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Kesar Singh Guleria Vs. the State of Himachal Pradesh and ors. - Court Judgment

LegalCrystal Citation
CourtHimachal Pradesh High Court
Decided On
Reported in1985CriLJ1202
AppellantKesar Singh Guleria
RespondentThe State of Himachal Pradesh and ors.
Cases ReferredNatia Jiria v. State of Gujarat
- p.d. desai, c.j.1. rule. to be heard today.2. the learned advocate general waives service of the rule on behalf of the respondents,3. the petitioner is a convict undergoing the sentence of life imprisonment. he is incarcerated in the model central jail, nahan. according to the official version, he has undergone actual imprisonment for a period of 8 years, 7 months and 6 days and total imprisonment, inclusive of remission, for a period of 13 years. 9 months and 16 days as on june 20, 1984. the petitioner has, inter alia, complained herein regarding two matters : first, non-consideration of his case for premature release in light of the policy of the state government on the subject and, secondly, non-consideration of his case for being released on parole. so far as the first complaint is.....

P.D. Desai, C.J.

1. Rule. To be heard today.

2. The learned Advocate General waives service of the Rule on behalf of the respondents,

3. The petitioner is a convict undergoing the sentence of life imprisonment. He is incarcerated in the Model Central Jail, Nahan. According to the official version, he has undergone actual imprisonment for a period of 8 years, 7 months and 6 days and total imprisonment, inclusive of remission, for a period of 13 years. 9 months and 16 days as on June 20, 1984. The petitioner has, inter alia, complained herein regarding two matters : first, non-consideration of his case for premature release in light of the policy of the State Government on the subject and, secondly, non-consideration of his case for being released on parole. So far as the first complaint is concerned, pursuant to an order made in a Writ Petition instituted earlier by the petitioner, the State Government is required to consider the. case for the premature release of the petitioner in the month of Nov. 1985. No further orders are, therefore, required to be made in that regard in the present proceeding. So far as the grievance relating to non-release on parole is concerned, the Court had made an order on April 16, 1984, directing the Inspector General of Prisons to examine the petitioner's prayer with regard to his being released on parole. Pursuant to the said order, the petitioner was ordered to be released on parole for a period of six weeks, vide order dated April 19, 1984, on his furnishing a personal bond and a surety in the sum of Rs. 10,0007-. Pursuant to the said order, the petitioner is stated to have been released on parole on his executing a personal bond and upon a surety having been furnished by his elder brother.

4. In view of the foregoing, the Writ Petition does not survive. However, during the course of the hearing of the Writ Petition, the question with regard to the terms and conditions on which a prisoner undergoing sentence of imprisonment could be released on parole or furlough, as the case may be, cropped up for consideration. Since it appears to the Court that the true scope, content and effect of the relevant statutory provisions are not properly appreciated by the competent authority entrusted with the power, function and duty to temporarily release the prisoners on parole or furlough, as the case may be, it is expedient in the interest of justice to dwell on the subject.

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8. Before we embark upon the task of expounding the true content and meaning of the relevant provisions regulating the temporary release of a prisoner and, more particularly, the terms and conditions upon which such release could be ordered, a few preliminary observations having a bearing on the question under consideration would not be out of place. The Supreme Court has ruled time and again that Fundamental Rights do not flee the person as he enters the prison although they may suffer shrinkage necessitated by incarceration. In other words, convicts are not, by mere reason of the conviction, denuded of all the Fundamental Rights which they otherwise possess. Whether inside prison or outside, a person is not deprived of his guaranteed freedoms save by methods right, just and fair. The problem of law, when it is called upon to protect and defend persons placed behind the bars, is to evolve a positive culture, higher consciousness and preventive mechanisms against any assault on such rights, one of the most important amongst which is the preservation of the integrity of the physical person and mental personality of the prisoner vide : Sunil Batra v. Delhi Administration : 1978CriLJ1741 .

