JUVANSINGH LAKHUBHAI JADEJA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This petition under Article 226 of the Constitution by a convict who is undergoing a sentence of imprisonment for life imposed him by a competent court for an offence under sec. 302 of the Indian Penal Code as also simultaneously therewith undergoing a sentence of rigorous imprisonment for seven years imposed on him by another Sessions Court for offences under sec. 39t and 393 of the Indian Penal Code has given rise to a challenge to the vires of rule 4(2) of the Prisons (Bombay Furlough and Parole) Rules 1959 hereinafter referred to as the Parole Rules framed in exercises of powers conferred by the relevant provisions of the Prisons Act 1894 on the ground that the said rule is discriminatory in character and is violative of the fundamental rights guaranteed by Article 14 of the Constitution of India.

(2.) The petitioner who is undergoing simultaneously in the Ahmedabad Central Prison the sentence of life imprisonment imposed on September 30 1969 by the Sessions Judge Jamnagar in Sessions Case No. 25 of 1969 for an offence under sec. 302 of the Indian Penal Code as also a sentence of seven years rigorous imprisonment imposed on May 22 1970 by the Sessions Judge Surendranagar for an offence under secs. 394 and 397 of the Indian Penal Code in Sessions Case No. 31 of 1969 applied for furlough leave under he Parole Rules to the Inspector General of Prisons. It appears that his request for such have was refused by the Inspector General of Prisons on the ground that he having been convicted under sec. 394 & 397 of the Indian Penal Code he was not entitled to claim furlough leave as per rule 4(2) of the Parole Rules. Thereupon the petitioner addressed a petition to the High Court. It was registered as Miscellaneous Criminal Application No. 458 of 1971. It was prayed that the Inspector General of Prisons should be directed to grant his request for furlough leave. This petition was treated as one invoking the jurisdiction of this court under Article 226 of the Constitution of India and rule was issued by S. H. Sheth J. on December 8 1971 which was made returnable on December 13 1971 On December 13 1971 S. H. Sheth J. passed an order directing that the matter should be placed before a Division Bench. That is how this petition has come up for hearing before this court.

(3.) The petitioner has called into question the legality and validity of the order passed by the Inspector General of Prisons refusing furlough leave to him on a somewhat ingenious ground. It will he recalled that he is simultaneously (or concurrently) undergoing the sentence of imprisonment for life imposed on him under sec. 302 of the Indian Penal Code as also a sentence of seven years rigorous imprisonment imposed on him under secs. 394 and 397 of the Indian Penal Code. Now rule 4(2) of the Parole Rules enjoins that prisoners convicted of offences under secs. 392 to 402 both inclusive of the Indian Penal Code shall not be considered for release on furlough. There is however no such provision precluding a prisoners request for release on furlough being considered in case of convicts undergoing sentence for an offence under sec. 302 of the Indian Penal Code. The petitioner has therefore raised the contention that inasmuch as he was first convicted and sentenced for an offence under sec. 302 of the Indian Penal Code in the eye of law he must be treated as undergoing that sentence first. That being the position (such is the argument) rule 4(2) of the Parole Rules is not attracted at all. The mere fact that he is also concurrently undergoing a sentence imposed under secs. 394 and 397 it is urged will not disentitle him from claiming the right to the grant of furlough leave which is available to him in his capacity as a prisoner undergoing a sentence under sec. 302 of the Indian Penal Code. That is the main ground on which the petition is founded. However at the hearing of this petition Mr. C. T. Daru who was good enough to accept the assignment as amicus curiae and has appeared in support of the petition has raised the additional question regarding the constitutionality of rule 4(2) of the Parole Rules. Both these questions therefore have come up for being resolved before us.