Gujarat High Court
Dilip Nathalal Makawana vs State Of Gujarat on 23 January, 2020
Author: Sonia Gokani
Bench: Sonia Gokani
R/SCR.A/10827/2019 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 10827 of 2019
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DILIP NATHALAL MAKAWANA
Versus
STATE OF GUJARAT
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Appearance:
MR BJ PRIYADARSHI(6016) for the Applicant(s) No. 1
for the Respondent(s) No. 2,3
MR HARDIK S SONI, ADDL.PUBLIC PROSECUTOR(2) for the
Respondent(s) No. 1
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CORAM: HONOURABLE MS JUSTICE SONIA GOKANI
Date : 23/01/2020
ORAL ORDER
1. The convict prisoner has moved this application with the following prayers: "10. The petitioner therefore prays to this Hon'ble Court that:
(A) Be pleased to admit and allow this application.
(B) Be pleased to grant the furlough leaves of petitioner and release the prisoner on furlough leaves on the suitable terms and conditions, in the peculiars circumstance of the case in the interest of justice.
(C) Be pleased to grant such other and further relief/s which may deem fit and proper in the interest of justice.
(D) Affidavit may be kindly dispensed with as applicant is in jail."
2. It emerges from the record that the applicant has been convicted to suffer rigorous imprisonment of life under section 302 of the Page 1 of 9 Downloaded on : Mon Jun 15 05:57:22 IST 2020 R/SCR.A/10827/2019 ORDER Indian Penal Code in Sessions Case No.284 of 2006 on 31.01.2007 by the learned Sessions Judge, Ahmedabad (Rural). He has preferred Criminal Appeal No.1417 of 2007, which has been dismissed by this Court.
3. According to him, he has been in jail for 15 years and 04 months. However, according to the jail authority, his total period of imprisonment is 12 years and 08 months. He, on three times has been granted furlough leave and many a times parole leave. His application for parole leave has been recently rejected by the I.G. Prison on the ground that he had jumped parole on various occasions in the past. His grievance is that once I.G. Prison has regularised his late surrendering and at the same time, has not considered his request for furlough leave. Both cannot go together. Applicant's total 08 furlough leaves had not been granted by the authority and in total 06 furlough leaves had been rejected by the I.G.Prison. Copy of the communication of rejection dated 12.12.2019 is forming part of the record. It also says that Page 2 of 9 Downloaded on : Mon Jun 15 05:57:22 IST 2020 R/SCR.A/10827/2019 ORDER after six months, he can once again move an application for furlough leave.
4. Undoubtedly, the incidents of abscondance on the part of the present applicant, as could be noticed from the order impugned, is for six times. Abscondance in the year 2008 could be said a minor mistake, as he surrendered on the very day after the gates were closed. In 2011, he was late by one day. However, in the year 2012, he surrendered late by 228 and was jailed only after the police caught him. In the year 2012 he had absconded for 12 days, whereas in the year 2014, for 8 days and in the year 2014 for 08 days. All these days which in all make 256 days have been condoned.
5. On instructions, learned Additional Public Prosecutor, submits that so as to help the cause of the jail convict in future, and as applicant's abscondance status may not jeopardize his interest in many respects, the delay in late surrender is being condoned. And again, when it comes to grant of remission, unless this period of abscondance is Page 3 of 9 Downloaded on : Mon Jun 15 05:57:22 IST 2020 R/SCR.A/10827/2019 ORDER regularised, convict may not get that benefit. However, the authority is required to consider the same ( such instances of abscondance) at the time when request for furlough is made and there is no incongruity.
6. According to learned advocate Mr. Priyadarshani for the applicant regularising late surrender and not granting furlough leave at the same is a dichotomy, which requires to be addressed.
7. On thus hearing both the sides and chose perusal of material, it is found that the applicant's total period of abscondance runs into almost 400 days. The authority on the ground of his periodical conduct of abscondance chose to reject his ninth furlough. In the past six times, his furlough has been forfeited essentially on the very ground that he had absconded.
8. Wife of the applicant is present before this Court to urge that she had a psychological and psychiatric issues. Her children were young and that was essentially the reason for his late Page 4 of 9 Downloaded on : Mon Jun 15 05:57:22 IST 2020 R/SCR.A/10827/2019 ORDER surrender. This Court notices that the authority has chosen to regularise his late surrender. Once having so done, even with a good gesture and purpose and so as to help the cause of the convict. So far as the issue of remission is concerned, this dichotomy gives rise to sharp contradictions, as on one hand the jail authority is regularising late surrender and on the other hand, it is being used against the very prisoners for the purpose of forfeiting their furlough leaves.
