Recording Of Reasons For Denying Furlough Not An Empty Formality: Bombay HC Directs Prison Dept To Pay Litigation Costs In Blast Convict's Case

"Considering the manner in which the impugned order has been passed, recording some worn out reasons, thereby revealing non-application of mind to the important and relevant facts of the case and also the fact that, this is not the first occasion when the petitioner has been required to experience inconvenience, delay and injustice, we are of the view that prayer made by the learned counsel for the petitioner is reasonable and deserves to be granted," the court observed while imposing costs.

A division bench of Justices S.B Shukre and M.W Chandwani noted that 1997-98 Jama Masjid Serial Blast convict Mohd. Sagir Bashir Khan was released on furlough six times in the past and he had surrendered on time and hadn't jumped furlough even once. The court ordered Khan's release on furlough based on his entitlement within seven days.

The court noted that even earlier Khan was forced to approach the HC as furlough was denied by the DIG Prisons, Nagpur for stereotyped reasons despite the DIG of the prison department being duty bound to pass a reasoned order.

"The requirement of recording of reasons under Rule 8(7) of the Prisons Rules, 1959 is not an empty formality and certainly, is not a license for passing an order recording same old reasons almost like a cliché. It is a well settled principle of law that whenever there is discretion, it comes with responsibility to exercise it reasonably, fairly and in a manner as to fulfill the object of legislation under which it is given," the court said.

The applications for furlough are decided under Rule 2 of Prisons (Bombay Furlough and Parole) Rules, 1959 by the Deputy Inspector General of Prisons (Regional).

"The discretion conferred upon the sanctioning Authority i.e. the Deputy Inspector General of Prisons, who is respondent no. 1 here, is not unguided and uncanalized," said the court.

Enumerating the consequences of denying relief without recording proper reasons, the bench said:

"Whenever, such mechanical orders are passed, inconvenience [is caused] to the petitioner… putting additional burden on the State exchequer because of the requirement of the prisoner being provided with Legal Aid at the State expense for challenging the order come as inevitable consequences and casualty of justice follows, which can be avoided."

The court said the sanctioning Authority under the Prisons Rules, 1959 must ensure exercise of due care and caution in deciding applications for furlough leave, while keeping in view the settled principles of law.

In 2004, a Sessions Court at Mumbai convicted Khan along with 10 others in a case related to a series of blasts between November 1997 to February 1998 at the Jama Masjid Mosque, inside various railway stations and trains.

Khan was found guilty for murder, conspiracy amongst various other sections of the IPC, Section 150(2) and Section 151 of the Indian Railways Act read with Section 120-B of IPC & Section 4 of Prevention of Damage to Public Properties Act. He was sentenced to life imprisonment. Khan was released six times in the past, in 2008, 2012, 2015, 2016, 2019 and 2021.

The bench held that the past conduct of persons like the petitioner in such matters is very important.

Moreover, generalized reasons like; the heinousness of the crime, public wrath, and possibility of disturbance of law-and-order situation, were not enough to deny furlough.

"These reasons do not make any reference to any particular or specific instance on the basis of which one can make a conclusion that the petitioner may face violence out of public outrage that is still going on against him or that there would be possibility of disturbance of law and order."

Accordingly the court ordered his release on furlough leave as per his entitlement subject to reasonable conditions.

Case Title: Mohd. Sagir Bashir Chauhan v. The Deputy Inspector General of Prisons, Eastern Region, Nagpur

Citation: 2022 LiveLaw (Bom) 468  

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