Bhikhabhai Devshi vs State Of Gujarat And Ors.

on 28 August, 1986

Gujarat High Court

Bhikhabhai Devshi vs State Of Gujarat And Ors. on 28 August, 1986
Equivalent citations: AIR 1987 Guj 136, (1987) 2 GLR 1178
Author: R Mehta
Bench: P Gokulakrishnan, S Majmudar, R Mehta
JUDGMENT R.A. Mehta, J.

1. This matter came before the Full Bench on reference from the Division Bench as an important
question regarding interpretation of R. 4(10) of the, Prisons,(Bombay Furlough and Parole) Rules,
1959 arises as to whether the word 'shall' is mandatory in the conte Xt of the provisions of R. 4(10)
and more particularly its latter part or whether the word 'shall' can be construed as 'may' so as to
enable the prison authorities to consider the request for furlough of a prisoner who has surrendered
late after release on furlough or parole. Rule 4(10) makes the following reading : -

R. 4:

"When prisoners shall not be granted furlough :

The following categories of prisoners shall not be considered for release on furlough :

(1) X X X X X X (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 or furlough."

2. The contention of the petitioner is that although he had surrendered late by 25 days, after he was
released on parole, he is not totally ineligible for being released on furlough and the authorities have
the power and duty to consider his application for furlough on merits and thereafter to grant or
refuse furlough on merits and in the present case, the authorities, have refused to consider his
request for furlough without going into the merits only at the threshold on the ground that the
petitioner prisoner is not at all eligible to be considered for being released on furlough and the
authorities have mechanically considered the provisions of R. 4(10) for releasing the petitioner on
furlough.

3. On behalf of the respondents authorities, it is submitted that plain and simple reading of R. 4(10)
is clear and unambiguous and not permitting any discretion to the authorities; namely that the
category of defaulters shall not be considered for being released on furlough. The respondents have
also relied upon the Division Bench judgment in the case of Juvansingh L. Jadeja v. State of Gujarat,
(1973) 14 Guj LR 104. In that case, while considering the validity of R. 4(2), the scheme of R. 4(10)
was also referred to and the validity of R. 4(10) was upheld even while holding the provision to be
mandatory in the conteXt of R. 4(2). Relying on this judgment, the respondents authorities have
submitted that R. 4(10) is also mandatory and cannot be construed as directory.

4. Another decision relied upon by the respondents-authorities is also a Division Bench judgment in
Kanubhai Bhanjibhai v. State, Special Criminal Applications Nos. 496 and 527 of 1981 decided on

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 Bhikhabhai Devshi vs State Of Gujarat And Ors. on 28 August, 1986

Nov. 5, 1982. In that case, the question was of carrying forward furlough which was not granted for
no fault on the part of the prisoner. Statutory note (3) to R. 3 provided that if at any time, a prisoner
who could have been granted furlough is either not granted or is refused the same, the period for
which he could have been granted the furlough shall not be carried forward but shall lapse. By
construing this provision reasonably and reading it down to make it days; reasonable, the Division
Bench held that:

"the words 'on account of any fault or act or misconduct on his part' should be read into Note 3 after
the words 'is either not granted or is refused the same' in order that the note does not suffer from
the vice of arbitrariness violating Art. 14."

The Division Bench further observed that:

"In our opinion, plain reading of R. 4 makes it clear that the prisoners enumerated in Cls. (1) to (3)
and (7) to (10) are not eligible to be released on furlough. So far as the prisoners enumerated in Cls.
(4) to (6) of R. 4 are concerned, the authority concerned has power to grant or refuse to release
prisoners on furlough. In other words, while Cls. (1) to (3) and (7) to (10) of R. 4 deal with eligibility
criteria, Cls. (4) to (6) deal with power of the authority concerned to refuse release of a prisoner on
furlough. Prisoners falling within the categories, namely Cls. (1) to (3) and (7) to (10) do not have
right to claim release on furlough."

5. Relying upon the aforesaid two judgments of the Division Bench, it is contended by the learned
Counsel for the respondents that the provisions of R. 4(10) are mandatory and imperative and the
defaulting prisoners are ineligible for furlough and the authorities were fully and legally justified in
refusing to consider the prisoner for release on furlough.

