Gujarat High Court
Govabhai Nagjibhai Rabari Thro Sitaben ... vs State Of Gujarat on 3 January, 2024
NEUTRAL CITATION
R/SCR.A/10500/2023 ORDER DATED: 03/01/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION (FURLOUGH LEAVE) NO. 10500 of
2023
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GOVABHAI NAGJIBHAI RABARI THRO SITABEN W/O GOVABHAI RABARI
Versus
STATE OF GUJARAT
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Appearance:
MR B.B.NAIK SR ADVOCATE with
MR EKANT AHUJA, ADVOCATE for the petitioner
MR J.K.SHAH APP for the Respondent State
RULE SERVED for the Respondent(s) No. 2
RULE SERVED BY DS for the Respondent(s) No. 3
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CORAM:HONOURABLE MR. JUSTICE M. R. MENGDEY
Date : 03/01/2024
ORAL ORDER
1. The present applicant has been filed by the petitioner under Article 226 of the Constitution of India praying for grant of furlough leave to the present petitioner challenging the order dated 11.10.2023 passed by the Additional Director General of Police dismissing the application filed by the applicant for furlough leave.
2. Heard learned senior advocate Mr.Naik for the petitioner.
Page 1 of 9 Downloaded on : Wed Jan 03 20:47:48 IST 2024NEUTRAL CITATION R/SCR.A/10500/2023 ORDER DATED: 03/01/2024 undefined 2.1 He submitted that the petitioner has been convicted for an offence under Section 302 and 120B of IPC and is in jail since last more than 19 years. The petitioner had applied for furlough leave before the concerned jail authority, however, the jail authority has dismissed the application filed by the present petitioner on the grounds non-germane to the Law. He further submitted that as per Law laid down by Hon'ble Apex Court in catena of judgments, the furlough leave is a right of convict prisoner and no reason is required to be cited for availing the said leave.
2.2 He further submitted that previously, on several occasions, the petitioner has been ordered to be enlarged on temporary bail or granted parole leave and the petitioner has surrendered in time. The petitioner has not committed breach of any of the condition imposed while ordering him to be granted parole leave or temporary bail. The petitioner is also ready and willing to bear the expenses of police escort.
2.3 Learned senior advocate Mr.Naik also files an Page 2 of 9 Downloaded on : Wed Jan 03 20:47:48 IST 2024 NEUTRAL CITATION R/SCR.A/10500/2023 ORDER DATED: 03/01/2024 undefined affidavit sworn by one Sitaben who happens to be the wife of the petitioner wherein she has undertaken that if the petitioner is released on furlough leave then he shall restrict his movement within Ahmedabad City and shall not cause the movement of police escort out of Ahmedabad City. He, therefore, submitted to allow the present application and enlarge the petitioner on furlough leave with suitable condition.
2.4 Learned senior advocate Mr.Naik seeks to rely upon the following judgments in respect of his submissions.
(i) Francis Coralie Mullin vs. The Administrator, Union Territory of Delhi and others, AIR 1981 SC 746;
(ii) Hasan Ahmed Charkha @ Lalu Thro Afsa Hasan Lalu vs. State of Gujarat, 2023 (0) AIJ - GJ - 246030;
(iii) Usman Mohmed Anis Agarbattiwala vs. State of Gujarat, 2023 (0) AIJEL - HC - 246034;
(iv) Atbir vs. State of NCT of Delhi, AIR 2022 SC 2911.Page 3 of 9 Downloaded on : Wed Jan 03 20:47:48 IST 2024
NEUTRAL CITATION R/SCR.A/10500/2023 ORDER DATED: 03/01/2024 undefined
3. Learned APP Mr.J.K.Shah, inter alia, contended that the Hon'ble Apex Court, in its recent judgment in the case of State of Gujarat vs. Narayan @ Narayan Sai @ Mota Bhagwan Asaram @ Asumal Harpalani reported in 2021 SCC Online SC 949 has taken the view that furlough leave is not available to the convict as a matter of right and, therefore, contentions raised by learned senior advocate for the petitioner about the furlough leave being available to the present petitioner by virtue of his right, is not tenable in Law. He further submitted that the present petitioner is a head- strong person and because of his nefarious activity he was required to be shifted from one jail to another jail. He submitted that the State has also invoked provisions of Section 268 of the Cr.P.C. against the present petitioner and a necessary Notification, in that regard, has also been issued by the State Government. He further submitted that the conduct of the present petitioner, in jail, is also reported to be not satisfactory. He, therefore, submitted to dismiss the present application.
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4. Heard learned advocates for the respective parties and perused the record.
