Gujarat High Court Case Information System
Print
SCR.A/311/2008 8/ 8 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CRIMINAL APPLICATION No. 311 of 2008
For
Approval and Signature:
HONOURABLE
MR.JUSTICE MD SHAH
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================================
LIYAKATHUSEN
@ MASTER KHUDABAX SHAIKH THRO SHAKILAHMED K.SEK - Applicant(s)
Versus
ADMINISTRATIVE
OFFICER & 3 - Respondent(s)
=========================================================
Appearance
:
MR
H.S.MULIA for
Applicant.
Mr.U.R.Bhatt, APP for the respondents.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE MD SHAH
Date
: 30/07/2008
ORAL
JUDGMENT
1. Heard
Mr. H.S.Muli for the petitioner and Mr.U.R.Bhatt, learned A.P.P. for
the respondents.
2. Rule.
Learned A.P.P. Mr.U.R.Bhatt waives service of rule on behalf of the
respondents.
3. By
means of filing this petition under Article 226 of the Constitution
of India and under the provisions of the Bombay Parole and Furlough
Rules, 1959, the petitioner who is undergoing life imprisonment
imposed on him by the learned Special Designated Court(TADA) in Case
no.8/1993 for the offence punishable under Sections 302, 307.120(B),
34 of the Indian Penal Code read with Section 25(1)(c) of the Arms
Act and Section 3,5 of the TADA Act on 21-10-2002, the appeal against
which is pending has approached this Court with a prayer to quash and
set aside the order dated 5-2-2008 passed by the respondent no.2 at
Annexure ‘C’ to the petition as also for a direction releasing the
petitioner on furlough leave for a period of three weeks.
4. It
is the case of the petitioner that the petitioner had been denied the
furlough leave in the year 2006 by the competent authority by
imposing Section 268 of the Criminal Procedure Code. According to the
petitioner, he therefore preferred Spl.Cri.Application no.887 of 2006
before this High Court and by order dated 28-12-2006 the respondents
were directed to consider the case of the petitioner for furlough
without considering Section 268 Cr.P.C.and accordingly the case of
the petitioner for furlough was considered and granted vide
communication dated 2-3-2007. It is further the case of the
petitioner that on completion of the furlough he had surrendered and
again appied for furlough leave in November, 2007 which came to be
rejected by the competent authority on the ground that Section 268
Cr.P.C. is applicable. The petitioner then preferred Special Criminal
Application no.2199 of 2007 before this High Court wherein a
direction was given to the respondent-competent authority vide order
dated 16-11-2007 that the furlough leave application of the
petitioner be decided within a period of two weeks from the date of
receipt of the writ. However the respondent-competent authority vide
order dated 5-2-2008 rejected the furlough leave application of the
petitioner on the ground that Section 268 Cr.P.C. is applicable
against the petitioner. It is against this order that the present
petitioner has approached this Court by way of the present Special
Criminal Application.
5. It
is submitted by learned Advocate Mr.H.S.Mulia that the competent
authority has rejected the furlough leave application of the
petitioner on the guise that Section 268 of the Criminal Procedure
Code is applicable against him. He submitted that furlough leave is a
statutory right of the petitioner which cannot be curtailed.
According to the learned Counsel once furlough leave is granted to
the petitioner by revoking the order under Section 268, then even
the subsequent applications for furlough leave cannot be rejected by
the authority on the ground that Section 268 Cr.P.C. is applicable.
6. As
against that learned A.P.P. Mr. U.R.Bhatt submitted that the order
rejecting the furlough leave application of the petitioner by
applying Section 268 of the Criminal Procedure Code against the
petitioner is quite legal and proper which does not call for any
interference.
7. This
Court has gone through the record of the present petitioner. There is
adverse police opinion against the present petitioner which is based
on authentic information. It cannot be disputed that while granting
furlough leave, it is required to consider the gravity and
seriousness of the offence for which the present petitioner has been
convicted. In the present case, it is a hard fact that the present
petitioner has been convicted in the said case for offence
punishable under Sections 302, 307, 120(B) , 34 of the the Indian
Penal Code read with Section 25(1)(c) of the Arms Act and Sections
3,5 of the TADA Act . Apart from this, it has been specifically
stated in the affidavit-in -reply tendered on behalf of the
respondent no.2 that there were 20 offences registered against the
petitioner and at present there are 5 cases registered against the
petitioner pending for trial at various Courts and that he has also
been convicted in some other cases. The remarks against the
petitioner are that the petitioner is a dreaded criminal belonging to
the notorious Latif Gang and that he is involved in grave offences
affecting public order.
8. It
is in this background that I am now required to consider whether or
not the petitioner is entitled to the furlough leave as also
exemption from the operation of the order under Section 268(1) of the
Cr.P.C. For this purpose, it is necessary to invite reference to
the decision rendered in the case of Motisingh Kesirisinh v. State of
Gujarat reported in 1994(2) G.L.R.1145 wherein at para-5 of the
judgment wherein it has been observed that:
?S The discretion of the High
Court by virtue of extraordinary powers under Art.226 of the
Constitution of India cannot be lightly exercised in matters where
the authorities have quite justly and properly exercised its
discretion. How to manage and regulate the Jail administration is
essentially and entirely a concern and look out of the Jail
authorities and as long as the orders passed by them are just, fair
and proper, this Court has no right or business to meddle with the
same and thereby in the internal affairs of the Prison
administration??.
