Gujarat High Court
Aminbhai @ Aaminbhai Ibrahimbhai @ ... vs State Of Gujarat on 20 March, 2023
Author: Nikhil S. Kariel
Bench: Nikhil S. Kariel
R/SCR.A/3460/2023 ORDER DATED: 20/03/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 3460 of 2023
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AMINBHAI @ AAMINBHAI IBRAHIMBHAI @ IBUBHAI DAL
Versus
STATE OF GUJARAT & 1 other(s)
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Appearance:
THROUGH JAIL for the Applicant(s) No. 1
for the Respondent(s) No. 2,3
MS MAITHILI MEHTA, ADDL. PUBLIC PROSECUTOR for the Respondent(s)
No. 1
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CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
Date : 20/03/2023
ORAL ORDER
1. Rule returnable forthwith. Learned Additional Public Prosecutor Ms. Maithili Mehta waives service of rule on behalf of the respondent - State.
2. By way of this application, the applicant challenges the order dated 22.02.2023 whereby the Administrative Officer connected with the office of Sanctioning Authority has rejected the application of the present applicant for being released on his first furlough. The aspects which weighed with the authority concerned being (i) that the applicant might disturb the peace and tranquility or might create a law and order situation as per the recommendation of the police Page 1 of 5 Downloaded on : Tue Mar 21 20:41:00 IST 2023 R/SCR.A/3460/2023 ORDER DATED: 20/03/2023 authorities, and (ii) the applicant having been convicted of the serious offence punishable under Sections 302 and 114 of the IPC etc.
3. As far as the reasons which weighed with the authority are concerned, in the considered opinion of this Court, both the reasons are not germane for the issue under consideration. As far as negative opinion of the police is concerned, on perusal of the original file as supplied by the learned APP, it would appear that the authorities concerned having not relied upon any tangible material whereby it could be even prima facie opined that releasing the applicant would result into a law and order problem and whereas, the police authorities have merely gone on the basis of statement of the first informant that the applicant, if released, might create a law and order situation and might quarrel with his family members.
4. In this regard, it would be relevant to note that the applicant who has been convicted for the offence punishable under Section 302 of the IPC and sentenced to life imprisonment has undergone incarceration of approximately 02 years and 03 months. It also appears that in this period of Page 2 of 5 Downloaded on : Tue Mar 21 20:41:00 IST 2023 R/SCR.A/3460/2023 ORDER DATED: 20/03/2023 02 years and 03 months, the applicant had been released on temporary bail in the month of February, 2023 and on parole leave in the month of December, 2021 to January, 2022. On both the occasions, the applicant appears to have surrendered in time. It also further does not appear that the applicant when had been released on both the occasions, had either disturbed the peace and tranquility or had created any law and order situation or in any manner tried to intimidate or threaten the family members of the first informant. 4.1. Furthermore, it also requires to be mentioned here that the Rules in question i.e. Prisons (Bombay Parole and Furlough) Rules, 1959 (hereinafter referred to as 'the Rules') inter alia envisage that the jail authorities could impose appropriate conditions upon the present applicant. Rule 6 of the Rules inter alia requiring a surety and Rule 10(6) of the Rules inter alia empowering the jail authority to direct the applicant to mark his presence at a police station, even to the extent of daily.
5. In the considered opinion of this Court, in the instant case, while there does not appear to be any material whereby the police authorities could come to a conclusion that the Page 3 of 5 Downloaded on : Tue Mar 21 20:41:00 IST 2023 R/SCR.A/3460/2023 ORDER DATED: 20/03/2023 applicant would create a law and order issue or disturb the peace and tranquility and in any case even if such an opinion is given by the police authorities, it is always open for the jail authorities to exercise their discretion and release the present applicant albeit after imposing appropriate conditions as mentioned hereinabove.
6. Insofar as the aspect of applicant having committed an offence punishable under Section 302 of the IPC, it would be relevant to mention that the Rules in question inter alia, more particularly, at Rule 4(2)(3) and (11) inter alia envisage offence, conviction under which, would automatically disentitle the convict to seek for further leave. The said sections include Sections 392 to 402 of the IPC, offences under the Prohibition Act and offences under the NDPS Act.
7. While an offence punishable under Section 302 of the IPC could be stated to be a serious offence, but, as far as the said Rules are concerned, the same is not categorized as an offence which would disentitle the convict to be released on furlough leave.
8. Under such circumstances, in the considered opinion of Page 4 of 5 Downloaded on : Tue Mar 21 20:41:00 IST 2023 R/SCR.A/3460/2023 ORDER DATED: 20/03/2023 this Court, the impugned order cannot be sustained and is hereby quashed and set aside. The concerned sanctioning authority as per Rule 2 of the Rules is directed to decide the application for furlough leave preferred by the applicant afresh in accordance with law within a period of 15 days from the date of receipt of this order and without being influenced by the fact of the present application being preferred or the present order being passed by this Court.
9. With these observations and directions, the present application stands disposed of as allowed. Rule is made absolute to the aforesaid extent.
(NIKHIL S. KARIEL,J) Bhoomi Page 5 of 5 Downloaded on : Tue Mar 21 20:41:00 IST 2023