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SCR.A/613/2011 4/ 4 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CRIMINAL APPLICATION No. 613 of 2011
=================================================
RAJESH
@ RAJIYO HARIBHAI - Applicant(s)
Versus
STATE
OF GUJARAT - Respondent(s)
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Appearance :
MR
JAYENDRA M SHAH for Applicant(s) : 1,
MR AJ DESAI APP for
Respondent(s) : 1,
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CORAM
:
HONOURABLE
MR.JUSTICE ANANT S. DAVE
Date
: 15/04/2011
ORAL
ORDER
Leave
to amend. Amendment to be carried out forthwith.
2. Heard
learned advocates for the parties.
3. In
this petition, initially it was prayed that authority under the
Prisons [Bombay Furlough and Parole] Rules, 1959 [for short, “the
Rules”] framed in exercise of powers conferred by clauses [5]
and [28] of the Section 59 of th Prisons Act, 1894 to be directed to
take time bound decision with regard to grant of furlough due to the
petitioner.
4. It
is not in dispute that by order dated 29.01.2011 the competent
authority has rejected the application of the convict –
petitioner for grant of furlough on the ground that offences
punishable under section 51(1) of the Prisons Act is registered at
Sabarmati Police Station and, therefore, the application can be
considered only after the petitioner is enlarged on bail. However,
during the pendency of hearing of this petition, the competent
authority has passed another order 05.03.2011 and reliance is placed
on rule 4(4)(10) of the Rules, along with late surrender by 1520 days
by the petitioner, when he was granted first furlough on 29.04.2004
and further adverse opinion received from the office of District
Police Superintendent about likelihood of breach of peace etc and
also reiterated earlier offence registered under Section 51B of the
Prisoners Act.
5. Mr.
J.M.Shah, learned counsel for the petitioner has extensively referred
to the provisions of Prisoners Act, 1984 and Rules made thereunder
i.e. Bombay Furlough and Parole Rules, 1959 and decision of Full
Bench of this court reported in 1987(2) GLR 1178 in the case of
Bhikhabhai Devshi v. State, and decision in the case of Motisinh
Kesrisinh v. State of Gujarat reported in 1994(2) GLR 1445 and
submitted that so far as Prisoners Act act is concerned, Chapter 11
of the Act is pertaining to prison offences and section 45 defines
Prison Offences and section 46 prescribes punishment of such offences
and section 48 provides award of punishment under sections 46 &
47. Section 51[1] is for entries in punishment books as prescribed
under section 12 to be recorded and section 52 provides for procedure
on committal of heinous offences and duty cast upon jail
Superintendent of forward a person alleged to have committed heinous
crime to the court of District Magistrate or any Magistrate of First
Class having jurisdiction.
6. In
view of the above, it is submitted that Bombay Furlough and Parole
Rules, 1959 have been framed in exercise of powers conferred by
clauses [5A] and [5B] of the section 5 of the Prison Act, 1984 and
breach or willful disobedience to act request of the prison as usual
have been declared by Rules made under section 59 to be a prison
offence as defined under Section 45(1) of the Act for which
punishment can be awarded only under Section 48A of the Act. In the
above backdrop of provisions of law governing jail punishment to the
convict and reference was made to the above two decisions and
unreported decision dated 09.09.2009 rendered by this Court [Coram :
Hon’ble Mr. Justice D.H.Waghela] in Special Criminal Application
No.1624 of 2009 where reference is made to the decision of Bhikhabhai
Devshi [supra]. In the above case the convict surrendered before the
jail authority late by 2939 days and by placing reliance on the above
two decisions, , the learned Single Judge held that, the
International Covenant on Civil and Political Rights of March 23,
1976 prescribe in Article 10 that penitentiary system shall comprise
treatment of prisoners, the essential aim of which shall be their
reformation and social rehabilitation. These noble objectives cannot
be completely obliterated merely on account of an incident of
abscondence by the prisoner, particularly, when his surrendering late
could have been occasioned by extraordinary circumstances or when
unduly late surrender is the obvious result of acquiescence on the
part of police. In any case, such incident of unduly late surrender
cannot invariably be held against a prisoner for the entire period of
his remaining term of sentence.
7. In
view of the above, it is submitted that the order impugned deserves
to be quashed and set aside.
8. Mr.
A.J.Desai, learned APP for the respondent – State submits that
furlough is not a right as defined under Rule 17 of the Rules and it
is open for the authority to consider overall conduct of the convict,
which may also include the breach or disobedience of any rules or
regulations of the jail Manual or Parole or Furlough Rules for which
punishment is already inflicted and discretion is left to the
authority to grant or refuse furlough in a given case.
9. Having
heard learned counsel for the parties, considering the facts and
circumstances of the case and provisions of the Act and Parole and
Furlough Rules, relied upon by the learned advocate for the
petitioner, decision in the cases of and considering what is
discussed by the Full Bench of this Court in para 34 that furlough
and parole have two different purposes and furlough is a matter of
right parole is not so and interpretation put forth by the Full
Bench on Rule 4(1) that word shall have to read as `may’ and
directory and the same is also considered by the Division Bench and
learned Single Judge in subsequent decisions, I am in agreement with
what is held by the Full Bench, Division Bench and learned Single
Judge of this Court and reliance placed on the past breach,
disobedience of Furlough Rules by the convict is misconceived and
illegal and same ought not to have been considered and even
registration of offence under Section 51 could not have weighed with
the authority while deciding furlough application while subsequent
jail conduct of th convict is reasonably good and anything adverse is
reported.
10. Considering
the above, the impugned order dated 05.03.2011 communicated by the
Administrative Officer of the office of the Inspector General of
Police, Gujarat State, Ahmedabad is hereby quashed with a direction
to the authority to take the decision afresh with regard to
application of furlough due to the convict in accordance with law and
as per decision of the Full Bench in the case of Bhikhabhai Devshi
[supra] and pass order within three weeks from the receipt of the
writ of the order of this Court.
With
the aforesaid, this petition stands disposed of.
[Anant
S. Dave, J.]
*pvv
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