Is Notification Barring Release Of Rape Convict On Furlough Violative Of A.14, 21: Bombay HC Refers Question To Larger Bench [Read Order]

A division bench of the Bombay High Court has referred an important question of law to a larger bench in a case involving a police officer convicted of rape of the victim who was in his custody. The question is –

Whether Rule 4(13) of the Maharashtra Prisons (Bombay Furlough and Parole) Rules, 1959, introduced by the notification dated 26-8-2016, creating an absolute bar to claim release on furlough leave and consequently Rule 19(2)(B)(i) of the Rules of 1959 to claim release on parole leave to the convict for the offence of rape, is violative of Articles 14 and 21 of the Constitution, particularly when the offenders or convicts in other serious offences are entitled to such leave? 

The bench of Justice RK Deshpande and Justice AD Upadhye heard the criminal writ petition filed by the police officer convicted of rape under S. 376(2)(a) and under S. 342(punishment for wrongful confinement) of the Indian Penal Code.

The petitioner challenged the order of Divisional Commissioner, Amravati, February 3, 2018, refusing to grant the petitioner parole leave for 30 days on the ground of the bar created under Rule 4(b)(13) read with Rule 19(2)(B)(i) of the Maharashtra Prisons (Bombay Furlough and Parole) Rules, 1959, amended by the notification dated August 26, 2016.

The court noted that the police officer’s case was examined by concerned authorities and only then they recommended grant of parole leave for 30 days to the petitioner convict.

Additional Public Prosecutor AM Joshi relied upon the decision of a division bench of the high court in Sharad Devaram Shelake v. State of Maharashtra, reported in 2016, wherein the validity of a similar Rule 4(13) of the Rules of 1959, introduced by the notification dated February 23, 2012, was upheld.

In the said judgment, the division bench had relied upon the decision of the apex court in the case of State of Haryana and another v. Jai Singh, reported in 2003, wherein it was held in categorical terms that the classification created for imposing bar to grant parole or furlough, based on the nature of offences, is a valid classification for the purpose of deciding whether the persons who have committed such offences should be granted remission or not.

Whereas the petitioner convict’s counsel SD Chande placed reliance on the Supreme Court’s decision in the case of Asfaq v. State of Rajasthan and others, reported in 2017, wherein it was held in that conviction in a serious and heinous crime cannot be the reason for denying the parole per se.

However, the court observed that this decision of the apex court does not refer to its earlier judgment of a co-ordinate bench in the case of Jai Singh.  This decision, however, is later in point of time than the decision rendered by the division bench in Sharad Shelake's case, which had no occasion to consider the same. Therefore, the court said-

“We, therefore, think that the judicial propriety and discipline requires us to refer the matter to a Larger Bench instead of making out a distinction between the decision of the Apex Court in Jai Singh's case and the decision of the Division Bench of this Court in Sharad Shelake's case. Similarly, it would also not be proper on our part to hold that the decision of the Division Bench of this Court in Sharad Shelake's case stands impliedly overruled by the decision of the Division Bench in Asfaq's case.”

The court directed the registry to refer the aforementioned question of law to a larger bench.