Pending Case Is Not a Conviction – Denial of Furlough Based on Mere Accusation is Illegal – Bombay High Court Quashes Jail Authority’s Order

“Statutory Benefits Like Furlough Can’t Be Denied Through Vague Police Reports or Misreading of Law” – In a significant judgment reinforcing the constitutional right to personal liberty, the Bombay High Court, Nagpur Bench, on 24 July 2025, set aside the rejection of furlough leave granted to a life convict by jail authorities, holding that “a pending criminal case under the NDPS Act does not amount to conviction and cannot trigger disqualification under the amended Furlough Rules.” The Court, in Kapil Ratan Shitole v. DIG Prison (East Region) & Anr., held that the DIG’s rejection of furlough based on misinterpretation of Rule 4(2)(e)(l) of the 2024 Notification and an unsupported adverse police report amounted to “non-application of mind” and violated the convict’s Article 21 rights.

“Only Conviction Under NDPS Act Can Disqualify Prisoner – Pending Trial is No Bar”

Rejecting the DIG’s interpretation of the Bombay Furlough and Parole (Amendment) Rules, 2024, the Division Bench comprising Justice M. M. Nerlikar and Justice Anil L. Pansare clarified:

“Rule 4(2)(e)(l) disqualifies only those prisoners who are convicted under the NDPS Act or other enumerated statutes. The petitioner is not yet convicted in Crime No.14/2021; hence, this bar has no application.”

The Bench referred to Rule 2(f) and Rule 1(3) of the Rules, which define "prisoner" as "convicted prisoner" and make the Rules applicable only to such prisoners:

“The said category would be only applicable to the convicts referred to hereinabove and not to the accused persons whose cases are pending in the Trial Court.”

Accordingly, the Court held that the DIG had erroneously applied a disqualification meant for convicts to an undertrial, thereby depriving the petitioner of a legal entitlement.

The petitioner, Kapil Ratan Shitole, is serving life imprisonment under Sections 302 and 307 IPC in Sessions Case No. 134/2014, and has been in custody for over 3 years and 11 months as of 11 November 2024—making him eligible for furlough under Rule 3(C) of the 1959 Rules.

However, his furlough application dated 05.11.2024 was rejected by DIG Prisons on 31.01.2025 on two grounds:

1. That he is facing a pending NDPS case (Crime No. 14/2021)

2. An “Adverse Police Report” suggesting that his release would be a threat to public peace

“Mechanical Reliance on Police Reports Is Unconstitutional” – Vague Allegations Cannot Deny Article 21 Rights

The Court found the police report to be entirely speculative, noting that it merely expressed a vague apprehension that release of the convict could endanger the family of the deceased, and claimed—without evidence—that he might commit another serious offence.

Citing Sanjay Kisan Kadse v. State of Maharashtra (2004) 1 Mah LJ 789, the Court emphasized: “Rejection of furlough based on mere apprehension and generic allegations without material support amounts to denial of prisoner’s rights under Article 21.”

Reiterating settled principles, the Court observed: “Authorities must apply their mind to the factual matrix. Orders passed casually or routinely, relying solely on vague police reports, are invalid in law.”

The Court went further to refer to its own recent precedent in Criminal Writ Petition No. 828/2024 (Order dated 10.07.2024), where it warned: “Authorities should refrain from making unfounded remarks just to deny benefit to a convict, who despite incarceration, is not denuded of his rights.”

Justice Nerlikar, writing for the Bench, observed: “The DIG has utterly failed by applying Rule 4(2)(e)(l) to a pending NDPS case. These rules clearly and only apply to convicted prisoners.”

Further, on the alleged police report: “The apprehension expressed is not based on any instance of post-conviction misconduct. There is no record of the petitioner threatening witnesses or violating jail conduct. Such a report lacks legal foundation.”

The Court also highlighted the absence of any complaint by the family of the deceased, noting:

“There is no complaint from the side of the informant at any point of time that the petitioner indulged in threatening or intimidating behaviour. The report is unsupported.”

The High Court allowed the writ petition and quashed the DIG’s rejection order, directing that: “The petitioner be released on furlough for a period of 21 days, subject to conditions imposed by competent authorities.”

The Court also issued a strong reminder to prison and police authorities: “The right to furlough is not a discretionary favour but a statutory entitlement under defined conditions. It cannot be denied mechanically or arbitrarily.”

In doing so, the Bombay High Court reaffirmed that constitutional liberties of prisoners, especially those arising under Article 21, continue to apply even while they serve sentences—subject to reasonable legal restrictions grounded in law, not conjecture.

Date of Decision: 24 July 2025