Gujarat High Court
Jahir Abbas @ Abbasbhai Vajirali ... vs State Of Gujarat on 5 April, 2023
Author: Nikhil S. Kariel
Bench: Nikhil S. Kariel
NEUTRAL CITATION
R/SCR.A/3740/2023 ORDER DATED: 05/04/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 3740 of 2023
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JAHIR ABBAS @ ABBASBHAI VAJIRALI BHURANI THRO BHURANI
SAIYADBANU JAHIRABBAS
Versus
STATE OF GUJARAT
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Appearance:
MS.MANJULA R CHAUHAN(6871) for the Applicant(s) No. 1
for the Respondent(s) No. 2,3
MR RC KODEKAR ADDITIONAL PUBLIC PROSECUTOR for the Respondent(s)
No. 1
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CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
Date : 05/04/2023
ORAL ORDER
1. Heard learned Advocate Ms. Manjula Chauhan on behalf of the applicant and learned Additional Public Prosecutor Mr. R.C.Kodekar on behalf of the respondent- State.
2. Issue Rule returnable forthwith. Learned APP waives service of rule on behalf of the respondents.
3. By way of this application the applicant challenges an order dated 05.01.2023 passed by the Administrative Officer with the office of the sanctioning authority as per Rule (2) of the the Prisons (Bombay Furlough and Parole ) Rules, 1959 whereby application for being released on the first furlough leave has been rejected.
4. Perusal of the impugned order reveals that three aspects had been taken into consideration by the authority concerned namely (1) that the Page 1 of 4 Downloaded on : Sun Sep 17 18:15:18 IST 2023 NEUTRAL CITATION R/SCR.A/3740/2023 ORDER DATED: 05/04/2023 undefined apprehension that the applicant might disturb the peace and tranquility of the area in which he is going to reside resulting in negative opinion; (2) that the applicant was involved in commission of serious offences as punishable under Section 302 of the Indian Penal Code and other offences which are serious offences; (2) that the jail superintendent has opined that the jail conduct of the applicant is not good.
5. This Court has heard learned Advocates for the respective parties and peruses the original file in which the decision has been taken.
6. As far as aspects no. (1) and (2) are concerned, in the considered opinion of this Court, the apprehension that the applicant might disturb the peace and tranquility is more or less based upon an apprehension voiced by the first informant and whereas there does not appear to be any independent material which has weighed with the authority concerned for coming to such a conclusion. At this stage it would also be pertinent to mention that while the applicant had been arrested in the month of October 2016 and has been convicted for offence punishable under Section 302 of the Indian Penal Code and sentenced to life imprisonment and has undergone approximately 4 years and 4 months of incarceration in total and whereas during this period the applicant had been released on five occasions on temporary bail and on one occasion on parole leave. It would appear that on none of these occasions the applicant had in any manner disturb the peace and tranquility of area or had in any manner threatened or harassed the first informant or his family members, more particularly such aspect not being borne out from the record as per the opinion of the police authorities of the relevant place.
Page 2 of 4 Downloaded on : Sun Sep 17 18:15:18 IST 2023 NEUTRAL CITATION R/SCR.A/3740/2023 ORDER DATED: 05/04/2023 undefined 6.1 Furthermore it appears that 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), 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. Thus it appears that on the the above two aspects, the impugned order suffers from the vice of non application of mind.
7. Insofar as the negative opinion of the jail authority is concerned, it would require to be stated that as against the provisions of the Prison ( Bombay Furlough and Parole ) Rules, 1959, more particularly provisions of Rule (2) of the Prison (Bombay Furlough and Parole ) Rules, 1959, whereby the Inspector General of Prisons or the Deputy Inspector General of Prisons is required to take a decision as regards grant or rejection of furlough, the decision, which appears on record is a series of file notings, which inter alia should reflect the application of mind by the concerned authority. Perusing the notings, it would appear that application of mind had been very minimal, it would further appear that the aspect of negative opinion of the jail superintendent does not figure as one of the reasons Page 3 of 4 Downloaded on : Sun Sep 17 18:15:18 IST 2023 NEUTRAL CITATION R/SCR.A/3740/2023 ORDER DATED: 05/04/2023 undefined which has weighed with the authority to reject the application of furlough yet it would appear that the same has been communicated as a reason for rejecting the application by the Administration Officer with the office of the sanctioning authority as per Rule (2) of the (Bombay Furlough and Parole ) Rules, 1959. On the whole as noticed hereinabove, the impugned order dated 05.01.2023, being absolutely not in consonance with law and reflecting absolute non application of mind cannot be sustained and is hereby quashed and set aside.
8. The Sanctioning Authority as per Rule (2) of the Prison (Bombay Furlough and Parole ) Rules, 1959 is directed to consider the application of the present applicant for being released on his first furlough leave and whereas the authority shall not rely upon any of the considerations that had weighed with the authority while passing the impugned order dated 05.01.2023.
9. It is further clarified that such order shall be passed by the authority concerned within a period of 15 days from date of receipt of the order of this Court and whereas the authority concerned is directed to take decision strictly in accordance with law and without in any way being influenced by the fact of the present application having been preferred and the present order having been passed by this Court.
10. With these observations and directions, the present application is disposed of as allowed. Rule is made absolute.
(NIKHIL S. KARIEL,J) NIRU Page 4 of 4 Downloaded on : Sun Sep 17 18:15:18 IST 2023