Gujarat High Court
Himanshu @ Heman Hasmukhbhai Vasava vs State Of Gujarat on 27 April, 2023
Author: Nikhil S. Kariel
Bench: Nikhil S. Kariel
R/SCR.A/4828/2023 ORDER DATED: 27/04/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 4828 of 2023
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HIMANSHU @ HEMAN HASMUKHBHAI VASAVA
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
MR RC KODEKAR, ADDL. PUBLIC PROSECUTOR for the Respondent(s)
No. 1
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CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
Date : 27/04/2023
ORAL ORDER
1. Rule returnable forthwith. Learned Additional Public Prosecutor Mr. R.C.Kodekar waives service of rule on behalf of the respondent - State.
2. By way of the present application, the applicant - convict challenges an order passed by the Administrative Officer attached with the office of Sectioning Authority dated 02.03.2023 whereby the first furlough application of the applicant has been rejected.
3. Perusal of the impugned order reveals that two aspects have weighed with the concerned authority while rejecting the application for grant of first furlough namely (i) that the police, where the applicant would be residing, have given a negative opinion as regards there being a possibility of the Page 1 of 7 Downloaded on : Fri Apr 28 20:48:36 IST 2023 R/SCR.A/4828/2023 ORDER DATED: 27/04/2023 applicant disturbing peace and tranquility, and (ii) that the first informant has voiced an apprehension that if the applicant is released on furlough leave, the applicant might cause some harm to the complainant and/or his family members.
4. This Court has heard learned Additional Public Prosecutor Mr. R.C.Kodekar for the State and perused the original file, in which, the decision impugned has been taken. In the considered opinion of this Court, a perusal of the file reveals that except for a statement of the first informant, there was no material whatsoever available with the police for both the reasons which has weighed with the authority concerned.
4.1. It appears that the complainant one Rameshbhai Gurjibhai Vasava has inter alia given a statement that the applicant has been convicted for murdering his son and whereas in case the applicant is released, then the applicant keeping the grievance as regards his conviction, may quarrel with the complainant and therefore, he may not be released on furlough leave. It appears that this statement is the only material which was available with the police authorities in Page 2 of 7 Downloaded on : Fri Apr 28 20:48:36 IST 2023 R/SCR.A/4828/2023 ORDER DATED: 27/04/2023 giving a negative opinion.
4.2. In the considered opinion of this Court, while the police authorities would be definitely justified in giving negative opinion against the release of the convict if there are material available with the police authorities which would show or atleast on the basis of which a reasonable apprehension could be voiced that the applicant would, after being release, disturb the peace and tranquility of the area concerned. In the instant case, it does not appear that except the statement of the complainant, there was any other material which was available with the police authorities in giving a negative opinion and furthermore, it also appears that the authorities concerned which passed the impugned order also did not have any other adverse material except the opinion of the police which was ultimately based on the statement of the complainant.
4.3. It also requires to be mentioned here that the applicant, who has been convicted for the offence punishable under Section 302 of the IPC and sentenced to life imprisonment, has undergone approximately 03 years and 01 month of incarceration and whereas it also appears that the applicant Page 3 of 7 Downloaded on : Fri Apr 28 20:48:36 IST 2023 R/SCR.A/4828/2023 ORDER DATED: 27/04/2023 had been released on temporary bail - as mentioned in the jail remarks (probably on parole leave since the applicant appears to be convicted in the month of November, 2022 whereas the leave granted was in the month of March, 2023) for a period of fourteen days and whereas there is no material which has been placed before this Court or had been considered by the jail authorities which would show that the applicant, upon his release had in any way tried to harm the complainant, more particularly, such a course of action not being taken by the applicant, putting to rest any apprehension which the complainant himself would have on this count.
5. At this stage, this Court seeks to rely upon the law laid down by the Hon'ble Division Bench of this Court in case of Narsing N. Gamit vs. State of Gujarat reported in 1989 (2) G.L.H. 163, paragraph nos. 3, 4 and 5 being relevant for the present purpose are quoted hereinbelow for the benefit:-
"3. At the outset it should be noted that I.G. Prisons, should not reject the prisoner's application for releasing him on furlough solely on the ground that there is adverse police opinion.
