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.) :
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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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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902 Cri WP-883-2025.docAmendment) 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
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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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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
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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.
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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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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 aR.S. Sahare/skt 22/27
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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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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.
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