9. An infliction which snaps visits or society of friends or relatives to a prisoner has been regarded as an infraction of liberty or life in its wider sense and is held unsustainable unless Article 21 of the Constitution is satisfied by prescribing in respect thereof by law a procedure which is right, just, fair, reasonable and effective. Subject to reasonable restrictions, the right to the visit and to the society of spouse, off springs, parents and other family members and fellowmen cannot be denied in light of Article 19 of the Constitution. Article 19 is, therefore, held to be attracted in case any infraction of such right is found to be irremediable and unappealable. Such infliction is also regarded as violative of Article 14 of the Constitution if it is dependent upon unguided discretion or if the exercise of discretion is vitiated by the vice of arbitrariness, irrationality and inequality. The considerations on which these judicial dicta are based are that visits to prisoners by family members and close friends are a solace in isolation. Only a dehumanised system can derive vicarious delight in depriving prison inmates of this humane amenity. Subject to considerations of security and discipline, liberal visits by family members, close friends and legitimate callers are, therefore, declared to be a part of the prisoner's kit of rights which must be respected (See : Sunil Batra (supra).)

10. Parole and furlough, in principle and practice, are the other side of the same coin, for the temporary release of a prisoner is primarily intended to subserve the same purpose. The relevant statutory provisions relating to the release of a prisoner on parole or furlough, as the case may be, recognise that the man behind the bars is still the member of his family and society, that he has yet the same human wants, urges, duties and obligations and that the rehabilitative purpose of sentencing would be promoted by permitting him to fulfil those basic human needs and filial and social duties by occasionally permitting him to live for short periods in his home as well as in the community where he has his roots. Parole is, therefore, permissible to any prisoner, with a record of good conduct in jail, subject to certain limitations and conditions, if it is established to the satisfaction of Releasing Authority that a member of the prisoner's family has died or is seriously ill, or that the marriage of his son or daughter is to be celebrated, or that his temporary release is necessary for carrying on agricultural operations on his land since no friend or member of his family is prepared to render him any assistance in that behalf in his absence. The residuary ground for release on parole, namely, that it is desirable so to do for any other sufficient cause, entrusts the Releasing Authority with a wide discretion which has to be exercised with circumspection and in a just manner, according to common-sense and sound judgment, so as to advance the remedy and' to effectuate the object. Parole to a prisoner should be granted in the exercise of such discretion on any occasion or in any situation in which his being in the midst of his family community or society could be regarded as essential or even desirable on any good and valid ground. These various grounds indicate that the law on the subject of parole recognises that incarceration should not lead to the prisoner's total obfuscation from the family or community and ensures his continuing participation, tailored to considerations of public order and security and subject to reasonable restrictions, in the affairs of his family and society. The relevant statutory provisions relating to release on furlough likewise permit any prisoner who has been sentenced to a term of imprisonment of not less than five years and who has a record of good conduct in jail, to be temporarily released for a period of three weeks after he has undergone imprisonment for a period of three years excluding remission, and for two weeks during each successive year of imprisonment thereafter, subject to certain conditions, limitations and just exceptions. Be it realised that unlike temporary release on parole, release on furlough is not dependent upon the existence of any specified grounds. The power is advisedly conferred in such wide terms with the purposive object of facilitating the rehabilitative process of a prisoner with a good conduct record, who is not a habitual offender and who is undergoing a long term of imprisonment for offences other than those statutorily specified, by giving him an opportunity to have a happy reunion with his family for short periods at regular intervals and to revive contacts with and to generate confidence in the society in which he has his roots. The furlough power recognises that a sullen and forlorn prisoner cut off from the family and society for a long period is prone to make a more dangerous criminal and that such intermittent bouts of temporary release from incarceration may soften his criminal proclivity.

