FURLOUGH

[Mr. M. GOVINDARAJAN]

Introduction

The convicted persons in a criminal case have to undergo imprisonment.  The period of imprisonment may be according to the offence committed by the convicted persons.  They have to complete the punishment period and after the completion of the said period they will be released.  In some special cases the convict is allowed to come out of the jail on special circumstances that require the presence of convict.  In such situations he may be released on bail.  Parole and furlough are the ways for the convict to come out of jail subject to conditions imposed under the Rules framed by the concerned Government.

Parole

The term ‘parole’ is the French word.  It means ‘speech’ ‘spoken words’ and also ‘promise’.  In criminal cases Parole is the early release of a prisoner who agrees to abide by certain conditions before the end of a sentence.    The term became associated during the Middle Ages with the release of prisoners who gave their word.

Under the traditional parole system, parole is a privilege for prisoners who seem capable of reintegrating into society. It's not a right. Although some criminal statutes carry a right to an eventual parole hearing, typical laws don't absolutely guarantee parole itself. Authorities retain the discretion to deny parole to prisoners they deem dangerous. 

Furlough

Furlough is a temporary release granted to the prisoners who are undergoing imprisonment for specified period as fixed by the concerned State Government. 

The principles in granting of furlough are as below-

• It is a short term release from custody.
• It is granted to the prisoner to meet a specific exigency.
• It may be granted after a stipulated number of years have been served without any reason.
• The grant of furlough is to break the monotony of imprisonment and to enable the convict to maintain continuity with family and integration with society.
• The furlough can be claimed without any reason but it is not an absolute right.
• The grant of furlough must be balanced against the public interest and can be refused to certain categories of prisoners.

Distinction between Parole and furlough

• Both Parole and furlough are temporary releases from confinement, parole is given for a specific purpose.
•  A prisoner is entitled to apply for furlough once he has served the minimum years of sentence.
• When a prisoner is on parole his period of release does not count towards the total period of sentence while when he is on furlough he is eligible to have the period of release counted towards the total period of his sentence undergone by him.
• A parole can be defined as conditional release of prisoners i.e. an early release of a prisoner, conditional on good behavior and regular reporting to the authorities for a set period of time.  The parolee regularly reports to a supervising officer for a specified period.  It is to be treated as mere suspension of the sentence for time being, keeping the quantum of sentence intact. Release on parole is designed to afford some relief to the prisoners in certain specified exigencies.  
• Furlough, on the other hand, is a brief release from the prison. It is conditional and is given in case of long-term imprisonment. The period of sentence spent on furlough by the prisoners need not be undergone by him as is done in the case of parole. Furlough is granted as a good conduct remission.
• Duration of parole extends to one month whereas in the case of furlough it extends to fourteen days maximum.
• Parole is granted by Divisional Commissioner and furlough is granted by the Deputy Inspector General of Prisons.
• For parole, specific reason is required, whereas furlough is meant for breaking the monotony of imprisonment.
• Parole can be granted number of times whereas there is limitation in the case of furlough.

Furlough is not a right 

In STATE OF GUJARAT & ANR. VERSUS NARAYAN @ NARAYAN SAI @ MOTA BHAGWAN ASARAM @ ASUMAL HARPALANI [2021 (11) TMI 723 - SUPREME COURT], an FIR was filed against the respondent under various sections of Indian Penal Code (‘IPC’ for short).  The Sessions Court convicted him on 30.04.2019.  The respondent was released on temporary bail for a period of 3 weeks on 16.04.2015 and for 2 days on 05.02.2019.  The respondent was granted furlough from 05.12.2020 for a period of 14 days by the High Court. Further the respondent was given temporary bail from 31.01.2021 to 03.02.2021.

