Gujarat High Court
Abdulkadar Bau Bakali vs State Of Gujarat on 13 March, 2023
Author: Nikhil S. Kariel
Bench: Nikhil S. Kariel
R/SCR.A/1573/2023 ORDER DATED: 13/03/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 1573 of 2023
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ABDULKADAR BAU BAKALI
Versus
STATE OF GUJARAT & 1 other(s)
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Appearance:
THROUGH JAIL for the Applicant(s) No. 1
for the Respondent(s) No. 2,3
MR HARDIK SONI, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
Date : 13/03/2023
ORAL ORDER
1. Rule returnable forthwith. Learned Additional Public Prosecutor Mr.Hardik Soni waives service of Rule on behalf of the respondent - State.
2. By way of this application, the applicant challenges an order passed by the jail authority/ sanctioning authority dated 7.1.2023, whereby application for grant of first furlough leave of the present applicant has been rejected, inter alia, on the ground that police recommendation is negative and that the applicant is convict of serious offences punishable under Sections 302 and 201 of IPC.
3. Having heard learned APP on behalf of the respondent- State and having perused the jail remarks, it would appear that the applicant-convict, who has been convicted for offence punishable under Section 302 of IPC Page 1 of 3 Downloaded on : Tue Mar 14 20:46:05 IST 2023 R/SCR.A/1573/2023 ORDER DATED: 13/03/2023 and sentenced to life imprisonment has, as of now, undergone approximately four years of incarceration. It would appear that the applicant had been released twice on parole in the year 2021 and 2022, and whereas it appears that the applicant has on both occasions surrendered in time. This Court has also perused the original file submitted by learned APP. It appears that negative police opinion is not based upon any action on the part of the present applicant when he has been released on parole leave, which has disturbed peace and tranquility, rather negative police opinion is based upon observation that reason for being released on furlough i.e. sickness of the wife, is not borne out from any documents with regard to treatment submitted by the wife of the present applicant. It further appears that second aspect of the applicant being a convict of offences punishable under Section 302 and 201 of IPC, does not appear to be one of the categories of the offences, as mentioned at Rule 4 of the Prison (Bombay Furlough and Parole) Rules, 1959, more particularly, Sub- rule (2) which lists such offence under Section 392 to 402 of IPC, and Sub-rule (3), which lists offence under the Bombay Prohibition Act as offences, which, upon conviction would result in the convict being dis-entitled for furlough leave. It does appear that considering the grounds that weighed with the authority for rejecting the application for furlough leave, were not germane to the issue in question. This Court has also considered the fact that when the applicant had been released in the year Page 2 of 3 Downloaded on : Tue Mar 14 20:46:05 IST 2023 R/SCR.A/1573/2023 ORDER DATED: 13/03/2023 2021 and 2022, he had surrendered in time. It also does not appear that he had done any illegal activity during such period.
4. In view of above discussion, in the considered opinion of this Court, impugned order dated 7.1.2023 passed by the sanctioning authority cannot be sustained and is hereby quashed and set aside. The sanctioning authority i.e. not the administrative officer of jail authority rather the sanctioning authority as per Rule-2 of the Prison (Bombay Furlough and Parole) Rules, 1959 shall, within a period of 15 days from the date of receipt of this order, decide the application of furlough of present applicant afresh, strictly in accordance with law and the Prison (Bombay Furlough and Parole) Rules, 1959 and, whereas the applicant shall be communicated final decision thereof. It is clarified that the authority shall not be in any way influenced by the fact of the applicant having preferred present application or the present application having been allowed by this Court. With these observations and directions, present application stands disposed of as allowed. Rule is made absolute to above extent.
(NIKHIL S. KARIEL,J) R.S. MALEK Page 3 of 3 Downloaded on : Tue Mar 14 20:46:05 IST 2023