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2001 DIGILAW 206 (GUJ)

Somabhai Chanabhai v. STATE

2001-03-20

S.K.KESHOTE

body2001
S. K. KESHOTE, J. ( 1 ) HEARD the learned counsel for the parties. ( 2 ) THE petitioner is a convict prisoner No. 79353 undergoing sentence at Surat district Jail at Surat for the offence under Sec. 376 of IPC. Learned Additional Sessions judge, Bharuch vide its judgment dated 1. 7. 1998 convicted the petitioner and sentenced him to suffer rigorous imprisonment for seven years for the commission of offence under Sec. 376 IPC. The petitioner is in jail since 1996. The petitioner made an application to the Inspector General of Prisoner, Government of Gujarat for grant of his due first furlough. This application has been made by the petitioner on 9. 5. 2000. The i. G. Prisons, Government of Gujarat under its order dated 5. 7. 2000 rejected that application of the petitioner. Hence, this special criminal application. ( 3 ) COPY of the order of the Inspector General of Prisons, Gujarat State, Ahmedabad is there in the compilation at page No. 5. Learned counsel for the petitioner has also filed translation of that order. This application of the petitioner as what it is correctly stated by the learned counsel for the petitioner came to be rejected by I. G. Prisons, gujarat State, Ahmedabad on the ground that the Police Officer, Bharuch has not given good opinion for the petitioner. It transpires from this order that the Police Officer, bharuch apprehended breach of peace in case where the petitioner is released on furlough leave. ( 4 ) THE aims and objects of the Bombay Furlough and Parole Rules, 1959, are to enable the inmate to maintain continuity with his family life and deal with the family matters; to save the inmate from the evil effects of continuous prison life; and to enable the inmate to maintain constructive hope and active interest in the life. The parole and furlough rules are part of penal and prison system with a view to humanise the prison system. These rules enable the prisoners to get release and to return to the outside world for a short prescribed period. The man being a social animal to accord social interaction to a prisoner is very essential and that is how it is made effective by enacting these rules by the State. ( 5 ) RULE 3 of the aforesaid rules makes a provision as to when prisoner may be granted furlough. The man being a social animal to accord social interaction to a prisoner is very essential and that is how it is made effective by enacting these rules by the State. ( 5 ) RULE 3 of the aforesaid rules makes a provision as to when prisoner may be granted furlough. A mere reading of this provision gives out that furlough is a matter of right. It is not necessary for the prisoner to give out grounds for his release on furlough. However, it is not an absolute right of the prisoner. The grant of furlough leave to the prisoner is subject to the provisions of Rule 4 of the rules aforesaid. ( 6 ) RULE 4 of the rules aforesaid enumerate the categories of the prisoner who shall not be considered eligible for release on furlough. For the purpose of the present case, we are concerned with the category of the prisoners mentioned at Sr. No. 4. To appreciate the contentions raised by the learned counsel for the petitioner, I consider it to be appropriate to extract those clauses of Rule 4 of the rules aforesaid in this order. 4. When Prisoners shall not be granted furlough : the following categories of prisoners shall not be considered, for release on furlough: (1) Habitual prisoners. (2) Prisoners convicted of offences under Secs. 392 to 402 (both inclusive) of the indian Penal Code. (3) Prisoners convicted of offence under the Bombay Prohibition Act, 1949. (4) Prisoners whose release is not recommended in Greater Bombay by the commissioner of Police and elsewhere, by the District Magistrate on the ground of public peace and tranquillity. (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 Superintendent of the Prison, not satisfactory enough. (7) Prisoners confined in the Ratnagiri Special Prison (other than prisoners transferred to that prison for jail services.) (8) Prisoners convicted of offences of violence against person or property committed for political motives, unless the prior consent of the State government to such release is obtained. (9) A prisoner or class of prisoners in whose case the State Government has directed that the prisoner shall not be released or that the case should be referred to it for orders. (9) A prisoner or class of prisoners in whose case the State Government has directed that the prisoner shall not be released or that the case should be referred to it for orders. (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. (11) Prisoners convicted of offences under the Narcotic Drugs and Psychotropic substance Act, 1985. ( 7 ) IN the case of prisoner where District Magistrate has not recommended for his release on the ground of public peace and transquillity, the I. G. Prisons, Gujarat State, at Ahmedabad may be justified in rejecting his application. Those prisoners who in the opinion of the Superintendent of prison show a tendency towards crime are also not eligible for grant of furlough leave. ( 8 ) IN the case in hand, the Police Officer, Bharuch has not given opinion in favour of grant of furlough leave to the petitioner. The police apprehended possibility of breach of peace on his release. If we go by Clause 4 of Rule 4 of rules aforesaid, then opinion is to be formed by the District Magistrate and not by the Police Officer. Otherwise also, even if it is taken that the Police Officer is competent to report under clause 4 of Rule 4 of the rules aforesaid, but this opinion can