NO. 883 OF 2025
    
                      Dilip Premnarayan Tiwari                                 ... Petitioner
                             Vs.
                      State of Maharashtra                                     ... Respondent
                                                           .............
    
                      Ms Neha Deshpande, Advocate (appointed) for the Petitioner.
                      Mr. A.A. Naik, APP for the Respondent - State.
    
                                                           .............
    
    
                                                            CORAM :     MADHAV J. JAMDAR &
                                                                        PRAVIN S. PATIL, JJ.
    

    DATE : 08.05.2026.

    Judgment (Per, Madhav J. Jamdar, J.) :

    SPONSORED

    1. Heard Ms Neha Deshpande, learned Advocate appointed to

    represent the interest of the Petitioner and Mr. A.A. Naik, learned APP for

    the Respondent – State..

    2. The challenge in this writ petition, filed through jail, is to the order

    dated 11.06.2024, by which the petitioner’s leave was rejected on the

    ground that the petitioner is not entitled to parole leave in view of Rule

    4(10) of the Maharashtra Prisons (Bombay Furlough and Parole) Rules,

    1959 (“the 1959 Rules”).

    3. During the course of hearing, Mr. A.A. Naik, learned APP, tendered

    a copy of the show cause notice dated 12.06.2023, the reply dated

    19.06.2023 filed by the petitioner, and certain supporting documents. He
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    also placed on record the proposal dated 25.03.2024 submitted by the

    Superintendent, Kolhapur Central Prison (Kalamba) forfeiting entire

    remission permanently and order dated 26.12.2024 passed by the Deputy

    Inspector General of Prison, by which punishment of forfeiture of

    remission permanently has been imposed.

    4. The said Rule 4(10) of “the 1959 Rules” read as under :

    “4. Eligibility for furlough : – All Indian
    prisoners except from following categories
    whose annual conduct reports are good shall
    be eligible for furlough:

    …….

    (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.”

    (Emphasis added)

    5. Perusal of the record shows that, in the meantime, the Maharashtra

    Prisons (Furlough and Parole) Rules, 2024 (“the 2024 Rules”) have been

    framed by the Government of Maharashtra by Notification dated

    2.12.2024 in exercise of the powers conferred by clauses (5) and (28) of

    Section 59 of the Prisons Act, 1894, in supersession of the 1959 Rules.

    6. Rule 7 of the said 2024 Rules provides as under:

    “7. Duration of furlough.- (1) The duration of furlough for eligible
    prisoners shall be as follows:-

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    Sr. No. Duration of Period of actual Admissible duration of
    sentence awarded imprisonment furlough per calendar year
    undergone

    1. Not exceeding On completion of one Twenty-one days
    five years year of actual
    imprisonment

    2. Exceeding five On completion of two Twenty-one days during
    years but not years of actual the first five years of actual
    more than imprisonment imprisonment and twenty-

                        fourteen years                           eight days for the
                                                                 remaining period
               3.       Life imprisonment On completion of             Twenty-one days during
                        or imprisonment three years of actual          the first five years of actual
                        exceeding         imprisonment                 imprisonment and twenty-
                        fourteen years                                 eight days for the
                                                                       remaining period
    
    
    

    Note 1.- The period of imprisonment in this rule includes the sentence or
    sentences awarded in lieu of fine in case if the fine is not paid.

    Note 2.- For the purposes of eligibility for furlough, ‘sentence’ means the
    sentence as finally decided in appeal, or revision, or otherwise, and
    includes the aggregate of one or more sentences.
    (2) The prisoner who has defaulted in any way in returning to the
    prison at the time of completion of his furlough or parole is eligible for
    furlough as per the following criteria:-

    Sr. Period of unauthorised Where surrendered Where admitted by
    No. overstay before himself police
    surrendering

    1. Upto 7 days Eligible as per the One year after
    rules admission from
    overstay.

    2. From 8 to 180 days One year after Two years after
    surrender from admission from
    overstay overstay

    3. From 181 to 365 days Two years after Three years after
    surrender from admission from
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    overstay overstay

    4. From 366 days and Three years after Five years after
    above surrender from admission from
    overstay overstay
    (Emphasis added)

    7. It is the submission of Ms. Neha Deshpande, learned counsel

    appointed to represent the petitioner that, Rule 4(10) of the 1959 Rules

    provides for complete non-eligibility for furlough if there is default in

    surrendering on time after release on parole or furlough. She submitted

    that as some specific period has been provided by Rule 7(2) of 2024

    Rules, in view of the law laid down by the Supreme Court in State of

    Haryana and Others Vs. Jagdish reported in (2010) 4 SCC 216, liberal

    policy as contained in the 2024 Rules will apply to the petitioner.