11. Now, while implementing the relevant provisions of the Act and Rules and while exercising thereunder the powers relating to the temporary release of prisoners, the administration is under a duty to bear in mind certain cardinal and guiding factors or considerations. In the first place, true though it is that the relevant statutory provisions use the word 'may' in the context of the exercise of power of temporary release and thereby confer discretion on the Releasing Authority, such discretionary power is coupled with the legal duty to exercise the same once the conditions for its exercise are shown to exist. It is settled law that where a power is deposited with a public officer for the purpose of being used for the benefit of persons who are specifically pointed out, and with regard to whom a definition is supplied by the statute of the conditions upon which they are entitled to call for its exercise, that power ought to be exercised, and the Court will require it to be exercised (See : Julius v. Bishop of Oxford (1880) 5 AC 214). According to this celebrated dictum, if the existence of the purpose is established and the conditions of the exercise of the discretion are fulfilled, the competent Authority will be under an obligation to exercise the discretion in furtherance of such purpose (See : In re : Kerala Education Bill, 1957 AIR 1958 SC 956 at page 975). The exercise of power of releasing a prisoner on parole or furlough must not, therefore, be looked upon as an act of charity, compassion or clemency but as an act in the discharge of a legal duty required to be performed upon the fulfilment of the prescribed conditions to effectuate i salutary purpose. In the next place, a project-oriented approach keeping in view the above stated object and purpose of the enactment must govern the exercise of such discretion. The discretion must, therefore, be exercised in a just and reasonable manner and in conformity with the apparent purpose of the enactment and it must avoid leading to some inconvenience, absurdity, hardship or injustice which must be presumed not to have been intended by the statute. (See : Busching Schmitz Pvt. Ltd. v. P.T. Menghani : [1977]3SCR312 and Tirath Singh v. Bachittar Singh : [1955]2SCR457 ). In the last place, no condition prescribed in the relevant statutory provisions should be so understood and enforced as to expose the enactment to the vice of unconstitutionally. The condition must be so construed and implemented as to permit the enactment to remain effective and operative by its being insulted against any challenge to constitutionality. (See : Express Newspaper (Pvt.) Ltd. v. Union of India : (1961)ILLJ339SC and Kedar Nath Singh, v. State of Bihar : AIR1962SC955 ). To achieve the said purpose, it is permissible to construe general words in a limited sense and vice versa (See : Umayal Achi v. Lakshmi Achi AIR 1945 PC 25 at Pp. 31 and 40, and Corporation of Calcutta v. Liberty Cinema : [1965]2SCR477 and, on an analogy, to read a condition which is apparently mandatory as directory if the consequence following from construing it as mandatory would be to render it. unconstitutional. This consideration or factor has great relevance in the context of interpretation and implementation of parole and furlough provisions, for, the Supreme Court has already sounded a note of warning in Sunil Batra (supra) at P. 1595 (of AIR) : 1980 Cri LJ 1099 at P. 1115 in the following words:

Parole, again, is a subject which is as yet unsatisfactory and arbitrary but we are not called upon to explore that constitutional area and defer it.

Against the aforesaid background, the provisions relating to temporary release on parole and furlough need examination.

12. An important aspect which the Releasing Authority must bear in mind is that it is well established that the reasonable exercise of power inheres its exercise within a reasonable time, (See; State of Gujarat v. Patel Raghav Natha : [1970]1SCR335 and Mansa Ram v. S.P. Pathak : [1984]1SCR139 .) In this connection the following observations made by this Court in the order dated April 18, 1984 in Lall Chand v. State of Himachal Pradesh Criminal Writ Petn. No. 4 of 1984 : 1985 Cri LJ NOC 46 (Him Pra) might be profitably recalled:

The court would like to observe that applications received from the prisoners for their release on parole should be processed in accordance with rules within a reasonable time. Ordinarily, the superintendent of Jail should forward the application of the prisoner within 24 hours of its receipt along with his report to the District Magistrate of the District to which the prisoner belongs. The District Magistrate should, ordinarily, complete the process of consultation with the District Superintendent of Police of his District and forward his recommendation to the Inspector General of Prisons within one week of the receipt of the application together with the report of the Superintendent Jail. The Inspector General of Prisons should, ordinarily, within a period of 48 hours record his view and submit the case to the Releasing Authority. The Releasing Authority should, ordinarily, take a decision in the matter within three days from the receipt of the report of the Inspector General of Prisons. In case the Inspector General of Prisons himself is the Releasing Authority, he should within a period of three days from the date of receipt of the recommendation of the District Magistrate arrive at the decision with regard to the grant of parole. Under any circumstances, the application of the prisoner for release on parole should be processed and final orders passed thereon within a period of 15 days from the date of making of such application. In cases of urgency, such as, when parole is asked for on the ground of death or serious illness, the applications should be processed with greater expedition so that if ultimately parole is granted, the object and purpose behind seeking the parole is subserved. In such cases, ordinarily, the application should be processed within 5 to 7 days, if not earlier.