9. While considering the request of furlough leave during the term of prison of every jail inmate, the prison authority shall need to regard this fact of abscondance as the authority is entitled to form its opinion and take a decision in those cases of prisoners. In other words, prisoners while on parole or furlough leave or on interim bail choose to abscond and continue to act contrary to law, the prison authority is bound to regard that part of conduct in determining further request of liberty. However, once having regularised such Page 5 of 9 Downloaded on : Mon Jun 15 05:57:22 IST 2020 R/SCR.A/10827/2019 ORDER adverse conduct, the very act of abscondance cannot stare in the face of the person concerned or coming in his way despite the act of regularisation. Thus, while considering the request of furlough leave, the only thrust on the part of the Court is that, in cases of abscondance, in the past when the prison authority is of the opinion that the act is not worth condoning, the regularisation must not happen. Importance of parole and furlough leave in performing the two vital tasks during imprisonment of reformation and rehabilitation, has been detailed in the judgment of the Apex Court in the case of Asfaq vs. State of Rajasthan and others, (2017) 15 SCC 55, as thus: "11. There is a subtle distinction between parole and furlough. A parole can be defined as conditional release of prisoners i.e. an early release of a prisoner, conditional on good behaviour and regular reporting to the authorities for a set period of time. It can also be defined as a form of conditional pardon by which the convict is released before the expiration of his term. Thus, the parole is granted for good behaviour on the condition that parolee regularly reports to a supervising officer for a specified period. Such a release of the prisoner on parole can also be temporarily on some basic grounds. In that eventuality, it is to be treated as mere suspension of the sentence for time being, keeping Page 6 of 9 Downloaded on : Mon Jun 15 05:57:22 IST 2020 R/SCR.A/10827/2019 ORDER the quantum of sentence intact. Release on parole is designed to afford some relief to the prisoners in certain specified exigencies. Such paroles are normally granted in certain situations some of which may be as follows:
(i) a member of the prisoner's family has died or is seriously ill or the prisoner himself is seriously ill; or
(ii) the marriage of the prisoner himself, his son, daughter, grandson, grand daughter, brother, sister, sister's son or daughter is to be celebrated; or
(iii) the temporary release of the prisoner is necessary for ploughing, sowing or harvesting or carrying on any other agricultural operation of his land or his father's undivided land actually in possession of the prisoner; or
(iv) it is desirable to do so for any other sufficient cause;
(v) parole can be granted only after a portion of sentence is already served;
(vi) if conditions of parole are not abided by the parolee he may be returned to serve his sentence in prison, such conditions may be such as those of committing a new offence; and
(vii) parole may also be granted on the basis of aspects related to health of convict himself.
12 Many State Governments have formulated guidelines on parole in order to bring out objectivity in the decision making and to decide as to whether parole needs to be granted in a particular case or not. Such a decision in those cases is taken in accordance with the guidelines framed. Guidelines of some of the States stipulate two kinds of paroles, namely, custody parole and regular parole. 'Custody parole' is generally granted in emergent circumstances like:
death of a family member;
marriage of a family member;
serious illness of a family member; or any other emergent circumstances.
13 As far as 'regular parole' is concerned, it may be given in the following cases:
(i) serious illness of a family member;Page 7 of 9 Downloaded on : Mon Jun 15 05:57:22 IST 2020
R/SCR.A/10827/2019 ORDER
(ii) critical conditions in the family on account of accident or death of a family member;
(iii) marriage of any member of the family of the convict;
(iv) delivery of a child by the wife of the convict if there is no other family member to take care of the spouse at home;
(v) serious damage to life or property of the family of the convict including damage caused by natural calamities;
(vi) to maintain family and social ties;
(vii) to pursue the filing of a special leave petition before this Court against a judgment delivered by the High Court convicting or upholding the conviction, as the case may be.
14 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.
15 A convict, literally speaking, must remain in jail for the period of sentence or for rest of his life in case he is a life convict. It is in this context that his release from jail for a short period has to be considered as an opportunity afforded to him not only to solve his personal and family problems but also to maintain his links with society. Convicts too must breathe fresh air for at least some time provided they maintain good conduct consistently during incarceration and show a tendency to reform themselves and become good citizens. Thus, redemption and rehabilitation of such prisoners for good of societies must receive due weightage while they are undergoing sentence of imprisonment.
16 This Court, through various pronouncements, has laid down the differences between parole and furlough, few of which are as under:
(i) Both parole and furlough are conditional Page 8 of 9 Downloaded on : Mon Jun 15 05:57:22 IST 2020 R/SCR.A/10827/2019 ORDER release.
(ii) Parole can be granted in case of short term imprisonment whereas in furlough it is granted in case of long term imprisonment.
(iii) Duration of parole extends to one month whereas in the case of furlough it extends to fourteen days maximum.
(iv) Parole is granted by Divisional Commissioner and furlough is granted by the Deputy Inspector General of Prisons.
(v) For parole, specific reason is required, whereas furlough is meant for breaking the monotony of imprisonment.
(vi) The term of imprisonment is not included in the computation of the term of parole, whereas it is vice versa in furlough.
(vii) Parole can be granted number of times whereas there is limitation in the case of furlough.
(viii) Since furlough is not granted for any particular reason, it can be denied in the interest of the society."
10. Resultantly, apt would it be to direct the jail authority to consider and decide the case of the applicant on expiry of six months, bearing in mind the findings and observations of this Court and without falling back upon the earlier remarks and the very grounds which necessitated regularisation.
11. With this, the petition stands disposed of accordingly.
(MS. SONIA GOKANI, J. ) SUDHIR Page 9 of 9 Downloaded on : Mon Jun 15 05:57:22 IST 2020