Gujarat High Court
Jusab Sata Sama vs State Of Gujarat on 13 March, 2023
Author: Nikhil S. Kariel
Bench: Nikhil S. Kariel
NEUTRAL CITATION
R/SCR.A/1747/2023 ORDER DATED: 13/03/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 1747 of 2023
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JUSAB SATA SAMA
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
MR HARDIK SONI ADDITIONAL PUBLIC PROSECUTOR for the Respondent(s)
No. 1
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CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
Date : 13/03/2023
ORAL ORDER
1. Issue Rule returnable forthwith. Learned Additional Public Prosecutor Mr. Hardik Soni waives service of rule on behalf of the respondents.
2. By way of this application the applicant challenges an order dated 05.01.2023 passed by the whereby application of the present applicant for being released on first furlough leave, has been rejected.
3. It appears that the sanctioning authority while passing the impugned order, has inter alia relied upon two considerations namely (1) that the police authorities at the place where the present applicant would reside during his furlough leave, have given a negative opinion; voiced apprehension that there could be law and order situation on account of the enmity between the present applicant and the complainant side and (2) that the applicant is convicted of serious offences punishable under Sections Page 1 of 4 Downloaded on : Sun Sep 17 22:38:50 IST 2023 NEUTRAL CITATION R/SCR.A/1747/2023 ORDER DATED: 13/03/2023 undefined 302, 114 of the Indian Penal Code and Section 135 of the Bombay Police Act .
4. This Court has heard learned APP and also perused the documents including the original files with regard to order dated 05.01.2023. It appears that the aspect of there being an apprehension of law and order issue being created on account of the enmity between the applicant and complainant side, is based upon a statement of one Junas Ibrahim Sama, who appears to be a close relative of the victim of the criminal case in which the applicant has been sentenced to life imprisonment. It appears that except for voicing apprehensions that that applicant might create law and order situation or might disturb peace and tranquility of the area, there is no other material which is relied upon by the complainant or which has been considered by the authorities concerned, to reject the application for furlough leave application preferred by the applicant.
4.1 It is required to be noted that while grant of furlough leave to a prisoner may not be a right but rather consideration for grant of furlough leave to a prisoner, is a statutory right available under the Prison ( Bombay Furlough and Parole ) Rules, 1959. It is also required to be mentioned that while it is undoubtedly true that the complainant and his party might apprehend some trouble if the present applicant is released, but at the same, such apprehension ought not to defeat the statutory right available to a convict. It is required to be mentioned that Rule 6 of the Prison (Bombay Furlough and Parole ) Rules, 1959 inter alia requires a relative of the convict to stand as surety for release of the convict. It is also required to be noted that Rule 10 (6) of the Rules inter alia envisages that the sanctioning authority could direct the prisoner to report even to the extent once a day to Page 2 of 4 Downloaded on : Sun Sep 17 22:38:50 IST 2023 NEUTRAL CITATION R/SCR.A/1747/2023 ORDER DATED: 13/03/2023 undefined the officer in charge of a particular police station during the period of furlough more particularly to ensure that there is no disturbance of peace or tranquility.
5. Insofar as the aspect with regard to the applicant being convicted of certain offences, is not, as per the requirement of the law as laid down in the "Prison ( Bombay Furlough and Parole) Rules, 1959". It appears that Rule 4(2) and Rule 4(3) and Rule 4(11) inter alia lists categories of prisoners, who have been convicted for certain categories of offences, which would disentitle them for seeking furlough leave. It appears that the categories of conviction, as listed in the said section being conviction for offences punishable under Sections 392 to 402 of the Indian Penal Code, conviction under the Bombay Prohibition Act, 1949 and conviction under the NDPS Act. While it would appear that conviction under Section 302 of IPC, may be a serious aspect but fact remains that the law i.e. the Prison ( Bombay Furlough and Parole ) Rules, 1959, does not envisage that the convict who has been convicted for offence punishable under Section 302 of IPC is not entitled for being released on furlough leave.
6. In this view of the matter, in the considered opinion of this Court, since the issues that weighed with the authority concerned were not germane to the issue under consideration therefore the impugned order dated 05.01.2023 cannot be sustained and is hereby quashed and aside.
7. The authority i.e the sanctioning authority as per Rule 2 of the Prison ( Bombay Furlough and Parole) Rules, 1959, is directed to consider the case of the application for grant for furlough leave afresh, keeping in view the discussions and observations of this Court as hereinabove, more particularly Page 3 of 4 Downloaded on : Sun Sep 17 22:38:50 IST 2023 NEUTRAL CITATION R/SCR.A/1747/2023 ORDER DATED: 13/03/2023 undefined within a period of 15 days from date of receipt of this order.
8. It is further clarified that the authority concerned shall take decision strictly in accordance with law and without being influenced by the fact of the present application having been preferred and the present order having been passed by this Court.
9. With these observations and directions, the present application is disposed of as partly allowed. Rule is made absolute to the above extent.
(NIKHIL S. KARIEL,J) NIRU Page 4 of 4 Downloaded on : Sun Sep 17 22:38:50 IST 2023