It might be added that the aforesaid, time-limits provide a broad guideline as evidenced by the use of the expression 'ordinarily' and that they are intended to indicate the outer limits for the processing of an application for release on parole. Be it remembered, however, that the concept of 'reasonable time' varies from case to case and from situation to situation. When, for example, the release on parole is sought on the ground of the illness of a parent, spouse or child, who is hovering between life and death, decision may have to be taken within a span of hours and if, on account of the procedural requirements, a quick decision is not possible, the least that could be done is to remove the prisoner forthwith to a jail or sub-jail situate near the place where the relative is lying seriously ill and to permit him, while still in custody and pending the expeditious processing of his application for temporary release, to visit and to be with the ailing relative as frequently and for as long a period as possible. Para 741 of Chapter XXV of the Manual for the Superintendence and Management of Jails in the Punjab gives enough discretion to the Inspector General of Prisons to confine or transfer any class of prisoner to any jail or class of jails and the discretion can be used on such occasions. The observations made hereinabove relating to the early processing of applications for the release of prisoners on parole apply with equal force to release on furlough. Such applications should also be processed in the same manner and with the same despatch if furlough is sought on any specific ground which requires immediate release, Be it realised that any delay, which can be considered unreasonable on the facts and in the circumstances of the case, will not only be presumed to lead to the failure of the manifest purpose of the power and to result in inconvenience, hardship or even injustice not intended by the statute but such unreasonable exercise of discretion will also be open to challenge.

13. Another important factor required to be borne in mind by the Releasing Authority is that the rules of procedure governing the temporary release on parole or furlough are intended to subserve and not to subrogate the substantive provisions. The various rules prescribing the procedure for temporary release must be viewed and implemented bearing in mind this salient principle. Though the forms of application (Form A-l and Form A-2) are prescribed, still no application which substantially complies with the requirement of the relevant form should be rejected, even if it does not strictly conform to the prescribed form. Besides, the District Magistrate, who is under a statutory duty to give an opinion whether the temporary release of a prisoner on parole or furlough is opposed on grounds of prisoner's presence being dangerous to the security of the State or prejudicial to the maintenance of public order, must bear in mind the clear distinction between the concepts of 'security of the State', 'public order' and 'law and order'. 'Security of the State' would involve breaches of public tranquillity leading to national upheavals, such as revolution, civil strife, war etc. and cover any activity affecting the security of the State. The distinction between the concepts of 'public order' and 'law and order' has since been explained in Lall Chand's case (1985 Cri LJ NOC (Him Pra) 46) (supra). 'Public Order', if disturbed, must lead to public disorder. A mere disturbance of law and order leading to disorder is not the same as disturbance which subverts the public order. An apprehended breach of peace or the possibility of the prisoner committing a crime during the parole period, without anything more, would constitute a law and order problem and not a problem touching public order. It would thus appear that 'public order' comprehends disorders of lesser gravity than those affecting 'security of the State' and that 'law and order' comprehends disorders of lesser gravity than those affecting 'public order'. In cases involving problems of law and order, the proper course to be adopted is not to give an opinion that the request for release be rejected but to advise that the release be ordered subject to appropriate conditions, such as, that surveillance be kept over the prisoner during the period of his temporary release and that he be asked to report to the nearest police station at appropriate intervals. Indeed, in appropriate case, the power conferred by R. 4 can be recommended to be exercised if an occasion therefore arises, having regard to the conduct of the prisoner who is temporarily released.

