Gujarat High Court
Prafulbhai Maganbhai Khakhriya vs State Of Gujarat on 10 April, 2023
Author: Nikhil S. Kariel
Bench: Nikhil S. Kariel
R/SCR.A/2618/2023 ORDER DATED: 10/04/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 2618 of 2023
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PRAFULBHAI MAGANBHAI KHAKHRIYA
Versus
STATE OF GUJARAT & 1 other(s)
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Appearance:
THROUGH JAIL for the Applicant(s) No. 1
MS ASMITA PATEL, AGP for the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 2,3
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CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
Date : 10/04/2023
ORAL ORDER
1. By way of this application, the applicant convict challenges an order dated 23.01.2023 passed by the Administrative Officer with the Office of Sanctioning Authority as per Section 2 of the Prisons (Bombay Furlough and Parole) Rules, 1959, whereby the application of the present applicant for being released on first furlough leave has been rejected.
2. This Court has heard learned APP Ms. Asmita Patel for the respondent-State and also peruse the original file in which the impugned decision has been taken.
3. Perusal of the impugned decision reveals that two aspects have weighed with the authority concerned namely (i) that if the applicant is released, the applicant might disturb the peace and tranquility of the place; Page 1 of 5 Downloaded on : Wed Apr 12 20:42:08 IST 2023
R/SCR.A/2618/2023 ORDER DATED: 10/04/2023 the opinion of the police authorities and (ii) that the applicant has committed a serious offence as punishable under Section 376 etc. of the Indian Penal Code and under the provisions of the POCSO Act.
4. Prima facie to this Court it appears that the impugned order clearly reflects absolute non-application of mind by the respondent authorities, more particularly since it also appears that as per Rule 2 of the Prisons (Bombay Furlough and Parole) Rules, 1959, it would be the Inspector General of Prisons or the Deputy Inspector General of Prisons who is required to take a decision, as the case may be, and whereas here and in other cases also this Court had noticed that the decision is taken by the Inspector General of Police on file noting and whereas the same is communicated with reasons being elaborated by the Administrative Officer with the Office of with the Office of the Inspector General of Police. To this Court it appears that there should be a clear violation of the mandate of Rule 2 of the Prisons (Bombay Furlough and Parole) Rules, 1959.
5. Be that as it may, as far as the aspects which have weighed with the authority concerned, it would appear from a perusal of the file that the first informant of the case in which the applicant had been convicted, has raised an apprehension that if the applicant is released on furlough leave, the Page 2 of 5 Downloaded on : Wed Apr 12 20:42:08 IST 2023 R/SCR.A/2618/2023 ORDER DATED: 10/04/2023 applicant might cause harm to the first informant or his family members. It would appears that based upon the statement of the first informant, without any independent material available with the police authorities, the authorities have opined that the present applicant would disturb the peace and tranquility of the area.
5.1 At this stage, it would be relevant to mention that the present applicant who has been convicted for offence punishable under Section 376 etc. of the IPC amongst others and sentenced to undergo 10 years imprisonment has already undergone incarceration for approximately 04 years of as of now and whereas it would also appear that the applicant had been released on parole leave in the month of October, 22 and there does not appear, from the police papers any material, to show that the applicant upon his release at the relevant point of time had either disturbed the peace and tranquility of the area or tried in any way to harass and harm the first informant or his family members.
6. Considering such a situation, it would appear that apprehension raised by the first informant was a mere stereotype statement recorded by the police authorities and based upon such stereotype statement, the concerned Officer has opined that the present applicant may not be Page 3 of 5 Downloaded on : Wed Apr 12 20:42:08 IST 2023 R/SCR.A/2618/2023 ORDER DATED: 10/04/2023 released, since there was an apprehension that he might disturb the peace and tranquility of the area.
7. As far as the second aspect is concerned, it would appear that the Rules 4 (2), (3) and (11) of the Prisons (Bombay Furlough and Parole) Rules, 1959, inter alia prescribes offences, conviction under which would dis- entitle the prisoner to claim for release on furlough leave. While it would appear that an offence punishable under Section 376 etc. of the IPC and under the provisions of the POCSO Act, would be a serious offence otherwise, but the Rules do not prescribe that a person who is convicted for an offence punishable under Section 302 of the IPC and under the provisions of the POCSO Act, would be dis-entitled for being granted furlough leave.
8. Considering the same, it would appear that the Administrative Officer with the Sanctioning Authority or the Sanctioning Authority who had in file noting recommended non-release of the applicant, had not applied their minds to the provisions of the Rules in question.
9. In this view of the matter, the present application deserves consideration. The impugned order dated 23.01.2023 is quashed and set Page 4 of 5 Downloaded on : Wed Apr 12 20:42:08 IST 2023 R/SCR.A/2618/2023 ORDER DATED: 10/04/2023 aside. The sanctioning authority as per the Rule 2 of the Prisons (Bombay Furlough and Parole) Rules, 1959, is directed to take decision afresh on the application of the present application for being released on furlough leave within a period of 15 days from the date of receipt of this order, as per the provisions and mandate of the Prisons (Bombay Furlough and Parole) Rules, 1959 and also in accordance with law. The authority concerned is directed to decide the application of the present applicant without being influenced by either the fact of the present application having been preferred or the present order having been passed.
10. With the above observations and directions, the present application is disposed of as allowed. Rule is made absolute to the aforesaid extent.
11. Registry is directed to communicate this order to the concerned Jail Authorities by Fax/Email forthwith.
(NIKHIL S. KARIEL,J) BDSONGARA Page 5 of 5 Downloaded on : Wed Apr 12 20:42:08 IST 2023