Gujarat High Court
Himanshu @ Gabhu Navinbhai ... vs State Of Gujarat on 2 September, 2021
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
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HIMANSHU @ GABHU NAVINBHAI NIMAVAT THRO BHUMIKABEN
HIMANSHUBHAI NIMAVAT
Versus
STATE OF GUJARAT
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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
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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
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
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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.
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
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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/