14. The true scope and ambit of the provisions relating to the requirement of the prisoner furnishing the security bond and the surety bond in the prescribed forms, before he is temporarily released, require to be properly appreciated by the Releasing Authority. The Act does not make any specific provisions in this regard but enables the State Government to frame rules for the purpose. In respect of a prisoner with regard to whom the Releasing Authority is satisfied that he is entitled to be released on parole or furlough, as the case may be, the Releasing Authority is empowered under sub-r. (3'i of R. 3 to issue a duly signed and sealed warrant in Form B specifying therein, inter alia, 'the amount for which the security bond and the surety bond shall be required to be furnished by the prisoner in Forms C and D respectively', subject to the maximum of Rs. 20,0007- in each case. . Condition (5) of the warrant in form B provides that the prisoner, before his release on parole or furlough, shall furnish to the satisfaction of the District Magistrate, a bond and a surety in the specified sum each for faithful observance of the conditions specified in the release warrant. Condition (6), inter alia, provides that when the surety becomes insolvent or dies, the Government may order the prisoner to furnish fresh security immediately. Condition (7), inter alia, provides that the amount of the bond shall be forfeited to the Government in case any condition of the bonds, is, in the opinion of the Government, not fulfilled. Under sub-r.(4) the prisoner concerned and such member of his family as the prisoner may specify in that behalf is required to be informed by the Superintendent of Jail for making arrangements for execution of the security and surety bonds. Under sub-r. (5) the prisoner will be released on receipt of the information from the District Magistrate that the necessary bonds have been furnished.

15. Now, though the rules lay down the maximum limit of the amount of the security bond and the surety bond at Rs. 20,0007- in case of each bond, no other or further guidelines are expressly provided for fixing the actual amounts of the bonds. The matter is advisedly left to the judicious discretion of the Releasing Authority to be exercised on the facts and in the circumstances of each case. In exrcising such discretion, the paramount consideration which must guide the Releasing Authority is that the amounts of such bonds shall be fixed with due regard to the circumstances, of the case and shall not in any event, be excessive. In other words, the amount for which the personal bond is taken must be proportionate to the means of the prisoner. Similarly, the amount for which the security bond is required to be furnished must take into consideration the fact that a person in prison and even his relatives are ordinarily under a great disadvantage and that it may not be possible in all cases for him or them, by reason of penury, confinement and absence of influence in society, to find friends or, in some cases, even relatives to furnish a security bond, especially if the amount for which the bond is required to be executed is fixed without due regard to the facts and circumstances of the case. As Krishna Iyer, J. said, though in a different context, in Moti Ram v. State of Madhya Pradesh : 1978CriLJ1703 'affluents do not befriend indigents.'

16. It cannot be overlooked, in this connection, that the Act as well as the Rules, in view of the stark reality of poverty engulfing a considerable section of the population of our State have made special provisions in respect of the Government bearing journey expenses of poor prisoners held entitled to parole or furlough, as the case may be, Section 7 provides that if, on the report of the District Magistrate, the Government is satisfied that a prisoner's family cannot bear the expenses of his journey from and to the prison after his temporary release under the Act, the expenses may be borne by the Government to such extent and in such manner as may be prescribed. Section 10, Sub-section (2), cl.(f) empowers the Government to make rules providing for the extent to which and the manner in which journey expenses of poor prisoners shall be borne by the Government. R. 6 enacted in exercise of such powers provides that third class railway passes for journey both ways to the railway station nearest to the place of destination or the bus fare to the place of residence both ways is to be issued by the Superintendent of Jail on the report of the District Magistrate, if the Government is satisfied that the prisoner's family cannot bear the expenses of his journey from and to the prison after his temporary release. These statutory provisions indicate that the policy of law is that a prisoner, who is held entitled to temporary release, should not be denied the exercise of such right, merely because he or his family cannot bear the expenses of the journey to and from prison on account of extreme poverty, In such cases, therefore, the Government is required to bear the expenses of such journey.

