Gujarat High Court
Ravi S/O Vinodbhai Chanabhai ... vs State Of Gujarat on 15 March, 2023
Author: Nikhil S. Kariel
Bench: Nikhil S. Kariel
R/SCR.A/2608/2023 ORDER DATED: 15/03/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 2608 of 2023
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RAVI S/O VINODBHAI CHANABHAI JINJUVADIYA
Versus
STATE OF GUJARAT & 1 other(s)
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Appearance:
THROUGH JAIL for the Applicant(s) No. 1
MR MANAN MEHTA, APP for the Respondent(s) No. 1
RULE NOT RECD BACK for the Respondent(s) No. 2,3
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CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
Date : 15/03/2023
ORAL ORDER
1. By way of this application, the applicant challenges the order dated 23.01.2023 whereby the authority has rejected the application of the applicant for being released on first furlough.
2. This Court has perused the impugned order as well as the documents which has been considered by the authority while passing the order concerned and also the jail remarks. Perusal of the jail remarks, would show that the applicant, who has been convicted for the offence punishable under Section 376 of the IPC amongst others and under the provisions of the POCSO Act and sentenced to 10 years imprisonment and as of now completed almost half of his sentences i.e. the applicant having undergone more than five years of incarceration. It would also appear that the applicant has never been released Page 1 of 5 Downloaded on : Fri Mar 17 20:38:03 IST 2023 R/SCR.A/2608/2023 ORDER DATED: 15/03/2023 either on parole or furlough.
3. Perusing the impugned order, it would appear that the authority concerned, had rejected the application for grant of first furlough more particularly on two grounds namely that the applicant might disturb the peace and tranquility of the area more particularly based on police opinion and that the applicant has committed serious offence under Section 376 etc. and under the provisions of the POCSO Act. In the considered opinion of this Court, both the aspects, which has weighed with the authority concerned for rejecting the application of the present applicant, were not germane to the issue in question.
4. Perusing the papers, it would appear that the negative police opinion i.e. of the applicant creating a law and order situation or disturbing the peace and tranquility and the apprehension that the applicant might abscond if released, is entirely based on the statement of the first informant and whereas except for the bare statement, there is no other material to justify any of those the said allegations. While, it is true that if there is a genuine apprehension that the applicant might commit some other illegal offence or might disturb peace and tranquility then the authorities concerned would be justified in rejecting the application before by the convict for being released on furlough, yet, in the considered opinion of this Court, such apprehension should be based on some material and whereas in the instance case except for bare statement of the complainant, there is no material whatsoever. It also requires to be noted here that the allegation against the Page 2 of 5 Downloaded on : Fri Mar 17 20:38:03 IST 2023 R/SCR.A/2608/2023 ORDER DATED: 15/03/2023 applicant is of having committed offence punishable under Section 376 etc. of the IPC and under the provisions of the POCSO Act and whereas it would also appear that at the time when the offence had been committed, the applicant was aged about 18-19 years. It would also require to be mentioned as noted hereinabove that last five years, the present applicant is in custody. From the jail remarks, it would also appear that the offence had been registered more particularly on account of a love affair going on between the present applicant and the daughter of the first informant. In view of these aspects, it would appear that the apprehension voiced by the complainant, prima-facie appears to be baseless more particularly as noted hereinabove, since such apprehension were without any material whatsoever in support thereof.
5. Insofar as the applicant having committed offences under Section 376 of IPC and under the POCSO Act, it would appear that Rule 4(2), (3) & (11) of the Prisons (Bombay Furlough and Parole) Rules, 1959, lists out the category of prisoners, who are not entitled for grant of furlough leave on the basis of the offences for which they are convicted. It would appear that a prisoner who is convicted for a offence under Section 392 to 402 of the IPC, or convicted under the provisions of Bombay Prohibition Act or convicted under the provisions of NDPS Act, would not be entitled for furlough leave. It does not appear that offence punishable under Section 376 etc. or offence under the POCSO Act, automatically dis-entitled the prisoner from being considered for grant of furlough leave.
6. In view of the above discussions and observations and Page 3 of 5 Downloaded on : Fri Mar 17 20:38:03 IST 2023 R/SCR.A/2608/2023 ORDER DATED: 15/03/2023 findings, in the considered opinion of this Court, the impugned order dated 23.01.2023 can not be sustained and is hereby quashed and set aside. The Sanctioning Authority as per Rule 2 of the Prisons (Bombay Furlough and Parole) Rules, 1959 is directed to consider and decide the application of the present applicant for grant of furlough leave afresh within a period of 15 days from the date of receipt of this order. Such decision shall be taken by the Sanctioning Authority in accordance with law and in accordance with Rule-2 of the Prisons (Bombay Furlough and Parole) Rules, 1959. It is clarified that the Authority concerned shall not be influenced by the fact of the applicant having preferred this application and the present order having been passed by this Court.
7. Furthermore, upon perusal of the jail remarks and important aspect has come to the notice of this Court inasmuch it appears that the present applicant has not yet filed any criminal appeal against the order of conviction.
8. In this view of the matter, the jail authorities are directed to inform the present applicant about the possibility of preferring Criminal Appeal by availing the services of the State Legal Services Authority and whereas the statement of the applicant whereby such information has been provided to him, shall be taken and produced before this Court by 17.03.2023 and whereas upon such statement been produced, the Registry shall place this mater along with such statement for perusal of this Court.
9. With the above observations and directions, the present Page 4 of 5 Downloaded on : Fri Mar 17 20:38:03 IST 2023 R/SCR.A/2608/2023 ORDER DATED: 15/03/2023 application is disposed of as allowed. Rule is made absolute to the aforesaid extent. Registry is directed to communicate this order to the concerned Jail Authority by fax / email message forthwith.
(NIKHIL S. KARIEL,J) SALIM/ Page 5 of 5 Downloaded on : Fri Mar 17 20:38:03 IST 2023