Gujarat High Court
Himanshu @ Gabhu Navinbhai Nimavat Thro ... vs State Of Gujarat on 2 September, 2021
Author: B.N. Karia
Bench: B.N. Karia
R/SCR.A/8295/2021 ORDER DATED: 02/09/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 8295 of 2021
==========================================================
HIMANSHU @ GABHU NAVINBHAI NIMAVAT THRO BHUMIKABEN
HIMANSHUBHAI NIMAVAT
Versus
STATE OF GUJARAT
==========================================================
Appearance:
MS BHAKTI M JOSHI(3820) for the Applicant(s) No. 1
for the Respondent(s) No. 2,3
MR HK PATEL, APP for the Respondent(s) No. 1
==========================================================
CORAM:HONOURABLE MR. JUSTICE B.N. KARIA
Date : 02/09/2021
ORAL ORDER
Rule. Learned APP waives service of notice of rule for and on behalf of the respondents.
By way of present application, the applicant has prayed to regularize the late surrender of 75 days when he was on parole leave for a period of 60 days during the month of June- July, 2020 by the authorities.
Heard learned advocate for the applicant and learned APP for the respondent-State.
Learned advocate for the applicant submits that the applicant has undergone 8 years approximately and after surrendering to the jail authority, the applicant has enjoyed many times parole leave or furlough leave and surrendered in Page 1 of 5 Downloaded on : Sun Sep 05 20:56:42 IST 2021 R/SCR.A/8295/2021 ORDER DATED: 02/09/2021 time before the jail authority without any untoward incident and his jail conduct is good and satisfactory. It is further submitted that the applicant was released on parole leave granted by the District Magistrate concerned on the ground of medical treatment of his mother and his mother's health was very critical so that he was not surrendered in time. It is further submitted that his mother was suffering from blood cancer and she was admitted at hospital and the applicant was the only male member in his family to look after her mother and to arrange funds for treatment of his mother and therefore, he could not surrender before the jail authority.
Learned APP for the respondents has strongly objected the prayer made by the applicant and submitted that when the applicant was released on parole leave for 60 days during the month of June-July-2020, he was surrendered late before the jail authorities by 75 days. That, the jail conduct of the present applicant is not good. That, the application for regularizing her late surrender has been rejected by the Additional District Magistrate, Rajkot vide order dated 09.07.2021. Thus, it was submitted by learned APP for the respondents to dismiss present application.
Having considered the contents of the application filed by Page 2 of 5 Downloaded on : Sun Sep 05 20:56:42 IST 2021 R/SCR.A/8295/2021 ORDER DATED: 02/09/2021 the applicant; having heard learned advocate for the applicant as well as learned APP for the respondent State and perused the papers and jail remarks available on record, it appears that the applicant was released on parole leave by the competent authority for 60 days, at that time, he was surrendered late before the jail authorities by 75 days, and in this connection, the applicant has approached the competent authority with a request to regularize his late surrender period but it was rejected.
It further appears that co-ordinate bench of this Court vide order dated 11.06.2021 passed in Special Criminal Application No. 2705 of 2021 regularized 318 days of late surrender. Relevant paragraphs of such judgment are reproduced as under:
"9. On perusal of various orders passed by the authority in respect of other convicts, it appears that the authority has regularized various days i.e. from 1 day to 3262 days while maintaining jail punishment with condition that the convict/s shall surrender in time to the jail authority in future. Now, so far as the present convict is concerned, the authority has taken into consideration the fact that the convict has applied before this Court and this Court has granted temporary bail. It has been observed in the impugned communication dated 05.01.2021 that the convict came to be arrested as he was absconding for 318 days.Page 3 of 5 Downloaded on : Sun Sep 05 20:56:42 IST 2021
R/SCR.A/8295/2021 ORDER DATED: 02/09/2021
10. Now, the observation made by the Division Bench of this Court in the case of Vikas Narendrabhai Vs. State of Gujarat and another in Criminal Misc. Application No.1360 of 2014 in Criminal Appeal No.2884 of 2008 dated 04.02.2014 needs to be taken into account for deciding the present application. The Division Bench has considered Section 48 of the Prison Act and Rules 1287 of the Gujarat Jail Manual. The Division Bench has observed in paras-4 and 5 which reads as under:-
Para 4: xxxx
Para 5: xxxx
12. In the present case, on perusal of the jail remarks, it appears that three furlough has been forfeited by the authority for late surrender of 318 days. The convict has applied to the concerned jail authority for cancellation of three furlough, however, the same came to be rejected by the authority below. Thus, it appears that the jail punishment has been inflicted upon the convict for his late surrender of 318 days. Now, considering the fact that the authority in other cases has regularized late surrender of various days i.e. from 1 day to 3262 days by maintaining jail punishment with condition that in future, the concerned convict shall surrender to the jail authority in time. If this course is adopted in this matter also, it would serve the end of justice."
Considering the reasons narrated in the application and the circumstances which are narrated by the applicant, the Page 4 of 5 Downloaded on : Sun Sep 05 20:56:42 IST 2021 R/SCR.A/8295/2021 ORDER DATED: 02/09/2021 order dated 09.07.2021 passed by the Additional District Magistrate, Rajkot deserves to be quashed and set aside and the period of 75 days of late surrender deserves to be regularized and is hereby regularized.
Punishment imposed by the trial Court is not disturbed. Accordingly, the present application is allowed in the above terms. Rule is made absolute to the aforesaid extent.
Registry is directed to send a copy of this order to the concerned jail authorities through email or fax forthwith.
(B.N. KARIA, J) rakesh/ Page 5 of 5 Downloaded on : Sun Sep 05 20:56:42 IST 2021