6. The petitioner has been convicted for an offence of murder punishable under S. 302, I.P.C. and he
has been sentenced to life imprisonment by the judgment and order of the Sessions Court,
Junagadh, dt. 21st Mar., 1978. It appears that the prisoner is in jail since the date of the incident
namely 19-6-1977. He has been released on parole from time to time on different occasions. He was
granted parole leave up to 12-9-1983 and it appears that during that period, on 22-8-83, the
prisoner's father eXpired. He applied for eXtension of parole on 17-9-83. However, that e Xtension
was refused and the petitioner had surrendered late by 25 days. For this late surrender, the
petitioner was punished. The petitioner understood the punishment to be combination of three
punishments:

1. Refusal of eXtension of parole of 25 days;

2. Cut in remission by 25 days;

3. Refusal of furlough.

7. As far as the refusal to e Xtend parole leave is concerned, it cannot be said to be a punishment at
all. In the affidavit-in-reply, it has been clarified that the petitioner was not given three

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 Bhikhabhai Devshi vs State Of Gujarat And Ors. on 28 August, 1986

punishments, but only one punishment of cut in remission by 25 days was given. As regards
furlough, the respondents have stated in the affidavit-in-reply that non-release on furlough is not a
punishment but is an automatic consequence of operation of R. 4(10) and the prisoner is not
entitled to furlough because he has made the breach of parole conditions and that, this cannot be
said to be a punishment awarded by the jail authorities.

8. In view of the rival contentions and the observations in the aforesaid two judgments of the
Division Benches, this matter is referred to Full Bench so that the question, if necessary, can be
reconsidered.

9. Interpretation of a statutory provision containing the word 'shall' has come up before the Courts
on earlier occasions and the Courts had to decide when such provisions would be mandatory or
directory and when the word 'shall' can be construed as 'may'.

10. The Supreme Court, in the case of Ganesh Prasad Sah Kesari v. Lakshmi Narayan Gupta, (1985)
3 SCC 53 : (AIR 1955 SC 964) dealt with S. 11-A of Bihar Buildings (Lease, Rent and Eviction)
Control Act, 1947, which provided that the Court "may make an order for deposit of rent at such rate
as may be determined month by month and the arrears of rent, if any and on failure of the tenant to
deposit the arrears of rent within 15 days of the date of the order or the rent at such rate for any
month by the fifteenth day of the ne Xt following month, the Court shall order the defence against
ejectment to be struck out."

On tenant failing to deposit accordingly, the question arose whether the Court shall order or Court
may order striking out the defence against ejectment. The High Court had interpreted the word
'shall' as mandatory observing that once a default is found, the Court is powerless and statutory
consequences are bound to follow.

In para 7 of the Judgment, the Supreme Court observed as fo1lows :-

"Ordinarily the use of the word 'shall' prima facie indicates that the provision is imperative in
character. However, by a catena of decisions, it is well established that the Court while considering
whether the mere use of the word 'shall' would make the provision imperative, it would ascertain the
intendment of the legislature and the consequences flowing from its own construction of the word
'shall'. If the use of the word 'shall' makes the provision imperative, the inevitable consequence that
flows from it is that the Court would be powerless to grant any relief even where the justice of the
case so demands. If the word 'shall' is treated as mandatory, the net effect would be that even where
the default in complying with the direction given by the Court is technical, fortuitous, unintended or
on account of circumstances beyond the control of the defaulter, yet the Court would not be able to
grant any relief or assistance to such a person. Once a default is found to be of a very technical
nature in complying with the earlier order, the Court must have power to relieve against a drastic
consequence all the more so if it is satisfied that there was a formal or technical default in complying
with its order. To illustrate, if the tenant while he was on the way to the Court on the fifteenth day to
deposit the rent for the just preceding month as directed by an order under S. 11-A, met with an
accident on the road and could not reach the Court before the Court hours were over, should he be

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 Bhikhabhai Devshi vs State Of Gujarat And Ors. on 28 August, 1986

penalised by his defence being struck off. Even if the Court is satisfied that he was on the way to the
Court to make the necessary deposit, that he had the requisite amount with him, and that he started
in time to reach the Court within the prescribed Court hours and yet by circumstances beyond his
control, he met with an accident would the Court be powerless to grant him relief ? This illustration
would suffice to disclose the intendment of the legislature that it never used the word 'shall' to make
so imperative as to render the Court powerless."

