1] The petitioner is convicted for the offences punishable under Sections 302 and 120B of the Indian Penal Code, 1860 (IPC), read with Sections 3(1)(i), 3(2) and 3(4) of the Maharashtra Control of Organised Crime Act, 1999 (for short “MCOC Act”), read with Sections 25(1)(b) and 27 of the Arms Act, 1959. The maximum punishment imposed is life imprisonment. He applied for furlough of 28 days to meet his inmates for some family urgency. Respondent no.3 – Superintendent of Jail, Central Prison, Amravati, rejected the application taking note of a Government Notification dated 2/12/2024, which prohibits convicts under MCOC Act from seeking furlough leave.

2] By Notification dated 2/12/2024, the Government of Maharashtra, in exercise of powers conferred under Clauses (5) and (28) of Section 59 of the Prisons Act, 1894, and in supersession of the Maharashtra Prisons (Bombay Furlough and Parole) Rules, 1959 (for short “Rules of 1959”), made the Maharashtra Prisons (Furlough and Parole) Rules, 2024 (for short “Rules of 2024”). Rules 3 and 4, which are relevant, read thus :

                   “3. Objectives for grant of furlough.- (1)To enable the prisoner to remain in touch with his family and deal with family matters.

                   (2) To provide relief from the detrimental impact of continuous captivity in prison.

                   (3) To enable the prisoner to remain hopeful about future and cultivate active interest in life.

                   4. Categories of eligibility of prisoners for furlough.-

                   (1) All Indian prisoners, except those specified in sub-rule (2), whose conduct reports are good are eligible for furlough as per the provisions of these rules.

                   (2) The following prisoners shall not be eligible for furlough, namely:-

                   (a) foreign prisoners;

                   (b) prisoners with multiple criminal cases against them, whose bail is rejected in any one of these cases;

                   (c) prisoners transferred to the Ratnagiri Special Prison on disciplinary grounds;

                   (d) prisoners convicted for offences under sections,-

                   (i) 392 to 402 (both inclusive) of the Indian Penal Code;

                   (ii) 309(4), 309(5), 309(6), 310(1), 310(2), 310(3), 310(4), 310(6), 311, 312, and 313 of the Bhartiya Nyaya Sanhita, 2023 (45 of 2023).

                   (e) prisoners who are convicted under the Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), the Terrorist and Disruptive Activities (Prevention) Act, 1987 (28 of 1987), the Maharashtra Control of Organized Crime Act, 1999 (Mah. XXX of 1999), the Prevention of Terrorist Activities Act, 2002, (15 of 2002), the Protection of Children from Sexual Offences Act, 2012 (32 of 2012) or convicted for offence of gang rape and human trafficking;

                   (f) prisoners who are convicted for offences related to terrorism, mutiny against State, kidnapping for ransom;

                   (g) prisoners who are convicted for offence of rape or rape with murder or attempt to rape with murder;

                   (h) prisoners convicted of offence against any law relating to matters to which the executive power of the Union Government extends, unless approved by the Union Government;

                   (i) prisoners or class of prisoners in whose cases the State Government issues directions, not to release them or to refer the cases to the State Government for further orders;

                   (j) prisoners sentenced to death or sentenced to imprisonment till death;

                   (k) prisoners convicted in offences related to currency notes;

                   (l) prisoners, whose release is not recommended by an officer not below the rank of the Assistant Commissioner of Police or Deputy Superintendent of Police, on the grounds that their release is prejudicial to public peace, order and tranquillity;

                   (m) prisoners, who in the opinion of the Superintendent of Prisons,-

                   (i) exhibit criminal tendencies and can pose a threat to others,

                   (ii) did not conduct themselves as per the prescribed conduct or did not do the assigned work;

                   (n) prisoners who have at any time, escaped or attempted to escape from lawful custody;

                   (o) prisoners who are considered dangerous or have been involved in serious prison violence like assault, outbreak, riot, mutiny, escape or activities detrimental to prison discipline;

                   (p) prisoners suffering from mental illness and not certified by the Medical Officer, fit to be released on furlough;

                   (q) prisoners whose release on furlough is likely to have repercussions elsewhere in the country;

                   (r) prisoners whose release on furlough is likely to have adverse impact on law and order and public peace during the period of code of conduct of any elections to the Local bodies, Legislature and Parliament:

                   Provided that, after completion of sentence for the offences mentioned in clause (d), (e), (f), (g), (k) or (n), the prisoner shall be eligible for furlough if he is convicted for offences for which furlough is allowed under these rules.”

