Gujarat High Court
Azzaz Anwarbhai Siddikbhai Bhathiyara vs State Of Gujarat on 27 March, 2023
Author: Nikhil S. Kariel
Bench: Nikhil S. Kariel
R/SCR.A/3775/2023 ORDER DATED: 27/03/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 3775 of 2023
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AZZAZ ANWARBHAI SIDDIKBHAI BHATHIYARA
Versus
STATE OF GUJARAT & 2 other(s)
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Appearance:
THROUGH JAIL for the Applicant(s) No. 1
for the Respondent(s) No. 2,3
MS SHRUTI PATHAK ADDITIONAL PUBLIC PROSECUTOR for the
Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
Date : 27/03/2023
ORAL ORDER
1. Issue Rule returnable forthwith. Learned APP waives service of rule on behalf of the respondents.
2. By way of this application the applicant challenges order dated 02.03.2023 passed by the Administrative Officer with the office of the sanctioning authority whereby application for being released on the first furlough leave has been rejected.
3. Perusal of the said order would reveal that two considerations had weighed with the authority concerned namely (1) the apprehension voiced by the first informant that if released on furlough leave the applicant might cause some harm to the first informant and (2) negative opinion of the police authorities with regard to release of the present applicant on furlough leave.
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4. This Court has perused the original file which was considered by the jail authority while rejecting the application and passing the impugned order. This Court has also hear heard learned APP for the respondent- State.
5. At the outset it is required to be stated that the order impugned, suffers from the vice of absolute non application of mind. Perusal of the jail remarks would reveal that the applicant was convicted for offence punishable under Section 306 and 498A of the Indian Penal Code and had been sentenced to 7 years imprisonment and whereas the applicant has undergone approximately 02 years and 2 months imprisonment as of now. It also appears that the applicant had been released twice on temporary bail in the month of March-April 2022 for 10 days and in the month of October 2022 for 7 days.
6. From the police papers it does not appear that on either of the occasions when the applicant had been released on temporary bail, he had either disturbed the peace and tranquility of the area or engaged in any illegal activity or had in any way tried to influence or cause any harm to the first informant. It appears that this important aspect has not been considered either by the concerned police authorities or by the jail authority.
7. Perusal of the file clearly reveals that the only aspect that weighed with both the authorities was the apprehension voiced by the first informant, without any basis whatsoever more particularly considering the fact that applicant did not create any nuisance when he had been released twice on temporary bail. It also appears that except for the apprehension raised by the first informant, there was no other tangible material available with the police authorities to have come to even a prima facie conclusion Page 2 of 4 Downloaded on : Fri Mar 31 20:36:44 IST 2023 R/SCR.A/3775/2023 ORDER DATED: 27/03/2023 that the applicant would engage in some kind of illegal activities.
8. Having regard to the jail remarks, and also considering the impugned order dated 02.03.2023, it would appear that the authority concerned had relied upon aspects, which were not germane for considering the application in question. It appears that the aspect with regard to the applicant being convicted of certain offences, is not, as per the requirement of the law as laid down in the "Prison ( Bombay Furlough and Parole) Rules, 1959". It appears that Rule 4(2) and Rule 4(3) and Rule 4(11) inter alia lists categories of prisoners, who have been convicted for certain categories of offences, which would disentitle them for seeking furlough leave. It appears that the categories of conviction, as listed in the said section being conviction for offences punishable under Sections 392 to 402 of the Indian Penal Code, conviction under the Bombay Prohibition Act, 1949 and conviction under the NDPS Act. While it would appear that conviction under Section 306 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 306 of IPC is not entitled for being released on furlough leave.
9. Having regard to the above observations, in the considered opinion of this Court, the impugned order dated 02.03.2023 cannot be sustained and is hereby quashed and set aside.
10. 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 Page 3 of 4 Downloaded on : Fri Mar 31 20:36:44 IST 2023 R/SCR.A/3775/2023 ORDER DATED: 27/03/2023 weighed with the authority while passing the impugned order dated 02.03.2023.
11. 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 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.
12. With these observations and directions, the present application is disposed of as allowed. Rule is made absolute.
(NIKHIL S. KARIEL,J) NIRU Page 4 of 4 Downloaded on : Fri Mar 31 20:36:44 IST 2023