    However, she submits that no hearing opportunity is provided under Rule

    7 of said 2024 Rules and for sufficient explanation, no power is given to

    reduce the period as set out in said Rule 7 particularly Sub-Rule (2)

    thereof. She, therefore, submitted that said Rule 7 particularly Sub-Rule

    (2) is violative of Articles 14 and 21 of the Constitution of India and

    violative of the principles of natural justice. She relied upon the

    judgments of the Supreme Court of India in Sunil Batra Vs. Delhi

    Administration reported in 1980 (3) SCC 488 as also on Full Bench

    judgment of this Court in case of Kanitlal Nandlal Jaiswal Vs. Divisional

    Commissioner Nagpur Division, Nagpur, reported in 2019 SCC OnLine

    Bom.13216 .

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    8. Ms. Deshpande, learned counsel also submits that the petitioner is

    in jail since 29.05.2004 and he has completed actual imprisonment of 16

    years and that petitioner’s behaviour in jail throughout was excellent

    except when he was released on COVID-19 pandemic parole when he

    overstayed for 370 days. It is submitted that the petitioner had sufficient

    explanation as the petitioner’s father passed away during the said period

    and, therefore, the petitioner was constrained to give financial assistance

    to his family. She further submitted that as far as the order dated

    26.12.2024 passed by the Deputy Inspector General of Prisons imposing

    on the petitioner punishment of forfeiture of remission, is passed without

    considering the detailed explanation given by the petitioner and the

    documentary evidence produced by the petitioner.

    9. On the other hand, Mr. Naik, learned APP submitted that in fact

    what will apply is Section 48-A of the Prisons Act 1894. However, he

    states that Rule 7 of 2024 Rules are applicable for the convict who has

    defaulted in returning to the prison on completion of furlough or parole

    leave and provides when such convict will become eligible for further

    furlough leave, after completion of certain period of imprisonment and,

    therefore, the period provided under Sub-Rule (2) of Rule 7 will apply.

    Learned APP submitted that in fact as per Rule 4(10) of 1959 Rules, there

    was complete prohibition in case of default in surrendering on time and

    now as per Rule 7(2), after specified period, application for furlough

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    leave can be considered. Learned APP therefore submitted that no

    interferrence in the Impugned Order is warranted.

    10. Before considering the rival contentions, it is necessary to set out

    certain factual aspects:

    i. The petitioner was convicted by the learned Ad-hoc District &

    Sessions Court, Palghar in sessions case concerning C.R.

    No.144/2004 registered with Manikpur Police Station on

    08.09.2006 for the offences punishable under sections 302, 307,

    452 r/w. 34 of the Indian Penal Code, 1860, and was awarded

    death sentence.

    ii. The appeal bearing Cri. Appeal No.1086 of 2006 preferred by the

    Petitioner was dismissed by this Court.

    iii. The Supreme Court of India modified the death sentence to 25

    years of actual imprisonment & fine by order dated 10.12.2009.

    iv. The petitioner in said offence was arrested on 29.05.2004 and has

    completed more than 16 years of actual imprisonment.

    v. From the period of 29.05.2004 onwards till 2020, the petitioner

    was released on furlough and parole leave on many occasions and

    he has reported back to the jail authority within time.

    vi. The petitioner was released on parole due to COVID-19 Pandemic

    on 06.08.2020 for a period upto 26.05.2022 and has failed to

    return back to the jail within time and was arrested on 01.06.2023

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    i.e. after delay of about 370 days.

    vii.The petitioner’s furlough application was rejected by the Impugned

    Order dated 11.06.2024 passed by the Deputy Inspector General of

    Prisons, Western Division, Yerawada, Pune on the ground of

    ineligibility as provided under Rule 4(10) of the 1959 Rules.

    viii. Show Cause Notice dated 12.06.2023 issued by the

    Superintendent, Kolhapur Central Prison, Kolhapur was served on

    the petitioner seeking explanation about proposed punishment of

    permanent forfeiture of remission as per Section 48-A (Bombay

    Amendment) of Prisons Act, 1894.

    ix. The petitioner submitted detailed explanation dated 19.06.2023.