3] As could be seen, Rule 3 provides for objectives for grant of furlough; firstly, to enable prisoners to remain in touch with family, and deal with family matters; secondly, to provide relief from detrimental impact of continuous captivity in prison; and thirdly, to enable prisoners to remain hopeful about future and cultivate active interest in life.

4] The aforesaid objective clearly show that the State itself has emphasized on the aspect of rehabilitation, continuity of life and constructive hope for convicts and prisoners and for their reformation, even while they are undergoing incarceration.

5] Rule 4 provides for categories of eligibility of prisoners for furlough. Clause (e) of sub-rule 2 of Rule 4 provides, amongst others, that prisoners convicted under MCOC Act shall be not eligible for furlough.

6] The argument is that, this Clause is ultra vires Articles 14 and 21 of the Constitution of India, as it infringes fundamental right of convicts under MCOC Act. The Counsel for the petitioner submits that the very purpose of granting furlough is frustrated by this Rule. According to him, the restrictions imposed would curtail liberty of prisoners convicted under the provisions of MCOC Act. He further submits that the petitioner was earlier released by respondent no.2 on four occasions. He has never breached any condition of furlough in the said period. Thus, his conduct is good, and therefore, he is otherwise entitled for furlough leave, but for the above amendment, the benefit of furlough is withdrawn. He submits that such restrictions would run contrary to Articles 14 and 21 of the Constitution of India, and thus, is ultra vires said provision.

7] The other limb of argument is that the Notification dated 2/12/2024 will, at the most, apply prospectively. The prisoners, who were convicted prior to coming into force the said Notification, having good conduct, ought to be dealt with in terms of the Rules then existing. The law on this point is well settled. The Division Bench of this Court in the case of Subhash Hiralal Bhosale Vs. State of Maharashtra [2014 All M.R. (Cri.) 4330] has held that the provisions prevailing on the date of filing application will be applicable and not the date on which the prisoner was convicted.

8] So far as first limb of argument is concerned, the Counsel for the petitioner has relied upon two judgments; first is, in the case of Mohd. Raees s/o Shahzade Ansari Vs. State of Maharashtra And Ors. [Criminal Writ Petition No. 1518/2021 decided on 6/5/2022]. The petitioner therein was also convicted under the provisions of MCOC Act. His application seeking furlough was rejected primarily because of an adverse police report. The furlough leave, then existing, had a similar rule for eligibility. Certain exceptions were drawn to decide eligibility for furlough. One of the exceptions was, prisoners, who were sentenced for offences such as terrorist crime, mutiny against State, kidnapping for ransom, etc. The question before the Division Bench was whether the circumstances mentioned in the Rules can be treated as exception akin to other offences explicitly excluded by the Furlough. The Court held that the existing Rules do not specifically exclude prisoners convicted under MCOC Act from eligibility from furlough leave. Accordingly, the Court held that there is no legal basis to treat incarceration under MCOC Act as an automatic disqualification.

9] This judgment, in our view, is of no assistance, as the Rules of 2024 specifically provide exceptions that include prisoners convicted under the provisions of MCOC Act. The point of concern, however, is, whether there should be an absolute bar on granting relief to all prisoners convicted under the provisions of the Acts listed in Clause (a) of sub-rule (2) of Rule 4, which, amongst others, encompasses the provisions of MCOC Act.

10] Mr. Milind Sathe, learned Advocate General, submits that the issue involved is no longer res integra. The Division Bench of this Court, in the case of Pundalik G. Gole Vs. State of Maharashtra [2018 SCC OnLine Bom 21296], at Principal Seat, had an occasion to deal with an identical situation, where validity of Rule 4, particularly sub-rule 2 of the Rules of 1959, then existing, was challenged saying that it is ultra vires Article 14 of the Constitution of India. As such, the exception applied to the prisoners convicted for the offences punishable under Sections 392 to 402 (both inclusive) of IPC, however, vide Notification dated 1/12/2015, the offences punishable under Sections 376 and 377 were inserted. The petitioner therein was convicted for the offence punishable under Sections 376 and 377 of IPC. His application for furlough was rejected on account of the aforesaid exception. The question before the Division Bench was whether denial of furlough to prisoners convicted for specific serious offences, is arbitrary or discriminatory. The Division Bench, having gone through the provisions of the relevant Acts and the law laid down in this regard, held that classification of offences, such as rape and terrorism, as a ground for denying furlough, is rational, since it is based on the need to protect public order and safety. The Court further held that furlough is a privilege, not a right, and that the Rules provide the authority to refuse furlough in appropriate cases, specially, where public interest and safety are concerned. Ultimately, the Court held that furlough is a conditional privilege that can be legitimately restricted based on the nature of offence, conduct of prisoners and overarching need to safeguard social interest, provided such restrictions are rational and nondiscriminatory. These restrictions, according to the Division Bench, do not violate constitutional provisions, such as Articles 14 and 21 of the Constitution of India, since they are based on rational classifications aimed at public safety.