not be given in a mechanical manner. The Police Officer has to record the satisfaction on the basis of the material collected in the inquiry. Clause 4 of Rule 4 does not empower the Police officer to act mechanically, arbitrarily and perversely. Furlough leave is a right and in case it is to be denied to a prisoner then there must be cogent and satisfactory reasons, meaning thereby, a satisfaction of the Police Officer based on material that in case the prisoner is released on furlough leave it may affect the public peace and tranquillity. To deny a right to a prisoner conferred under the rules is a serious thing. Rule no doubt empowers the I. G. Prisons, Gujarat State, Ahmedabad not to release the prisoner where police Officer opined his release may affect the public peace and tranquillity. To deny a right to a prisoner conferred under the rules is a serious thing. Rule no doubt empowers the I. G. Prisons, Gujarat State, Ahmedabad not to release the prisoner where police Officer opined his release may affect the public peace and tranquillity. Denial of a right to a prisoner conferred under Rule 3 of the rules aforesaid on the ground that his release may adversely affect the public peace and tranquillity, the authority has to act reasonably, fairly and impartially. While giving adverse decision on the application of a prisoner, the Officer has to follow the basic principles of natural justice and fairplay. This report of the Police Officer no doubt can be a ground to deny this benefit to the prisoner but only after giving him a reasonable opportunity of hearing. This adverse decision on which there cannot be two opinions, on the application of furlough may be an executive function, meaning thereby, the order passed by the officer concerned may be an administrative one, but where the same affects the right of a prisoner before it is denied to him, the principles of natural justice are to be complied with. ( 9 ) IN this case, the application of the petitioner has been rejected by the I. G. Prisons relying on the adverse report of the Police Officer, Bharuch. ( 10 ) IN the case of A. K. Kraipak vs. Union of India, reported in AIR 1970 SC 150 , a point has been raised that the Selection Board was exercising administrative power while making the selections of the candidates and the exercise of this power was not subservient to the rules of natural justice. Dealing with this point, their Lordships of the honble Supreme Court observed : "13. The dividing line between an administrative power and a quasi-judicial power is quite thin and is being gradually obliterated. For determining whether a power is an administrative power or a quasi-judicial power one has to look to the nature of the power conferred, the person or persons on whom it is conferred, the framework of the law conferring that power, the consequences ensuing from the exercise of that power and the manner in which that power is expected to be exercised. Under our Constitution the rule of law pervades over the entire field of administration. Under our Constitution the rule of law pervades over the entire field of administration. Every organ of the State under our Constitution is regulated and controlled by the rule of law. In a welfare State like ours it is inevitable that the jurisdiction of the administrative bodies is increasing at a rapid rate. The concept of rule of law would lose its vitality if the instrumentalities of the State are not charged with the duty of discharging their functions in a fair and just manner. The requirement of acting judicially in essence in nothing but a requirement to act justly and fairly and not arbitrarily or capriciously. The procedures which are considered inherent in the exercise of a judicial power are merely those which facilitate if not ensure a just and fair decision. In recent years the concept of quasi-judicial power has been undergoing a redical change. What was considered as an administrative power some years back is now being considered as a quasi-judicial power. me following observations of Lord Parker c. J. In Regina vs. Criminal Injuries Compensation Board, Ex. Parte Lain (1) are instructive. "with regard to Mr. Bridges second point I cannot think that Atkin, L. J. intended to confine his principle to cases in which the determination affected rights in the sense of enforceable rights. Indeed, in the Electricity Commissioner case, the rights determined were at any rate not immediately enforceable rights since the scheme laid down by the Commissioners had to be approved by the minister of Transport and by resolutions of Parliament. The Commissioners nevertheless were held amenable to the jurisdiction of this Court. Moreover, as can be seen from Rex. vs. Postmaster-General, Ex-pane Carmichael (2) and rex. vs. Boycott Ex pane Keasley (3) the remedy is available even though the decision is merely a step as a result of which legally enforceable rights may be affected. The position as I see it is that the exact limits of the ancient remedy by way of certiorari have never been and ought not to be specifically defined. They have varied from time to time being extended to meet changing conditions. At one , time the writ only went to an inferior Court. Later its ambit was extended to statutory Tribunals determining a Us inter parties. They have varied from time to time being extended to meet changing conditions. At one , time the writ only went to an inferior Court. Later its ambit was extended to statutory Tribunals determining a Us inter parties. Later again it extended to cases where there was no Us in the strict sense of the word but where immediate or subsequent rights of a citizen were affected. The only constant limits throughout were that it was performing-a public