Gujarat High Court
Balabhai Arjanbhai Makwana vs State Of Gujarat on 15 March, 2023
Author: Nikhil S. Kariel
Bench: Nikhil S. Kariel
NEUTRAL CITATION
R/SCR.A/2884/2023 ORDER DATED: 15/03/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 2884 of 2023
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BALABHAI ARJANBHAI MAKWANA
Versus
STATE OF GUJARAT & 1 other(s)
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Appearance:
THROUGH JAIL for the Applicant(s) No. 1
MR MANAN MEHTA ADDITIONAL PUBLIC PROSECUTOR for the
Respondent(s) No. 1
RULE NOT RECD BACK for the Respondent(s) No. 2
RULE SERVED for the Respondent(s) No. 3
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CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
Date : 15/03/2023
ORAL ORDER
1. By way of this application the applicant challenges an order dated 23.01.2023 whereby the application of the applicant-convict for being released on furlough leave has been rejected.
3. Perusal of the said order would reveal that two considerations had weighed with the authority concerned namely (1) that there is an apprehension raised by the police authorities as regards the applicant creating law and order situation problem if released and (2) that the applicant, being convicted for an offences punishable under Sections 302 of the Indian Penal Code etc.
4. It would appear that the impugned order, requires interference inasmuch as both the aspects which have weighed with the authority, may not be germane for the purpose of considering the application for furlough Page 1 of 4 Downloaded on : Sun Sep 17 22:43:19 IST 2023 NEUTRAL CITATION R/SCR.A/2884/2023 ORDER DATED: 15/03/2023 undefined leave.
4.1 As far as the first aspect with regard to negative opinion of the police is concerned, from a perusal of the papers it appears that the same is based upon an apprehension which has been raised by the original complainant.
5. On the other hand, perusal of the jail remarks would show that the applicant was convicted for offence punishable under Section 302 of the Indian Penal Code and sentenced for life imprisonment and whereas the applicant has undergone approximately 3 years and 7 months imprisonment as of now. Jail remarks also show that applicant has never been released on any kind of leave except on one occasion in the month of August - September 2022 and no untoward incident is mentioned. Furthermore to ensure that the applicant maintains law and order, appropriate safeguards have been laid down in Rule (6) of the Prison ( Bombay Furlough and Parole) Rules, 1959 as well as under Rule 10(6) of the Rules more particularly whereby the jail authorities could impose a condition upon the prisoner to report to the concerned police station to the extent of bailee. Furthermore it requires to be noted that unless some apprehension based on any material is raised by the complainant or the concerned police authorities, are deciding the application based on any material available to show that the applicant might create a law and order issue, merely a statement by the complainant, ought not to be the only ground on which the applicant is denied the statutory leave available.
5.1 Insofar as the second aspect is concerned, Rule 4 of the Prison ( Bombay Furlough and Parole ) Rules, 1959, more particularly sub-rule ( 2), (3) and (11) inter alia lay down categories of prisoners, who would not be Page 2 of 4 Downloaded on : Sun Sep 17 22:43:19 IST 2023 NEUTRAL CITATION R/SCR.A/2884/2023 ORDER DATED: 15/03/2023 undefined entitled for being considered for release on furlough leave more particularly having regard to the offences under which they have been convicted. The said sub-rules inter alia indicate that a prisoner convicted of offences punishable under Sections 392 to 402 of the Indian Penal Code, or convicted under the provisions of Bombay Prohibition Act, 1949, or convicted under the provisions of NDPS Act, would not be entitled for furlough leave. -While it would appear that conviction under Section 302 of IPC, may be a serious aspect but fact remains that the law i.e. the Prison ( Bombay Furlough and Parole ) Rules, 1959, does not envisage that the convict who has been convicted for offence punishable under Section 302 of IPC is not entitled for being released on furlough leave.
6. In view of the above discussion, observation and conclusion, more particularly, as noted hereinabove, since the aspects which weighed with the authority concerned, were not germane for considering the application question, the impugned order dated 23.01.2023 cannot be sustained and hence the same is quashed and set aside.
7. The Sanctioning Authority as per Rule (2) of the Prison (Bombay Furlough and Parole ) Rules, 1959 is directed to consider the application of the present applicant for being released on his first furlough leave and whereas the authority shall not rely upon any of the considerations that had weighed with the authority while passing the impugned order dated 23.01.2023.
8. It is further clarified that such order shall be passed by the authority concerned within a period of 15 days from date of receipt of the order of this Court and whereas the authority concerned is directed to take decision Page 3 of 4 Downloaded on : Sun Sep 17 22:43:19 IST 2023 NEUTRAL CITATION R/SCR.A/2884/2023 ORDER DATED: 15/03/2023 undefined strictly in accordance with law and without being influenced by the fact of the present application having been preferred and the present order having been passed by this Court. In case the present applicant is aggrieved by the said order it would be open for the applicant to take appropriate recourse in accordance with law.
9. With these observations and directions, present application is disposed of as allowed. Rule is made absolute.
(NIKHIL S. KARIEL,J) NIRU Page 4 of 4 Downloaded on : Sun Sep 17 22:43:19 IST 2023