11] Mr. Milind Sathe, learned Advocate General, submits that in yet another case, similar such view was taken by the Division Bench of this Court in the case of Santosh Namdeo Bhukan Vs. State of Maharashtra [2016 SCC OnLine Bom 2590]. The Notification issued on 23/2/2012, amending Rule 4 of Furlough and Parole Rules, was challenged saying that it is ultra vires the provisions of the Constitution of India. A restriction was imposed to avail furlough to the prisoners convicted for offences such as dacoity, terrorist crime, kidnapping, smuggling, etc. The petitioner therein was convicted for the offence punishable under Sections 364, 302 and 201 of IPC. The argument was that exclusion of prisoners convicted under Section 364 of IPC (kidnapping) from furlough, is arbitrary, and violates principles of equality and fairness under the Constitution. The Division Bench held that classification of prisoners, who are ineligible for furlough based on nature of offences, particularly grave offences, like kidnapping, terrorism and smuggling, is rational, and serves a legitimate State interest in safeguarding public peace and security. The Court further held that furlough is a privilege that can be lawfully restricted by valid Rules, and accordingly, held that the amendment is constitutionally valid, rational and aimed to protect social interest, and that such classification is permissible and is in the framework of the law.

12] Mr. Milind Sathe, learned Advocate General, submits that since the Division Bench has taken an identical view that the restrictions imposed do not violate Articles 14 and 21 of the Constitution of India, the challenge to the similar provision would fail. He further submits that the High Court and the Supreme Court has taken a consistent view to deny furlough on the ground that the prisoners are convicted for serious offences, like sexual assault, violence, etc. He submits that one such judgment is in the case of State of Gujarat And Another Vs. Narayan Alias Narayan Sai Alias Mota Bhagwan Asaram Alias Asumal Harpalani [(2021) 20 SCC 304]. In the said case, the prisoner was convicted for multiple serious offences under IPC, offences related to sexual assault, violence and other criminal misconduct. His furlough application was rejected by the authorities citing several reasons, including gravity of offences, criminal misconduct during trial, threats and violence by his followers, illegal activities within jail, etc. The Supreme Court examined the legal framework governing furlough, particularly the relevant Rules, which specify that furlough is a discretionary remedy and does not create a legal right. The Supreme Court held that Rules set out criteria and restrictions, which include that furlough leave can be refused on grounds of public peace, safety and conduct of prisoners.

13] Mr. Milind Sathe, learned Advocate General, is correct in submitting that the issue is no more res integra. We are, however, of the view that the test of rationality should be applied through a more thorough evaluation. While it is true that furlough is a conditional privilege that may be legitimately restricted, imposing a blanket restriction based solely on the nature of specific offence would undermine the very objectives for which furlough is granted. The objectives, as noted earlier, are to enable prisoners to remain in touch with their families and deal with family matters, to provide relief from detrimental impact of continuous captivity in prison, and to enable prisoners to remain hopeful about future and cultivate active interest in life. If the restrictions are imposed based on conviction under the provisions of MCOC Act or for that matter the Protection of Children from Sexual Offences Act, 2012 (for short “POCSO Act”), or any other Act, one will have to presume that these prisoners are not entitled to remain in touch with their families and to deal with family matters or that they are immune to the detrimental impact of continuous captivity in prison or that they should not remain hopeful about future and cultivate active interest in life. The State has not placed any material, as there cannot be, in support of this proposition. In the circumstances, we do not find any rational why should prisoners, irrespective of the fact that they are convicted under the provisions of a particular Act, be not permitted to remain in touch with their families and deal with family matters, and/or why should they not remain hopeful about future and cultivate active interest in life, most importantly, how can one presume that such convicts will not have detrimental impact of continuous captivity in prison. In that sense, if eligibility of prisoners for furlough is to be based only on specific offence, it would be ultra vires the objectives for grant of furlough.

14] What we wish to emphasis is that to deny furlough to a particular convict based on his conduct, the requirement to safeguard societal interest, etc., may be justified, however, to put such restriction to all prisoners, who are convicted for specific offence, would defeat the purpose of objectives of granting furlough. The restriction, therefore, is ultra vires Rule 3 of the Rules of 2024.