11. In that case, having regard to the legislative intendment and purpose, and the beneficent nature
of the statute to protect the harassed tenant, the word 'shall' was held to be directory and not
mandatory and the Supreme Court said that it shall be read as 'may' and such a construction would
advance the purpose for which the Act was enacted; namely the protection of tenants. The Supreme
Court also observed that it will also not render the Court powerless in the face of harsh facts where
striking off the defence would be nothing short of miscarriage of justice. In para 9 of the judgment,
the Supreme Court has even held that where both the words, 'shall' and 'may' are used in the same
provision, the power of the Court still to ascertain the real intention of the legislature by carefully
eXamining the scope of the statute to find out whether the provision is directory or mandatory
remains unimpaired.

12. In view of this guiding and binding principle of interpretation, let us have a look at the purposes
of the present legislation and furlough system.

13. The parole and furlough rules are part of the penal and prison system with a view to humanise
the prison system. These rules enable the prisoner to obtain his release and to return to the outside
world for a short prescribed period. The objects of such a release of prisoner can be read from para
101 of the report submitted by the All India Jail Manual Committee as also the objects mentioned in
Model Prison Manual. These objects are:

(i) to enable the inmate to maintain continuity with his family life and deal with: family matters;

(ii) to save the inmate from the evil effects of continuous prison life;

(iii) to enable the inmate to maintain constructive hope and active interests in life."

14. In the Statement of Objects and Reasons for Bombay (Prisons Amendment) Act No. 27 of 1953,
the Jail Reforms Committee had recommended and the Govt. accepted the recommendation that -

"there should be the system of release of prisoners on furlough under which well behaved prisoners
of certain categories should, as a matter of right have a spell of freedom occasionally after they
undergo a specified period of imprisonment, so that they may maintain contact with their near
relatives and friends and may not feel uprooted from society . Government accepted these
recommendations and also decided that the furlough period should count towards the prisoner's
sentence.

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 Bhikhabhai Devshi vs State Of Gujarat And Ors. on 28 August, 1986

XX XX XX XX The eXperience has shown that the system has worked satisfactorily. The Prisons Act,
1894 does not specifically provide for the grant of furlough and the remission of sentence
consequent upon it. In order to place the system on a permanent footing and to enable the Govt. to
delegate its powers to the Inspector General of Prisons, it is necessary that the Prisons Act, 1894
should be amended in its application to the State of Bombay."

15. Thus, the Legislature has put the furlough system in the Act and it is made a matter of right.

16. In furtherance of these objects, the parole and furlough rules are framed in e Xercise of powers
under Ss. 59(5) and 28 of the Prisons Act, 1894. Section 3 defines various terms in the Act and Cls.
(5A) and (5B) of S. 3 define furlough system, and parole system. Clause (5A) added by Bombay Act
XXVII of 1953 reads as under :-

(5A) :

"furlough system means the system of releasing prisoners in jail on furlough in accordance with the
rules for the time being in force."

Section 59(5) reads as follows :-

"S. 59 : Power to make rules: The State Govt. may make rules consistent with this, Act -

XX XX XX XX (5) for the award of marks, the suspension or remission and consequent shortening of
sentences, and the grant of release on parole or furlough and determining the conditions on which
and the authority by which the sentences may be suspended or remitted and the prisoners may be
released on parole or furlough."

Thus, the rules have to be consistent with the Act as S. 59 e Xpressly provides. One more relevant
provision is S. 48A (also added by Act 27 of 1953) which reads as follows : -

"S. 48A: Punishment for breach of conditions of suspension or remission of sentence or of grant of
furlough:- If any prisoner fails without sufficient cause to observe any of the conditions on which his
sentence was suspended or remitted or furlough or release on parole was granted to him, he shall be
deemed to have committed a prison offence and the Supdt. may, after obtaining his e Xplanation,
punish such offence by (1) a formal warning as provided in Clause (i) of S. 46;

(2) reduction in grade if such prisoner has been appointed an officer of prison;

(3) loss of privileges admissible under the remission or furlough or parole system; or (4) loss of such
other privileges as the State Govt. may by general or special order, direct."

