SCR.A/332/2008 1/7 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CRIMINAL APPLICATION No. 332 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 ? ========================================================= GOVABHAI NAGJIBHAI RABARI - Applicant(s) Versus STATE OF GUJARAT & 2 - Respondent(s) ========================================================= Appearance : MR P.R.Abhichandani for the Applicant. Mr.L.R.Pujari, A.P.P. for the Respondents. ================================================= CORAM : HONOURABLE MR.JUSTICE MD SHAH Date : 09/04/2008 ORAL JUDGMENT 1. Heard Mr. P.R.Abhichandani for the petitioner and Mr. L.R.Pujari, A.P.P. for the respondents. 2. Rule. Learned A.P.P. Mr. Pujari waives service of rule on SCR.A/332/2008 2/7 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 (i) undergoing life imprisonment for the offence punishable under Section 302 of the Indian Penal Code and Section 135(1) of the Bombay Police Act in Sessions Case no.72/2001 against which Criminal Appeal no.2156/2005 is pending before this Court and (ii) against whom CR no.I 327/2005 registered at Sabarmati Police Station for the offences punishable under Sections 302,307, 324 and 120B is also pending and who is in judicial custody as the regular bail application has been rejected by this Court has approached this Court with a prayer to quash and set side the impugned order dated 10-1-2008 Jud.359/08 passed by the respondent no.3 at Annexure”A” and to declare the same to be unlawful, illegal and for a direction to the respondent authorites to release the petitioner on furlough leave on appropriate terms and conditions. 4. It is submitted by the learned Advocate Mr. P.R.Abhichandani for the petitioner that the order at Annexure “A” dated 10-1-2008 Jud.359/08 is passed under Rule 4(4) of the Bombay Furlough and Parole Rules,1959, but while perusing the order, it seems that the application of the present petitioner does not come within the purview of Rule 4(4) of Bombay Parole and Furlough Rules,1959, and hence, the order passed by the respondent no.3 being illegal, arbitrary and without application of mind is required to be quashed SCR.A/332/2008 3/7 JUDGMENT and set aside. According to the learned Counsel for the petitioner in past also the present petitioner was released on temporary bail in pursuance of the order passed by this Court on two occasions and during that period no untowards incident took place. It is further the submission of the learned Counsel that furlough is a statutory right of the prisoner and considering the fact that the present petitioner was earlier released on bail on two occasions, the furlough leave application of the preset petitioner is required to be granted. The learned Counsel also submitted that the present petitioner is ready to bear the expenses of police protection , and therefore, he be released on furlough with police protection. 5. As against that , learned A.P.P. Mr. Pujari submitted that the furlough leave application of the present petitioner has been rightly rejected by the respondent no.3-authority after taking into consideration the adverse police opinion, jail conduct and other relevant factors. It is also the submission of the learned A.P.P. that as per the jail record, the present petitioner himself had inflicted injury on his person by using a razor only with an intention to go out of jail with some ulterior motive. According to the learned A.P.P. even while undergoing setence in jail, the present petitioner had committed the murder of a person named “Chetan Battery” inside the jail itself which clearly shows that the present petitioner is a very head strong and criminal minded person. According to the learned Counsel if the present petitioner is released on furlough even with police escort there is every possibility of his absconding SCR.A/332/2008 4/7 JUDGMENT or committing illegal activities. Under these cirumstances, it is the submission of the learned A.P.P. that the furlough leave application of the present petitioner has been rightly rejected by the respondent-authority by order dated 10-1-2008, and hence, no interference is called for . 6. This Court has gone through the jail record of the convict prisoner . In the opinion of this Court, there is sufficient material to believe that by hook or by crook the present petitioner intends to go out of the jail with an ulterior motive with a view to committing other serious offence or for absconding from police custody. Merely because detailed reasons have not been given by the respondent no.3-authority while rejecting the furlough leave application of the present petitioner that by itself will not be a ground for releasing the present petitioner on furlough or for concluding that the order rejecting the same is illegal. A prisoner who had committed murder while undergoing sentence in jail can go to any extent and commit horrifying and heinous crimes if released on furlough. It is the adverse police opinion and the conduct of the prisoner that has to be taken into consideration while granting furlough. Looking to his past history, jail conduct and adverse police opinion, the furlough leave application is rightly rejected by the competent authority.(See Rule 4(4) of the Bombay Furlough and Parole Rules, 1959). 7. Reference in this connection may be had to the decision rendered in the case of : (i) Motisingh Kesirisinh v. State of Gujarat reported in SCR.A/332/2008 5/7 JUDGMENT 1994(2) G.L.R.1145 wherein at para-5 of the judgment it has be 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.”, (ii) 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 follows: “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 authorities. 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 SCR.A/332/2008 6/7 JUDGMENT 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.”, and, (iii) 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, 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 SCR.A/332/2008 7/7 JUDGMENT 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.” 8. 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 interference, more particularly, as stated earlier, the present petitioner's jail conduct is such that he would not hesitate to commit any gruesome and heinous crime if released on furlough even on police escort. 9. Considering all these aspects, this application deserves to be rejected, and is accordingly rejected. (M.D.Shah,) lee.