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2001 DIGILAW 89 (GUJ)

BHIMRAO BABURAO v. STATE

2001-02-09

S.K.KESHOTE

body2001
S. K. KESHOTE, J. ( 1 ) THE petitioner is a convict and sentenced to suffer RI for life by the learned Sessions Judge, Ahmedabad under Section 302 IPC on 22nd August, 1984. The petitioner made an application to the Government for his due furlough leave on 1st of October, 2000. This application was rejected by the Government of Gujarat under the order dated 3. 1. 2001. Hence this petition under Article 226 of the Constitution. ( 2 ) THIS matter was admitted on 10. 1. 2001. The respondent No. 1 filed affidavit-in-reply. In paragraph No. 3 thereof it is stated that the petitioner was involved in triple murder case. In paragraph No. 4 it is admitted that the petitioner applied for furlough leave on 3rd of October, 2000 which was rejected by the State Government. Rule 4 of the Bombay Furlough and Parole Rules, 1959 has been reproduced in paragraph 4. In paragraph No. 5 of the reply it is stated that the Home Department vide letter dated 13. 12. 2000 called for the opinion from the Deputy Commissioner of Police, Zone V, Ahmedabad City for considering the furlough application of the petitioner. The Home Department on the opinion of this Police officer, it is allegedly found that the convict petitioner is involved in triple murder case and he is a head strong person and complainants are also residing nearby the present petitioners area and therefore there are all possibility of breach of peace if the present petitioner prisoner is released on furlough leave. It is stated that in view of the report of the Deputy Commissioner of Police, Zone V, Ahmedabad City, who has not recommended for granting furlough leave to the present petitioner convict, the State Government has rejected the application on 22. 12. 2000 and the decision has been communicated to the petitioner. A reference has been made to the fact that in past when the petitioner prisoner was released on parole leave for seven days, he had absconded for 1211 days and thereafter he was arrested by the police authority. Summing up the pleadings in paragraph 5, it is stated that in view of the said facts and circumstances of the case, the petitioner is not entitled to get any relief as prayed for in the application and the application is required to be dismissed. Summing up the pleadings in paragraph 5, it is stated that in view of the said facts and circumstances of the case, the petitioner is not entitled to get any relief as prayed for in the application and the application is required to be dismissed. ( 3 ) LEARNED Counsel for the petitioner submitted that furlough is a right of prisoner as conferred to him under the Rules aforesaid and this right cannot be denied to him only on ipsi-dixit of the authorities concerned. It is stated that Rule 4 provides for categories of prisoners who shall not be considered for release on furlough and a prisoner who have defaulted in any way in surrendering himself at the appropriate time after release on parole or furlough though fall under this category, but even in case of this prisoner the furlough or parole leave are being granted. To buttress this contention, learned Counsel for the petitioner cited the petitioners own case. It is urged that after the late surrender by the petitioner he has been granted many times the furlough and parole leave. If this late surrender was not considered a ground to deny this benefit to the petitioner in past, how it can be said to be a ground germane to this case. It is next contended that the State Government has rejected the application of the petitioner in this case only on the ground of adverse Police report. The copy of the police report has not been given to the petitioner and any reliance placed thereon to pass the adverse order against the petitioner by the respondent State is not in consonance with the principles of fair-play and natural justice. In her submission, where any adverse material is used to pass an order denying right of furlough leave to the petitioner, that material has to be supplied to him and should have been given an opportunity to make his representation. That precisely has not been done in the present case. Lastly it is contended that the whole approach of State Government in the present case is perverse. This order appears to have been passed on extraneous and irrelevant consideration. That precisely has not been done in the present case. Lastly it is contended that the whole approach of State Government in the present case is perverse. This order appears to have been passed on extraneous and irrelevant consideration. ( 4 ) IN contra Shri Samir Dave, learned AGP contended that Rule 4 of the Rules aforesaid empowers the authority concerned not to accept the request of the prisoner to release him on furlough leave where the police has not recommended his release. The reference is made to Clause 4 of Rule 4 of the Rules aforesaid. It is next contended that petitioner is a dangerous person and he is involved in a triple murder case and since he is a very head strong person in the nearby locality where the complainants are residing, his release is not considered to be in the larger interest of the public and this Court may not