    In the said explanation, it is stated by the petitioner that during

    COVID-19 Pandemic period, his father suffered from a brain

    haemorrhage and, therefore, his father was hospitalized and for his

    father’s treatment, an amount of Rs.4,00,000/- (Rupees Four Lakh)

    has been collected from the relatives and Rs.50,000/- (Rupees Fifty

    Thousand) has been taken as a loan from Bajaj Alliance. It is

    further stated that as funds got over, the hospital refused to

    continue the treatment of the petitioner’s father and, therefore,

    petitioner’s father was discharged from the hospital and

    subsequently, petitioner’s father passed away on 10.02.2021. It is

    further stated that as thereafter his relatives started demanding the

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    money given as a loan, he was required to work for the purpose of

    repaying the said amount.

    x. By order dated 26.12.2024, the Deputy Inspector General of

    Prisons has imposed the punishment of permanent forfeiture of

    remission. However, perusal of the order shows that the detailed

    explanation given by the petitioner has not been considered. The

    relevant part of the said order reads as under :

    “सदर बंदी पि ्यांदा ३७० (तीनशे सतर) िदवस अनाि कृतपणे
    कारागृ ाबा ेर राि ्याने कारणे दाखवा नोटीस बजावली ोती. सदर
    नोटीशीस बंदीने ्पटीकरण िदले आ े. परंतू सदरचे ्पटीकरण संयत
    ु ीक
    वाटत ना ी. ्यामुळे म ाराटर िनयमावली रकरण रं २७ व शासन अि सूचना
    २०११, गृ िवभाग मंरालय, मुंबई ३२, िद २ ऑग्ट २०११ शासन
    अि सुचनेतील संिचत/अिभवचन रजेवुन उिशराने परत येणा- या कैयांसाठी
    माफीतील कपातीचे रमाणाम ील अ. र. ८ रमाणे माफीत कायम्वुपी
    कपात कर्यात येईल अशी कारागृ ीन िशषा र्तािवत केलेली आ े.”

    (Emphasis added)
    Thus, it is very clear that the detailed explanation submitted by the

    petitioner is not considered.

    11. Thus, in this case, the issues to be decided are as follows :

    i. Whether for determining the period as contemplated under Sub-

    Rule (2) of Rule 7 of the Rules 2024, any explanation is required to

    be called for from the prisoner and for sufficient reason, the said

    period can be condoned or reduced?

    ii. Whether order dated 26.12.2024 of the Deputy Inspector General

    of Prisons passed by exercising power under Section 48-A (Bombay
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    Amendment) of the Prisons Act, 1894, is legal and valid?

    12. As noted herein above, Ms. Deshpande, learned counsel has relied

    on judgment of Kanitlal Nandlal Jaiswal (supra). In the said case, the

    Larger Bench of this Court was considering whether proviso to Rule 19(2)

    introduced in terms of Notification dated 16.04.2018, to the 1959 Rules

    is violative of Articles 14 and 21 of the Constitution of India.

    13. The said proviso to Rule 19(2) introduced in terms of Notification

    dated 16.04.2018 provided that a prisoner shall not be released on

    emergency or regular parole for a period of one year after the expiry of

    his last emergency or regular parole except in case of death of his nearest

    relatives.

    14. While considering the challenge to said proviso, the Larger Bench

    has relied on the judgment of Sunil Batra Vs. Delhi Administration and

    others reported in (1978) 4 SCC 494 and more particularly on paragraph

    52 of the same which reads as under:

    “52. True, our Constitution has no ‘due process’ clause or the
    VIII Amendment; but, in this branch of law, after Cooper and
    Maneka Gandhi, the consequence is the same. For what is
    punitively outrageous scandalizingly unusual or cruel and
    rehabilitatively counter-productive, is unarguably
    unreasonable and arbitrary and is shot down by Articles 14
    and 19 and if inflicted with procedural unfairness, falls foul of
    Article 21. Part III of the Constitution does not part company
    with the prisoner at the gates, and judicial oversight protects
    the prisoner’s shrunken fundamental rights, if flouted,
    frowned upon or frozen by the prison authority. Is a person
    under death sentence or undertrial unilaterally dubbed
    dangerous liable to suffer extra torment too deep for tears ?

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    Emphatically no, lest social justice, dignity of the individual,
    equality before the law, procedure established by law and the
    seven lamps of freedom (Article 19) become chimerical
    constitutional claptrap. Judges, even within a prison setting,
    are the real, though restricted, ombudsmen empowered to
    proscribe and prescribe, humanize and civilize the life-style
    within the carcers. The operation of Articles 14, 19 and 21
    may be pared down for a prisoner but not puffed out
    altogether. For example, public addresses by prisoners may be
    put down but talking to fellow prisoners cannot. : Vows of
    silence or taboos on writing poetry or drawing cartoons are
    violative of Article 19. So also, locomotion may be limited by
    the needs of imprisonment but binding hand and foot, with
    hoops of steel, every man or woman sentenced for a term is
    doing violence to Part III. So Batra pleads that until
    decapitation he is human and so should not be scotched in
    mind by draconian cellular insultation nor stripped of the
    basic fellowship which keeps the spirit flickering before being
    extinguished by the swinging rope.”

