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A bench of Justices Chandrachud and BV Nagarathna today set aside the order of Gujarat High Court granting a 2 week furlough to Narayan Sai on June 24, 2021, the son of self proclaimed godman and rape convict Asaram Bapu.

Sai was convicted under Sections 376, 377, 323, 506(2) and 120 (B) of Indian Penal Code for rape, unnatural offences, assault, criminal intimidation and conspiracy by a Surat court.

Narayan Sai on March 17, 2021 filed an application for furlough through the Surat Lajpore Central, the application was rejected by the Director General of Police, Jail and Reformative Administration on various grounds on May 5, 2021.

He moved the High Court under Section 482 CrPC for setting aside the order of the DGP. He pleaded that under the proviso on the Rule 3(2) of the Prisons (Bombay Furlough and Parole) Rules 1959 and urged that a prisoner sentenced to life imprisonment may be released on furlough every year instead of every two years after he/she completes 7 years of imprisonment. He claimed the furlough as a matter of right.

A single judge of Gujarat High Court allowed the application on grounds that:

1. No untoward incident had taken place when he was released on furlough in December 2020 and he did not misuse the liberty granted to him during the period.
2. Although he was involved in criminal activities earlier, he has not committed any such activities since his release in December 2020.
3. He has been under imprisonment for a period of seven and a half years already and under the Bombay Furlough and Parole rule was entitled to for furlough leave once a year.

Based on the above reasons, he was allowed granted a furlough leave with a police escort for a period of 14 days from the date of his release on the execution of a personal bond of Rs,1,00,000 before the jail authority.

Rule 3 of the Bombay Furlough and Parole Rules states that  for the grant of furlough to prisoners and reads as follows:

“3. When Prisoner may be granted furlough. (

1. A Prisoner, who is sentenced to imprisonment for a period exceeding one year but not exceeding five years, may be released on furlough for a period of two weeks at a time for every year of actual imprisonment undergone.
2. A Prisoner, who is sentenced to imprisonment for a period exceeding five years may be released on furlough for a period of two weeks at a time for every two years of actual imprisonment undergone: Provided that a prisoner sentenced to imprisonment for more than five years but not to imprisonment for life may be released on furlough every year instead of every two years during the last five years of his unexpired period of sentence: Provided further that a prisoner sentenced to life imprisonment may be released on furlough every year instead of every two years after he completes seven years actual imprisonment.”

Rule 4 further stipulates the conditions when furlough shall not be granted:

“4. When prisoners shall not be granted furlough.- The following categories of prisoners shall not be considered for release on furlough:-

1. Habitual prisoners.
2. Prisoners convicted of offenses under sections 392 to 402 (both inclusive) of the Indian Penal Code.
3. Prisoners convicted of offence under the Bombay Prohibition Act, 1949
4. Prisoners whose release is not recommended in Great Bombay by the Commissioner of Police and elsewhere, the District Magistrate on the ground of public peace and tranquility.
5. Prisoners who, in the opinion of the Superintendent of the prison show a tendency towards crime.
6. Prisoners whose conduct is in the opinion of Superintendent of the Prison, not satisfactory enough.
7. Prisoners confined in the Ratnagiri Special Prison [other than prisoners transferred to that prison for jail services.]
8. Prisoners convicted of offences of violence against person or property committed for political motives, unless the prior consent of the State Government to such release is obtained. 15
9. A prisoner or class of prisoners in whose case the State Government has directed that the prisoner shall not be released or that the case should be referred to it for orders.
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 on furlough. (11) Prisoners convicted of offences under the Narcotic Drugs and Psychotropic Substance Act, 1985.

Challenging this order in the Supreme Court it was argued that Rules 3 & 4 of the Bombay Furlough rules indicate that the furlough cannot he allowed mechanically as a matter or right. Under sub-rules 4,6 and 10 of Rule 4, the prisoners whose release is nor recommended by commissioner of Police on grounds of public peace or tranquility and whose conduct is not satisfactory in the eyes of the Superintendent of Prison, shall not be considered for release on furlough.

It was further argued that the Rule 17 of the Bombay Furlough rules does not confer a legal right on the prisoner to claim release through furlough.

The court held that Bombay Prisoners and Parole Rules were made pursuant to Section 59 of the Prisons Act, 1894 and is applicable in the State of Gujarat. The ruled do not confer a legal right on a prisoner to be released on furlough. The grant of furlough are regulated by Rules 3 and 4. While Rule 3 provides for an eligibility criteria for grant of furlough, Rule 4 imposes limitations.

The court construed that the use of the expression “may be released” in Rule 3 indicates that there is an absence of absolute right. The court also emphasised that in rule 17 it is stated that rules do no confer a legal right on a person to claim release on furlough. Thus the grant of release on furlough is a discretionary remedy circumscribed by rules 3 and 4.

The court formulated principles for granting furlough in broad, general terms being in mind that the governing ruled for furlough and parole have to be applied in the context of each case. The principles are as follows

1. Furlough and parole envisage a short-term temporary release from custody;
2. While parole is granted for the prisoner to meet a specific exigency, furlough may be granted after a stipulated number of years have been served without any reason;
3. The grant of furlough is to break the monotony of imprisonment and to enable the convict to maintain continuity with family life and integration with society;
4. Although furlough can be claimed without a reason, the prisoner does not have an absolute legal right to claim furlough;
5. The grant of furlough must be balanced against the public interest and can be refused to certain categories of prisoners

The court held that

“25.Turning now to Rule 4(6) of the Rules, the Jail Superintendent has given a negative opinion based on the fact that the respondent kept a mobile phone inside the jail illegally and attempted to make contacts with the outside world. Rule 4(4) of the Rules provides for denial of furlough on grounds of disturbance to public peace and tranquillity. The order dated 8 May 2021 has adduced a number of circumstances which cumulatively indicate that the release of the respondent on furlough may lead to a violation of public peace. The order refers specifically to the threat he and his followers pose to the complainant and other persons who deposed at the trial. An attempt has been made to threaten and suborn the investigating team and the witnesses. The respondent and his father have a mass following of persons who owe loyalty to them and there is a reasonable apprehension of a disruption of public peace and tranquillity. During the trial, attempts have been made to bribe public officials. The conduct after the trial, in jail, has not been shown to be above reproach. The respondent was released earlier this year to accommodate a genuine need to attend to his mother’s health at the relevant time. Based on this, we are unable to agree with the line of reasoning of the High Court.

26 It has been urged that the objections mentioned in the order dated 8 May 2021 were raised by the authorities to the grant of furlough in December 2020 in spite of which the High Court allowed the plea for furlough. We do not find merit in this submission. The previous order of the High Court did not deal with these submissions. The order only referred to the fact that the respondent’s mother was suffering on account of a cardiac arrest and granted furlough on this basis.

Solicitor General Tushar Mehta, assisted by Advocate Kanu Agrawal in fact stated that the earlier proceedings were not contested before the High Court since the ground for furlough then was the ill-health of the mother of the respondent. The opinion of the Sanctioning Authority under the Rules does not suffer from perversity nor does it consider material extraneous to the Rules governing the grant of furlough.”

Citing the above reasons, the court set aside the furlough granted to Narayan Sai by a Single Judge of the Gujarat High Court on 24.06.2021.

Case title: State of Gujarat & Anr Vs Narayan Sai