15] There is another crucial element, which, in our view, requires deeper examination. Experience shows that the organized crime syndicates has multiple levels of activities. The crime is committed at the instance or instructions of the head of the syndicate. The members of the syndicate perform different roles depending on their association with the syndicate. At times, the role played by accused at lowest level is such that he collects information of the target/victim and supply it to the accused of the next level, who transmit it to the higher level, and ultimately, the contact is established with the target/ victim, say for extortion or other such purposes. In a given case, the accused, who had played role of lowest level, may not be aware of the aim of head of syndicate when he is called upon to collect information of the target/victim. The information may relate to schedule followed by the target/victim on a particular day so that the place and time of contact could be fixed to commit offence. In such a case, all the persons, who had played different roles, are made accused of a crime. They all are tried invoking Section 120B of IPC, despite meager role played by accused at lowest level. In such a scenario, if they all are convicted, to treat them all at par for the purpose of deciding eligibility for furlough, if is examined on the touchstone of the objectives of furlough, in our view, will amount to treating unequals as equals, leading to giving discretionary treatment to those, who played a role of lowest level. It creates class within class of persons, which has no rational nexus to the object sought to be achieved. The approach appears to us to be based on formula than on reasonable classification, and thus, violates the provisions of Article 14. Such approach will be counter productive to the reformative approach, and would also take away motivation to maintain good conduct inside the jail.

16] Similar would be the case if we consider convicts under POCSO Act. In many cases, the consensual adolescent relationship are termed as offences under POCSO Act upon the report lodged by parents against teenage romances, which otherwise involves peer relationships rather than sexual exploitation. The Hon’ble Supreme Court and various High Courts have repeatedly highlighted misuse of POCSO Act in such relationships. Recently, the Supreme Court asked the Union Government to introduce ‘Romeo-Juliet’ Clause to protect teenagers and decriminalize consensual love. The Rules of 2024 makes all the convicts under POCSO ineligible for furlough. Thus, in a given case, if a 19 years old student is convicted for the offence punishable under POCSO Act, despite having consensual relationship with the counterpart, he will be ineligible for furlough, meaning thereby, that he will be disentitled to remain in touch with his family, and further to remain hopeful about future. He will have to face detrimental impact of continuous captivity in prison. If such a convict is ultimately released by the Supreme Court, decades later, he will be deprived of the benefits of furlough, and in that sense, the person, who otherwise was entitled to remain in touch with his family for all these days, was not even permitted to remain in touch with them for few days in a year. The loss, according to us, is irreparable and will infringe the right of liberty under Article 21 of the Constitution of India.

17] The Supreme Court in the case of Asfaq Vs. State of Rajasthan And Others [(2017) 15 SCC 55] has held thus :

                   “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 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 office, 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 god conduct, habitual offender or while judging whether he could be considered highly dangerous or prejudicial to the public peace and tranquillity 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.

                   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 hardcore 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 now)

18] The above observations were made in context with granting parole, the Supreme Court highlighted the importance of achieving balance between protection to the Society from the convicts and reformatory methods so as to ensure that prisoners, who are also citizens, enjoy dignified life. The Supreme Court highlighted the importance of behaviour of prisoners post conviction, which, in our view, should be the sole criteria for extending/denying benefit of furlough and/or parole. To presume that a person committing serious and/or heinous crime is a hardened criminal for rest of his life, is to rule out the possibility of his reformation, which runs contrary to human psychology. Thus, what is important is to decide the eligibility of convicts based on the facts of each case coupled with post conviction behaviour of the convicts.

19] These vital aspects have been not considered by the Division Bench in the case of Pundalik G. Gole (supra) and Santosh Namdeo Bhukan (supra).

20] For the reasons noted above, we are of the considered view that Rule 4(2)(e) of the Rules of 2024 is ultra vires Articles 14 and 21 of the Constitution of India so also Rule 3 of the Rules of 2024. We, however, refrain to declare so for previous two judgments rendered by the Division Bench of this Court noting that the question referred below can be more advantageously heard by a Larger Bench;

                   “Whether Clause (e) of sub-rule (2) of Rule 4 of the Rules of 2024, which categorically bars furlough to prisoners convicted under the specified statutes, is constitutionally valid or is ultra vires Articles 14 and 21 of the Constitution of India the rehabilitative objectives of Rule 3 ?”

21] Accordingly and in terms of Rule 8 of Chapter I of The Bombay High Court Appellate Side Rules, 1960, the matter be placed before the Hon’ble the Chief Justice for appropriate order/s.