Gujarat High Court
Pankaj Amrutlal vs State Of Gujarat And Ors. on 28 January, 1993
Equivalent citations: (1993)1GLR416
JUDGMENT K.J. Vaidya, J.
1. Petitioner-Pankaj Amrutlal, the convict prisoner undergoing lifer at the Central Prisons, Ahmedabad, by this Special Criminal Application under Articles 226 and 227 of the Constitution of India, has moved this Court challenging the impugned order dated 6-11-1992 passed by the Inspector General of Prisons, Ahmedabad rejecting his second furlough leave application on the short ground of the alleged adverse police opinion, inter alia praying for granting the same on his personal-bond forthwith.
2. Mrs. S. S. Patel, learned Advocate appearing for the petitioner submitted that petitioner was convicted and sentenced to suffer R. I. for life for the alleged offence punishable under Section 302 of the Indian Penal Code by judgment and order dated 23-8-1988 passed by the learned Sessions Judge, Ahmedabad. Mrs. Patel further submitted that the petitioner is in Jail since last more than 6 years; including some period undergone as an under-trial prisoner. It was further submitted that till today, petitioner has not enjoyed any parole leave, except one furlough leave two years back, wherein he surrendered himself to the Jail authorities in time. It was further submitted that while on furlough leave no untoward incident has been recorded against the petitioner. Not only that but there is not a single jail offence reported against the prisoner and thus the conduct of the petitioner-prisoner inside and outside the Jail is without any blemish. Mrs. Patel further submitted that by this time, this Court has given good number of decisions on the identical facts where this Court has despite so-called 'adverse police opinion' granted parole/furlough and also given guidelines and yet the same are conveninently ignored constraining poor prisoners to come to this Court for parole/furlough leave, as the case may be. On the basis of above submissions, Mrs. Patel finally urged that despite the above tell-tale facts. Inspector General of Prisons, Ahmedabad, for the reasons best known to him, has not granted second furlough leave due to the prisoner on the ground of alleged adverse police opinion which is indeed not substantiated by any material worth the name on record.
3. As against the above, Mr. R. P. Solanki, the learned A.P.P. submitted that there was definite adverse police opinion of the D. S. P. of the area against the prisoner, and in that view of the matter, Inspector General of Prisons was quite justified in not granting the second furlough to the petitioner.
4. Now, in order to find out as to what was that material on the basis of which the D. S. P. had arrived at the conclusion of likelihood of breach of peace, we asked the learned A P.P. Mr. Solanki to point out the said material from the record. To this, the learned A.P.P. was frank enough to admit that except bare observation noticed in the nominal-roll, there was nothing adverse on the record by way of some statements of witnesses to prove the alleged adverse police opinion. When such is the manifest position, it would indeed be insufficient to prevent the petitioner from enjoying his second rightful furlough. In fact, as to how and on what basis such furlough/parole leave applications are required to be dealt with and decided in cases of so-called 'adverse police opinion', some useful directions have already been given in one of the judgments of this Court rendered in Special Criminal Application No. 1096 of 1992 decided on 19-6-1992 [Coram : K. J. Vaidya & J. M. Panchal, JJ.] (Vasram Gagji v. State of Gujarat reported in 1993 (1) GLR 404) a copy of which has already been forwarded to the Inspector General of Prisons, Ahmedabad so as to enable him to bear in mind the guidelines laid down therein while deciding such applications. Despite this anxiety of ours to see that such avoidable mistakes are not repeated in future by I, G., Prisons for want of proper guidance, we had thought it advisable to place in this hands a copy of the aforesaid judgment, and yet we are indeed sorry to observe that the same has not been duly heeded to it. It is under these compelling circumstances that we once again, in the overall interest of the prison justice, invite attention of the I. G., Prisons, Ahmedabad and the concerned District Magistrates, who occasionally are required to consider some such parole/ furlough applications to the observations and directions given by this Court in the aforesaid judgment. Not only that but incidentally we make it abundantly clear that henceforth if such mistakes in not complying with the guidelines are committed by the concerned authority, while deciding the parole/furlough applications, then apart some serious strictures and other legal consequences, this Court may also be further constrained to award cost to the prisoner, to be paid personally by the concerned defaulting authority from its own pocket, and in given case exemplary cost too !! The learned P.P. Mr. D.K, Triyedi is also directed to take serious note of the and be is further directed to immediately bring this aspect to the notice of I. G., Prisons, Ahmedabad, all the District Magistrates of the State, as well as the Secretary, Home Department, Gandhinagar.
5. Finally, taking into consideration the facts and circumstances of the case wherein there is no material worth the name on the basis of which any adverse police opinion could be legitimately drawn and thereby accepted and believed, we direct the Inspector General of Prisons to reconsider this furlough leave application of the petitioner and pass appropriate orders on or before 11th February, 1993. Ordinarily this order of furlough leave could have been passed by us but we are relegating this exercise once again to the Inspector General of Prisons only with a view to impress upon him that such furlough leave applications are not mechanically rejected in future, only on some bald assertions and the opinion of the D. S. P. without verifying the record as to on what basis adverse police opinion in question was given ! In fact, the I. G., Prisons and the District Magistrates of the State, as the case may be, should not forget that power to grant and/ or refuse parole/furlough applications is legally vested in them and not in the Police Department. No doubt, for discharging this duty, the assistance of the police agency and its opinion has got to be called for, but then such opinion obviously should be based on some concrete material. If there is no evidence on the basis of which any adverse inference can be drawn, then in that case, mere assertions of the Police authorities to the effect that if prisoner is released on parole/furlough, there was likelihood of breach of peace, the I. G., Prisons and District Magistrates, as the case may be, are not supposed to surrender their decision to the so-called adverse police opinion, irrespective of the credibility and material in support of the same !! We may once again bring it to the notice of the Inspector General of Prisons, the decision of this Court reported in Special Criminal Application No. 1096 of 1992 decided on 19-6-1992 (VasramGagji v. State of Gujarat, reported in 1993 (1) GLR 404) and further observations made hereinabove, in order to see that such mistakes are not repeated henceforth. We hope and trust that the needful would be done to avoid unnecessary complication in future.
In the result, this Special Criminal Application is partly allowed. Rule is made absolute to the aforesaid extent.