SCR.A/311/2008 1/8 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 SCR.A/311/2008 2/8 JUDGMENT 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 SCR.A/311/2008 3/8 JUDGMENT 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 SCR.A/311/2008 4/8 JUDGMENT 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 SCR.A/311/2008 5/8 JUDGMENT judgment wherein it has been observed that: “ 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: “4. When prisoners shall not be granted furlough.- The following categories of prisoners shall not be considered for release on furlough:- (1) xxx xxxx xxxx (2) xxx xxx xxxx (3) xxx xxx xxxx (4) 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. (5) Prisoners, who, in the opinion of the Superintendent of the prison show a tendency towards crime. (6) Prisoners whose conduct is in the opinion of the Superintendentof the Prison, not satisfactory enough. (7) xxx xxx xxx xxx SCR.A/311/2008 6/8 JUDGMENT (8) xxx xxx xxx xxx (9) xxx xxx xxx xxx (10)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: “9. 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 SCR.A/311/2008 7/8 JUDGMENT 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 SCR.A/311/2008 8/8 JUDGMENT under at paras -32 and 33 of the judgment.: “32. 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.” “33. 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.