17. The requirement of furnishing the security bond and the surety bond has to be viewed against the aforesaid background as well as against the backdrop of the object and purpose of the enactment and the constitutional provisions referred to earlier. Viewed accordingly, the execution of personal bond and security bond, and, more particularly, the security bond cannot be regarded as mandatory. In appropriate cases, such as, for example, a case in which a prisoner is unable even to foot the expenses of his journey which are required to be borne by the Government it would defeat the apparent purpose of the enactment and lead to manifest absurdity, hardship and injustice if the prisoner is required to furnish a security bond. It would be extremely difficult, if not virtually impossible, for such a prisoner and his family to find persons sufficiently solvent to stand as sureties. The law governing temporary release cannot be so construed as to permit its operation harshly against the poor and advantageously in favour of the non-poor in our Socialist Republic which aims at the establishment of an egalitarian society based on social justice. Indeed, any such construction would lay the relevant provisions of law open to challenge as violative of Articles 14 and 21 of the Constitution and such a construction must, of necessity, be eschewed. Sub-rule (3) of Rule 3 and the various conditions in Form-B must, therefore, be construed as directory in the sense that they must be regarded as investing the Releasing Authority with discretion of dispensing with the requirement of furnishing ends in appropriate cases so that it should become possible for the poor, as easily as the rich, to obtain temporary release. The discretion to waive the requirement of furnishing bonds must be exercised in such cases bearing in mind other relevant considerations such as family ties, roots in the community, history-sheet including any record as to the prior release on parole or furlough etc. Even if it is considered necessary in such cases to obtain a surety bond without a security bond, there should be no rigid insistence that the prisoner should satisfy the Releasing Authority that he is solvent enough to pay the amount of the bond. Indeed, in appropriate cases, the prisoner may be released on his personal bond without monetary obligation if other relevant factors, such as those mentioned above, are established. The Releasing Authority is thus under an obligation to examine in each case of temporary release whether or not the prisoner should be required to furnish the security bond and, if so, to fix the amount of such bonds with due regard to the circumstances of the case. Such amount should not in any event, be excessive.

18. Two decisions, which have a bearing on the point under consideration, may be advantageously .referred to at this stage. In Hussainara Khatoon v. Home Secy., State of Bihar Patna : 1979CriLJ1036 , the question related to the release on bail of under trial prisoners who were behind the prison bars for years awaiting trials in courts of law. The Supreme Court observed that one reason why our legal and judicial system continually denies justice to the poor by keeping them for long years in pre-trial detention is our highly unsatisfactory bail system which suffers from a property oriented approach based on the erroneous assumption that risk of monetary loss is the only deterrent against fleeing from justice. Certain pertinent observations made in that case by the Supreme Court in the context of release on bail of such under trial prisoners are equally applicable to the temporary release of prisoners under the provisions of the Act and the Rules and they are, therefore, extracted hereinbelow:

This system of bails operates very harshly against the poor and it is only the non-poor who are able to take advantage of it by getting themselves released on bail. The poor find it difficult to furnish bail even without sureties because very often the amount of the bail fixed by the courts is so unrealistically excessive that in a majority of cases the poor are unable to satisfy the police or the Magistrate about their solvency for the amount of the bail and where the bail is with sureties, as is usually the case, it becomes an almost impossible task for the poor to find persons sufficiently solvent to stand as sureties. The result is that either they are fleeced by the police and revenue officials or by touts and professional sureties and sometimes they have even to incur debts for securing their release or, being unable to obtain release, they have to remain in jail until such time as the court is able to take up their cases for trial, leading to grave consequences.... It is here that the poor find our legal and judicial system oppressive and heavily weighed against them and a feeling of frustration and despair occurs upon them as they find that they are helplessly in a position of inequality with the non-poor.

Having expressed the view that the Parliament would do well to consider whether it would not be more consonant with the ethos of our Constitution that instead of risk of financial loss, other relevant considerations should be the determinative factors in grant of bail and that the accused in appropriate cases be released on bail on his furnishing personal bond without monetary obligation, the Supreme Court proceeded to make the following further observations:

But even under the law as it stands today the courts must abandon the antiquated concept under which pretrial release is ordered only against bail with sureties...If the Court is satisfied, after taking into account, on the basis of information placed before it, that the accused has his roots in the community and is not likely to abscond it can safely release the accused on his personal bond. To determine whether the accused has his roots in the community which would deter him from fleeing, the Court should take into account the following factors concerning the accused:

1. the length of his residence in the community,

2. his employment status, history and his financial condition,

3. his family ties and relationships,

4. his reputation, character and monetary condition,

5. his prior criminal record including any record or prior release on recognizance or on bail,

6. the identity of responsible members of the community who would vouch for his reliability,

7. the nature of the offence charged and the apparent probability of conviction and the likely sentence in so far as these factors are relevant to the risk of non-appearance, and

8. any other factors indicating the ties of the accused to the community or bearing on the risk of wilful failure to appear.