17. Rule 1287 of the Bombay Jail Manual is also relevant for our present purpose. It reads as under :
-

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 Bhikhabhai Devshi vs State Of Gujarat And Ors. on 28 August, 1986

"In each case of late surrender or breach of any of the conditions of furlough or parole, the necessary
punishment or punishments should be awarded by the Supdt. of Prison with due regard to the
circumstances of each case. All the punishments mentioned below or in S. 48-A of the Prisons Act,
1894 need not necessari1y be awarded in each case but it is left to the discretion of the Supdt. to
decide which particular punishment or punishments should be awarded. If, in certain cases, the
Supdt. is satisfied that the overstayal was for good or sufficient reasons, he may e Xcuse the prisoner.
However, before awarding any punishment, the Supdt. should invariably obtain a prisoner's
eXplanation in each case of overstayal of period or breach of any conditions of furlough or parole.

(1) A maximum cut of 5 days' remission for each day of overstay :

Provided that where the prisoner has not sufficient remission to his credit, he shall cease to earn
remission in future for such period as the Supdt. may direct.

(2) Stoppage of canteen concession for a period of not less than one month and not more than three
months.

(3) Withholding concession of either interviews or letters or both, for a maximum period of three
months.

(4) In cases of furlough, the furlough period not to be counted towards sentence."

18. From the aforesaid provisions in the Prisons Act, the definition and the creation of furlough
system there is no doubt that the prisoners have a privilege admissible to them under the furlough
system as mentioned in R. 2(17) of the furlough rules. Even if furlough is not an absolute right of the
prisoner, nonetheless it is a right and privilege admissible and regulated under the rules and it can
be granted, refused or withdrawn as per rules.

19. Section 48A is the eXpress provision for a case where a prisoner fails without sufficient cause to
observe any of the conditions on which furlough or parole was granted to him and he is deemed to
have committed a prison offence and the Supdt. may, after obtaining his e Xplanation, punish for
such offence by one or more punishments, combination of which is permissible and contemplated.
Such punishments are:

1. a formal warning;

2. reduction in grade;

3. loss of privilege admissible under remission system;

4. loss of privilege admissible under furlough system;

5. loss of privilege admissible under parole system;

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 Bhikhabhai Devshi vs State Of Gujarat And Ors. on 28 August, 1986

6. loss of such other privileges as the State Govt. may, by general or special order, direct.

20. Rule 1287 of the Bombay Jail Manual clearly gives guidelines to the punishing authority and it
provides that in case of late surrender, necessary punishment or punishments should be awarded
with due regard to the circumstances of each case, and all the punishments need not necessarily be
awarded in each case, but it is left to the discretion of the authorities to decide. It also states that in a
given case, if Supdt. is satisfied that the overstayal was for good or sufficient reasons, he may e Xcuse
the prisoner. Thus, the prisoner may not be awarded any punishment whatsoever. In other cases of
insufficient reasons refusal of punishment or punishments may be awarded having regard to the
facts and circumstances of the case and the gravity of the prison offence. One of the punishments is
a maximum cut of 5 days' remission for each day of overstay and other permissible punishment is
the forfeiture of privilege furlough or to direct that the furlough period shall not be counted towards
sentence.

21. In every case of late surrender, the authority has to take a conscious decision under S. 48A after
duly applying its mind as to what particular punishment or punishments should be awarded. It is
open to the authority to impose a punishment of forfeiture of furlough or part thereof, just as it is
open to the authority to impose a cut of remission for a particular number of days and the authority
may or may not combine the punishments, but whatever punishment the authority ultimately
imposes is to be suffered.

