Gujarat High Court
Pritesh Girishbhai Thakkar vs State Of Gujarat on 4 November, 2020
Author: A. P. Thaker
Bench: A. P. Thaker
R/SCR.A/5136/2020 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 5136 of 2020
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PRITESH GIRISHBHAI THAKKAR
Versus
STATE OF GUJARAT
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Appearance:
HCLS COMMITTEE(4998) for the Applicant(s) No. 1
MS NILAM N CHAUHAN(6635) for the Applicant(s) No. 1
for the Respondent(s) No. 2,3
MS MOXA THAKKER APP (2) for the Respondent(s) No. 1
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CORAM: HONOURABLE DR. JUSTICE A. P. THAKER
Date : 04/11/2020
ORAL ORDER
[1] The present Application has been filed by the applicant convict has preferred application for his first furlough leave to the authority however, his request has been rejected by I.G. Prison on 28.8.2020 namely on the three grounds namely:
(i) The police report regarding the place of residence during furlough and the place of incidents is negative;
(ii) Accused is undergonig sentence of Section 376 D, 506(1) and 114 IPC ;
(iii) It is stated that the prosecution side is having fear;
(iv) The prisoner has asked for fourlough at the place of offence;
[2] Heard Ms. Nilam Chauhan, learned advocate for the applicant and Ms. Moxa Thakkar, learned APP for the Page 1 of 5 Downloaded on : Thu Nov 05 01:19:48 IST 2020 R/SCR.A/5136/2020 ORDER respondent State through Videoconferencing.
[3] Ms.Chauhan, learned advocate for the applicant has submitted the same facts which are narrated in the memo of Application. According to her submission, this exercise and the decision of the Authority is illegal and she has prayed to allow the application. She has prayed to allow the present application.
[3] Per contra, learned APP for the respondent State has submitted that there is Rule 4(6) of the Prisons (Bombay Furlough and Parole) Rules, 1959 (hereinafter referred to as 'Rules') for the forfeiture of the furlough. She has also contended that there is no illegality conducted by the authority by passing the impugned order, which is under challenge. She has prayed to dismiss the application.
[4] Now it is well settled law by catena of decisions of this Court that Parole and Furlough Rules are part of the penal and prison reform with a view to humanise the prison system. These rules enable the prisoner to obtain his release and to return to the outside world for a short prescribed period. The object of such a release of prisoner are:
(i) to enable the inmate to maintain continuity with his family life and deal with family matters.
(ii) to save the inmate from the evil effects of continuous prison life.
(iii) to enable the inmate to maintain constructive hope and active interests in life.
[5] In view of the Prisons Act read with Rules, it appears that the Parole and Furlough system has been incorporated with specific object as referred to hereinabove. However, the Parole is Page 2 of 5 Downloaded on : Thu Nov 05 01:19:48 IST 2020 R/SCR.A/5136/2020 ORDER not an absolute right of the prisoner. Under the provisions of the Act and the Rules, it can be granted or refused or withdrawn as per rules. At the same time, for furlough leave, there is no need of any ground. But, at the same time for granting Parole Leave, there must be some reason.
[6] It is pertinent to note that Rule 3 of The Prisons (Bombay Furlough and Parole) Rules, 1989 provides for the provisions as to when prisoner may be granted furlough. The said Rule 3 reads thus:
"3. When Prisoner may be granted furlough.(1) A Prisoner, who is sentenced to imprisonment for a period exceeding one year but not exceeding five years, may be released on furlough for a period of two weeks at a time for every year of actual imprisonment undergone.
(2) A Prisoner, who is sentenced to imprisonment for a period exceeding five years may be released on furlough for a period of two weeks at a time for every two years of actual imprisonment undergone:
Provided that a prisoner sentenced to imprisonment for more than five years but not to imprisonment for life may be released on furlough every year instead of every two years during the last five years of his unexpired period of sentence:
Provided further that a prisoner sentenced to life imprisonment may be released on furlough every year instead of every two years after he completes seven years actual imprisonment."
Note 1:The period of imprisonment in this rule includes the sentence or sentences awarded in lieu of fine in case the amount of fine is not paid.
Provided that if fine is paid during the period of imprisonment and the total sentence thereby reduced to a term not exceeding 5 years he shall thereafter be eligible for Page 3 of 5 Downloaded on : Thu Nov 05 01:19:48 IST 2020 R/SCR.A/5136/2020 ORDER release every year in accordance with subrule (1) instead of every two years under subrule (2).
Note 2.For the purposes of this rule, the period of imprisonment shall be computed as the total period for which a prisoner is sentenced even though one or more sentences be concurrent.
Note 3.If at any time a prisoner who could have been granted furlough is either not granted or is refused the same the period for which he could have been granted the furlough shall not be carried forward but shall lapse.
Note 4.The period of two weeks may be initially extended up to three weeks in the case of prisoners desiring to spend the furlough outside the State of Bombay.
Note 5.An order sanctioning the release of a prisoner on furlough shall cease to be valid if not given effect to within a period of two months of the date thereof.
[7] On the analysis of the aforesaid provisions of Rule 3, it is clearly found from the Note 3 thereof makes provisions that if at any time a prisoner who could have been granted furlough is either not granted or is refused, the same the period for which he could have been granted the furlough shall not be carried forward but shall lapse. Now in the present case, this is not the ground of rejection of the application of Furlough. The jail authority has simply rejected his prayer on the three grounds which has been reproduced hereinabove. Now, in view of the decision of the full bench referred to hereinabove and the facts that the prisoner has already been undergone the sentence by the concerned Court for the Jail offences, the Authority ought to have taken into consideration the other facts available on record.
[8] In view of the aforesaid observation, the impugned order passed by the competent authority is required to be quashed and Page 4 of 5 Downloaded on : Thu Nov 05 01:19:48 IST 2020 R/SCR.A/5136/2020 ORDER setaside and the authority needs to reconsider the request of the applicant for granting him first Furlough Leave.
[9] For the reasons above, the Application succeeds. Rule is made absolute by quashing and setting aside the refusal of furlough due to the applicant prisoner by directing the respondent authority to consider the grant of furlough/ furloughs due to the applicant in accordance with law within a period of one month from today.
(DR. A. P. THAKER, J) VR PANCHAL / DIPTI PATEL Page 5 of 5 Downloaded on : Thu Nov 05 01:19:48 IST 2020