interfere in the matter. Lastly it is contended that the police report needs not be supplied to the petitioner. The report has to be called for the satisfaction of the authority and in fact and substance it does not form a part of the procedings and a document of which copy has to be furnished to the petitioner prisoner. Referring to the Rules aforesaid, Shri Dave, learned Counsel for the respondents submitted that there is no provision to furnish a copy of the adverse police report to the prisoner. ( 5 ) I have given my thoughtful consideration to the submissions made by the learned Counsel for the parties. ( 6 ) RULE 3 of the Rules aforesaid gives a right to the prisoner of the category provided therein to be granted furlough leave for the period for which they are entitled. ( 7 ) RULE 4 of the Rules aforesaid lays down the category of prisoners who shall not be considered for release on furlough leave. In all, eleven categories are there. The case of the petitioner does not fall under the categories No. 1, 2, 3, 5, 6, 7, 8 and 11. Category No. 4 enumerates the prisoners whose release is not recommended by the police on the ground of public peace and tranquility. Category 9 provides that in the category of prisoners mentioned therein, their case of furlough leave has to be referred to the State Government. Category No. 4 enumerates the prisoners whose release is not recommended by the police on the ground of public peace and tranquility. Category 9 provides that in the category of prisoners mentioned therein, their case of furlough leave has to be referred to the State Government. Clause 10 enumerates the prisoners who have defaulted in any way in surrendering themselves at appropriate time on release of parole or furlough. ( 8 ) IN reply to the special criminal application, and para-5 thereof, grounds which prevailed with the authority not to release the petitioner on furlough are given. These grounds are taken on the basis of the opinion of the police authority. These are as follows: (i) Home Department found that the convict prisoner is involved in triple murder case. (ii) He is a head strong person. (ii) The complainants are also residing nearby the petitioners area and there are all possibilities of breach of peace if the present petitioner is released on furlough. ( 9 ) ANOTHER ground which has been taken into consideration is that in the past when the petitioner-prisoner was released on parole leave of seven days, he absconded for 1211 days and thereafter he was arrested by the police authorities. ( 10 ) IN the special criminal application in para-3 thereof, it is stated that the petitioner enjoyed many times parole and furlough leaves. It is admitted that in past at one occasion, the petitioner late surrendered but thereafter he enjoyed many times parole and furlough leaves and surrendered before the jail authorities in time. It is stated that lastly he enjoyed 40 days parole leave from 4-8-2000 to 22-9-2000 and he surrendered in time without untoward incident before the jail authorities. ( 11 ) LEARNED counsel for the petitioner was directed to give out the details of the period for which in past the petitioner has been given benefit of the parole and furlough leaves by the respondents. She has given handwritten list yesterday and the matter was kept today for the verification of the list by the learned counsel for the respondents. ( 12 ) SHRI H. H. Patel, learned counsel for the respondent submitted that the details in the list furnished by the counsel for the petitioner are correct. She has given handwritten list yesterday and the matter was kept today for the verification of the list by the learned counsel for the respondents. ( 12 ) SHRI H. H. Patel, learned counsel for the respondent submitted that the details in the list furnished by the counsel for the petitioner are correct. The petitioner was released on parole on 6-10-1985 for a period of seven days but he had not surrendered in time and ultimately arrested by the police and brought to jail on 8-2-1989. So there is late surrender by 1211 days. After this late surrender, the petitioner has been granted many times parole leave, the details of which are as under: ( 21 ) AS a result of the aforesaid discussion, this petition succeeds and the same is allowed and the order dated 3-1-2001, annexure `a is quashed and set aside. The respondents are directed to allow the petitioner to go on furlough leave, however, subject to the conditions which are legally permissible to be imposed. Rule is made absolute. ( 22 ) IT is a fit case where the petitioner has to be awarded costs as but for this perverse order there would not have been occasion for the petitioner to approach this Court. Litigation in this court heavily costs. The petitioner is a prisoner and he has to file this petition by engaging an advocate and he has incurred expenses under the head of paying fees to the advocate, court fees and other incidental expenses of filing of the petition. Learned counsel for the petitioner submitted that she has charged very nominal fees from the petitioner. So far as other expenses are concerned, it also may also not be less than Rs. 500. 00. The respondent-State of Gujarat is directed to pay Rs. 1000. 00 as costs of this petition to the petitioner. .