BHIMRAO BABURAO Vs. STATE OF GUJARAT

JUDGEMENT

(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 petitioner's 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.

(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 petitioner's 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.