Gujarat High Court
Birju Salla @ Amar Soni S/O Kishor Salla ... vs State Of Gujarat on 29 July, 2022
Author: Ilesh J. Vora
Bench: Ilesh J. Vora
R/SCR.A/5470/2022 ORDER DATED: 29/07/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 5470 of 2022
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BIRJU SALLA @ AMAR SONI S/O KISHOR SALLA THRO APURVA HARISH
LALIWALA
Versus
STATE OF GUJARAT
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Appearance:
MR HARDIK P MODH(5344) for the Applicant(s) No. 1
for the Respondent(s) No. 3,4
KSHITIJ M AMIN(7572) for the Respondent(s) No. 2
MR MANAN MEHTA, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
Date : 29/07/2022
ORAL ORDER
1. The applicant prisoner, through his brother in law, has filed this application praying that the respondent No.4 be directed to release him on his 1st due furlough leave.
2. This Court has heard learned Senior Counsel Mr. Jal Soli Unwala, assisted by Mr. Hardik P. Modh, learned counsel for the applicant, Mr. Devang Vyas, learned Addl. Solicitor General of India appearing for the National Investigating Agency and Mr. Manan Mehta, learned APP for the State of Gujarat.
3. In this case, it is admitted position that, the applicant is convicted for the offences punishable under Sections 3(1), 3(2)(1), 4(b) of the Anti Hijacking Act, 2016 and is undergoing sentence of life imprisonment in the Central Jail, Sabarmati, Ahmedabad. The sentence has been awarded on 11.06.2019. Since his arrest i.e. 11.06.2017, he is in jail.
4. The necessary facts giving rise to filing the present application Page 1 of 5 Downloaded on : Sat Dec 24 22:14:53 IST 2022 R/SCR.A/5470/2022 ORDER DATED: 29/07/2022 are that, the applicant applied for furlough leave to the competent authority, which came to be allowed with certain conditions vide its order dated 15.09.2020. During his furlough leave, the applicant without approval of the authority, changed his residence, as a result of which, the order granting furlough leave was rejected by the authority vide its order dated 23.09.2020. Aggrieved by the impugned order dated 30.09.2020, the applicant prisoner preferred application before this Court which also came to be rejected vide order dated 15.12.2020. The matter carried to the Apex Court by way of filing Special Leave Petition (Cri.), wherein, the Apex Court, dismissed the petition, with a liberty to move an appropriate application to the concerned authority. In such circumstances, vide application dated 12.01.2022, the applicant sought furlough leave before the I.G.(Prison), which came to be rejected vide order dated 01.02.2022 mainly on the ground that the police reports are negative.
5. Learned Senior Counsel Mr. Jal Unwala, submitted that, the grant of furlough is regulated by Rule 3 and 4 of the Bombay Furlough and Parole Rules, 1959. It is in this context, he urged that, the authority has not placed on record the adverse police report filed by NIA and Asst. Commissioner of Police, Mumbai. Even no any detailed reference was being made in the order of the competent authority while rejecting furlough leave. Thus, therefore, he urged that, the authority concerned in a casual manner without applying mind and in violation of principles of natural justice, passed the order which is not sustainable in the eye of law and therefore, interference is warranted by this Court.
6. Mr. Unwala further submitted that, the prisoner applicant is in jail since 30.10.2017 i.e. more than 4 years and 7 months Page 2 of 5 Downloaded on : Sat Dec 24 22:14:53 IST 2022 R/SCR.A/5470/2022 ORDER DATED: 29/07/2022 without any parole leave, furlough leave, temporary bail, except temporary bail for a period of 5 days to meet the ailing father. In such circumstance, claiming furlough leave is the statutory right of the applicant which requires to be dealt with in accordance with law. In the facts of the present case, in a mechanical manner, straightaway the authority has rejected the application.
7. Reference was made upon the case of Bhikhabhai Devshibhai Vs. State of Gujarat [1997 (2) GLR 1178], to submit that, the object of furlough is to enable the prisoner to have family association, family and social ties and to avoid illeffect of continuous prison life.
8. In the aforesaid contentions, the learned Senior Counsel would submit that, considering the facts and circumstances of the present case, the authority concerned failed to appreciate the object of the granting furlough to the prisoner and citing the change of address by the applicant when he was released on furlough, the application is rejected which is against the very object of the rules of furlough and therefore case is made out for exercising inherent powers of this Court.
9. Lastly, learned Senior Counsel on instructions, submitted that, court may impose any suitable condition including police escort at the expenses of the applicant.
10. Opposing the application, Mr. Devang Vyas, learned Addl. Solicitor General of India for and on behalf of the National Investigating Agency, reiterating the contents of the affidavit filed by Additional Superintendent of Police, NIA, Mumbai, contended that the authority has rightly rejected the application as there is negative police report by two agencies and therefore, considering the Rule 4 of the Furlough Leave, Page 3 of 5 Downloaded on : Sat Dec 24 22:14:53 IST 2022 R/SCR.A/5470/2022 ORDER DATED: 29/07/2022 authority having no discretion to consider the furlough leave. He further submitted that, applicant cannot claim furlough as a matter of right and therefore, furlough can be refused in cases where there are concerns of public peace and tranquility (State of Gujarat Vs. Narayan Sai @ Mota Bhagvan Asaram - 2021 SCC Online SC 949).
11. In the aforesaid contentions, it was submitted that, considering the conduct of the applicant and gravity of the offence for which he has been sentenced for life imprisonment and negative police reports, the authority has properly examined the case and after due inquiry and application of mind, application of furlough leave has been rightly rejected and therefore, no case is made out for exercising discretion under Article 226 of the Constitution of India.
12. Having considered the rival contentions of the respective parties and having gone through the impugned order, it appears that, except reference of the negative reports, no any cogent reason being assigned by the authority while rejecting the application. Even in the affidavit reply, no any further facts of negative reports have been highlighted by the Additional superintendent of Police, NIA. It is not in dispute that, the applicant is in jail since last 4 years and 8 months without any parole and furlough leave except temporary bail for a period of 5 days with police escort. Recently, in the case of Atbir Vs. State NCT of Delhi, [AIR 2022 SC 2911] the Apex Court after referring the case of State of Gujarat Vs. Narayan @ Narayan Sai (Supra), it was observed that, furlough can be claimed without a reason as granting furlough is to break monotony of imprisonment and enable the convict to maintain continuity of family life and integration with the society.
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13. In the facts of the present case and in light of the law laid down by the Apex Court, this Court is of view that, in the earlier occasion furlough leave was considered by the authority, but due to change of address by the applicant and taking cognizance of the facts, furlough leave was cancelled. In such circumstances, striking balance between the individual statutory right of the applicant and societal interest, case is made out for exercising discretionary power as envisaged under Article 226 of the Constitution of India and accordingly, the impugned order dated 09.05.2022 passed by respondent No.3 is hereby set aside. The applicant prisoner be released on furlough leave as per the Rules with police escort at the cost of the applicant. Jail authority is directed to take appropriate steps forthwith.
14. For the foregoing reasons, the application is allowed in the aforesaid terms. Direct service is permitted. Rule is made absolute to the aforesaid extent.
(ILESH J. VORA,J) SUCHIT Page 5 of 5 Downloaded on : Sat Dec 24 22:14:53 IST 2022