Mehboob @ Ghadiyali Abdul Karim Vora ... vs State Of Gujarat on 27 October, 2020

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Gujarat High Court

Mehboob @ Ghadiyali Abdul Karim Vora ... vs State Of Gujarat on 27 October, 2020

Bench: A. P. Thaker

         R/SCR.A/4463/2020                                  ORDER



          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

         R/SPECIAL CRIMINAL APPLICATION NO. 4463 of 2020

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      MEHBOOB @ GHADIYALI ABDUL KARIM VORA THRU MANSURI
                   MAKSUDBHAI RASULBHAI
                            Versus
                     STATE OF GUJARAT
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Appearance:
MS GAYATRIBA B JADEJA(5152) for the Applicant(s) No. 1
for the Respondent(s) No. 2,3
MS. MOXA THAKKAR, APP (2) for the Respondent(s) No. 1
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 CORAM: HONOURABLE DR. JUSTICE A. P. THAKER

                             Date : 27/10/2020

                              ORAL ORDER

1. The present Application has been filed by the applicant convict under the Article 226 of the Constitution of India and various provisions of The Prisons (Bombay Furlough and Parole) Rules, 1959 (hereinafter referred to as "the Rules") contending that he is in jail since last 10 years as he has been convicted and sentenced for life imprisonment in Sessions Case No. 47 of 2009 by the Sessions Court, Anand vide judgment and order dated 28.2.2013. It is submitted that against the judgment and order, the applicant has preferred Criminal Appeal No. 1268 of 2013 before this Hon'ble Court, which came to be disposed of by confirming the judgment of the Sessions Court.

1.1 It is contended by the applicant that he has preferred application for his 6th and 7th furlough leave to the authority Page 1 of 10 Downloaded on : Tue Oct 27 22:38:35 IST 2020 R/SCR.A/4463/2020 ORDER however, his request have been rejected by I.G. Prison on 6.8.2020 namely on the three grounds namely:

(i) Jail Superintendent has given negative opinion because the prisoner has repeatedly violated prison rules;

(ii) Prisoner is convicted in two offences in 2019 of Ravpura Police Station;

(iii) Prisoner's Jail Conduct is not good.

1.2 It is submitted by the applicant that for the jail offences he has been convicted by the trial Court and, therefore, there cannot be any further punishment in the shape of rejection of his furlough leave for the 6th time. While referring to the judgment of this Court in the case of Rodaji Mahaji vs. State of Gujarat passed in Special Criminal Application No. 1213 of 1990 as well as in the case of Bhikhabhai Devshi vs. State of Gujarat and Others, reported in (1987) 2 GLR 1178 and in case of Atulji Magaji Vs. State of Gujarat, reported in 1984 GLH 139, it is averred that in view of the decisions of this Court, the refusal of furlough by the authority is clearly illegal and is required to be quashed and setaside. The applicant has prayed to direct his release for his 6 th and 7th furlough leave on appropriate terms and conditions by setting aside the order dated 6.8.2020 passed by the respondent no.3 and for necessary direction to the respondent authority to consider the grant of applicant's 6 th and 7th furlough leave at the earliest.

2. Heard Ms. G.B.Jadeja, learned advocate for the applicant and Page 2 of 10 Downloaded on : Tue Oct 27 22:38:35 IST 2020 R/SCR.A/4463/2020 ORDER Ms. Moxa Thakkar, learned APP for the respondent State through Videoconferencing.

3. Ms. Jadeja, learned advocate for the applicant has submitted the same facts which are narrated in the Memo of Application. While reading the judgment annexed at Annexure "C" at Page15, Annexure "D" at Page17, she has vehemently submitted to allow the application. She has also contended that there cannot be two punishments for the same offence and has further submitted that for the jail offence, the convict has already been punished by the concerned Court and at the same time furlough leave is also forfeited. According to her submission, this exercise and the decision of the Authority is illegal and she has prayed to allow the application.

4. Per contra, learned APP for the respondent State has submitted that there is Rule 4(6) of the Prisons (Bombay Furlough and Parole) Rules, 1959 (hereinafter referred to as 'Rules') for the forfeiture of the furlough. As per the impugned order, furlough has not rejected permanently but liberty has been granted to the applicant to apply after 6 months for furlough. She has also submitted that in iview of the jail remarks, it appears that the present convict has habit of committing offences. She has also contended that there is no illegality conducted by the authority by passing the impugned order, which is under challenge. She has prayed to dismiss the application.

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R/SCR.A/4463/2020 ORDER

5. Now it is well settled law by catena of decisions of this Court that Parole and Furlough Rules are part of the penal and prison reform with a view to humanise the prison system. These rules enable the prisoner to obtain his release and to return to the outside world for a short prescribed period. The object of such a release of prisoner are:

(i) to enable the inmate to maintain continuity with his family life and deal with family matters.

(ii) to save the inmate from the evil effects of continuous prison life.

(iii) to enable the inmate to maintain constructive hope and active interests in life.

6. In view of the Prisons Act read with Rules, it appears that the Parole and Furlough system has been incorporated with specific object as referred to hereinabove. However, the Parole is not an absolute right of the prisoner. Under the provisions of the Act and the Rules, it can be granted or refused or withdrawn as per rules. At the same time, for furlough leave, there is no need of any ground. But, at the same time for granting Parole Leave, there must be some reason.

7. As observed in the case of Bhikabhai Devshi vs. State of Gujarat and Others (supra), the full bench of this Court has observed in Para23 as under:

"23. Rule 1316 of the Bombay Jail Manual provides that no prisoner shall be punished twice for the same offence.

