Gujarat High Court
Devrakhibhai Panchabhai Haran Rabari vs State Of Gujarat on 16 March, 2023
Author: Nikhil S. Kariel
Bench: Nikhil S. Kariel
R/SCR.A/3147/2023 ORDER DATED: 16/03/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 3147 of 2023
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DEVRAKHIBHAI PANCHABHAI HARAN RABARI
Versus
STATE OF GUJARAT & 1 other(s)
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Appearance:
THROUGH JAIL for the Applicant(s) No. 1
for the Respondent(s) No. 2,3
MR J.K. SHAH, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
Date : 16/03/2023
ORAL ORDER
1. Rule returnable forthwith. Learned Additional Public Prosecutor waives service of Rule on behalf of the respondent - State.
2. By way of this application, the applicant challenges the order dated 23.01.2023 passed by the Jail Authorities, whereby the application for releasing the present applicant on furlough leave has been rejected by the jail authorities.
3. Perusing the jail remarks would reveal that the applicant was convicted for offences punishable under section 302 of the Indian Penal Code and sentenced to life imprisonment. It also appears that up till now, the applicant has undergone approximately 2 years and 3 months of incarceration.
4. This Court has perused the impugned order as well as the Page 1 of 4 Downloaded on : Sat Mar 18 20:37:45 IST 2023 R/SCR.A/3147/2023 ORDER DATED: 16/03/2023 documents which have been considered by the authorities concerned while rejecting the said application. It appears that the authorities concerned had rejected the application on the following ground.
4.1 That the applicant might disturb the peace and tranquility of the region and 4.2 That the applicant is convicted of serious offence punishable under section 302 of the Indian Penal Code.
5. In the considered opinion of this Court, both the aspects were not germane to the issue on hand. It would appear that insofar as the negative opinion of the Police, a perusal of the papers would reveal that the same is based upon an apprehension voiced by the first informant that the applicant might disturb the peace and tranquility of the area. It also appears that the applicant had been released on leaves on multiple occasions, it does not appear that as and when he had been released he had indulged in any illegal activity or had threatened the complainant or had in any manner violated the conditions for grant of leaves. It would also be required to be mentioned here that merely based upon an apprehension raised by the complainant which he might be justified in doing, the authorities concerned, ought not to have given a negative opinion more particularly since it does not appear that since expect for the statement of the complainant any other material whatsoever has been collected by the authorities concerned.
6. It is also required to be noted that the jail authorities, Page 2 of 4 Downloaded on : Sat Mar 18 20:37:45 IST 2023 R/SCR.A/3147/2023 ORDER DATED: 16/03/2023 have been provided with adequate safeguards, in the nature of the prisoner being required to furnish surety of a relative as per Rule 6 of the Prisons (Bombay Furlough and Parole) Rules, 1959 and the prisoner being required to mark presence with any Police Station, as prescribed even to the extent of once a day. In the considered opinion of this Court, to allay any apprehension raised by the complainant the authorities concerned, could have imposed any of the conditions as mentioned hereinabove, but ought not to have rejected the application preferred by the present applicant outright.
7. Furthermore, insofar as the aspect of the present applicant having been convicted for offences punishable under section 302 of the Indian Penal Code, it would appear that Rule 4 (2), (3) and (11) of the Prisons (Bombay Furlough and Parole) Rules, 1959 list out categories of prisoners who are dis-entitled to be granted furlough leave based upon the nature of offence for which the prisoner has been convicted. It would appear that a prisoner convicted of offence punishable under sections 392 to 402, or convicted under the provisions of the Bombay Prohibition Act, 1949 or convicted under the provisions of the Narcotic Drugs and Psychotropic Substances Act, 1985, would be disentitled to be considered for furlough leave, whereas though an offence punishable under section 302 of the Indian Penal Code could be stated to be conviction for a very serious offence yet, the statue has not carved out any exceptions from being considered for release on furlough leave for a person who has been convicted of offence punishable under section 302 of the Indian Penal Code.
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8. Under such circumstances in the considered opinion of this Court, the impugned order cannot be sustained and is hereby quashed and set aside. The sanctioning authority as per Rule 2 of the of the Prisons (Bombay Furlough and Parole) Rules, 1959 shall consider the application of present applicant for being released on first furlough leave strictly in accordance with the law and in accordance with the Prisons (Bombay Furlough and Parole) Rules, 1959. It is further directed that such decision shall be taken by the authorities concerned within a period of 15 days from the date of receipt of this order and whereas the authorities concerned shall not be influenced either by the fact of the present application having been preferred or the present order having been passed by this Court.
9. With these observations and directions, the present application stands disposed of as allowed. Rule is made absolute to the aforesaid extent. Registry is directed to communicate this order to the concerned Jail Authority by fax / email message forthwith.
(NIKHIL S. KARIEL,J) SALIM/ Page 4 of 4 Downloaded on : Sat Mar 18 20:37:45 IST 2023