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1993 DIGILAW 80 (GUJ)

VALLABH RAMJI v. STATE

1993-02-16

B.J.SHETHNA, K.J.VAIDYA

body1993
K. J. VAIDYA, J. ( 1 ) THE petitioner-Vallabh Ramji a concivt prisoner undergoing life sentence in Central Prisons Ahmedabad has by this writ petition under Articles 226 and 227 of the Constitution moved this court for getting himself released on first furlough challenging the impugned order dated 1-10-1992 passed by the Inspector General of Prisons Ahmedabad rejecting the same on the ground of adverse police opinion. ( 2 ) FEW relevant facts :- According to the petitioner for the alleged offence punishable under Section 302 of IPC he came to be convicted and sentenced to suffer RI for life by the learned Session Judge Junagadh by the judgment and order dated 22-6-1990 and since then he is in jail for more than five years including the period undergone as an under-trial prisoner. That by this time he has enjoyed in all five months parole leave and that all the time had surrendered in time to the jail authorities. Not only that but despite being out of the jail for number of days together not a single untoward incident has been reported against him. Further still there is nothing on the jail record to show that his conduct in jail was not satisfactory. Thus despite this toll-tale facts and circumstances highlighted above his first furlough leave which fell due in the month of June 1992 and applied for on 1 has been rejected by the I. G. Prisons Ahmedabad on the sole ground of adverse police opinion ( 3 ) MRS. S. G. Patel learned advocate for the petitioner while challenging the impugned order has raised the following two contentions: [i] That taking into consideration the self-evident clean conduct of the petitioner as stated above in para-2 of this judgment the refusal of first rightful furlough on the ground of adverse police opinionon face of it demonstrates total unreasonableness and perversity. [ii] That despite the fact that petitioner has a right to-be furnished with a copy of the impugned order passed against him the same has not been supplied to him which is illegal and unjust. ( 4 ) AS against the above Miss Valikarimwala the learned APP instructed by the jail officers present in the Court has not been able to controvert the above factual position regarding satisfactory law abiding conduct of the petitioner inside and out-side the jail when he came to be so released on parole. ( 4 ) AS against the above Miss Valikarimwala the learned APP instructed by the jail officers present in the Court has not been able to controvert the above factual position regarding satisfactory law abiding conduct of the petitioner inside and out-side the jail when he came to be so released on parole. When such is the factual uncontroversial position on the record we are quite surprised and shocked too as to where indeed was any scope for the alleged adverse police opinion to have place on the record (?) and yet when on the said ground the rightful furlough of petitioner is rejected from. If that is no the non-application of mind and abdication of the statutory function then what else it is ? Thus perse the mechanical chanting of the phrase adverse police opinion is something totally contradictory to otherwise self-evident material available on the record This is to say the least appears to be quite dis-tasteful. Time and again it has been repeatedly pointed out by this Court that the mere chanting of the phrase adverse police opinion without there being anything in support of the same on the record is not just and sufficient to turn down the parole/furlough leave application. Not only that but twice or thrice even the copies of such judgments on the point have been forwarded to the concerned authorities for much needed perusal and follow-up action and yet the same is surprisingly of no avail. An-Opinion is always a matter of inference to be drawn and the conclusion arrived at on the basis of availability of relevant material. Thus if there is no material on the record there is indeed no question of either drawing inference or final conclusion by way of final opinion: In fact turning to the facts and circumstances of the instant case the record of petitioner is so clear and self-evident that only opinion which could have been derived would have been favourable and not adverse as alleged. Rather favourable opinion is the only unescapable conclusion that has got to be drawn from the jail record itself. Rather favourable opinion is the only unescapable conclusion that has got to be drawn from the jail record itself. Any way under the circumstances when it was pointed out to the learned APP as to why we should not issue notice to the concerned authority to remain personally present and explain to the Court this clear and difficult to conceive approach of not taking into consideration the previous judgments of this Court on the point and further still as to why concerned authority should not be asked to pay cost to the petitioner personally from his pocket the learned APP had sought sometime so as to enable her to contact the authority concerned for reconsideration of the impugned order in the light of previous judgments of this Court. Accordingly Court is happy to be informed today that the Inspector General of Prisons Ahmedabad having reconsidered the case has granted first furlough to the petitioner and therefore to that extent nothing further is required to be done in this matter. ( 5 ) THAT takes us now to yet another quite formidable contention raised on behalf of the petitioner regarding non-furnishing a copy of the impugned order rejecting his first furlough This grievance is indeed quite serious enough which requires to be taken close look at for deciding the same and giving appropriate directions to the Inspector General of Prisons Ahmedabad. As regards this point a short Affidavit has been filed by Mr. L. V Kharadi Superintendent Central Prisons Ahmedabad wherein it has been stated that the I G Prisons has rejected the furlough of petitioner and the grounds on which the same was rejected have been orally explained in Gujarati to the petitioner for which his signature below the impugned order of rejection has been taken Now this sort of mere oral communication of the order of rejection of furlough that by itself is indeed not sufficient We do not know whether the helpless prisoner in jail atmosphere in fact had followed or not what has been stated in the said order rejecting his first furlough when the same came to be orally communicated? We also do not know whether the petitioner knew as to what was the adverse police opinion It should not be forgotten that furlough is quite an important qualified right of the prisoner to be released from jail periodically as stipulated in the relevant rules subject of course to the amending circumstances available at the relevant time. When such an important right for whatever reasons has to be denied the same should be informed in writing only. Therefore such oral ipsi-dixit communication is not sufficient compliance with justice and fair-play Every person more particularly the prisoner who is in jail has a right not only to know as to what are the contents of adverse order which has been passed against him but he should have in his hand a written copy of the said order so that in the event of necessity to challenge the same he can lake legal assistance and also inquire from his relatives in what manner such statement came to be recorded against him and point out that ground on which impugned order is based is false or not Under the circumstances unless the prisoner is provided with a copy of the order passed against him he would be seriously handicapped in making grievance by attacking the alleged grounds on which the order came to be passed against him Thus not to give a copy of impugned order in very nature of things is not only illegal but the same is as well against the principles of the natural justice and fair-play. Under the circumstances it is hoped that henceforth whenever parole/furlough application are rejected the copy of such order disclosing grounds on which it came to be rejected must be communicated to the prisoner so that he is not kept any more in dark for assailing the same before the higher forum We do not expect such orders to be long-one but at the same time the same must broadly reflect the application of mind of authorities to the jail record and the reasons for refusal of such parole/furlough. We hope that henceforth the authorities will take due care and bear in mind these observations by giving a copy of the impugned order to the prisoner in the matter of parole/furlough. We hope that henceforth the authorities will take due care and bear in mind these observations by giving a copy of the impugned order to the prisoner in the matter of parole/furlough. ( 6 ) IN the result since the furlough is already granted to the petitioner this matter does not survive and stands disposed of accordingly Rule discharged application allowed. .