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R/SCR.A/4463/2020 ORDER Therefore, once a prisoner is punished for his prison offence of late surrender by the Superintendent the matter of prison offence will rest there and any other punishment thereafter for the same Act or misconduct is barred".

7.1 In Para-27 and 28 of the said judgment, the full bench has observed as under:

"The rationale and principle behind Rule 4 is clear. The furlough system has been introduced as a measure of penal reform and to harmonise the penal system and to enable the prisoner to maintain continuity with his family life and to deal with the family matters and to save him from evil effects of continuous jail life and to enable him to gain confidence and to maintain constructive hopes and active interest in life. ......It is not possible to hold that irrespective of all these circumstances such a prisoner surrendering late have to be examined on merits and the prison authority will have to power duty and discretion to consider and to grant or refuse furlough.

7.2 At the same time, In Para29 of the said judgment, the full bench has observed as under:

"However, in cases of late surrender where there is no element of escapte but merely there is a delay in surrendering the question will have to be examined on the facts and circumstances and merits of each case. In given case of a prisoner defaulting in timely surrender who is Page 5 of 10 Downloaded on : Tue Oct 27 22:38:35 IST 2020 R/SCR.A/4463/2020 ORDER wanted by the jail authorities and who is not available at the place where ordinarily he should be and who is apprehended by the Police or who surrenders because of the chase by the authority may fall under the first part where he cannot be trusted to be released on furlough again. But such cases are at the other extreme".

7.3 In Para34 and 35 of the aforesaid judgment, the full bench has also observed as under:

"34. It is to be noted that furlough and parole have two different purposes. Furlough is a matter of right, parole is not so. Furlough is to be granted periodically under Rule 3 irrespective of any particular reason merely with a view to enable the prisoner to have family and social ties and to avoid illeffects of continuous prison life and the period of furlough is treated as remission of sentence. Since furlough is to bge grantd for no particular reason, it can be denied in the interest of the Society; whereas parole is to be granted only on a sufficient cause (Rule19) such as cases of severe ilness or death of any member of the prisoners family or his nearest relative or for other sufficient cause. Therefore, Parole is not a matter of right and only when there is a sufficient and serious cause the Society and the Jail authority may sometime have to take some risk to release the prisoner on parole but that would be no ground for releasing the prisoner on routine furlough irrespective of his past conduct and performance.

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R/SCR.A/4463/2020 ORDER Even parole may be denied to a prisoner even when he makes out sufficient cause for release on parole if the competent authority is satisfied on valid grounds that release of a prisoner on parole will be against the interest of the society or the prison administration".

"35. The prison authorities cannot reject as ineligible the request of due furlough of the prisoners who have surrendered late in past".

8. It is pertinent to note that Rule 3 of The Prisons (Bombay Furlough and Parole) Rules, 1989 provides for the provisions as to when prisoner may be granted furlough. The said Rule 3 reads thus:

"3. When Prisoner may be granted furlough. (1) A Prisoner, who is sentenced to imprisonment for a period exceeding one year but not exceeding five years, may be released on furlough for a period of two weeks at a time for every year of actual imprisonment undergone. (2) A Prisoner, who is sentenced to imprisonment for a period exceeding five years may be released on furlough for a period of two weeks at a time for every two years of actual imprisonment undergone:

Provided that a prisoner sentenced to imprisonment for more than five years but not to imprisonment for life may be released on furlough every year instead of every two years during the last five years of his unexpired period of sentence:

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R/SCR.A/4463/2020 ORDER Provided further that a prisoner sentenced to life imprisonment may be released on furlough every year instead of every two years after he completes seven years actual imprisonment."

Note 1:The period of imprisonment in this rule includes the sentence or sentences awarded in lieu of fine in case the amount of fine is not paid.

Provided that if fine is paid during the period of imprisonment and the total sentence thereby reduced to a term not exceeding 5 years he shall thereafter be eligible for release every year in accordance with subrule (1) instead of every two years under subrule (2).

Note 2.For the purposes of this rule, the period of imprisonment shall be computed as the total period for which a prisoner is sentenced even though one or more sentences be concurrent.

Note 3. If at any time a prisoner who could have been granted furlough is either not granted or is refused the same the period for which he could have been granted the furlough shall not be carried forward but shall lapse.

Note 4.The period of two weeks may be initially extended up to three weeks in the case of prisoners desiring to spend the furlough outside the State of Bombay.

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R/SCR.A/4463/2020 ORDER Note 5. An order sanctioning the release 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.

9. On the analysis of the aforesaid provisions of Rule 3, it is clearly found from the Note3 thereof makes provisions that if at any time a prisoner who could have been granted furlough is either not granted or is refused, the same the period for which he could have been granted the furlough shall not be carried forward but shall lapse. Now in the present case, this is not the ground of rejection of the application of Furlough. The jail authority has simply rejected his prayer on the three grounds which has been reproduced hereinabove. Now, in view of the decision of the full bench referred to hereinabove and the facts that the prisoner has already been undergone the sentence by the concerned Court for the Jail offences, the Authority ought to have taken into consideration the other facts available on record.

10. In view of the aforesaid observation, the impugned order passed by the competent authority is required to be quashed and setaside and the authority needs to reconsider the request of the applicant for granting him 6 th and 7th Furlough Leave.

11. For the reasons above, the Application succeeds. Rule is made absolute by quashing and setting aside the refusal of furlough due to the applicant prisoner by directing the respondent Page 9 of 10 Downloaded on : Tue Oct 27 22:38:35 IST 2020 R/SCR.A/4463/2020 ORDER authority to consider the grant of furlough/ furloughs due to the applicant in accordance with law within a period of one month from today.

(DR. A. P. THAKER, J) saj/ cmk Page 10 of 10 Downloaded on : Tue Oct 27 22:38:35 IST 2020

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