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SCR.A/1852/2011 6/ 6 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CRIMINAL APPLICATION No. 1852 of 2011
=========================================
JAVED
KHAN @ JAEED AZIZKHAN PATHAN - Applicant(s)
Versus
STATE
OF GUJARAT & 2 - Respondent(s)
=========================================
Appearance
:
MS. KHUSHI M PANDYA for
Applicant(s) : 1,
MS MANISHA L SHAH ADDL. PUBLIC PROSECUTOR for
Respondent(s) : 1,
None for Respondent(s) : 2 -
3.
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE ANANT S. DAVE
Date
: 03/08/2011
ORAL
ORDER
1. This
petition under Articles 14, 21 and 226 of the Constitution of India
with Sections 268 and 269 of Code of Criminal Procedure, 1973 and
under Prisons (Bombay Furlough and Parole) Rules, 1959 is preferred
by the petitioner, who is convicted by the Special Court on 21st
October, 2002 for the offences punishable under Section 302, 120 of
Indian Penal Code and under Sections 25(1)(c) and 27 of Arms Act and
under Section 5 of TADA.
2. It
is the case of the petitioner that from the date of arrest i.e. from
14th September, 1992, except for a period of 11 days of
temporary bail granted by the Apex Court for his marriage, the
petitioner is not given any benefit of furlough and/or parole and
overall jail record of the petitioner is good as per the statement
dated 21.7.2011 furnished by Dy. Superintendent, Ahmedabad Central
Jail except remarks that the petitioner is under the order of
restriction imposed by Section 268(1) of Code of Criminal Procedure
and that he is the real brother of absconded accused and undergoing
life imprisonment being a member of a gang of notorious criminal.
3. Mr.
Mukul Sinha, for Ms. Khushi Pandya, learned advocate for the
petitioner submits that by this time even as per the record of the
jail authority the petitioner has remained in jail for about 18 years
and 9 months and 26 days and barring 11 days of temporary bail
granted by the Apex Court for his marriage no other relief is given
to the petitioner as provided under Prisons (Bombay Furlough and
Parole) Rules, 1959. It is further stated that ordinarily remission
granted to other accused on similar conviction for life imprisonment,
the petitioner is deprived of such relief or remission only on the
ground that he happened to be the real brother of notorious absconder
and sharpshooter Sharif Khan who happened to be a member of a gang of
similarly situated co-accused. It is further submitted that so far
as apprehension shown by the State Government and Prison authorities
about likelihood of escape or absconding, wife of the petitioner and
brother of the wife of the petitioner are ready and willing to be the
surety and stringent conditions be imposed so as to see that no such
apprehension result into reality and interest of the society can be
protected. Besides, it is submitted that the jail record of the
petitioner even do not reveal any breach or violation of any of the
provisions of conduct by the prisoner as provided in a Jail Manual
and not even a minor punishment is inflicted for all these 18 years
10 months and, the petitioner cannot be permitted or allowed to
suffer due to criminal record of his relative. In the month of holy
‘Ramzan’ the applicant has to undertake some religious rituals for
which he would like to reside at his own residence along with his
family members. It is further submitted that the authority concerned
has not taken into consideration many other aspects as required to be
looked into while deciding the application for furlough and by
imposing suitable conditions the petitioner be granted furlough.
4. Ms.
Manisha L. Shah, learned APP for the respondent-State has vehemently
opposed grant of furlough to the petitioner on the ground that the
intelligence report received by the authority would reveal that if
the petitioner is granted furlough, in all probability the petitioner
would abscond and in the past attempts were made by his brother to
get him released from the jail. Even restrictions have been imposed
by the authority under Section 268(1) of Cr.P.C. and the petitioner
is kept in a high security zone at Central Jail, Sabarmati,
Ahmedabad, so that no untoward incident take place. The authority
has taken a conscious decision on the basis of material available
about likelihood of committing breach of conditions of furlough even
if he is granted by this Court, keeping in mind the past record and
conviction of the petitioner and his likelihood of indulging in
similar activities jeopradising pubic interest that would desist this
Court from exercising powers of grant of furlough in favour of the
petitioner. Learned APP has also relied on various annexures along
with affidavit which would go to show that communication from Dy.
Commission of Police, Zone-IV, Ahmedabad City addressed to Additional
Director General and Inspector General of Police about adverse
opinion in case if the petitioner is granted furlough along with the
above a list of offence is registered in the year 1992 against
brother of the petitioner is also annexed.
