Himanshu @ Heman Hasmukhbhai ... vs State Of Gujarat
2023 Latest Caselaw 3450 Guj

     R/SCR.A/4828/2023                         ORDER DATED: 27/04/2023




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
           R/SPECIAL CRIMINAL APPLICATION NO. 4828 of 2023
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                HIMANSHU @ HEMAN HASMUKHBHAI VASAVA
                                Versus
                      STATE OF GUJARAT & 2 other(s)
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Appearance:
THROUGH JAIL for the Applicant(s) No. 1
for the Respondent(s) No. 2,3
MR RC KODEKAR, ADDL. PUBLIC PROSECUTOR for the Respondent(s)
No. 1
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 CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL

                           Date : 27/04/2023
                            ORAL ORDER

1. Rule returnable forthwith. Learned Additional Public

Prosecutor Mr. R.C.Kodekar waives service of rule on behalf

of the respondent - State.

2. By way of the present application, the applicant - convict

challenges an order passed by the Administrative Officer

attached with the office of Sectioning Authority dated

02.03.2023 whereby the first furlough application of the

applicant has been rejected.

3. Perusal of the impugned order reveals that two aspects

have weighed with the concerned authority while rejecting

the application for grant of first furlough namely (i) that the

police, where the applicant would be residing, have given a

negative opinion as regards there being a possibility of the

R/SCR.A/4828/2023 ORDER DATED: 27/04/2023

applicant disturbing peace and tranquility, and (ii) that the

first informant has voiced an apprehension that if the

applicant is released on furlough leave, the applicant might

cause some harm to the complainant and/or his family

members.

4. This Court has heard learned Additional Public

Prosecutor Mr. R.C.Kodekar for the State and perused the

original file, in which, the decision impugned has been taken.

In the considered opinion of this Court, a perusal of the file

reveals that except for a statement of the first informant,

there was no material whatsoever available with the police for

both the reasons which has weighed with the authority

concerned.

4.1. It appears that the complainant one Rameshbhai

Gurjibhai Vasava has inter alia given a statement that the

applicant has been convicted for murdering his son and

whereas in case the applicant is released, then the applicant

keeping the grievance as regards his conviction, may quarrel

with the complainant and therefore, he may not be released

on furlough leave. It appears that this statement is the only

material which was available with the police authorities in

R/SCR.A/4828/2023 ORDER DATED: 27/04/2023

giving a negative opinion.

4.2. In the considered opinion of this Court, while the police

authorities would be definitely justified in giving negative

opinion against the release of the convict if there are material

available with the police authorities which would show or

atleast on the basis of which a reasonable apprehension could

be voiced that the applicant would, after being release,

disturb the peace and tranquility of the area concerned. In the

instant case, it does not appear that except the statement of

the complainant, there was any other material which was

available with the police authorities in giving a negative

opinion and furthermore, it also appears that the authorities

concerned which passed the impugned order also did not have

any other adverse material except the opinion of the police

which was ultimately based on the statement of the

complainant.

4.3. It also requires to be mentioned here that the applicant,

who has been convicted for the offence punishable under

Section 302 of the IPC and sentenced to life imprisonment,

has undergone approximately 03 years and 01 month of

incarceration and whereas it also appears that the applicant

R/SCR.A/4828/2023 ORDER DATED: 27/04/2023

had been released on temporary bail - as mentioned in the jail

remarks (probably on parole leave since the applicant appears

to be convicted in the month of November, 2022 whereas the

leave granted was in the month of March, 2023) for a period

of fourteen days and whereas there is no material which has

been placed before this Court or had been considered by the

jail authorities which would show that the applicant, upon his

release had in any way tried to harm the complainant, more

particularly, such a course of action not being taken by the

applicant, putting to rest any apprehension which the

complainant himself would have on this count.