duty. Private or domestic tribunals have always been outside the scope of certiorari since their authority is derived solely from contract, that is, from the agreement of the parties concerned. Finally, it is to be observed that the remedy has now been extended, see Reg. vs. Manchester Legal Aid Committee, Exparte R. A. Brand and Co. Ltd. (1) to cases in which the decision of an administrative officer is only arrived at after an inquiry or process of a judicial or quasi-judicial character. In such a case this Court has jurisdiction to supervise that process. We have as it seems to me reached the position when the ambit of certiorari can be said to cover every case in which a body of persons of a public as opposed to a purely private or domestic character has to determine matters affecting subject provided always that it has a duty to act judicially. Looked at in this way the board in my judgment comes fairly and squarely, within the jurisdiction of this court. It is as Mr. Bridge said, a servant of the Crown charged by the Crown, by executive instruction, with the duty of distributing the bounty of the Crown. it is clearly, therefore, performing public duties". ( 11 ) BOMBAY Furlough and Parole Rules, 1959 (hereinafter referred to as the Rules, 1959) are framed in exercise of power conferred by Clause (5) and (28) of Sec. 59 of the Prisons Act, 1894. These are statutory powers conferred upon the officer concerned to accept or reject the application of a prisoner for furlough leave. But even if we proceed with the assumption and presumption that it is an administrative power certainly as said by their Lordships of the Honble Supreme Court in the case of A. K. Kraipak vs. Union of India, (Supra) the dividing line between an administrative power and a quasi-judicial power is quite thin and is being gradually obliterated. But even if we proceed with the assumption and presumption that it is an administrative power certainly as said by their Lordships of the Honble Supreme Court in the case of A. K. Kraipak vs. Union of India, (Supra) the dividing line between an administrative power and a quasi-judicial power is quite thin and is being gradually obliterated. After this decision, many other decisions have been also delivered by their Lordships of the honble Supreme Court and one of those is a decision in the case of Maneka Gandhi. ( 12 ) REFERENCE may also have to another decision of the Apex Court in the case of state of Orissa vs. Dr. Ms. Binapani Dei, reported in 1967 (2) SCR 621. Therein their lordships of the Honble Supreme Court held that even administrative orders which ensue civil consequences are to be passed consistently with the rules of natural justice after informing the affected persons the case of the State. Arriving at a just decision is the aim and object of administrative enquiries which may have a far. reaching effect than the decision in quasi-judicial inquiry. One of the basic part of the principles of natural justice is that the authority to make known to the person concerned the material on which it has relied to give adverse decision against him. The authority is to give him that material and further an opportunity to him to place his defence/submissions. ( 13 ) IN a case where the Inspector General of Prisons, Ahmedabad relying on the police adverse opinion against the prisoner, denied him his right of furlough leave, it is incumbent upon him to give that material and further an opportunity to make his representation. Inspector General of Prisons is certainly a very senior officer than the police Officer who adversely reports against the prisoner. After receipt of the representation of the prisoner against the police adverse report, the I. G. Prisons has to decide the matter after considering that representation and record his satisfaction whether it is a fit case where furlough leave has to be granted to the prisoner or not. The material does not mean only the final communication of the adverse police report. The material on which the opinion is formed by the police is also to be furnished to the prisoner. The material does not mean only the final communication of the adverse police report. The material on which the opinion is formed by the police is also to be furnished to the prisoner. In the case, it is open to the I. G. Prisons to call comments on the representation of the prisoner from concerned police officer and thereafter it is to decide the matter finally. It has to record its satisfaction after considering all materials rather than to rely merely on the police report. The realities of life have to be kept in mind while appreciating the evidence for arriving at truth. The Courts cannot ignore the erosion in values of life which are common features of present system. It is true that such erosion cannot be a bonus in favour of those who are guilty of polluting the Society and mankind. It is not unknown that many a times, these police reports against the prisoners are manipulated. The prisoner has committed a crime for which he has been convicted and naturally, hundred of persons may be against him in the area where he resides and possibility of giving of the statements against him by the relations of the victims cannot be overruled. These are the cases where the Police Officer or district Magistrate or I. G. Prisons has to act reasonably, fairly and impartially and then to record satisfaction on the basis of material available. The prisoner in this case is in jail since 1996 and he has also been convicted for the offence which he was alleged to have committed. After conviction of the accused, there are little chances from his side or from the side of his supporters and well, wishers to indulges in all such activities i. e. to disturb