5.1 From the record, it appears that present petitioner had preferred an application seeking furlough leave before the jail authorities. The said application was ordered to be dismissed by the Additional Director General of Police vide order dated 11.10.2023 mainly on the grounds that; looking to the seriousness of the offence proved against the petitioner the police authority has given a negative opinion, from the statement of prosecution witnesses it appears that if the petitioner is released, the petitioner may cause some hindrance to the peace and tranquility and provisions of Section 268(i) of the Cr.P.C. has been invoked against the present petitioner.
5.2 The jail remarks indicate that the petitioner is in jail since last more than 19 years. Thus, petitioner has already undergone more than 19 years after his conviction in commission of offence in question.
Page 5 of 9 Downloaded on : Wed Jan 03 20:47:48 IST 2024NEUTRAL CITATION R/SCR.A/10500/2023 ORDER DATED: 03/01/2024 undefined 5.3 It is true that the Hon'ble Apex Court in its judgment in case of Narayan Sai (supra) has held that furlough leave is not available as a matter of legal right. However, the statute entitles the convict for being enlarged on furlough leave. Therefore, though furlough leave may not be claimed as a matter of legal right, the statute enables the convict to claim the same and such claim is required to be decided in accordance with the provisions of Rules 3 and 4 of the Prisoners (Bombay Furlough and Parole) Rules, 1959. Rule 4 of the Rules clarifies circumstances wherein the convict cannot be released on furlough. The concerned authority has declined the application of the petitioner mainly on the ground of Rule 4(4) of the Rules. The record indicates that the petitioner has been previously considered for parole leave with police escort and no untoward incident is reported on any of the occasions.
5.4 The thrust of the prosecution in opposing the present application is upon invocation of provisions of Section 268 of the Cr.P.C. The provisions of Section 268 of Cr.P.C. empowers the State Government to issue Page 6 of 9 Downloaded on : Wed Jan 03 20:47:48 IST 2024 NEUTRAL CITATION R/SCR.A/10500/2023 ORDER DATED: 03/01/2024 undefined a direction as regards removal of any person or class of persons from the prison in which he or they may be confined or detained and thereupon so long as order remains in force, no order made under Section 267 of the Cr.P.C. whether before or after order of the State Government shall have effect in respect of such person or class of persons. The purpose behind Section 268 of Cr.P.C. is to restrict the movement of person or class of persons against whom the State Government has reason to believe that the cause mentioned in Section 268 of Cr.P.C. exists.
5.5 Be that as it may, merely because the provisions of Section 268 of Cr.P.C. has been invoked by State Government against a convict, the entitlement of such a convict to avail parole, furlough or another leave as available to him, cannot be restricted. The record further indicates that despite the invocation of Section 268 of Cr.P.C. against the present petitioner, the application has been considered for grant of parole leave with police escort on several occasions in the past.
Page 7 of 9 Downloaded on : Wed Jan 03 20:47:48 IST 2024NEUTRAL CITATION R/SCR.A/10500/2023 ORDER DATED: 03/01/2024 undefined 5.6 At the cost of repetition, it is also required to be noted that the present petitioner has undergone sentence of more than 19 years by now. The jail remarks indicate that lastly the petitioner was ordered to be enlarged on parole leave for the period of 5 days in the month of March, 2023. Considering all these aspects, the present application deserves consideration and it is hereby partly allowed.
5.7 The petitioner shall be released on furlough leave for a period of 14 days from the date of his actual release, on usual terms and conditions, including furnishing a bail bond of Rs.10,000/- to the satisfaction of the jail authority and on such other terms and conditions as may be deemed appropriate by the concerned jail authority. Such release of the petitioner shall be with Police Escort the cost for which shall be borne by the present petitioner. As undertaken by the wife of the petitioner in her affidavit dated 09.12.2023, while on furlough leave, the petitioner shall confine his movement to Ahmedabad City only and shall not move out of limits of Ahmedabad City. It is clarified that Page 8 of 9 Downloaded on : Wed Jan 03 20:47:48 IST 2024 NEUTRAL CITATION R/SCR.A/10500/2023 ORDER DATED: 03/01/2024 undefined senior most officer leading the escort party, would be at liberty to co-ordinate with Bhuj jail Superintendent to take appropriate action, in case the petitioner, in any manner, tries to misuse the liberty granted to him by this Court. The notification issued by the State under Section 268 of the Cr.P.C. shall remain in abeyance during the said period.
6. Rule is made absolute to the aforesaid extent. Direct service is permitted.
7. Office to communicate this order to the concerned Jail Authority through Fax-message.
(M. R. MENGDEY,J) MISHRA AMIT V. Page 9 of 9 Downloaded on : Wed Jan 03 20:47:48 IST 2024