If the Court is satisfied on a consideration of the relevant factors that the accused had his ties in the community and there is no substantial risk of non-appearance, the accused may, as far as possible, be released on his personal bond. Of course, if facts are brought to the notice of the court which go to show that having regard to the condition and background of the accused his previous record and the nature and circumstances of the offence, there may be a substantial risk of his non-appearance at the trial, as for example, where the accused is a notorious bad character or a confirmed criminal or the offence is serious (these examples are only by way of illustration), the court may not release the accused on his personal bond and may insist on bail with sureties. But in the majority of cases, considerations like family ties and relationship, roots in the community, employment status etc. may prevail with the court in releasing the accused on his personal bond and particularly in cases where the offence is not grave and the accused is poor or belongs to a weaker section of the community, release on personal bond could, as far as possible, be preferred. But even while releasing the accused on personal bond it is necessary to caution the court that the amount of the bond which it fixes should not be based merely on the nature of the charge. The decision as regards to amount of the bond should be an individualised decision depending on the individual financial circumstances of the accused and the probability of his absconding. The amount of the bond should be determined having regard to these relevant factors and should not be fixed mechanically according to a schedule keyed to the nature of the charge. Otherwise, it would be difficult for the accused to secure his release even by executing a personal bond. Moreover, when the accused is released on his personal bond, it would be very harsh and oppressive if he is required to satisfy the court - and what we have said here in regard to the court must apply equally in relation to the police while granting bail - that he is solvent enough to pay the amount of the bond if he fails to appear at the trial and in consequence the bond is forfeited. The inquiry into the solvency of the accused can become a source of great harassment to him and often result in denial of bail and deprivation of liberty and should not, therefore, be insisted upon as a condition of acceptance of the personal bond'

The observations extracted above are a reflection of the current judicial thinking in the field of treatment of prisoners and they highlight the requirement of the law being not allowed to operate oppressively or harshly against the poor so that they are not placed in a position of inequality qua the non-poor. The Releasing Authority entrusted with the power of ordering temporary release must bear in mind these weighty observations and apply them, so far as may be, in the imposition of conditions while directing such release. It hardly needs to be stated that there are enough safeguards in the Act and the Rules to deal with the prisoners who are temporarily released and who wilfully fail to appear after the completion of the period of temporary release to undergo the unexpired portion of sentence.

19. Natia Jiria v. State of Gujarat 1984 (1) 25 Guj LR 464 : 1984 Cri LJ 936, a Full Bench decision of the Gujarat High Court, is the next ruling to which reference may be made. The question there was in relation to the release of a prisoner on furlough under Rule 6 read with Rule 10 of the Prisons (Bombay Furlough and Parole) Rules, 1959. P. S. Poti, C. J. who delivered the judgment of the Full Bench, made the following pertinent observations at the outset:

Poverty is no crime. Even so property-oriented approach in statutory provisions often results in a poor man being prized out of justice. The acuteness of extreme poverty could be best understood only by experiencing it. The plight of the impecunious in all its severity may not be fully realised even by an enlightened class engaged in statute and rule making. Whatever may be said of the legislations prior to the Constitution, in an egalitarian society where justice is promised to the poor and the rich alike, there is no scope for a law which virtually keeps out a penurious person from the benefit of the law or puts him to the penalty of a provision for reason of his impecuniousness. If an instance or illustration of this situation is necessary to convincingly project the point sought to be made out here, there could be no better case than the one now before us. A surety bond for Rs. 100/- is by any standard a nominal surety bond and one cannot think of a surety bond for any lesser sum. If there is insistence by law on the furnishing of a surety bond any compassionate and understanding authority cannot stipulate better than to require a surety bond of Rs. 100/-. But, even so there may be many in this country who will not be able to take advantage of a right to free air conferred on him to be availed of on furnishing such a surety bond merely for the reason that he is unable to get any one to stand surety for him in a bond of Rs. 100A. Should he forfeit his right for that reason is the question.

