SCR.A/301/2008 1/8 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CRIMINAL APPLICATION No. 301 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 ? ========================================================= KHUDUS ABDULGANI SHAIKH - Applicant(s) Versus STATE OF GUJARAT & 3 - Respondent(s) ========================================================= Appearance : MR MH BAREJIA 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. M.H.Barejia for the petitioner and Mr.Mr. U.R.Bhatt for the respondents. 2. Rule. Learned A.P.P. Mr. U.R.Bhatt waives service of rule on SCR.A/301/2008 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 nos8/1993 and 144/1993 for the offences punishable under Sections 302, 307 and 120(B) of the Indian Penal Code read with Section 5 of the Terrorist Act and Section 25(1) of the Arms Act, the appeals against which are pending has approached this Court with a prayer to quash and set aside the report and order dated 23-7-2007 passed by the respondent no.3 dated 23-7-2007 at Annexure F to the petition as also to quash and revoke the operation of the order under Section 268(1) of the Criminal Procedure Code, 1973 qua the petitioner. The petitioner has also prayed for a direction to the competent authority to grant furlough leave to the petitioner for a period of 200 days and/ or for the period due. 4. It is the case of the petitioner that he has preferred Special Criminal Application no.311/2007 before this Court and by order dated 30-3-2007, the competent authority was directed to decide the application within one month from the date of receipt of the writ. The petitioner also made application and representation dated 12-5-07 for lifting and suspending the operation of Section 268(1) Cr.P.C., however, as there was no response from the authority concerned, the petitioner had preferred SCR.A/301/2008 3/8 JUDGMENT Spl.Cri.Application no.1345/2007 which came to be disposed of on 30-8-2007 on technical grounds. Again on 2-2-2008 the petitioner made application for revocation of the order under Section 268(1) of the Cr.P.C. and also made representation to grant due furlough of 200 days to the competent authority. According to the petitioner, the competenat authority finally rejected the earlier representation of the petitioner by a report dated 23-7-2007 which is the subject matter of challenge in the present Special Criminal Application. 5. It is submitted by learned Advocate Mr.M.H.Barejia that the competent authority has rejected the furlough leave application of the petitioner on the guise of operation of Section 268(1) of the Criminal Procedure Code. He submitted that furlough leave is a statutory right of the petitioner which cannot be curtailed. According to the learned Counsel the grant of furlough leave to one of the co-accused of the petitioner in the same crime has been sympathetically considered in Special Criminal Application no.887/2006 and so also the present petitioner is entitled to be released on furlough leave on the ground of parity. 6. As against that learned A.P.P. Mr. U.R.Bhatt submitted that the order rejecting the furlough leave application of the petitioner as well as the imposition of order under Section 268(1) 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 SCR.A/301/2008 4/8 JUDGMENT 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 two cases for offence punishable under Sections 302, 307 and 120(B) of the the Indian Penal Code read with Section 5 of the TADA Act and also under Section 25(1) of the Arms Act. Apart from this, it has been specifically stated in the affidavit-in -reply tendered on behalf of the respondent no.3 that there were 56 offences registered against the petitioner and at present there are 17 cases registered against the petitioner pending for trial at various Courts and that appeals against the conviction of the present petitioner in some other cases are also pending. 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: “ The discretion of the High Court by virtue of extraordinary SCR.A/301/2008 5/8 JUDGMENT 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 (8) xxx xxx xxx xxx (9) xxx xxx xxx xxx SCR.A/301/2008 6/8 JUDGMENT (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 appeals against conviction of the present petitioner are also pending. 11. The claim for parity in respect of the present petitioner with that of co-accused in the same case can also be not considered as the convicts whose appeals are pending can only be released on bail by the appellate Court under Section 389(1) of the Cr.P.C. 12. 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. SCR.A/301/2008 7/8 JUDGMENT 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.” 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.: “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, SCR.A/301/2008 8/8 JUDGMENT 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.