Gujarat High Court
Harshad Muljibhai Patel vs State Of Gujarat on 24 March, 2023
Author: Nikhil S. Kariel
Bench: Nikhil S. Kariel
R/SCR.A/3369/2023 ORDER DATED: 24/03/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 3369 of 2023
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HARSHAD MULJIBHAI PATEL
Versus
STATE OF GUJARAT & 2 other(s)
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Appearance:
THROUGH JAIL for the Applicant(s) No. 1
for the Respondent(s) No. 2,3
MS VRUNDA SHAH, ADDL. PUBLIC PROSECUTOR for the Respondent(s)
No. 1
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CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
Date : 24/03/2023
ORAL ORDER
1. Rule returnable forthwith. Learned Additional Public Prosecutor Ms. Vrunda Shah 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 application for releasing the present applicant on second furlough has been rejected by the jail authorities.
3. This Court has perused the impugned order as well as the documents which have been considered by the authorities concerned while rejecting the said application. Perusing the impugned order, it would appear that three aspects have been weighed with the authorities concerned.
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R/SCR.A/3369/2023 ORDER DATED: 24/03/2023 3.1. That the applicant has committed grave offence and upon release he might indulge in the same type of activity i.e. as per the opinion of the Police Authorities. 3.2. That the applicant had committed murder of the only son of the first informant and whereas he might try and influence the complainant and might create law and order problem. 3.3. That the co-accused has absconded.
4. In the considered opinion of this Court, the impugned order reflects total non-application of the mind on behalf of the authorities concerned. At the outset, it is required to be noted that as per Rule 2 of The Prisons (Bombay Furlough and Parole) Rules, 1959 the sanctioning authority has been specifically prescribed and whereas it would appear that the impugned order has not been passed by the sanctioning authority rather the impugned order has been passed under the instructions of the sanctioning authority.
5. Insofar as the aspects which have weighed with the authorities, at the outset, it is required to be noted that the present applicant who is convicted of offences punishable Page 2 of 7 Downloaded on : Fri Mar 24 20:49:14 IST 2023 R/SCR.A/3369/2023 ORDER DATED: 24/03/2023 under section 302 of the Indian Penal Code amongst others and sentenced to life imprisonment has undergone six years' imprisonment as of now. It would also appear that the applicant during the period as an under-trial had been released on parole leave once after conviction and on furlough leave once after conviction and whereas the record which had been considered by the authorities while passing the impugned order does not reflect that during the times when he had been released on different leaves, he had created any law and order situation or had indulged in doing any illegal activities.
5.1. Furthermore, insofar as the negative opinion of the Police Authorities are concerned i.e. the first aspect which had weighed with the authorities, it would appear that except the apprehension voiced by the complainant, the Police Authorities did not have any material to suggest that releasing the applicant would have led to any negative impact on the society. It would also appear that the second aspect of the applicant having indulged in committing murder of the only son of the first informant might cause any law and order situation also does not appear to be borne out on the basis of Page 3 of 7 Downloaded on : Fri Mar 24 20:49:14 IST 2023 R/SCR.A/3369/2023 ORDER DATED: 24/03/2023 any material as available on the record. It would also appear that the total non-application of mind is reflected in the fact though the applicant has been convicted one of the reasons that weighed with the authorities is that in case the applicant is released he might pressurize the complainant to withdraw the case itself.
6. In the considered opinion of this Court, aspect nos. 1 and 2, based upon apprehension and upon the actual offence for which the applicant has already been convicted and sentenced were not the issues which ought to have been considered by the sanctioning authority, more particularly, except Rule 4 (2), (3) and (11) of The Prisons (Bombay Furlough and Parole) Rules, 1959, the said Rules do not make any exception for a prisoner convicted of any other offence being disentitled for being granted furlough leave.
7. It would be pertinent to note here that Rule 4 (2), (3) and (11) of the Prisons (Bombay Furlough and Parole) Rules, 1959 inter-alia disentitle prisoners for being entitled to furlough leave on the ground of the offences in which they have been convicted. It would appear that a prisoner convicted of offence punishable under sections 392 to 402, or Page 4 of 7 Downloaded on : Fri Mar 24 20:49:14 IST 2023 R/SCR.A/3369/2023 ORDER DATED: 24/03/2023 convicted under the provisions of the Bombay Prohibition Act, 1949 or convicted under the provisions of the Narcotic Drugs and Psychotropic Substances Act, 1985 would be disentitled to be considered for furlough leave, whereas though an offence punishable under section 302 of the Indian Penal Code could be stated to be conviction for a very serious offence yet, the statue has not carved out any exceptions from being considered for release on furlough leave for a person who has been convicted of offence punishable under section 302 of the Indian Penal Code. Under such circumstances, aspect nos. 1 and 2, were absolutely not germane to the issue under consideration.
7.1. It would further be pertinent to note that the application which had been rejected was for second furlough and whereas as noted hereinabove, the first furlough application of the present applicant had been considered and the present applicant had indeed been released on furlough leave for a period of 14 days. Under such circumstances, when the applicant had been released on first furlough leave, the reasons which weighed with the authorities, reflect absolute non-application of mind more particularly since the said Page 5 of 7 Downloaded on : Fri Mar 24 20:49:14 IST 2023 R/SCR.A/3369/2023 ORDER DATED: 24/03/2023 reasons appear to have been weighed with the authorities concerned for rejecting the second furlough application of the present applicant.
8. It would also be required to be noted herein that again total non-application of mind is reflected in the observation that a co-accused, has absconded.
8.1. In the considered opinion of this Court, the conduct of the co-accused would not be material, which could have weighed against the present applicant, more particularly in absence of any material on basis of which it could be alleged that the present applicant was keeping in touch or had in any manner whatsoever assisted the co-convict who had allegedly absconded. As it is, it would be pertinent to mention here that perusal of the jail remarks would show that there were other 5 co-convicts along with the present applicant who had been convicted for the very selfsame offence and whereas of the 5 convicts, 3 are at present lodged at various prisons and 2 other convicts have been granted bail by the concerned Courts and are as such on bail at present. Under such circumstances, it does not appear that any of the co-accused, have absconded and whereas such an aspect having weighed Page 6 of 7 Downloaded on : Fri Mar 24 20:49:14 IST 2023 R/SCR.A/3369/2023 ORDER DATED: 24/03/2023 with the authorities concerned also clearly reflects absolute non-application of mind on the part of the authorities concerned.
9. In view of the above discussions, observations and findings, the impugned order cannot be sustained and is hereby quashed and set aside. The sanctioning authority as per Rule 2 of the of the Prisons (Bombay Furlough and Parole) Rules, 1959 shall consider the application of present applicant for being released on second furlough leave strictly in accordance with the law and in accordance with the Prisons (Bombay Furlough and Parole) Rules, 1959. It is further directed that such decision shall be taken by the authorities concerned within a period of 15 days from the date of receipt of this order and whereas the authorities concerned shall not be influenced either by the fact of the present application having been preferred or the present order having been passed by this Court.
10. With these observations and directions, the present application stands disposed of as allowed.
(NIKHIL S. KARIEL,J) Bhoomi Page 7 of 7 Downloaded on : Fri Mar 24 20:49:14 IST 2023