This petition under Articles 14, 21 and 226 of the Constitution of India read with Sections 268 and 269 of Code of Criminal Procedure, 1973 and under Prisons (Bombay Furlough and Parole) Rules, 1959 is preferred by the petitioner, a convict prisoner, who is in Sabarmati Central Jail, Sabarmati, Ahmedabad.
It is the case of the petitioner that the petitioner is in jail since the last 20 years. The petitioner submitted an application for furlough leave to IG Prisons, Gujarat State, Ahmedabad. However, IG Prisons-respondent No.2 refused furlough to the petitioner vide letter dated 13-5-2010 addressed to Superintendent of Jail, respondent No.3. Being aggrieved, he preferred Special Cri.Application No.2588 of 2011 before this Court. However, this Court (Coram: Z.K.Saiyed, J.) vide order dated 21-11-2011 disposed of the said petition by permitting the petitioner to move before the jail authority. The petitioner thereafter moved an application on 2-12-2011 through his advocate. Since furlough was not granted to petitioner and was made to move from pillar to post, he made another communication on 26-12-2011 to IG Prisons through his advocate. Since the petitioner was not granted furlough leave, the present petition is preferred.
Heard learned counsel, Ms.Shilpa R.Shah, for the petitioner and learned APP, Mr.L.B.Dabhi for the respondent No.1-State.
It is submitted by Ms.Shilpa R.Shah, learned counsel for the petitioner that by this time even as per the record of the jail authority, the petitioner has remained in jail for about 20 years and no relief by way of furlough is given to the petitioner as provided under Prisons (Bombay Furlough and Parole) Rules, 1959. It is further stated that ordinarily remission granted to other accused on similar conviction for life imprisonment, the petitioner is deprived of such relief or remission on the ground that Sec.268 of Cr.P.C. is applicable in his case. It is further submitted that so far as apprehension shown by the State Government and Prison authorities about likelihood of escape or absconding, the petitioner's relatives are ready and willing to be the surety and stringent conditions be imposed so as to see that no such apprehension result into reality and interest of the society can be protected. Besides, it is further submitted that the petitioner has not committed any breach or violation of any of the provisions of conduct as provided in a Jail Manual. It is further submitted that the petitioner would like to reside at his own residence along with his family members for religious purpose. It is further submitted that the authority concerned has not taken into consideration many other aspects as required to be looked into while deciding the application for furlough and by imposing suitable conditions the petitioner be granted furlough. She has also relied on several orders of this Court in case of other accused who were granted furlough leaves by this Court vide orders dated 3-8-2011 passed by this Court (Coram: Anant S.Dave, J.) in Special Criminal Application No.1852 of 2011, 8-9-2011 passed by this Court (Coram: Z.K.Saiyed, J.) in Special Criminal Application No.2125 of 2011, 8-9-2011 passed by this Court (Coram: Z.K.Saiyed, J.) in Special Criminal Application No.2126 of 2011, 15-11-2011 passed by this Court (Coram: Z.K.Saiyed, J.) in Special Criminal Application No.2553 of 2011 and 24-11-2011 passed by this Court (Coram: Z.K.Saiyed, J.) in Special Criminal Application No.2339 of 2011. Copies of those orders produced by learned counsel for the petitioner are taken on record. It is therefore requested that petitioner may be granted furlough leave.
Mr.L.B.Dabhi, learned APP for the respondent-State has vehemently opposed grant of furlough to the petitioner. The authority has taken a conscious decision on the basis of material available about likelihood of committing breach of conditions of furlough even if he is granted by this Court, keeping in mind the past record and conviction of the petitioner and his likelihood of indulging in similar activities jeopradising pubic interest that would desist this Court from exercising powers of grant of furlough in favour of the petitioner. Learned APP has also relied on various papers about adverse jail opinion in case if the petitioner is granted furlough. Learned APP has also relied on the order dated 23.4.2009 passed in Special Criminal Application No. 151 of 2009 (Coram: Hon'ble Smt. Justice Abhilasha Kumari) by which request to grant furlough came to be rejected by reasoned order. However, in review application filed by the petitioner, on 6.11.2009 liberty was reserved to the petitioner to prefer an application for grant of furlough.
Having heard learned advocate for the petitioner and learned APP and having regard to the facts and circumstances of the case, it is noted that the petitioner has remained in jail for around 20 years including imprisonment as undertrial prisoner. It appears that during the period of imprisonment, no incident about breach of any provisions of the jail manual or norms of conduct of a prisoner could be noticed. Further, Article 21 of the Constitution of India conferring right to life and personal liberty is applicable even to a prisoner, who is a citizen of India, subject to certain restrictions as per procedure established by law. The apprehension of the authority about likelihood of escape of the petitioner can be taken care by imposing appropriate conditions, when relatives of the petitioner have shown willingness in no uncertain terms to be surety of the petitioner.
The Division Bench of this Court in the case of Govindbhai Mansinh Dabhi & Ors. v. State of Gujarat [2005 (3) GLH 169] while considering Prisons (Bombay Furlough & Parole) Rules, 1959 in the context of Section 428 of the Code of Criminal Procedure, 1973 after considering decision of the Full Bench in the case of Bhikhabhai Devshi v. State of Gujarat & Ors. [AIR 1987 Gujarat 136] and another decision of Division Bench in the case of Sharad Bhiku Marchande v. State of Maharashtra [1991 Criminal Law Journal 2109] in para 16 held as under:
"16.
The aims and objects of framing of the Furlough Rules and the legal position that the furlough is a substantial and legal right of the prisoner and the legislative intent by enacting Section 428 of the Cr.P.C. providing the period of detention undergone by the accused to be set-off against the sentence of imprisonment, we are of the firm view that the words actual imprisonment undergone mean and include the period of detention undergone by the accused as an under-trial prisoner. By interpreting the words actual imprisonment undergone in such manner, the purpose and object of grant of furlough are achieved. As observed above, furlough is claimed by a prisoner as a right and the purpose is that, he should not continue to remain in jail for a longer period. If the argument of the Assistant Government Pleader that actual imprisonment undergone would only mean actual imprisonment undergone after the sentence and the prisoner cannot be given benefit of detention or imprisonment as an under trial prisoner is accepted, then the prisoner/convict would have to remain in jail for a much longer period before he can be entitled to furlough. Criminal jurisprudence demands that graver the offence, larger the punishment and larger the punishment, more the set-off, remission and grant of furlough. After all punishment is not retributory, but reformatory and a prisoner should be permitted grant of furlough after he has been sentenced to imprisonment by including the detention or imprisonment he has suffered as under trial prisoner. That advances the cause of justice, objective of Furlough Rules and in conformity and in consonance with the right of liberty provided under Article 21 of the Constitution of India."
In view of the aforesaid decisions in the case of Bhikhabhai Devshi (supra) by the Full Bench and in case of Govindbhai Mansinh Dabhi (supra) by the Division Bench, this Court is of the opinion that the petitioner is entitled for grant of furlough for a period of atleast two weeks by imposing suitable conditions as under:
The petitioner who is in jail since around 20 years is granted furlough for a period of two weeks from the date of his release on furnishing a personal bond of Rs. 25,000/- with two sureties of like amount to the satisfaction of the jail authority with an additional condition about marking his presence every day before the Surajpol Police Station, Udaipur, Rajasthan and shall not leave the jurisdiction of said Police Station without permission of the authority till completion of period of furlough and on completion of the above period the petitioner shall report to the jail authority in time. Rule is made absolute to the above extent. Direct service is permitted.
[M.D.SHAH,J.] radhan Top