On 17.03.2021 the respondent applied for furlough which was rejected Director General of Police on 08.05.2021 for the following reasons-

• The respondent is accused of high profile cases of rape and atrocities punishable under various sections of IPC.
• The respondent has engaged in criminal misconduct to hinder the judicial proceedings during trial by threatening, assaulting and murdering witnesses.
• The respondent has a group of thousands of head strong followers spanning across the country who are willing to commit any offence under the instance of the respondent.
• If the respondent is released under furlough the lives of the witnesses in the original trial will be under threat.
• The respondent has engaged in dangerous activities of organized crime and has a network of persons and a financial background.

The respondent moved the High Court against the above said order.  He contended before the High Court that furlough may be allowed to him every year instead of two years as per Rule 3(2) of Prisoners (Bombay Furlough and Parole) Rules, 1959, since he completed 7 years in jail.

The High Court observed that the respondent had already been granted furlough for two weeks during December 2020.  The respondent during that period did not misuse his liberty granted through furlough.  No illegal activity was undertaking by him during that period.  Since he has completed seven and half years in jail he was entitled furlough every year.  The High Court granted furlough for 14 days from the date of his released on execution of bond for ₹ 1 lakh before the Jail Authority and other conditions that may deem fit.  The said order was stayed by the High Court at the request of the Additional Public Prosecutor.

The State of Gujarat filed a special leave petition before the Supreme Court against the order of the High Court.  The State submitted the following before the Supreme Court-

• Furlough cannot be allowed mechanically as a matter of right.
• The request of a prisoner for furlough shall not be considered if he-

• his conduct is not satisfactory;
• has escaped or attempted to escape from custody; or
• has defaulted in surrendering after release of parole or furlough;

• Furlough can be denied in the interest of the society.
• The High Court, in this order as well as in the order made during December 2020 did not make any observations on  the objections filed by the authorities.
• The respondent has already been given furlough during December 2020 and granted interim bail during January and February.  Therefore he could not be given furlough again.

The respondent submitted the following before the Supreme Court-

• On 05.05.2021 the father of the respondent tested positive COVID – 19 and is suffering from multiple colonic diverticulosis gastrointestinal bleeding.  He is suffering from 11 chronic ailments and suffered from septic shock  and pulmonary embolism in June 2021.
• The respondent ought to be released on furlough since there is no other family member to look after him.  His mother is also severely ill.
• The respondent was released on furlough on four occasions and no untoward incident has taken place during that periods.
• The furlough is a matter of right and he is entitled furlough every year since he completed seven years in prison.
• Since he has already been convicted there is no ground for threatening of witnesses.
• The infractions referred to by the Authorities are minor and have no nexus to respondent’s behavior once he is released on furlough.

The Supreme Court considered the submissions put forth by the parties to the present appeal.  The Supreme Court analyzed the provisions of the Prisons Act, 1984 and the Bombay Furlough and Parole Rules for the grant of furlough to the prisoners and the conditions when furlough shall not be granted.  Rule 17 provides that nothing in these rules shall be construed as conferring a legal right on a prisoner to claim release on furlough.  The Supreme Court observed that the words ‘may be released’ used in Rule 3 indicate the absence of an absolute right.  The grant of furlough is discretionary.

The respondent refuted the allegations of the appellant.  He was granted bail in two cases as alleged by the State.  In the offences relating to intimidation and injury to the witnesses the police has not charged him and he was not involved in any manner. 

The Supreme Court further observed that the record did not show that the respondent has made any efforts to escape from lawful custody during the period of furlough and interim bail granted to him.  The respondent surrendered himself after the expiry of furlough and interim bail. 

The Supreme Court considered the submissions of the State and held that the opinion of sanctioning authority for furlough does not suffer from perversity nor does it consider material extraneous to the Rules the grant of furlough.  The Supreme Court allowed the appeal and set aside the order of High Court allowing furlough to the respondent.

Conclusion

Even though the rules may allow a prisoner to avail furlough who has completed the required number of years in jail without any reason it is not a right to the prisoner.  It is discretionary one.  The Authority who grants furlough has to satisfy that the prisoner will not involve any criminal action against the society if he is allowed furlough.  The interest of the society is prominently considered by the Authorities in granting furlough.