Gujarat High Court
Mohammad vs State on 13 May, 2010
Author: Rajesh H.Shukla
Bench: Rajesh H.Shukla
Gujarat High Court Case Information System
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SCR.A/646/2010 4/ 4 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CRIMINAL APPLICATION No. 646 of 2010
=========================================
MOHAMMAD
TASLIM @ KALU MOHMAD UMAR - Applicant(s)
Versus
STATE
OF GUJARAT & 2 - Respondent(s)
=========================================
Appearance
:
THROUGH
JAIL for
Applicant(s) : 1,
MR MG NANAVATI, ADDL. PUBLIC PROSECUTOR for
Respondent(s) : 1,
None for Respondent(s) : 2 -
3.
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CORAM
:
HONOURABLE
MR.JUSTICE RAJESH H.SHUKLA
Date
: 13/05/2010
ORAL
ORDER
The present application has been filed by the applicant convict-prisoner through jail for grant of furlough.
2. The convict-prisoner has been convicted for offences under sec. 307 r/w sec. 120B, 302 of IPC as well as under sec. 25(1)(a) of the Arms Act as well as for offence under the TADA Act in TADA Case No. 8/93 by the designated Court No. 3, City Civil & Sessions Court, Ahmedabad, against which an appeal was preferred before the Hon'ble Apex Court which came to be dismissed vide order dated 12.5.2009. There are other offences as stated in the jail remark sheet including the cases pending at the Rajasthan court.
3. It is contended in this application that the orders under sec. 268(1) of Cr.P.C. have not been issued qua him by the Government and he has not enjoyed the furlough and therefore he may be granted furlough to support his family.
4. Though it is stated that the orders under sec. 268(1) of Cr.P.C. have not been issued by the State Government, as it appears from the jail remark sheet, such orders have been issued. Further, as it appears from the jail remark sheet, he has been convicted by the Designated TADA Court No. 3 at Ahmedabad for the alleged offences and his appeal also came to be dismissed by the Hon'ble Apex Court and, therefore, such an application is first required to be considered by the competent authority. As per the provisions of sec. 389 of Cr.P.C., this Court can, in pending appeal, suspend or pass an order for temporary bail.
5. It is not in dispute that it was a TADA case against which the appeal preferred before the Hon'ble Apex Court has also been decided and dismissed. Therefore, as per the provisions of the special statute - TADA Act or the Criminal Procedure Code, there is no occasion for this Court to exercise the jurisdiction. A useful reference can be made to the judgment of the Hon'ble Apex Court in the case of Usmanbhai Dawoodbhai Memon and ors. v. State of Gujarat, reported in AIR 1988 SC 922 and also to the judgment of this Court in the case of Latif Chhmtumiya Shaikh v. State of Gujarat and ors., reported in 2000(3) GLH 601 as well as to the judgment of the Hon'ble Apex Court reported in 1994 (2) JT S.C. 423 in the case of Kartar Singh v. State of Punjab.
6. Further, even if there is no lack of jurisdiction under Art. 226 and 227 of the Constitution of India to examine such an application in a given circumstance, whether the applicability of TADA Act is justified or not, is an aspect to be considered. However, in the facts of the present case, as the Hon'ble Apex Court has also dismissed the appeal, there is no question of considering the justification for applicability of TADA Act. Therefore, once the Hon'ble Apex Court has dismissed the appeal, this Court cannot entertain any such application under Art. 226 or 227 of the Constitution and an application made for furlough or parole is required to be considered by the competent authority.
7. Therefore, it is directed that the competent authority, Inspector General (Prisons), Gujarat State, Ahmedabad shall decide the application for furlough referred to him by the Superintendent, Central Jail, Sabaramti vide his letter No. 3864/09 dt. 15.10.2009 which is referred to in the jail remark sheet.
Accordingly, the application stands dismissed. Rule is discharged.
(Rajesh H. Shukla, J.) (hn) Top