4.1. In
addition to above, learned APP has also relied on the order dated
23.4.2009 passed in Special Criminal Application No. 151 of 2009
(Coram: Hon’ble Smt. Justice Abhilasha Kumari) by which request to
grant furlough came to be rejected by reasoned order. However, in
review application filed by the petitioner, on 6.11.2009 liberty was
reserved to the petitioner to prefer an application for grant of
furlough.
5. Having
heard learned advocate for the petitioner and learned APP, following
aspects remained uncontroverted that pursuant to registration of FIR
being C.R. No.254 of 1992, the petitioner came to be arrested on
14.9.1992. The conviction was recorded on 21.10.2002 by the
designated Court. By this time the petitioner has remained in jail
for around 18 years and 10 months including imprisonment as under
trial and during the period of imprisonment as above barring 11 days
from 29th April, 2008 to 9.3.2008, when the petitioner
came to be enlarged by the Apex Court on temporary bail for his
marriage at no occasion he has moved out of prison either on furlough
or parole or temporary bail. During the period of imprisonment no
incident appeared about breach of any provisions of the jail manual
or norms of conduct of a prisoner and remarks pertaining to jail
record of the petitioner reveal good. Lastly Article 21 of the
Constitution of India confers right to life and personal liberty is
applicable even to a prisoner who is a citizen of India subject to
certain restrictions as per procedure established by law.
5.1. The
apprehension of the authority about likelihood of escape of the
petitioner can be taken care by imposing appropriate conditions, when
wife of the petitioner and brother of the wife of the petitioner has
shown willingness in no uncertain terms to be surety of the
petitioner.
5.2. The
Division Bench of this Court in the case of Govindbhai Mansinh
Dabhi & Ors. v. State of Gujarat [2005 (3) GLH 169] while
considering Prisons (Bombay Furlough & Parole) Rules, 1959 in the
context of Section 428 of the Code of Criminal Procedure, 1973 after
considering decision of the Full Bench in the case of Bhikhabhai
Devshi v. State of Gujarat & Ors. [AIR 1987 Gujarat 136] and
another decision of Division Bench in the case of Sharad Bhiku
Marchande v. State of Maharashtra [1991 Criminal Law Journal 2109]
and in para 16 observed and held as under:
“16.
The aims and objects of framing of the Furlough Rules and the legal
position that the furlough is a substantial and legal right of the
prisoner and the legislative intent by enacting Section 428 of the
Cr.P.C. providing the period of detention undergone by the accused to
be set-off against the sentence of imprisonment, we are of the firm
view that the words actual imprisonment undergone mean and include
the period of detention undergone by the accused as an under-trial
prisoner. By interpreting the words actual imprisonment undergone in
such manner, the purpose and object of grant of furlough are
achieved. As observed above, furlough is claimed by a prisoner as a
right and the purpose is that, he should not continue to remain in
jail for a longer period. If the argument of the Assistant
Government Pleader that actual imprisonment undergone would only mean
actual imprisonment undergone after the sentence and the prisoner
cannot be given benefit of detention or imprisonment as an under
trial prisoner is accepted, then the prisoner/convict would have to
remain in jail for a much longer period before he can be entitled to
furlough. Criminal jurisprudence demands that graver the offence,
larger the punishment and larger the punishment, more the set-off,
remission and grant of furlough. After all punishment is not
retributory, but reformatory and a prisoner should be permitted grant
of furlough after he has been sentenced to imprisonment by including
the detention or imprisonment he has suffered as under trial
prisoner. That advances the cause of justice, objective of Furlough
Rules and in conformity and in consonance with the right of liberty
provided under Article 21 of the Constitution of India.”
6. Thus,
what is held in the case of Bhikhabhai Devshi (supra) by
the Full Bench and in case of Govindbhai Mansinh Dabhi
(supra) by the Division Bench,
I am of the opinion that the applicant is entitled for grant
of furlough for a period of atleast two weeks by imposing suitable
conditions as under:
6.1. The
petitioner who is in jail since around 18 years and 10 months is
granted furlough for a period of two weeks from the date of his
release on furnishing a personal bond of Rs. 25,000/- with two
sureties of like amount to the satisfaction of the jail authority
with an additional condition about marking his presence every day
before the Dariapur Police Station, Ahmedabad and shall not leave the
jurisdiction of Dariapur Police Station without permission of the
authority till completion of period of furlough and on completion of
the above period the petitioner shall report to the jail authority in
time.
7. Rule
is made absolute to the above extent. Direct service is permitted.
[ANANT
S. DAVE, J.]
//smita//
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