Gujarat High Court Case Information System
Print
SCR.A/646/2010 4/ 4 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CRIMINAL APPLICATION No. 646 of 2010
=========================================
MOHAMMAD
TASLIM @ KALU MOHMAD UMAR - Applicant(s)
Versus
STATE
OF GUJARAT & 2 - Respondent(s)
=========================================
Appearance
:
THROUGH
JAIL for
Applicant(s) : 1,
MR MG NANAVATI, ADDL. PUBLIC PROSECUTOR for
Respondent(s) : 1,
None for Respondent(s) : 2 -
3.
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE RAJESH H.SHUKLA
Date
: 13/05/2010
ORAL
ORDER
The
present application has been filed by the applicant convict-prisoner
through jail for grant of furlough.
2. The
convict-prisoner has been convicted for offences under sec. 307 r/w
sec. 120B, 302 of IPC as well as under sec. 25(1)(a) of the Arms Act
as well as for offence under the TADA Act in TADA Case No. 8/93 by
the designated Court No. 3, City Civil & Sessions Court,
Ahmedabad, against which an appeal was preferred before the Hon’ble
Apex Court which came to be dismissed vide order dated 12.5.2009.
There are other offences as stated in the jail remark sheet including
the cases pending at the Rajasthan court.
3. It
is contended in this application that the orders under sec. 268(1) of
Cr.P.C. have not been issued qua him by the Government and he has not
enjoyed the furlough and therefore he may be granted furlough to
support his family.
4. Though
it is stated that the orders under sec. 268(1) of Cr.P.C. have not
been issued by the State Government, as it appears from the jail
remark sheet, such orders have been issued. Further, as it appears
from the jail remark sheet, he has been convicted by the Designated
TADA Court No. 3 at Ahmedabad for the alleged offences and his appeal
also came to be dismissed by the Hon’ble Apex Court and, therefore,
such an application is first required to be considered by the
competent authority. As per the provisions of sec. 389 of Cr.P.C.,
this Court can, in pending appeal, suspend or pass an order for
temporary bail.
5. It
is not in dispute that it was a TADA case against which the appeal
preferred before the Hon’ble Apex Court has also been decided and
dismissed. Therefore, as per the provisions of the special statute –
TADA Act or the Criminal Procedure Code, there is no occasion for
this Court to exercise the jurisdiction. A useful reference can be
made to the judgment of the Hon’ble Apex Court in the case of
Usmanbhai Dawoodbhai Memon and ors. v. State of Gujarat,
reported in AIR 1988 SC 922 and also to the judgment of this Court in
the case of Latif Chhmtumiya Shaikh v. State of Gujarat and ors.,
reported in 2000(3) GLH 601 as well as to the judgment of the Hon’ble
Apex Court reported in 1994 (2) JT S.C. 423 in the case of Kartar
Singh v. State of Punjab.
6. Further,
even if there is no lack of jurisdiction under Art. 226 and 227 of
the Constitution of India to examine such an application in a given
circumstance, whether the applicability of TADA Act is justified or
not, is an aspect to be considered. However, in the facts of the
present case, as the Hon’ble Apex Court has also dismissed the
appeal, there is no question of considering the justification for
applicability of TADA Act. Therefore, once the Hon’ble Apex Court
has dismissed the appeal, this Court cannot entertain any such
application under Art. 226 or 227 of the Constitution and an
application made for furlough or parole is required to be considered
by the competent authority.
7. Therefore,
it is directed that the competent authority, Inspector General
(Prisons), Gujarat State, Ahmedabad shall decide the application for
furlough referred to him by the Superintendent, Central Jail,
Sabaramti vide his letter No. 3864/09 dt. 15.10.2009 which is
referred to in the jail remark sheet.
Accordingly,
the application stands dismissed. Rule is discharged.
(Rajesh
H. Shukla, J.)
(hn)
Top