22. If R. 4(10) is construed as mandatory making prisoners automatically disqualified and ineligible
for furlough in all cases of late surrender (as is the contention of the State), that provision will be so
clearly inconsistent with S. 48A that both cannot stand together. if there is such ineligibility for
furlough in cases of late surrender, there would be no point in making a provision in. S. 48A for
providing for punishment of loss of privilege of furlough in cases of late surrender. The very fact that
the provision under the Act gives discretion to the authorities to forfeit or not to forfeit furlough
clearly negatives the: contention of the State that R. 4(10) provides for mandatory and automatic
ineligibility for furlough, on account of any late surrender. Therefore, the provision in the Rule has
to be read down as directory and discretionary so as to make it harmonious and consistent with the
statutory provision in the Act. Under S. 48A, the punishing authority has the discretion to impose
punishments mentioned in the section for the offences of late surrender. The authority may decide
to impose any one or more punishments mentioned in S. 48A, which includes the punishment of
loss of forfeiture of privilege of furlough. Having regard to the facts, circumstances and gravity of
late surrender, the authority may decide to impose punishment other than forfeiture of furlough or
impose punishment of part forfeiture of furlough. In such cases, furlough will remain due to the
prisoner. But according to the contention of the State even that due furlough would stand
automatically forfeited by virtue of operation of R. 4(10). Such construction canvassed by the State
would clearly cut across the substantive provision of S. 48A and would make R. 4(10) latter part
repugnant to S. 48 A. Therefore, the Court has to adopt such construction as is reasonable,
harmonious and consistent with the provisions in the Act and the provisions in the Rule are
required to be read consistently with the. provisions in the Act and reading the two provisions
together and harmoniously, there is no scope for holding that R. 4(10) is mandatory. Rule 4(10) is
directory and discretionary and that provision and the word 'shall' in this conteXt is required to be

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 Bhikhabhai Devshi vs State Of Gujarat And Ors. on 28 August, 1986

read as 'may'. This is in respect of the latter part of R. 4(10) and not in respect. of the first part of R.
4(10) which has reference to cases having element of escape.

23. Rule 1316 of the Bombay Jail Manual provides that "no prisoner shall be punished twice for the
same offence." Therefore, once a prisoner is punished for his prison offence of late surrender by the
Superintendent, the matter of prison offence will rest there and any other punishment thereafter for
the same act or misconduct is barred. In the present case, the authorities called for the e Xplanation
for late surrender by 25 days and imposed punishment of cut in remission of 25 days and as stated
in the affidavit-in-reply, for late surrender by 25 days, only the minimum punishment of the cut in
remission by 25 days was imposed and that was the only punishment imposed. It is also clearly
stated in the, affidavit-in-reply that forfeiture of furlough was not a punishment imposed by the jail
authorities. It is submitted that forfeiture of furlough is an automatic consequence of operation of R.
4(10).

24. A similar question had arisen in the case of Atu1ji Magaji v. State of Gujarat 1984 Guj LH 139. In
that case, R. 4(6) was invoked and the authorities had denied furlough to the concerned prisoner on
the ground of unsatisfactory conduct. The unsatisfactory conduct was said to be based on two prison
offences and two punishments in August and Sept., 1985. In the first incident it was alleged that the
prisoner took 'Khichadi' instead of loaves as the prisoner was not feeling well. In the other incident
the prisoner had purchased lemons from the Jail Canteen itself and for each of these two offences,
remission of 5 days was cut. Because of these two jail punishments of cut in remission of 10 days (5
+ 5), the prisoner was said to be disentitled to any furlough and was considered ineligible by the jail
authorities. The Division Bench held that such trivial jail offences and minor lapses could not be
said to be such as would enable the Superintendent of Prisons to form an opinion that the conduct
of the prisoner was not satisfactory enough to deprive him of his privilege of furlough. Had that been
so, the furlough would have been forfeited by imposing that punishment and it was, therefore, held
that even though the prisoner had committed minor prison offences, he did not forfeit the privilege
of furlough and his request for furlough was required to be considered on merits, by the prison
authorities. This view clearly supports the view canvassed by the petitioner in the present petition.

