Gujarat High Court
Arsh Mohamad Lal Mohamad vs State Of Gujarat on 24 March, 2023
Author: Nikhil S. Kariel
Bench: Nikhil S. Kariel
R/SCR.A/3486/2023 ORDER DATED: 24/03/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 3486 of 2023
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ARSH MOHAMAD LAL MOHAMAD
Versus
STATE OF GUJARAT
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Appearance:
THROUGH JAIL for the Applicant(s) No. 1
for the Respondent(s) No. 2,3
MS VRUNDA SHAH ADDITIONAL PUBLIC PROSECUTOR for the Respondent(s)
No. 1
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CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
Date : 24/03/2023
ORAL ORDER
1. Rule. Learned Additional Public Prosecutor waives service of notice of rule on behalf of the respondents.
2. By way of this application the applicant inter alia raises a grievance as regards furlough leave granted to the applicant vide order dated 12.10.2022 not being executed.
3. It would appear that while the authorities had considered the case of the applicant for release on furlough leave and whereas vide the order referred to hereinabove, the applicant had been granted furlough leave for a period of 21 days, it would appear that on account of certain exigencies, which are not very relevant for the purpose of this application, the said order could not be executed for a period of 60 days from the date of that said order. It would also appear that as per Rule 3 (Note 5) of the Prison ( Bombay Furlough and Parole) Rules, 1959 an order sanctioning the release Page 1 of 3 Downloaded on : Wed Mar 29 20:33:54 IST 2023 R/SCR.A/3486/2023 ORDER DATED: 24/03/2023 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. On account of the said provision, the order lost its efficacy upon completion of two months.
4. It would appear that a peculiar situation has arisen inasmuch as though the applicant was deemed entitled to be released on furlough leave, yet, for exigencies, more particularly the same may not be within the control of the applicant, he could not be released and whereas if the said order is treated as nonest then the application of the applicant for being released on furlough leave would be required to be considered by the jail authorities afresh including calling for recommendation of the police authorities as well as calling for statement of the complainant and fulfilling all the necessary formalities as required.
5. In the considered opinion of this Court, since the authority has not arrived at a conclusion that the applicant was not entitled to be released on furlough leave and since it appears that the reasons on account of which the applicant was not released were beyond the control of the applicant, therefore, a solution, whereby the equities on both sides are balanced would be required to be found out.
5.1 It also requires to be noted here that directing the State to undertake the exercise, would not only result in a substantial amount of time passing but also would result in precious resources being drained unnecessarily.
6. In this view of the matter, in the considered opinion of this Court, since it appears that the note along with Rule 3 of the Prison ( Bombay Furlough and Parole) Rules, 1959 may be an explanation and may not be a Page 2 of 3 Downloaded on : Wed Mar 29 20:33:54 IST 2023 R/SCR.A/3486/2023 ORDER DATED: 24/03/2023 statutorily binding provision, therefore it is directed that the order releasing the applicant on furlough leave dated 12.10.2022 would be directed to be effected from 03.04.2023.
7. It is clarified that the period of two months as stated at Note 5 of Rule 3 of the Prison ( Bombay Furlough and Parole) Rules, 1959 shall deemed to commence from 03.04.2023. The authorities are directed to give effect to the order releasing the present applicant on furlough leave as expeditiously as possible subject to the conditions that may be deemed to be appropriate to be imposed by the authorities.
8. With these observations, and directions, present application stands disposed of as partly allowed. Rule is made absolute to the aforesaid extent.
(NIKHIL S. KARIEL,J) NIRU Page 3 of 3 Downloaded on : Wed Mar 29 20:33:54 IST 2023