5. At this stage, this Court seeks to rely upon the law laid

down by the Hon'ble Division Bench of this Court in case of

Narsing N. Gamit vs. State of Gujarat reported in 1989

(2) G.L.H. 163, paragraph nos. 3, 4 and 5 being relevant for

the present purpose are quoted hereinbelow for the benefit:-

"3. At the outset it should be noted that I.G. Prisons, should not reject the prisoner's application for releasing him on furlough solely on the ground that there is adverse police opinion.

4. The I.G. Prisons, before deciding the prisoner's application for releasing him on furlough should take into consideration the guidelines laid down under the relevant Rules i.e. the Prisons (Bombay Furlough and Parole) Rules, 1959.

R/SCR.A/4828/2023 ORDER DATED: 27/04/2023

5. Firstly, if the prisoner is to be released on parole or furlough for the first time after his conviction, the I.G., Prisons, should consider the facts and circumstances and allegations against the prisoner for which he is convicted. For this purpose he should refer to the judgment and order passed by the Court convicting him. From that judgment he should try to find out whether the prisoner is hardened criminal, habitual offender or whether the offence took place all of a sudden or the offence took place because of some enmity or long standing dispute between the parties. From the aforesaid circumstances he can arrive at the conclusion that by releasing the prisoner on furlough whether the prisoner is likely to commit any offence when he is on furlough or whether there is liklihood of breach of peace during that period. "

6. From the law laid down by the Hon'ble Division Bench as

far as back in the year 1989, it would appear that the

circumstances as prevailing at the relevant time has not

improved much. From the observation of the Hon'ble Division

Bench, it would appear that the Inspector General of Prison

i.e. the sanctioning authority is under an obligation not to

reject the application of the prisoner for being released on

furlough leave on the ground that there is an adverse police

opinion. The Hon'ble Division Bench has further imposed an

obligation on the I.G. Prison that if the prisoner is going to be

released for the first time, then the judgment of the conviction

should be perused by the I.G.Prison and the I.G.Prison should

R/SCR.A/4828/2023 ORDER DATED: 27/04/2023

try and find out whether the prisoner is a hardened criminal,

habitual offender or whether the offence took place all of a

sudden or the offence took place because of some enmity or

long standing dispute between the parties. The Court had

further observed that from the aforesaid circumstances, the

I.G.Prison can arrive at a conclusion whether the prisoner is

likely to commit any offence when he is released on furlough

or not. Secondly, the I.G.Prison is also directed to consider

Rule 4 of the Prisons (Bombay Parole and Furlough) Rules,

1959 (hereinafter referred to as 'the Rules') to find out

whether the conduct of the applicant in the prison is

satisfactory and whether the applicant had escaped or

attempted to escape from the lawful custody or whether he

had defaulted in surrendering at appropriate time after being

released on parole or furlough.

6.1. As noted hereinabove, it would appear that while the

adverse police opinion is the only aspect which had weighed

with this Administrative Officer with the office of Sanctioning

Authority i.e. the I.G.Prison, it also appears that Rule 4 has

not at all been considered by the I.G.Prison, more particularly,

it appears that the conduct of the applicant in the jail is good

R/SCR.A/4828/2023 ORDER DATED: 27/04/2023

and whereas, on the only occasion when he had been

released, the applicant had surrendered in time.

7. Considering the above observations, it would appear that

the impugned order being arbitrary, passed without

appreciating the legal principles on this aspect, is required to

be interfered with, hence, the order passed by the

Administrative Authority dated 02.03.2023 is hereby quashed

and set aside.

8. The I.G.Prison i.e. the Sanctioning Authority is directed

to consider the application for grant of furlough leave

preferred by the applicant in accordance with law and on the

line of the judgment of the Hon'ble Division Bench referred to

hereinabove as well as in accordance with the Prisons

(Bombay Parole and Furlough) Rules, 1959. The I.G.Prison is

also directed to decide the said application within a period of

fifteen (15) days from the date of receipt of this order.

9. With these observations and directions, the present

application is disposed of as allowed. Rule is made absolute

accordingly.

(NIKHIL S. KARIEL,J) Bhoomi