    (Emphasis added)

    15. Paragraph No.14 of Kanitlal Nandlal Jaiswal (supra) is also

    relevant, which reads as under:

    “14. The said position of law was followed in the case of Sunil
    Batra Vs. Delhi Administration
    reported (1980) 3 S.C.C. 488,
    popularly known as Sunil Batra-II case, wherein it was
    reiterated that treatment to a prisoner must satisfy the test of
    Articles 14, 19 and 21 of the Constitution of India. Although
    the said judgments pertained more to the manner of treatment
    to be meted out to convicts and prisoners inside the four walls
    of jails, the principles laid down therein are relevant even for
    the manner in which such convicts are to be treated in the
    context of grant of furlough and parole, since the avowed
    objectives of furlough and parole leaves are that they are
    progressive measures of correctional services meant for
    ensuring that such convicts and prisoners are treated with a
    human touch, so that they are able to maintain continuity of

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    their family life and that they are saved from evil effects of
    continuous prison life.”

    (Emphasis added)

    16. The reliance is also placed on the judgment of the Supreme Court

    in case of Asfaq Vs. State of Rajasthan and others reported in (2017) 15

    SCC 55, in which the Supreme Court has held as under:

    “18. The provisions of parole and furlough, thus, provide for
    a humanistic approach towards those lodged in jails. Main
    purpose of such provisions is to afford to them an opportunity
    to solve their personal and family problems and to enable
    them to maintain their links with society. Even citizens of this
    country have a vested interest in preparing offenders for
    successful re-entry into society. Those who leave prison
    without strong networks of support, without employment
    prospects, without a fundamental knowledge of the
    communities to which they will return, and without resources,
    stand a significantly higher chance of failure. When offenders
    revert to criminal activity upon release, they frequently do so
    because they lack hope of merging into society as accepted
    citizens. Furloughs or parole can help prepare offenders for
    success.

    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
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    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 a crime or he is showing tendency to reform
    himself to become a good citizen.

    20. Thus, not all people in prison are appropriate for grant
    of furlough or parole. Obviously, society must isolate those
    who show patterns of preying upon victims. Yet administrators
    ought to encourage those offenders who demonstrate a
    commitment to reconcile with society and whose behaviour
    shows that they aspire to live as law-abiding citizens. Thus,
    parole program should be used as a tool to shape such
    adjustments.

    21. To sum up, in introducing penal reforms, the State that
    runs the administration on behalf of the society and for the
    benefit of the society at large cannot be unmindful of
    safeguarding the legitimate rights of the citizens in regard to
    their security in the matters of life and liberty. It is for this
    reason that in introducing such reforms, the authorities cannot
    be oblivious of the obligation to the society to render it
    immune from those who are prone to criminal tendencies and
    have proved their susceptibility to indulge in criminal activities
    by being found guilty (by a Court) of having perpetrated a
    criminal act. One of the discernible purposes of imposing the
    penalty of imprisonment is to render the society immune from
    the criminal for a specified period. It is, therefore,
    understandable that while meting out humane treatment to
    the convicts, care has to be taken to ensure that kindness to
    the convicts does not result in cruelty to the society. Naturally
    enough, the authorities would be anxious to ensure that the
    convict who is released on furlough does not seize the
    opportunity to commit another crime when he is at large for
    the time being under the furlough leave granted to him by
    way of a measure of penal reform.

    22. Another vital aspect that needs to be discussed is as to
    whether there can be any presumption that a person who is

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    for convicted of serious or heinous crime is to be, ipso facto,
    treated as a hardened criminal. Hardened criminal would be a
    person for whom it has become a habit or way of life and
    such a person would necessarily tend to commit crimes again
    and again obviously, if a person has committed a serious
    offence for which he is convicted, but at the same time it is
    also found that it is the only crime he has committed, he
    cannot be categorised as a hardened criminal. In his case
    consideration should be as to whether he is showing the signs
    to reform himself and become a good citizen or there are
    circumstances which would indicate that he has a tendency to
    commit the crime again or that he would be a threat to the
    society. Mere nature of the offence committed by him should
    not be a factor to deny the parole outrightly. Wherever a
    person convicted has suffered incarceration for a long time, he
    can be granted temporary parole, irrespective of the nature of
    offence for which he was sentenced. We may hasten to put a
    rider here, viz. in those cases where a person has been
    convicted for committing a serious offence, the competent
    authority, while examining such cases, can be well advised to
    have stricter standards in mind while judging their cases on
    the parameters of good conduct, habitual offender or while
    judging whether he could be considered highly dangerous or
    prejudicial to the public peace and tranquility etc.

