Gujarat High Court
Krishnabhai Chhotelal Yadav vs State Of Gujarat on 13 March, 2023
Author: Nikhil S. Kariel
Bench: Nikhil S. Kariel
R/SCR.A/1750/2023 ORDER DATED: 13/03/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 1750 of 2023
==========================================================
KRISHNABHAI CHHOTELAL YADAV
Versus
STATE OF GUJARAT
==========================================================
Appearance:
THROUGH JAIL for the Applicant(s) No. 1
for the Respondent(s) No. 2,3
MR HARDIK SONI, ASSISTANT PUBLIC PROSECUTOR for the
Respondent(s) No. 1
==========================================================
CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
Date : 13/03/2023
ORAL ORDER
1. Issue Rule returnable forthwith. Learned APP Mr. Hardik Soni waives service of rule on behalf of the respondent-State.
2. By way of this application, the applicant challenges an order dated 10.01.2023 passed by the Sanctioning Authority whereby the first furlough leave application of the present applicant has been rejected inter alia on the ground (1) that the applicant is convicted of serious offences punishable under Section 376(2)(N) amongst others of the Indian Penal Code and under the provisions of the POCSO Act, (2) that the opinion of the Police is negative and (3)the complainant having voiced his apprehension that in case the present applicant is released on furlough Page 1 of 5 Downloaded on : Tue Mar 14 20:46:14 IST 2023 R/SCR.A/1750/2023 ORDER DATED: 13/03/2023 leave that he might harass the complainant and his family members or generally create nuisance.
3. This Court has heard learned APP Mr. Soni and perused the original papers which has led to order dated 10.01.2023 being passed. In the considered opinion of this Court, none of the aspects as have weighed with authority concerned, were germane to the issue in question. Insofar as the issue no. 1 is concerned about the applicant being convicted of offences punishable under Section 376 of the Indian Penal Code etc., and under the provisions of POCSO Act etc., it is required to be mention that Rule 4 of the Prisons (Bombay Furlough and Parole) Rule, 1959 inter alia lais down categories of prisoners who shall not be considered for release on furlough. It would appear that persons who have been convicted for offences punishable under Sections 392 to 402 of the Indian Penal Code, persons who have been convicted under the Bombay Prohibition Act and persons who have been convicted under the NDPS Act, would not be considered for release on parole. It does not appear that offence punishable under Section 376 of the Indian Penal Code or under the provisions of the POCSO Act, would render the applicant dis-entitled for being considered for furlough leave as per Rule 4 of the Prisons (Bombay Furlough and Parole) Rule, 1959.
Page 2 of 5 Downloaded on : Tue Mar 14 20:46:14 IST 2023
R/SCR.A/1750/2023 ORDER DATED: 13/03/2023
4. Insofar as the negative opinion of the Police, it would appear that except for the apprehension being voiced by the complainant, there is no other material with the Police Authorities whereby they could have come to a conclusion that upon release the present applicant might disturbs peace and tranquility in that area and /or the applicant might indulge in illegal activities. It would appear that the statement of the complainant is the sole basis for the negative opinion by the Police Authorities.
4.1. Insofar as the aspect of the complainant having voiced apprehension, while it is true that the complainant would be justified in stating that upon release, the complainant has a genuine apprehension with regard to his own personal safety as well as safety of his family members etc., but at the same time, it is also required to be noted that grant of furlough, is a right flowing from a statue and whereas, such right cannot be curtailed, merely, on the basis of apprehension being voiced by the complainant.
5. At this stage, attention is drawn to Rule 10(6) of the rules, which empower the concerned authority to even direct the convict to mark presence before any particular Police Station during the entire period of furlough.
Page 3 of 5 Downloaded on : Tue Mar 14 20:46:14 IST 2023
R/SCR.A/1750/2023 ORDER DATED: 13/03/2023 5.1. In the considered opinion of this Court, apart from the fact that the sanctioning authority is empowered being impose even such harsh conditions upon the prisoner, at the same time, it is also required to be noted that the present applicant has also furnished a surety i.e. his own sister who has inter alia stated that the applicant would not in any manner try to disturb the complainant or his family members or generally the peace and tranquility of the area in question.
6. Having regard to such a position, in the considered opinion of this Court, since the issues which weighed with the sanctioning authority, does not appear to be based upon any material and are not according to this Court germane to the issue in question hence, the said order cannot be sustained and is hereby quashed and set aside.
7. The Sanctioning Authority as per Rule 2 of the Prisons (Bombay Furlough and Parole) Rule, 1959 and generally in accordance with law and as per observations made herein above shall take a decision. Such decision shall be taken by the Sanctioning Authority within a period of 15 days from the date of receipt of order of this Court and whereas, it is clarified that the authorities shall not in any manner be prejudiced on account of the applicant having preferred the present application being Page 4 of 5 Downloaded on : Tue Mar 14 20:46:14 IST 2023 R/SCR.A/1750/2023 ORDER DATED: 13/03/2023 allowed by this Court.
(NIKHIL S. KARIEL,J) Mrs. J. J. Kedia Page 5 of 5 Downloaded on : Tue Mar 14 20:46:14 IST 2023