25. The learned Counsel for the respondents has strongly relied upon the observations of the
Division Bench in the case of Juvansinh (1973) 14 Guj LR 104 (supra). In that case, the challenge
was to the validity of R. 4(2) which disentitled prisoners convicted of offences under Ss. 392 to 402
(both inclusive) of the I.P.C. (robbery, dacoity, etc.) to furlough leave. The prisoners of that category
are totally considered ineligible for furlough and the R. 4(2) was challenged as violative of Art 14 of
the Constitution. It was contended that if prisoners convicted for more serious offences such as
murder are not eXcluded from taking furlough leave, why the petitioner prisoner covered by R. 4(2)
should be denied the right to claim furlough leave. The Division Bench held as under:

"But in introducing penal reforms, the State which 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

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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 is 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. This appears to be the object underlying R. 4
which enjoins that prisoners of the specified categories shall not be enlarged on furlough."

26. The Division Bench proceeded to consider different clauses of R. 4 and tried to find a common
rationale in all the clauses. Regarding habitual prisoners, (R. 4(i)), it was held that if committing the
offence has become a habit, a prisoner is less likely to respond to the corrective treatment aimed at
his reform while he is undergoing the sentence and so he cannot safely be set at large before the
eXpiration of his term of imprisonment and that prohibition offenders (R. 4(3)), also become slaves
of the habit or way of life and find it difficult to free themselves from the bondage of habit and a
break from the prison life will eXpose them to the same temptation. Rule 4(5) was said to disqualify
persons having tendency towards crime and it was held that it would not be advisable to e Xpose the
society to the risk of their being released. Same purpose is said to be pervading in CL (6) and CL
(10). It is in the light of this purposeful approach the validity of R. 4(2) was eXamined and it was
held that the offenders of robbery and dacoity are risky to the society. Robbery has an element of
violence along with theft or eXtortion. If 5 or more persons commit robbery, it becomes dacoity and
when so many persons enter upon a life of crime and form a group, it is likely to become an
organised gang and there is great danger in letting them loose. It becomes a habit or way of life and
there is no guarantee that such prisoner will not indulge in similar activity again if he is set at large.
Therefore, the Division Bench observed that:

"None of the twin objects of punishments of imprisonment would then be served. Neither would he
be reformed nor would the society remain immunized from his criminal activity for the specified
period."

Moreover, the offences of this nature are not directed against particular individual, but any
individual or against the society at large and the entire society is e Xposed to danger. Therefore, on
the consideration that release of such persons would e Xpose the society to the danger emanating
from them, that category of prisoners is eXcluded from being considered eligible for parole and that
has been upheld by the Division Bench.

27. The rationale and principle behind R. 4 is clear. The furlough system has been introduced as a
measure of penal reform and to humanise the penal system. The objects as reported by the Jail
Reforms Committee are already quoted above. Would such object be achieved by denying furlough
to all such prisoners who may have defaulted by surrendering late after release on parole or
furlough? Would it be rational and reasonable to hold them ineligible for being released on furlough
because they have defaulted by surrendering late in past ? Are all such prisoners similarly situated
and form one class, irrespective of the facts and circumstances of lateness in surrendering ? Is the

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authority powerless to do justice even when the circumstances so require ? As seen earlier, similar
question was before the Supreme Court in the case of Ganesh Prasad (AIR 1985 SC 964) (supra), as
to when a tenant who has failed to deposit the rent as directed, whether the Court shall order the
defence to be struck off having regard to the use of word 'shall', the High Court had answered the
question in the affirmative and held that the tenant will have to bear the consequences and once the
default is found, the Courts are powerless and statutory consequences are bound to follow. But the
Supreme Court reversed that finding and held that having regard to the legislative intent and object,
the word 'shall' must mean 'may' and the authority has the discretion to strike off or not to strike off
the defence having regard to the facts and circumstances.

28. The object of parole and furlough rules is to humanise penal system and to enable the prisoner
to maintain continuity with his family life and to deal with the family matters and to save him from
evil effects of continuous jail life and to enable him to gain self confidence and to maintain
constructive hopes and active interest in life. Since these are the clear objects of furlough system,
could it have been intended that the benefit and privilege of furlough should be denied to a prisoner
merely on the ground of lateness in surrendering after release on parole or furlough, irrespective of
anything and any circumstances justifying or mitigating the default or in any way not showing any
tendency to escape or any risk to the society in any manner whatsoever? It is not possible to hold
that irrespective of all these circumstances, such a prisoner surrendering late is totally disqualified
from the consideration for release on furlough. The cases of prisoners who have surrendered late
have to be eXamined on merits and the prison authority will have the power, duty and discretion to
consider and to grant or refuse furlough and, therefore, the word 'shall' in the conte Xt of R. 4(10)
latter part will have to be read as 'may'.