    23. There can be no cavil in saying that a society that
    believes in the worth of the individuals can have the quality of
    its belief judged, at least in part, by the quality of its prisons
    and services and recourse made available to the prisoners.
    Being in a civilized society organized with law and a system as
    such, it is essential to ensure for every citizen a reasonably
    dignified life. If a person commits any crime, it does not mean
    that by committing a crime, he ceases to be a human being
    and that he can be deprived of those aspects of life which
    constitute human dignity. For a prisoner all fundamental rights
    are an enforceable reality, though restricted by the fact of
    imprisonment. [See Sunil Batra (2) v. State (UT of Delhi),
    Maneka Gandhi v. Union of India and Charles Sobraj v.
    Superintendent Central Jail
    .]

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    24. It is also to be kept in mind that by the time an
    application for parole is moved by a prisoner, he would have
    spent some time in the jail. During this period, various
    reformatory methods must have been applied. We can take
    judicial note of this fact, having regard to such reformation
    facilities available in modern jails. One would know by this
    time as to whether there is a habit of relapsing into crime in
    spite of having administered correctional treatment. This habit
    known as “recidivism” reflects the fact that the correctional
    therapy has not brought (sic any change) in the mind of the
    criminal. It also shows that criminal is hard core who is
    beyond correctional therapy. If the correctional therapy has
    not made in itself, in a particular case, such a case can be
    rejected on the aforesaid ground i.e. on its merits.”

    (Emphasis added)

    17. Thus, what the Supreme Court has said that the provisions of

    parole and furlough provides for a humanistic approach. It has been

    observed that the grant of parole or furlough is ingrained in the

    reformative theory of sentencing; however, competing public interests

    must also be kept in mind while deciding as to in a particular case, parole

    or furlough is to be granted or not. It has been observed that public

    interest demands that those who are habitual offenders and may have the

    tendency to commit the crime again after their release on parole or have

    a tendency to become a threat to the law and order of the society, should

    not be released on parole. Therefore, it has been observed that while

    meeting out human treatment to convicts, care has to be taken to ensure

    that kindness to convicts does not result in cruelty to the society and,

    therefore, the convict, who is released on furlough and/or parole should

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    not commit another crime when he is at large for the time being under

    the furlough leave granted to him by way of measure of penal Rule.

    18. In the said case of Kanitlal Nandlal Jaiswal (supra), it has been

    held by the Larger Bench that parole is not a mere administrative

    decision dictated only by the administrative policy of the State but it is

    limited legal right available to the convict or prisoner subject to

    satisfaction of the requirement specified in the 1959 Rules for grant of

    parole, with the avowed objectives to be achieved as specified in Rule 1

    (A) of said Rules. The Larger Bench, after considering various judgments,

    has held that there is no basis for creating an exception and no nexus

    with the objective for grant of parole rules specified in Rule 1(A) of the

    1959 Rules. It has been held that proviso to Rule 19(2) of the 1959 Rules

    introduced in terms of Notification dated 16.04.2018 violates Articles 14

    and 21 of the Constitution of India and, therefore, the proviso to Rule

    19(2) of the 1959 Rules introduced in terms of Notification dated

    16.04.2018 is struck down as violative of Articles 14 and 21 of the

    Constitution of India.

    19. The objective for grant of furlough leave as per Rule 3 of the 2024

    Rules is to enable the prisoner to remain in touch with his family and

    deal with family matter, to provide relief from the detrimental impact of

    continuous captivity in prison and to enable the prisoner to remain

    hopeful about future and to cultivate active interest in life. Thus, it is

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    very clear that very valuable right has been given to the convicted

    accused.

    20. As noted by the Supreme Court in the case of Asfaq (supra), the

    provisions of parole and furlough rules provides for humanistic approach

    towards those lodged in jails and main purpose of such provisions is to

    afford to them an opportunity to solve their personal and family

    problems, to enable them to maintain their ties with society, and

    therefore, it is absolutely essential that for overstay when released on

    furlough or parole leave, without affording any opportunity of calling for

    explanation and consideration of the same in mechanical and arbitrary

    manner prescribing the period after which the furlough application can

    be considered is not only totally illegal but violative of Articles 14 and 21

    of the Constitution of India.

    21. A perusal of Rule 7 and particularly Sub-Rule (2) provides that if a

    prisoner overstays for period of 8 to 180 days, he is eligible for furlough

    leave only after one year from surrender upon overstay or two years after

    admission upon overstay. Similar provisions are made for various

    periods. The said Sub-Rule (2) clearly shows that the provision is made in

    a mechanical manner and the provision does not contemplate principles

    of natural justice.

