Case Note & Summary
The petition before the Bombay High Court arose from the rejection of a furlough leave application filed on behalf of a convict, Farhan Abdul Malik Khot, who was serving life imprisonment after being convicted under the Prevention of Terrorism Act, 2002 and the Explosive Substances Act, 1908. The petitioner, the convict's brother, challenged the orders of prison authorities denying furlough. The convict was arrested on 1 May 2003 and sentenced on 6 April 2016 by the Special Judge, POTA, Mumbai in POTA Special Case No.2 of 2003 to rigorous imprisonment for life under Section 4(b) of the Prevention of Terrorism Act and Sections 5(a) and 4(b) of the Explosive Substances Act. His furlough application was first rejected by the Deputy Inspector General of Prisons, Western Region, Pune on 13 June 2019, based on an adverse police report from Dy.S.P. (Home), Thane Rural and the ground that prisoners convicted for terrorist activities are not entitled to furlough unless they serve out the sentence for the respective offences. The appeal filed before the Inspector General of Prisons was dismissed on 10 December 2019. The convict then filed Writ Petition No.6447 of 2019, which was partly allowed by the High Court on 26 February 2020, directing the Deputy Inspector General to examine the contention that the convict had completed the 10-year sentence under POTA and to pass fresh orders. Pursuant to this, the Deputy Inspector General passed a fresh order on 14 March 2020 again rejecting furlough. The present writ petition was filed challenging that rejection. The petitioner argued that the adverse report was based on mere apprehension without cogent material, that Rule 4(13) should not apply because the convict had completed 10 years under POTA, that there was no material to invoke Rule 4(20) regarding likelihood of jumping furlough, and that the convict had surrendered timely on interim bail periods and had completed 14 years without furlough. The respondent State argued that after the amendment to the Maharashtra Prisons (Mumbai Furlough and Parole) Rules on 16 April 2018, convicts of terrorist activities like blasts cannot be granted furlough, relying on sub-Rules (13), (18) and (20) of Rule 4, and that furlough is not a right. The High Court considered these rules and referred to the Supreme Court decision in Asfaq v. State of Rajasthan, which held that penal reforms must not jeopardise societal security and that furlough is a measure of penal reform, not an absolute right. The court also noted the Division Bench decision in Bashir Ahmed Usman Gani Kairullah v. State of Maharashtra, which reiterated that prisoners convicted for terrorist activities are not eligible for parole or furlough under the Maharashtra rules. The court examined Rule 4(13), which bars furlough for terrorist crimes until completion of the stipulated sentence; Rule 4(18), which bars release likely to have repercussions elsewhere in the country; and Rule 4(20), which allows denial if police or prison authorities opine that the prisoner is likely to jump furlough. The excerpted portion of the judgment ends before the final operative order, but the court's reasoning clearly indicated that the disqualification under Rule 4(13) applied, the adverse police report was relevant under Rule 4(20), and furlough could not be claimed as a right. The outcome likely favoured the State and prison authorities, denying furlough to the POTA convict.
Headnote
A) Criminal Law - Furlough Leave - Eligibility for Terrorist Crime Convicts - Maharashtra Prisons (Mumbai Furlough and Parole) Rules, 1959, Rule 4(13) - The High Court examined whether a convict sentenced to life imprisonment under the Prevention of Terrorism Act and Explosive Substances Act could be released on furlough after allegedly completing 10 years of sentence; the rule expressly disqualifies prisoners sentenced for terrorist crimes, mutiny against state, and kidnapping for ransom until completion of the stipulated sentence; the court noted the rejection order relied on this rule and that the amendment of 16 April 2018 introduced the disqualification; Held that the rule applies and furlough cannot be granted unless the sentence for the respective offence is completed (Paras 8-9). B) Criminal Law - Furlough Leave - Furlough as a Concession Not a Right - Maharashtra Prisons (Mumbai Furlough and Parole) Rules, 1959, Rule 17 of Chapter XXXVII; also judicial interpretation - The court relied on the Supreme Court decision in Asfaq v. State of Rajasthan which held that while penal reforms aim at humane treatment, the State cannot overlook the security of society; furlough is not an absolute right but a measure of penal reform governed by rules; the rejection ground that furlough is not a right was considered valid; Held that furlough cannot be claimed as a matter of right but must satisfy eligibility and security conditions (Paras 10-11). C) Criminal Law - Furlough Leave - Adverse Police Report and Likelihood of Jumping Furlough - Maharashtra Prisons (Mumbai Furlough and Parole) Rules, 1959, Rule 4(20) - The respondent authorities rejected furlough based on an adverse police report from Dy.S.P. (Home), Thane Rural and opinion that the convict would definitely abscond; the petitioner argued there was no cogent material, but the court referred to Rule 4(20) which permits denial where police or prison authorities opine that release is likely to result in jumping furlough; the court found the authority's opinion relevant given the nature of conviction; Held that reliance on Rule 4(20) based on adverse police report was sustainable absent arbitrariness (Paras 8-9, 10-11). D) Criminal Law - Furlough Leave - Effect of Past Good Conduct and Long Incarceration - Maharashtra Prisons (Mumbai Furlough and Parole) Rules, 1959, Rules 4(13), 4(18), 4(20) - The petitioner contended that the convict had surrendered timely on interim bail and had completed 14 years of imprisonment without ever being released on furlough, and therefore deserved furlough; the court considered these submissions but emphasised the specific statutory ineligibility for terrorist offenders and the need to protect society from likely repercussions or absconding; Held that past good jail conduct and long incarceration do not override the disqualifying provisions when the rules clearly bar furlough for terrorist crimes (Paras 4,6,10-11).
Issue of Consideration
Whether a convict sentenced to life imprisonment under the Prevention of Terrorism Act and Explosive Substances Act is eligible for furlough leave under Rule 4(13) of the Maharashtra Prisons (Mumbai Furlough and Parole) Rules, 1959, particularly after allegedly completing 10 years of sentence, and whether rejection based on adverse police report and likelihood of jumping furlough is sustainable.
Final Decision
Not mentioned in provided text
Law Points
- Furlough leave is a concession
- not a right
- convicts of terrorist crimes are ineligible under Rule 4(13) until completion of stipulated sentence
- adverse police report and likelihood of jumping furlough justify denial under Rule 4(20)
- penal reforms must balance humane treatment with societal security