28A. The mandatory interpretation of R. 4(10) sought by the respondents would be inconsistent
with the Act and its objects. The furlough system is created by the Act with avowed object reforming
the prisoner and humanising penal system.

29. As far as the first part of R. 4(10) is concerned, in respect of prisoners who have escaped or
attempted to escape, such prisoners, a class by themselves, cannot be trusted for being released on
furlough and, therefore, in such cases, the prison authority would be justified in not considering
their request for furlough. However, in cases of late surrender, where there is no element of escape,
but merely there is a delay in surrendering, the question will have to be e Xamined on the facts and
circumstances and merits of each case. A given case of a prisoner defaulting in timely surrender,
who is wanted by the jail authorities and who is not available at the place where ordinarily he should
be and who is apprehended by the police or who surrenders because of the chase by the authority,
may fall under the first part where he cannot be trusted to be released on furlough again. But such
cases are at the other eXtreme.

30. Other cases of late surrender may be of voluntary surrenders and the lateness may not be unduly
long and not without sufficient cause or reason. In such cases sufficiency of such a cause related to
time will certainly have to be considered by the authority. Section 48-A itself provides for cases of
later surrender. As seen earlier it provides that if any prisoner fails without sufficient cause to
observe any of the conditions on which his sentence was suspended or remitted or furlough or

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release on parole was granted to him, he shall be deemed to have committed a prison offence and
the Superintendent may, after obtaining his e X planation, punish such offence by different
punishments including the loss of privilege of furlough. Thus, if he shows sufficient cause, it would
not be an offence at all. However, even if the cause is not sufficient, the Superintendent will have to
consider his eXplanation and having regard to the insufficient cause or no cause and the degree of
gravity of offence in the facts and circumstances of the case, decide about the quantum and nature of
punishment. If he does not think it fit to impose the punishment of forfeiture of furlough and to
impose higher punishment, R. 4(10) cannot be read as a total and automatic prohibition granting
furlough to a defaulting and punished prisoner. That would be clearly and directly contrary to S.
48A of the Prisons Act, 1894. Rules have to be consistent with the Act and in order to harmonise R.
4(10) and make it consistent with the mandate of S. 48A the only way to read the latter part of R.
4(10) is to hold it to be directory and giving discretion to the authority to consider and to grant or
refuse furlough in cases of prisoners who have surrendered late. Any other construction to the
contrary as is canvassed by the respondent authorities would not only make R. 4(10) latter part
unreasonable and arbitrary, but would also directly go against S. 48A of the Act. It is well settled
that all the provisions have to be read together and construed harmoniously and this rule can be
read harmoniously with the Act so as to achieve the object of the Act and the Rules and the
construction which is sought to be placed does not in any way go against any of the objects of the Act
or the Rules.

31. The respondent authorities have also relied upon the judgment of the Division Bench in Special
Criminal Appln. No. 496 of 1981 with Special Criminal Appln. No. 527 of 198 1, Nanubhai
Bhanjibhai v. State of Gujarat decided on Nov. 5, 1982. In that case, the Division Bench was called
upon to decide the validity and interpretation of Note 3 to R. 3 of the Furlough Rules and the
question of validity or interpretation of R. 4(10) was not directly involved. However, the Division
Bench has observed as follows : -

" In our opinion, plain reading of R. 4 makes it clear that the prisoners enumerated in Cls. (1) to (3)
and (7) to (10) are not eligible to be released on furlough. So far as the prisoners enumerated in Cls.
(4) to (6) of R. 4 are concerned, the authority concerned has power to grant or refuse to release
prisoners on furlough. In other words, while Cls. (1) to (3) and (7) to (10) of R. 4 deal with eligibility
criteria, Cls. (4) to (6) deal with power of the authority concerned to refuse release of a prisoner on
furlough. Prisoners failing within the categories namely Cls. (1) to (3) and (7) to (10) do not have
right to claim release on furlough."