The learned Chief Justice pointed out that under the Rules there, under consideration, a prisoner sentenced to imprisonment for a period exceeding one year but not exceeding five was, in the normal course, entitled to a period of two weeks, furlough at a time for every year of actual imprisonment undergone and proceeded to make the following further observations:

To a prisoner who has been deprived of his personal liberty by reason of the confinement within the four walls of a prison a period of two weeks during which he could go home and associate with his wife and children is a great solace. It would be of inestimable value to him. Though no prisoner has a legal right to furlough the rules are applicable to all prisoners alike and therefore when furlough is granted to one prisoner it cannot be denied to another prisoner. To do otherwise would be an arbitrary conferment of favour on some while denying it to the others. For that very reason so long as the system of furlough is in force every prisoner who, just like his companions in the prison, earns his furlough is entitled to look forward to the period of annual two weeks at home. If his release on furlough is made dependent upon a condition which has to be complied with, but which he is unable to comply with merely for the reason of extreme and utter poverty, should he be denied the benefit of furlough? He sees those in the same prison availing of furlough, going home during that period and returning to prison after a temporary happy reunion with their families. If he is unable to get the benefit of the same furlough because of insistence on furnishing a surety bond which he is unable to furnish because he has no money and he has no one to help him with, should he be, for that reason, treated as of a different class? All assurances of equality irrespective of castes, creed, race, colour and sex would sound hollow to him if he is told that all these notwithstanding he will not have the benefit of furlough since in this vast country he is unable to find out a man who is prepared to stand surety for him for, Rs. 100/-. It is not that because of his conduct and character none is willing to come forward to stand surety. He has no influence to persuade someone perhaps from his far off village to come forward and offer himself to stand surety. His wife and children anxious to have his company may also not be in a position to come forward and stand surety for him to get him released. All that would cost money and it is a stark reality that there are in this country of ours millions of people who live far below the poverty line who cannot afford the luxury of going over to a prison and expending money however small it may be, to stand surety after convincing the authorities that they are competent and qualified to be sureties. What should happen to a prisoner under such circumstances?...

This country has since long awakened to the need for a considerate approach in matters where weaker sections of the society are involved so as to make the guarantee of equal opportunity a reality. Provisions of statutes and rules leaving an arena for exercise of discretion to authorities have always been understood as calling for such exercise on the part of the authorities as will render their functioning constitutional. If discretion is conferred on an authority to waive the requirements of the rules such waiver would be justified to promote the concept of constitutional protection more than anything else...A person in prison is under a great disadvantage and particularly so if he has no friends or competent relatives to help him out. There is no reason why when he pleads his poverty and if there is no material to disbelieve his case of poverty the sanctioning authority should not accept it in the normal course and release him on his personal bond. In other words where the sanctioning authority has no reason or no materials to positively assume that the man could furnish cash security the sanctioning authority would be obliged to> release him on his personal bond.

In the light of the observations aforesaid, Rr. 6 and 10 of the Rules there under consideration were construed as justifying the sanctioning authority in waiving the requirement of giving cash security and furnishing of a surety bond in cases where poverty is pleaded by a prisoner seeking furlough and there is no material to reject such plea. These observations made in the Full Bench decision of the Gujarat High Court apply with equal force in the construction and implementation of the Act and the Rules with which we are concerned herein,

20. The Releasing Authority, in the exercise of its power under the Act and the Rules, will be guided by the principles adverted to above. The paramount consideration which the Releasing Authority will always bear in mind is that the right to be released on bail or furlough, as the case may be, upon satisfaction of the other conditions, is not defeated merely because the prisoner, on account of his impecunious condition, is unable to offer a security bond or surety bond.

21. Let a copy of this judgment be forwarded to the Secretary to the Government, Home Department, and to the Inspector General of Prisons under the seal of the Court and signature of the Registrar for their guidance and for due compliance of the law herein laid down in regard to the release of prisoners on parole or furlough, as the case may be.

22. Rule made absolute accordingly.

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