4. The I.G. Prisons, before deciding the prisoner's application for releasing him on furlough should take into consideration the guidelines laid down under the relevant Rules i.e. the Prisons (Bombay Furlough and Parole) Rules, 1959.Page 4 of 7 Downloaded on : Fri Apr 28 20:48:36 IST 2023
R/SCR.A/4828/2023 ORDER DATED: 27/04/2023
5. Firstly, if the prisoner is to be released on parole or furlough for the first time after his conviction, the I.G., Prisons, should consider the facts and circumstances and allegations against the prisoner for which he is convicted. For this purpose he should refer to the judgment and order passed by the Court convicting him. From that judgment he should try to find out whether the prisoner is hardened criminal, habitual offender or whether the offence took place all of a sudden or the offence took place because of some enmity or long standing dispute between the parties. From the aforesaid circumstances he can arrive at the conclusion that by releasing the prisoner on furlough whether the prisoner is likely to commit any offence when he is on furlough or whether there is liklihood of breach of peace during that period. "
6. From the law laid down by the Hon'ble Division Bench as far as back in the year 1989, it would appear that the circumstances as prevailing at the relevant time has not improved much. From the observation of the Hon'ble Division Bench, it would appear that the Inspector General of Prison i.e. the sanctioning authority is under an obligation not to reject the application of the prisoner for being released on furlough leave on the ground that there is an adverse police opinion. The Hon'ble Division Bench has further imposed an obligation on the I.G. Prison that if the prisoner is going to be released for the first time, then the judgment of the conviction should be perused by the I.G.Prison and the I.G.Prison should Page 5 of 7 Downloaded on : Fri Apr 28 20:48:36 IST 2023 R/SCR.A/4828/2023 ORDER DATED: 27/04/2023 try and find out whether the prisoner is a hardened criminal, habitual offender or whether the offence took place all of a sudden or the offence took place because of some enmity or long standing dispute between the parties. The Court had further observed that from the aforesaid circumstances, the I.G.Prison can arrive at a conclusion whether the prisoner is likely to commit any offence when he is released on furlough or not. Secondly, the I.G.Prison is also directed to consider Rule 4 of the Prisons (Bombay Parole and Furlough) Rules, 1959 (hereinafter referred to as 'the Rules') to find out whether the conduct of the applicant in the prison is satisfactory and whether the applicant had escaped or attempted to escape from the lawful custody or whether he had defaulted in surrendering at appropriate time after being released on parole or furlough.
6.1. As noted hereinabove, it would appear that while the adverse police opinion is the only aspect which had weighed with this Administrative Officer with the office of Sanctioning Authority i.e. the I.G.Prison, it also appears that Rule 4 has not at all been considered by the I.G.Prison, more particularly, it appears that the conduct of the applicant in the jail is good Page 6 of 7 Downloaded on : Fri Apr 28 20:48:36 IST 2023 R/SCR.A/4828/2023 ORDER DATED: 27/04/2023 and whereas, on the only occasion when he had been released, the applicant had surrendered in time.
7. Considering the above observations, it would appear that the impugned order being arbitrary, passed without appreciating the legal principles on this aspect, is required to be interfered with, hence, the order passed by the Administrative Authority dated 02.03.2023 is hereby quashed and set aside.
8. The I.G.Prison i.e. the Sanctioning Authority is directed to consider the application for grant of furlough leave preferred by the applicant in accordance with law and on the line of the judgment of the Hon'ble Division Bench referred to hereinabove as well as in accordance with the Prisons (Bombay Parole and Furlough) Rules, 1959. The I.G.Prison is also directed to decide the said application within a period of fifteen (15) days from the date of receipt of this order.
9. With these observations and directions, the present application is disposed of as allowed. Rule is made absolute accordingly.
(NIKHIL S. KARIEL,J) Bhoomi Page 7 of 7 Downloaded on : Fri Apr 28 20:48:36 IST 2023