9. Rule 4(4)(5)(6) and 10) of
the Bombay Furlough and Parole Rules ,1959 reads as under:
?S4. When prisoners shall not
be granted furlough.-
The following categories of
prisoners shall not be considered for release on furlough:-
xxx xxxx xxxx
xxx xxx xxxx
xxx xxx xxxx
Prisoners whose release is not
recommended in Greater Bombay by the Commissioner of Police and
elsewhere, by the District Magistrate o n the ground of public peace
and tranquility.
Prisoners, who, in the opinion
of the Superintendent of the prison show a tendency towards crime.
Prisoners whose conduct is in
the opinion of the Superintendentof the Prison, not satisfactory
enough.
xxx xxx xxx xxx
xxx xxx xxx xxx
xxx xxx xxx xxx
Prisoners who have at any time
escaped or attempted to escape from lawful custody or have defaulted
in any way in surrendering themselves at the appropriate time after
release on parole on furlough.??
10. Keeping the aforesaid
principles in mind this Court has examined the case of the petitioner
for grant of furlough leave and it is found that there is a concrete
information with the police department that the present petitioner is
a habitual offender and hardened criminal and there is every
likelihood of his absconding and also of engaging himself in
antisocial activities if his furlough leave application is granted.
It is also pertinent to note that he was involved in several other
cases which are pending trial and in some other cases also he has
been convicted.
11. Reference in this
connection, may be had to the decision in the case of State of
Maharashtra & Anr. v. Suresh Pandurang Darvakar reported in 2006
AIR SCW 3222. wherein it has been held by the Honourable Supreme
Court in Para 9 of the judgment as under:
?S9. Unfortunately, the High
Court does not appear to have addressed itself to these relevant
aspects. It took note of the fact that nobody was willing to stand
surety for release of the respondent. The High Court directed that he
can be released on furnishing surety of amount lying in deposit with
the jail authoritties. That is not the only condition for release on
furlough. There is another requirement. Even if it is held for the
sake of argument that furnishing of surety of any amount lying in
deposit with the jail authorities can be construed to be in
compliance with the requirements of Rule 6, Rule 4(4) mandates
that the prisoner who seeks to be released cannot be released if not
recommended by the concerned authority on the ground of public peace
and tranquility. The High Court has not recorded any finding that
the report of the District Magistrate and/or Superintendent of
Police had not objected to the release on furlough on the ground of
public peace and tranquility.??
12. The stand taken by the
learned Counsel for the petitioner that once the order under Section
268(1) of the Criminal Procedure Code is revoked and furlough leave
is granted, the competent authority cannot reject the subsequent
furlough leave of the petitioner also cannot be accepeted for the
simple reason that at that point of time the relief of furlough was
considered for that particular period for which it was applied may
be under certain special circumstances prevailing at that time,and
not for all times to come. In my view, convicts against whom appeals
are pending can be released on bail only by the Appellate Court
under Sec.389(1) of the Cr.P.C. and not by the administration.
13. In view of the above, it
is clear that a prisoner who seeks to be released cannot be
released if not recommended by the concerned authority on the ground
of public peace and tranquility. In the present case there is
absence of recommendation by the concerned authority for the release
of the present petitioner, police opinion is adverse and taking into
consideration his past record and history, the order passed by the
jail authority is legal and proper and does not call for any
inteference. Reference may also be had to the Full Bench
decision rendered by this High Court in the case of LATIF
CHHOTUMIYA SHAIKH V. STATE OF GUJARAT reported in 2000(3) 4 G.L.R p.
2363 wherein it has been held as under at paras -32 and 33 of the
judgment.:
?S32. Thus, powers under the
provisions contained in the Bombay (Furlough and Parole) Rules, 1959
cannot be exercised by the executive in favour of a convict
undergoing sentence whose appeal is pending before the Court. The
Division Bench in the case of State of Gujarat v. Jayantilal M.
Patel (1995 (2) GLH 260 examined the scheme of the Bombay(Furlough
and Parole) Rules, 1959 and Sec.389(1) of Criminal Procedure Code.
The Division Bench following the decision of the Apex Court in case
of K.M.Nanavati(supra) and agree with the views of Division Bench of
Bombay High Court in case of Jayanti Veerappa Shetty v. State of
Maharashtra (1985 Cr.LR (Maharashtra)598) held that the power of
grant of parole cannot be exercised by the administration where the
appeals of convicts concerned are pending and such persons can be
released on bail only by the Appellate Court under Sec.389(1) of the
Code of Criminal Procedure??and not by the administration.??
?S33. In our opinion, a
convict undergoing sentence imposed by the competent authority cannot
be released on parole or furlough by High Court when an appeal
arising out of the said judgment of conviction and sentence is
pending.??
14. Considering all these
aspects, this application deserves to be rejected, and is accordingly
rejected.
(M.D.Shah,J.)
lee.
Top