Gujarat High Court
Thakor Virsangji @ Viralji Somaji vs State Of Gujarat on 7 March, 2023
Author: Nikhil S. Kariel
Bench: Nikhil S. Kariel
NEUTRAL CITATION
R/SCR.A/1594/2023 ORDER DATED: 07/03/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 1594 of 2023
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THAKOR VIRSANGJI @ VIRALJI SOMAJI
Versus
STATE OF GUJARAT
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Appearance:
THROUGH JAIL for the Applicant(s) No. 1
for the Respondent(s) No. 2,3
MR HARDIK SONI ADDITIONAL PUBLIC PROSECUTOR for the Respondent(s)
No. 1
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CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
Date : 07/03/2023
ORAL ORDER
1 Issue Rule returnable forthwith. Learned Additional Public Prosecutor Mr. Hardik Soni waives service of rule on behalf of the respondents.
2. By way of this application the applicant challenges an order dated 16.01.2023 passed by the sanctioning authority whereby application of the present applicant for being released on first furlough leave has been rejected.
3. It appears that the sanctioning authority while passing the impugned order, has inter alia relied upon three considerations namely (1) that the police authorities where the present applicant would reside during his furlough leave, have given a negative opinion; (2) that the applicant is convicted of serious offences punishable under Sections 302, 149, 143, 147 and 148 of the Indian Penal Code and (3) the complainant having voiced Page 1 of 4 Downloaded on : Sun Sep 17 22:29:13 IST 2023 NEUTRAL CITATION R/SCR.A/1594/2023 ORDER DATED: 07/03/2023 undefined apprehension that if released the present applicant might disturb peace and tranquility of the area and might quarrel with the complainant or his family members.
4. This Court has heard learned APP and perused the documents including the original files. 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) and 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.
5. Insofar as the first aspect is concerned it appears that the negative police opinion is more or less based upon the statement of the complainant who has inter alia stated that the applicant, if released might quarrel with his family members or might disturb the peace and tranquility of the area. Furthermore as far as the third aspect is concerned, as referred to hereinabove, the complainant has voiced certain apprehensions as regards the applicant being released. In the considered opinion of this Court, the Page 2 of 4 Downloaded on : Sun Sep 17 22:29:13 IST 2023 NEUTRAL CITATION R/SCR.A/1594/2023 ORDER DATED: 07/03/2023 undefined apprehension of the complainant, could be allayed, by the authority concerned, by imposing appropriate conditions upon the convict as per the Rules in question. It would also be required to be noted that the applicant, who is under an obligation more particularly who is released subject to the conditions as mentioned in Rule 10 of the Prison ( Bombay Furlough and Parole) Rules, 1959 referred to hereinabove, is required to maintain good behaviour and not to commit any offence punishable under the law or is also required not to associate himself with bad characters. In the considered opinion of this Court, the said condition, also envisages, in its ambit, the requirement that the applicant, would not in any manner disturb the peace and tranquility of the area and whereas the jail authorities, could also direct the applicant to report before a concerned police station as per Rule 10(6) of the Prison ( Bombay Furlough and Parole) Rules, 1959, as deemed appropriate by the authorities to ensure that the applicant maintains good behaviour throughout the period of furlough.
6. In the considered opinion of this Court, while the complainant may be justified in voicing apprehension but at the same time, a statutory benefit given to a convict, of being released on furlough leave, ought not to be denied to the convict merely on account of an apprehension being raised by the complainant. As noted hereinabove, to ensure that peace and tranquility is maintained, the jail authority could impose appropriate conditions upon the convict.
7. In this view of the matter, in the considered opinion of this Court, since the issues that weighed with the authority concerned were not germane to the issue under consideration therefore the impugned order dated 16.01.2023 is quashed and aside.
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8. The authority i.e 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 first furlough leave, keeping in view the discussions and observations of this Court as hereinabove, more particularly within a period of 15 days from date of receipt of this order.
9. It is further clarified that the authority concerned shall not in any way be influenced 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 is disposed of as allowed. Rule is made absolute to the above extent.
(NIKHIL S. KARIEL,J) NIRU Page 4 of 4 Downloaded on : Sun Sep 17 22:29:13 IST 2023