Gujarat High Court
Ratilal @ Raju Jayantibhai Adhera vs State Of Gujarat on 15 March, 2023
Author: Nikhil S. Kariel
Bench: Nikhil S. Kariel
R/SCR.A/1685/2023 ORDER DATED: 15/03/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 1685 of 2023
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RATILAL @ RAJU JAYANTIBHAI ADHERA
Versus
STATE OF GUJARAT
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Appearance:
THROUGH JAIL for the Applicant(s) No. 1
for the Respondent(s) No. 2,3
MR MANAN MEHTA, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
Date : 15/03/2023
ORAL ORDER
1. By way of this application, the applicant challenges the order dated 07.01.2023 whereby the furlough application of the applicant has been rejected.
2. Perusal the impugned order reveals that three aspects have been considered by the authority concerned, and whereas it would appear that none of the aspects, were germane to the issue under consideration. It would appear that the authority concerned had relied upon the fact that the applicant was convicted for the offence punishable under Section 354(d), that the police opinion was negative and there was an apprehension that if released, the present applicant might create a law and order.
It the outset, it is required to be noted that the applicant, which is convicted for an offence punishable under Section 354 Page 1 of 4 Downloaded on : Thu Mar 16 20:44:30 IST 2023 R/SCR.A/1685/2023 ORDER DATED: 15/03/2023
(d) of the IPC amongst others, and has been sentenced to 3 years imprisonment, has as of now completed almost 2 years and 5 months of incarceration and whereas the applicant is only to undergo around 7 months of incarceration to complete his sentence. I also appears that till date, the applicant has never been released on any kind of leave whatsoever.
3. Insofar as the aspects which have been taken into consideration by the authority, it is required to be noted that Rule 4(2), (3) & (11) of the Prisons (Bombay Furlough and Parole) Rules, 1959 lists the offences, upon conviction under which, the convict prisoner would not be entitled for being considered for furlough. It is required to be noted that a person convicted of offence punishable under Sections 392 to 402 of the IPC, or convicted under the provisions of Bombay Prohibition Act or under the prohibition of the NDPS Act would be disentitled from being considered for furlough application and whereas neither an offence punishable under Section 354 of the IPC or offences punishable under the POCSO Act, have been laid down as categories upon conviction under which the prisoner would be disentitled for being considered for furlough leave.
Insofar as aspect no. 2 & 3 are concerned, i.e. negative police opinion and apprehension about creating a law and order issue, it appears that the said apprehension and negative opinion is solely based on the statement of the complainant, who has voiced this apprehension that in case the applicant is released he might quarrel with the complainant or create a law and order situation. It does not appear that there is any independent material which had been Page 2 of 4 Downloaded on : Thu Mar 16 20:44:30 IST 2023 R/SCR.A/1685/2023 ORDER DATED: 15/03/2023 verified by the authorities concerned to come to the conclusion that the applicant is not entitled for furlough leave.
4. In the considered opinion of this Court, merely an apprehension, would not be enough to dis-entitle a person from enjoining the benefits flowing from a statute and whereas while the police would be justified giving a negative opinion in case there was any tangible material which was available with them and whereas in absence of the same, the police authorities, who gave the opinion were completely unjustified and whereas the said aspect having not being considered by the authority concerned is good enough reason for this Court to quash and set aside the impugned order.
5. Furthermore, while in normal cases, this Court generally remands the matter back to the sanctioning authority as per Rule 2 of the Prisons (Bombay Furlough and Parole) Rules, 1959 to decide the application afresh but considering the fact that the applicant has already undergone more than 2/3 of his sentence and whereas remanding the matter back to the sanctioning authority, not being without its own perils, this Court is inclined to direct to release the applicant on furlough leave by way of this order itself, hence the Jail Authorities are directed to release the present applicant on furlough leave for a period of 14 days, more particularly upon the applicant producing surety as per Rule 6 of the Prisons (Bombay Furlough and Parole) Rules, 1959 and upon the applicant fulfilling any other necessary formalities. Furthermore, since the applicant is being released for the first time and since there is an apprehension voiced by the complainant, therefore, Page 3 of 4 Downloaded on : Thu Mar 16 20:44:30 IST 2023 R/SCR.A/1685/2023 ORDER DATED: 15/03/2023 the applicant is directed to mark his presence at the Kapodra Police Station on every 4 th day of his release i.e. on 4 th day and 12th day without fail. The jail authorities would be entitled to enforce any other conditions as per the Rules.
6. With these observations and directions, the present application is 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 : Thu Mar 16 20:44:30 IST 2023