public peace or tranquillity. In such matters, pending trial if accused is released there may be some chances where he may indulge in activities of threatening or pressurizing or manoeuvring the prosecution witnesses and in the process thereof there may be possibility of disturbance of public peace or tranquillity. So far as the victim and its well-wishers are concerned, they all the time to come will be aggrieved of this act of the accused and there is all possibility of speaking against him by them as and when an occasion arises. So far as the victim and its well-wishers are concerned, they all the time to come will be aggrieved of this act of the accused and there is all possibility of speaking against him by them as and when an occasion arises. I have seen in many cases where adverse opinion is formed by the police against the prisoners after recording statements of close relations of the victims. So a great responsibility and duty falls upon the Police Officer or district Magistrate or I. G. Prisons to decide whether what the people are stating against the prisoner is a reality or an outcome of vindicative, inimical and partial approach of theirs. This becomes more important as ultimately the report of the Police Officer in many cases it results in deprival of a right conferred upon a prisoner to go on furlough leave. Not only this, if mechanically on these reports of the Police Officers, the I. G. Prisons acts without giving an opportunity of hearing to the prisoners, then the very object and purpose of conferring this right to the prisoners will be frustrated. The Police officer while giving adverse opinion against the prisoner which can be made use of by the I. G. Prisons to deny a valuable right to the prisoner, not to grant furlough leave, has to examine all the aspects of the matter including the object and purpose of framing of rules, 1959. The material which is collected on inquiry has to be scrutinised carefully and impartially and then to record its own satisfaction. The opinion is to be recorded only after scrupulously considering the material collected in the inquiry. The material which is collected on inquiry has to be scrutinised carefully and impartially and then to record its own satisfaction. The opinion is to be recorded only after scrupulously considering the material collected in the inquiry. The Inspector general of Prisons, Ahmedabad or any other officer who is empowered to decide the application filed by the prisoner for grant of furlough leave has to act in the following manner where the application is to be rejected on the ground enumerated under Clause (4) of Rule 4 of Rules, 1959: (i) the Police Officer is to inquire into the matter, collect the material and then after considering every aspect thereof, the object and purpose of Rules, 1959, and more particularly rights conferred to the prisoner under Rule 3 thereof of his release on furlough leave to record its own satisfaction and accordingly report the matter to the I. G. Prisons or the officer who is empowered to consider and decide the application filed by the prisoner under Rule 3 of the Rules, 1959. (ii) On receipt of the police report, if it is adverse to the prisoner, before acting upon it and rejecting his application, the I. G. Prisons or the Officer empowered to consider and decide the application to give copy thereof and material on which the same has been prepared to the prisoner concerned. (iii) The prisoner concerned to submit his objections against the adverse Police report within a period of fifteen days from the date of receipt thereof. (iv) In case where the prisoner has not submitted any objections against the adverse police report then the I. G. Prisons or the Officer who is empowered to decide the application, may reject the application and accordingly communicate his decision to the prisoner. (v) Where the prisoner submits his objections, the I. G. Prisons or the Officer empowered to decide application may call the comments of the concerned police officer re. these objections and then to consider the matter. At this stage, it is open to the IG Prisons or the Officer empowered, to order for further inquiry in the matter to be made by the Police Officer and to give fresh opinion. these objections and then to consider the matter. At this stage, it is open to the IG Prisons or the Officer empowered, to order for further inquiry in the matter to be made by the Police Officer and to give fresh opinion. (vi) Where on further inquiry any additional material is collected and on the basis of which the opinion still remains adverse to the prisoner; then that material is also to be given to the prisoner concerned and he has a right to make his representation. After receipt of the representation of the prisoner, if any filed, the IG Prisons or the officer empowered, to finally take decision and pass appropriate order either of grant or refusal of the application. (vii) This exercise is to be completed within reasonable time. ( 14 ) THE substance of the matter is that on the basis of the material which is brought on record in the form of adverse police opinion and the representation of the prisoner, the I. G. Prisons or the officer empowered, has to record its own satisfaction and then to pass order on application of the prisoner in accordance with law. ( 15 ) IN the result, this petition succeeds and the same is allowed and the order of the inspector General of Prisons, Gujarat State, Ahmedabad dated 5. 7. 2000 is quashed and set aside. The Inspector General of Prisons, Gujarat State, Ahmedabad, is directed to decide the application of the petitioner in accordance with the procedure as laid down in this order. The special criminal application stands disposed of accordingly. .