Gujarat High Court
Rajesh vs State on 15 April, 2011
Author: Anant S. Dave
Bench: Anant S. Dave
Gujarat High Court Case Information System
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SCR.A/613/2011 4/ 4 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CRIMINAL APPLICATION No. 613 of 2011
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RAJESH
@ RAJIYO HARIBHAI - Applicant(s)
Versus
STATE
OF GUJARAT - Respondent(s)
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Appearance :
MR
JAYENDRA M SHAH for Applicant(s) : 1,
MR AJ DESAI APP for
Respondent(s) : 1,
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CORAM
:
HONOURABLE
MR.JUSTICE ANANT S. DAVE
Date
: 15/04/2011
ORAL
ORDER
Leave to amend. Amendment to be carried out forthwith.
2. Heard learned advocates for the parties.
3. In this petition, initially it was prayed that authority under the Prisons [Bombay Furlough and Parole] Rules, 1959 [for short, "the Rules"] framed in exercise of powers conferred by clauses [5] and [28] of the Section 59 of th Prisons Act, 1894 to be directed to take time bound decision with regard to grant of furlough due to the petitioner.
4. It is not in dispute that by order dated 29.01.2011 the competent authority has rejected the application of the convict - petitioner for grant of furlough on the ground that offences punishable under section 51(1) of the Prisons Act is registered at Sabarmati Police Station and, therefore, the application can be considered only after the petitioner is enlarged on bail. However, during the pendency of hearing of this petition, the competent authority has passed another order 05.03.2011 and reliance is placed on rule 4(4)(10) of the Rules, along with late surrender by 1520 days by the petitioner, when he was granted first furlough on 29.04.2004 and further adverse opinion received from the office of District Police Superintendent about likelihood of breach of peace etc and also reiterated earlier offence registered under Section 51B of the Prisoners Act.
5. Mr. J.M.Shah, learned counsel for the petitioner has extensively referred to the provisions of Prisoners Act, 1984 and Rules made thereunder i.e. Bombay Furlough and Parole Rules, 1959 and decision of Full Bench of this court reported in 1987(2) GLR 1178 in the case of Bhikhabhai Devshi v. State, and decision in the case of Motisinh Kesrisinh v. State of Gujarat reported in 1994(2) GLR 1445 and submitted that so far as Prisoners Act act is concerned, Chapter 11 of the Act is pertaining to prison offences and section 45 defines Prison Offences and section 46 prescribes punishment of such offences and section 48 provides award of punishment under sections 46 &
47. Section 51[1] is for entries in punishment books as prescribed under section 12 to be recorded and section 52 provides for procedure on committal of heinous offences and duty cast upon jail Superintendent of forward a person alleged to have committed heinous crime to the court of District Magistrate or any Magistrate of First Class having jurisdiction.
6. In view of the above, it is submitted that Bombay Furlough and Parole Rules, 1959 have been framed in exercise of powers conferred by clauses [5A] and [5B] of the section 5 of the Prison Act, 1984 and breach or willful disobedience to act request of the prison as usual have been declared by Rules made under section 59 to be a prison offence as defined under Section 45(1) of the Act for which punishment can be awarded only under Section 48A of the Act. In the above backdrop of provisions of law governing jail punishment to the convict and reference was made to the above two decisions and unreported decision dated 09.09.2009 rendered by this Court [Coram :
Hon'ble Mr. Justice D.H.Waghela] in Special Criminal Application No.1624 of 2009 where reference is made to the decision of Bhikhabhai Devshi [supra]. In the above case the convict surrendered before the jail authority late by 2939 days and by placing reliance on the above two decisions, , the learned Single Judge held that, the International Covenant on Civil and Political Rights of March 23, 1976 prescribe in Article 10 that penitentiary system shall comprise treatment of prisoners, the essential aim of which shall be their reformation and social rehabilitation. These noble objectives cannot be completely obliterated merely on account of an incident of abscondence by the prisoner, particularly, when his surrendering late could have been occasioned by extraordinary circumstances or when unduly late surrender is the obvious result of acquiescence on the part of police. In any case, such incident of unduly late surrender cannot invariably be held against a prisoner for the entire period of his remaining term of sentence.
7. In view of the above, it is submitted that the order impugned deserves to be quashed and set aside.
8. Mr. A.J.Desai, learned APP for the respondent - State submits that furlough is not a right as defined under Rule 17 of the Rules and it is open for the authority to consider overall conduct of the convict, which may also include the breach or disobedience of any rules or regulations of the jail Manual or Parole or Furlough Rules for which punishment is already inflicted and discretion is left to the authority to grant or refuse furlough in a given case.
9. Having heard learned counsel for the parties, considering the facts and circumstances of the case and provisions of the Act and Parole and Furlough Rules, relied upon by the learned advocate for the petitioner, decision in the cases of and considering what is discussed by the Full Bench of this Court in para 34 that furlough and parole have two different purposes and furlough is a matter of right parole is not so and interpretation put forth by the Full Bench on Rule 4(1) that word shall have to read as `may' and directory and the same is also considered by the Division Bench and learned Single Judge in subsequent decisions, I am in agreement with what is held by the Full Bench, Division Bench and learned Single Judge of this Court and reliance placed on the past breach, disobedience of Furlough Rules by the convict is misconceived and illegal and same ought not to have been considered and even registration of offence under Section 51 could not have weighed with the authority while deciding furlough application while subsequent jail conduct of th convict is reasonably good and anything adverse is reported.
10. Considering the above, the impugned order dated 05.03.2011 communicated by the Administrative Officer of the office of the Inspector General of Police, Gujarat State, Ahmedabad is hereby quashed with a direction to the authority to take the decision afresh with regard to application of furlough due to the convict in accordance with law and as per decision of the Full Bench in the case of Bhikhabhai Devshi [supra] and pass order within three weeks from the receipt of the writ of the order of this Court.
With the aforesaid, this petition stands disposed of.
[Anant S. Dave, J.] *pvv Top