    22. Therefore, there is substance in the contention raised by Ms.

    Deshpande, learned counsel appointed to represent the interest of the

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    petitioner that said Sub-Rule (2) of Rule 7 is violative of Articles 14 and

    21 of the Constitution of India. As the object for grant of furlough is to

    provide relief from the detrimental impact of continuous captivity in

    prison and to enable the prisoner to remain hopeful about future and to

    cultivate an active interest in life, as also, to afford to the prisoners an

    opportunity to solve their personal and family problems and enable them

    to maintain their ties to the society.

    23. While setting out the criteria for eligibility of furlough leaves, as in

    the present case that, the petitioner’s furlough leave will be considered

    only after the completion of period of five years of imprisonment and that

    too without affording any opportunity of offering explanation and

    without considering the cause for late surrender is clearly arbitrary,

    contrary to the principles of natural justice and violative of Articles 14

    and 21 of the Constitution of India.

    24. In a given case, if a prisoner is returning back within time to the

    jail after completion of furlough/parole leave and met with serious

    accident and admitted in the hospital for considerable period, will be

    treated in the same manner as like other prisoner who has defaulted in

    surrendering on time without any sufficient reason. Thus, it is clear that

    the Rule 7(2) of the 2024 Rules is violative of Articles 14 and 21 of the

    Constitution of India and also contrary to the principles of natural justice.

    25. In the present case, the petitioner, in the inquiry conducted under

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    Section 48-A of the Prisons Act, 1894 (” said Act”), has submitted a

    detailed explanation. However, while passing the order under Section 48-

    A of the said Act, the Deputy Inspector General of Prisons, by order dated

    26.12.2024, has not considered the said explanation submitted by the

    petitioner. The relevant part of the said order dated 26.12.2024 which

    shows non-consideration of the detailed explanation submitted by the

    petitioner is already set out hereinabove.

    26. A Division Bench of this Court in the case of Shirvraj s/o

    Hanmantrao Patil Vs. State of Maharashtra and others reported in (1993)

    3 Bom. CR 717 has held with respect to Section 48-A as under:

    “3. If a prisoner overstays a parole or furlough, the mischief
    is a prison offence by virtue of the provisions of section 48-A
    inserted by the Maharashtra Amendment in Prisons Act, 1894.
    Section 48-A is quoted below for the ready reference :–

    “If any prisoner fails without sufficient cause to
    observe any of the conditions on which his sentence
    was suspended or remitted or furlough or release on
    parole; was granted to him, he shall be deemed to
    have committed a prison offence and the
    Superintendent may, after obtaining his explanation,
    punish such offence by
    (1) a formal warning as provided in Clause (1) of
    section 46;

    (2) reduction in grade if such prisoner has been
    appointed an officer of prison;

    (3) loss of privileges admissible under the remission
    or furlough or parole system; or
    (4) loss of such other privileges as the State
    Government may by general or special order, direct.”

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    It is clear that any punishment to be inflicted under section 48-
    A for overstay of the parole, will have to be awarded after
    obtaining the explanation of the prisoner alleged to have
    committed such offence. We do not find that any such
    opportunity was ever given to the petitioner to furnish his say
    and Shri Bhapkar, learned Additional Public Prosecutor, on
    instructions of the jail officials present in the Court, was fair
    enough to admit that no such explanation was obtained from
    the petitioner. Inquiry into the prison offences is of a quasi
    judicial nature and hence, they will have to follow the
    principles of natural justice. In the instant case, there is no
    question of inferring the requirement of following the
    principles of natural justice. The statute has, in clear terms, laid
    down that after obtaining the explanation of the prisoner,
    punishment can be awarded. Whether the punishment
    proposed to be imposed is a minor one or a major one as
    classified under Rule 5 of the Maharashtra Prisoners
    (Punishment) Rules, 1963, the requirement of seeking
    explanation from the prisoner is obligatory in all cases. Section
    48-A itself has provided what punishment can be awarded and
    for inflicting any of these punishments, explanation will have to
    be obtained from the prisoner about his alleged misdeed. ”

    (Emphasis added)

    Thus, this Court has held that Section 48-A clearly contemplates that

    principles of natural justice are required to be followed.

    27. Perusal of Sub-Rule (2) of Rule 7 of the 2024 Rules shows that the

    provisions are made in mechanical and arbitrary manner and there is no

    scope of offering explanation, if any, for overstay or for consideration of

    said explanation. Thus, there is great substance in the contention raised

    that said Sub-Rule (2) of Rule 7 is violative of Articles 14 and 21 of the

    Constitution of India.

    28. It is significant to note that Section 48-A inter alia provides for
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    punishment for breach of conditions of furlough leave. The said Section

    48-A contemplates giving notice to the prisoner for obtaining his

    explanation and to excuse the prisoner if sufficient cause is shown.