32. These observations of the Division Bench were not called for in that case and were not the
subject-matter of controversy and they are too wide. In that case, the case was concerned with
Clause 4(4) only which reads as under : -

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

X X X X X X (4) Prisoners whose release is not recommended in Greater Bombay by the

Commissioner of Police and elsewhere, by the District Magistrate on the ground of public peace and
tranquillity."

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 Bhikhabhai Devshi vs State Of Gujarat And Ors. on 28 August, 1986

33. All such prisoners were denied furlough under R. 4(4) and the question arose whether furlough
due to them could be carried forward under R. 3, Note 3 and the Division Bench held that such
prisoner, though entitled to furlough, was denied furlough because of adverse opinion of the
Commissioner of Police or the District Magistrate on the ground of public peace and traquillity and
not on account of any fault on the part of the prisoner and, therefore, the Division Bench read note
3, regarding "carrying forward" refused furlough with the clarification that the refusal was not on
account of any fault or act of misconduct on his part. Rule 4(10) was not at all attracted in that case
and, the Division Bench was not called upon to interpret or decide the above question and, passing
observations too widely made for clauses other than R. 4(4) cannot be taken to be the correct ratio
of that judgment.

34. The learned Counsel for the petitioner has submitted that the prisoners surrendering late are
disqualified for furlough only under R. 4(10) and they are not disqualified for parole. If they can be
released on parole and if there is no danger to the society emanating from them, there is no reason
why furlough should be denied to them. It is to be noted that furlough and parole have two different
purposes. Furlough is a matter of right, parole is not so. Furlough is to be granted periodically under
R. 3 irrespective of any particular reason merely with a view to enable the prisoner to have family
and social ties and to avoid ill effects of continuous prison life, and the period of furlough is treated
as remission of sentence. Since furlough is to be granted for no particular reason, it can be denied in
the interest of the Society; whereas parole is to be granted only on a sufficient cause (R. 19) such as
cases of severe illness or death of any member of the prisoner's family or of his nearest relative or for
other sufficient cause. Therefore, parole is not a matter of right and only when there is a sufficient
and serious cause, the Society and the jail administration may, sometimes, have to take some risk to
release the prisoner on parole, but that would be no ground for releasing the prisoner on routine
furlough irrespective of his past conduct and performance. Even parole may be denied to a prisoner
even when he makes out sufficient cause for release on parole if the competent authority is satisfied
on valid grounds that release of a prisoner on parole would be against the interest of the society or
the prison administration. For eXample, a prisoner who has once escaped or attempted to escape or
who is likely to escape or has such means and resources, may be denied parole because under R. 19,
the competent authority has discretion "may" to grant or not to grant parole even when cause is
shown. Therefore, comparison of release on parole and furlough is absolutely uncalled for. This
contention of the petitioner deserves to be rejected.

35. In view of the aforesaid discussion, it is clear that in the conteXt of latter part of R. 4(10) the
word "shall" will have to be read as "may" and directory. The prison authorities cannot reject as
ineligible the request of due furlough of the prisoners who have surrendered late in past. The
authorities have the power and duty to consider grant or refusal of such furlough due to the
prisoners, having regard to the facts and circumstances of the case including the fact that the
prisoner had surrendered late in past. That would be one of the relevant factors to be taken into
account. Another relevant factor to be taken into account will be the view taken regarding the gravity
of the offence while imposing punishment under S. 48A of the Act read with R. 128 of the Jail
Manual.

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36. In the present case, since the request of the prisoner for due furlough was refused by the jail
authorities only on the technical misconceived legal bar of R. 4(10), the refusal of furlough is clearly
illegal and is required to be quashed and set aside and the authorities are required to consider the
said request for furlough/furloughs due to the prisoner in accordance with law and in the light of
observations made in this judgment.

37. In the result, the petition succeeds and rule is made absolute by quashing and setting aside the
refusal of furlough due to the petitioner-prisoner and by directing the respondents-authorities to
consider the grant of furlough/furloughs due to the petitioner in accordance with law within one
month from today.

38. Petition allowed.

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