Gujarat High Court
Sugam vs State on 29 March, 2010
Author: H.B.Antani
Bench: H.B.Antani
Gujarat High Court Case Information System
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SCR.A/212/2010 1/ 5 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CRIMINAL APPLICATION No. 212 of 2010
=========================================================
SUGAM
@ MONTI HARISHANKAR JAISWAL - Applicant(s)
Versus
STATE
OF GUJARAT & 2 - Respondent(s)
=========================================================
Appearance
:
MS
SUBHADRA G PATEL for
Applicant(s) : 1,
MS TRUSHA K PATEL APP for Respondent(s) :
1,
RULE SERVED for Respondent(s) : 2,
RULE NOT RECD BACK for
Respondent(s) :
3,
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CORAM
:
HONOURABLE
MR.JUSTICE H.B.ANTANI
Date
: 29/03/2010
ORAL
ORDER
1. This petition is preferred for 1st and 2nd furlough leave by the petitioner-convict, who came to be convicted by the learned Additional Sessions Judge, Ahmedabad by order dated 20.06.2008 passed in Session Case No.53 of 2005 for the offence punishable under Sections 323 read with Section 34, 328, 342 and 376(2)(G) of the Indian Penal Code.
2. Learned advocate Ms.Subhadra G. Patel for the petitioner submitted that the petitioner has already preferred Criminal Appeal No.2124 of 2008 before this Court. It is submitted that the petitioner has not enjoyed any furlough leave as on today. He has applied for 1st and 2nd furlough leave as per the Bombay Parole and Furlough Rules, 1959. However, I.G. Prison, Ahmedabad, by order dated 23.09.2008, rejected the application preferred by the petitioner on the ground that the Deputy Police Commissioner, Zone II and IV, Ahmedabad City has given negative opinion. The petitioner is convicted recently on 20.06.2008. Even subsequently, I.G. Prison has rejected the application for furlough by order dated 16.02.2009 reiterating the reason given in his earlier order. It is submitted that the order passed by the I.G. Prison, Ahmedabad is absolutely without application of mind and passed in a mechanical manner. The petitioner was granted temporary bail on 3 occasions and during the said period, he has not misused his liberty. Considering the aforesaid aspect, prayer, as set out in the application for releasing the petitioner on furlough leave, be granted. The learned advocate placed reliance on the judgment rendered in case of Babubhai Jahurbhai Saiyed V/s. State of Gujarat and Ors. reported in 1989(2) GLR 820 in support of the submission that I.G. Prison has to apply his mind while considering the furlough leave application of the petitioner and order should not be passed in a mechanical manner. Considering the ratio laid down in the aforesaid judgment, the petition deserves to be allowed and the petitioner be granted furlough leave, as prayed for in the petition.
3. Learned A.P.P. Ms.Trusha K. Patel, representing the respondent-State, while opposing the petition, submitted that the petitioner has been convicted for the offence punishable under Sections 323 read with Section 34, 328, 342 and 376(2)(G) of the Indian Penal Code. The learned A.P.P. placed reliance on the statement of witnesses in support of the submission that considering the adverse police opinion and since the petitioner is imposed sentence for life imprisonment and is likely to flee from justice, it is not advisable to grant him furlough leave. The learned A.P.P. placed reliance on judgment dated 14.05.2009 passed by the Division Bench of this Court in Letters Patent Appeal No.935 of 2009 with Letters Patent Appeal No.936 of 2009 preferred by Chandan Pannalal Jaiswal, who is one of the accused in the present case wherein, the Divisions Bench held that the judgment was rendered by the Sessions Court on 20.06.2008 and if the accused are released on furlough leave, then there will be possibility of breach of peace and that aspect cannot be brushed aside. Thus, the Division Bench rejected the application for furlough leave. Considering the aforesaid aspect, no discretionary relief be granted to the petitioner and the petition be dismissed.
4. I have heard learned advocate Ms.Subhadra G. Patel for the petitioner and learned A.P.P. Ms.Trusha K. Patel for the respondent-State at length and in great detail. I have perused order dated 15.10.2008 passed by this Court(Coram: M.D. Shah, J.) in Special Criminal Application No.2033 of 2008 and order dated 27.11.2008 passed by this Court(Coram: Z.K. Saiyed, J.) in Special Criminal Application No.2291 of 2008. The Inspector General of Prisons, Gujarat State, vide order dated 10.12.2009, considered the application for furlough leave preferred by the petitioner and the same was rejected on the ground of adverse police opinion and likelihood of breach of peace, if the petitioner is released on furlough leave. It is stated in the said order that if the applicant wants to prefer another application, then it would be open for him to prefer the application afresh after six months. The said order passed on 10.12.2009 and even as on today, more than three months have gone by during the pendency of the present petition. Thus, considering the adverse police opinion and there is likelihood of breach of peace, the petitioner, in my view, cannot be released on furlough leave. However, as observed by the Inspector General of Prisons, it would be open for the petitioner to move appropriate application after six months and the same would be considered afresh by the Inspector General of Prisons on merits.
5. With the above observations, as there is no merit in the petition, it is liable to fail and the same is hereby dismissed. Rule is discharged.
(H.B.ANTANI, J.) Hitesh Top