    29. The Supreme Court in Delhi Transport Corporation v. DTC

    Mazdoor Union, AIR 1991 SC 101, held that the audi alteram partem

    rule, in essence, enforces the equality clause in Article 14 and it is

    applicable not only to quasi-judicial bodies but also to administrative

    orders adversely affecting the party in question unless the application of

    the rule has been excluded by the Act in question.

    30. In State Bank of India Vs. Rajesh Agarwal, (2023) SCC OnLine SC

    342, the Supreme Court affirmed that natural justice – particularly audi

    alteram partem and held that it is now settled principle of law that the

    rule of audi alteram partem applied to administrative actions, apart from

    judicial and quasi-juidical functions , even if the statute itself is silent on

    the requirement of hearing.

    31. The discussion of the Supreme Court in C.B. Gautam Vs. Union of

    India and Others reported in (1993) 1 SCC 78 is also relevant, which

    reads as under :

    26. … In the case of Union of India v. Col. J.N. Sinha [(1970)
    2 SCC 458 : (1971) 1 SCR 791, 794-795] the facts were that
    the first respondent who was in the class I service of the
    Survey of India and rose to the position of Deputy Director,
    was compulsorily retired by an order under Rule 56( j) of the
    Fundamental Rules, no reasons were given in the order.

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    Respondent 1 challenged the order on the ground that it
    violated principles of natural justice and no opportunity had
    been given to the first respondent to show cause against his
    compulsory retirement. A Division Bench of this Court in its
    judgment in that case observed as follows: (SCC pp. 460-61,
    para 8)
    “Rules of natural justice are not embodied rules nor
    can they be elevated to the position of fundamental
    rights. As observed by this Court in Kraipak, A.K. v.

    Union of India [(1969) 2 SCC 262 : AIR 1970 SC
    150] ‘the aim of rules of natural justice is to secure
    justice or to put it negatively to prevent miscarriage
    of justice. These rules can operate only in areas not
    covered by any law validly made. In other words
    they do not supplant the law but supplement it’. It is
    true that if a statutory provision can be read
    consistently with the principles of natural justice, the
    courts should do so because it must be presumed
    that the Legislatures and the statutory authorities
    intend to act in accordance with the principles of
    natural justice. But if on the other hand a statutory
    provision either specifically or by necessary
    implication excludes the application of any or all the
    principles of natural justice then the court cannot
    ignore the mandate of the Legislature or the
    statutory authority and read into the concerned
    provision the principles of natural justice. Whether
    the exercise of a power conferred should be made in
    accordance with any of the principles of natural
    justice or not depends upon the express words of the
    provision conferring the power, the nature of the
    power conferred, the purpose for which it is

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    conferred and the effect of the exercise of that
    power.”

    27. In the case of Olga Tellis v. Bombay Municipal
    Corporation
    [(1985) 3 SCC 545 : 1985 Supp (2) SCR 51, 89]
    a Constitution Bench comprising five learned Judges of this
    Court had occasion to deal with the provisions of Section 314
    of the Bombay Municipal Corporation Act, 1888.
    Chandrachud, C.J., (as he then was) delivering the judgment
    of the Court held that: (SCC p. 581, para 44)
    “… (the said section) confers on the Commissioner
    the discretion to cause an encroachment to be
    removed with or without notice. That discretion has
    to be exercised in a reasonable manner so as to
    comply with the constitutional mandate that the
    procedure accompanying the performance of a public
    act must be fair and reasonable. (The Court) must
    lean in favour of this interpretation because it helps
    sustain the validity of the law.”

    Chandrachud, C.J., went on to observe as
    follows:

    “It must further be presumed that, while
    vesting in the Commissioner the power
    to act without notice, the Legislature
    intended that the power should be
    exercised sparingly and in cases of
    urgency which brook no delay. In all
    other cases, no departure from the audi
    alteram partem rule (‘Hear the other
    side’) could be presumed to have been
    intended. Section 314 is so designed as
    to exclude the principles of natural
    justice by way of exception and not as a

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    general rule. There are situations which
    demand the exclusion of the rules of
    natural justice by reason of diverse
    factors like time, place the apprehended
    danger and so on. The ordinary rule
    which regulates all procedure is that
    persons who are likely to be affected by
    the proposed action must be afforded an
    opportunity of being heard as to why
    that action should not be taken. The
    hearing may be given individually or
    collectively, depending upon the facts of
    each situation. A departure from this
    fundamental rule of natural justice may
    be presumed to have been intended by
    the Legislature only in circumstances
    which warrant it. Such circumstances
    must be shown to exist, when so
    required, the burden being upon those
    who affirm their existence.”

    28. It must, however, be borne in mind that
    courts have generally read into the provisions
    of the relevant sections a requirement of
    giving a reasonable opportunity of being
    heard before an order is made which would
    have adverse civil consequences for the
    parties affected. This would be particularly so
    in a case where the validity of the section
    would be open to a serious challenge for
    want of such an opportunity.

    (Emphasis added)

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    32. The above observations are squarely applicable to the present case.

    It has been specifically observed by the Supreme Court that Courts have

    generally read into the provisions of the relevant sections a requirement

    of giving a reasonable opportunity of being heard before an order is

    made which would have adverse civil consequences for the parties

    affected. This would be particularly so in a case where the validity of the

    section would be open to a serious challenge for want of such an

    opportunity.

    33. In case, the prisoner has overstayed then, depending on the said

    period, the prisoner is deprived of availing the furlough leave from 1 year

    to 5 years. Thus, the consequences are drastic considering the objectives

    for grant of furlough leave as per Rule 3 of the 2024 Rules is to enable

    the prisoner to remain in touch with his family and deal with family

    matter, to provide relief from the detrimental impact of continuous

    captivity in prison and to enable the prisoner to remain hopeful about

    future and to cultivate active interest in life. Thus, it is absolutely

    essential that depriving the prisoner from availing furlough leave for the

    period of 1 year to 5 years, it is absolutely essential that opportunity is

    required to be given to the prisoner to place on record reasons for such

    overstay. Thus, it is necesarry to read principles of natural justice in Rule

    7(2) of said 2024 Rules.

    34. However, it is required to be noted that only reading principles of
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    natural justice in Rule 7(2) will be empty formality if there is no power to

    reduce the period contemplated under Rule 7(2) if the sufficient

    explanation is offered. Thus, it is necessary that Rule 7(2) is to be read

    along with section 48-A of the said Act which contemplated punishment

    of loss of privileges admissible under the remission or furlough system,

    which includes loss of privilege for certain period.

    35. It is very clear, that requirements as set out in Section 48-A of the

    said Act, are required to be read in Rule 7 and more particularly Sub-Rule

    (2) of Rule 7. Thus, it is held that the period as contemplated under Sub-

    Rule (2) of Rule 7 of eligibility for consideration of furlough leave has to

    be determined after giving notice to the prisoner seeking his explanation

    and passing speaking order after consideration of the explanation.

    36. Thus, the authorities will have to pass Speaking Order, either

    reducing the period as provided under Sub-Rule (2) of Rule 7 of the 2024

    Rules or completely waiving of the said period or maintaining the said

    period after considering the explanation offered by the prisoner.

    37. Thus, the order rejecting application seeking furlough leave is

    required to be quashed and set aside.

    38. As also, the order dated 26.12.2024 passed by the Deputy

    Inspector General of Prisons is required to be quashed and set aside as

    the detailed explanation offered by the petitioner has not been

    considered while passing the said order dated 26.12.2024.

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    39. Accordingly, the writ petition is disposed of by passing following

    order :

    (i) Order dated 11.06.2024 passed by Deputy Inspector

    General of Prisons, Western Division, Pune-6 rejecting

    application seeking furlough leave of the petitioner is quashed

    and set aside.

    (ii) The Deputy Inspector of Prison, Western Region to

    decide the application of the petitioner seeking furlough leave

    afresh, after giving an opportunity to the petitioner of

    explaining the overstay and after considering the explanation,

    the Deputy Inspector of Prison shall thereafter pass fresh order

    either reducing or waiving the period or maintaining the said

    period prescribed under Sub-Rule (2) of Rule 7 of the

    Maharashtra Prisons (Furlough and Parole) Rules, 2024 by

    passing a speaking order after due consideration of the

    explanation furnished by the petitioner.

    (iii) As the explanation offered by the petitioner has not

    been considered while passing the order under Section 48-A of

    the Prisons Act, 1894, the order dated 26.12.2024 passed by

    the Deputy Inspector General of Prisons is quashed and set

    aside.

    (iii) The matter is remanded back to the Deputy Inspector

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    General of Prisons for fresh consideration and for passing a

    fresh order in accordance with law, after considering the

    explanation submitted by the petitioner and if necessary,

    granting hearing opportunity to the petitioner.

    (v) Accordingly, the writ petition is disposed of in the above

    terms.

    (vi) In the facts and circumstances of the case, this exercise

    be carried out as expeditiously as possible, on or before

    31.08.2026.

    40. This Court places on record its appreciation for the able assistance

    rendered by Ms. Neha Deshpande, learned counsel appointed to

    represent the petitioner as also of Mr. Avinash Naik, learned APP. The

    High Court Legal Services Committee shall pay professional fees of

    Rs.25,000/- to Ms. Neha Deshpande.

                       [PRAVIN S. PATIL, J. ]                  [MADHAV J. JAMDAR, J.]
    
    
    
    
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