VASRAM GAGJI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) (Rule. Mr. D. K. Trivedi, the learned P.P. waives service of Rule on behalf of respondent Nos. 1, 2 and 3). 1. The petitioner-Vashram Gagji, a prisoner at District Prison, Rajkot, by this writ petition under Art. 226 of the Constitution has brought under challenge the impugned order dated 24-12-1991, passed by the District Magistrate, Rajkot, whereby his parole leave application came to be rejected, inter alia praying for releasing him on parole for 30 days on the ground that he was suffering from 'Hernia' and that he wanted to get it operated by a private surgeon.

(2.) Few Relevant facts : According to the petitioner, he made an application on 16-12-1991 to the District Magistrate, Rajkot, praying for his parole leave for 60 days on the medical ground of his operation of 'Hernia' by a private surgeon outside the Jail alongwith the medical certificate dated 12-12-1991 in the said regard issued by no less a Doctor than the Medical Officer of the District Jail Dispensary at Rajkot. Immediately pursuant to this application, necessary police report was called for from the the D.S.P. (Rural), Rajkot, who in his turn submitted the same on 7-2-1992 stating therein that as per the statements recorded during the course of inquiry, the petitioner was allegedly reported to be a headstrong person with a ferocious temperament and that a fear has been expressed by some of the persons whose statements came to be recorded that if he was so released on parole, he would commit murder. The District Magistrate accepting and relying upon this adverse police opinion against the petitioner, rejected his parole leave application by an order dated 24-12-1991 as stated above in para-1 of this judgment, giving rise to the present petition.

(3.) It has been vehemently contended by Mrs. S. S. Patel, the learned Advocate appearing for the petitioner that the impugned order rejecting the parole application on face of it is illegal and erroneous inasmuch as it suffers from the total non-application of mind on the part of the District Magistrate who has mechanically accepted the so-called adverse police opinion without taking into consideration much less even looking at the catelogue of certain relevant material facts and circumstances standing in favour of the petitioner emerging from the record, no other than the Jail record itself, exposing the very falsity and the absurdity of the alleged adverse police opinion. Developing further and making good this contention, the learned Advocate for the petitioner has highlighted and relied upon certain tale-tell facts and circumstances of the case, which read as under : (1) That at present, the petitioner is around 65 years undergoing the life sentence in Jail since last 13 years including the period undergone as an undertrial prisoner; (2) That till today in all, he has enjoyed parole leave for five times, totaling about 146 days on the ground of his personal as well as that of his family members' illness and on other grounds; (3) That he has also enjoyed furlough leave for 9 times i G., for 135 days; (4) That during the period he was so released on parole and furlough leave for about 281 days, no untoward incident is reported against him ; (5) That earlier also when he was released on parole/furlough, police opinion was recorded and yet he was released on parole and furlough; (6) That on all occasions after enjoying the said parole/furlough leave, he had surrendered to Jail authorities in time; (7) That his conduct otherwise in Jail is also satisfactory and no Jail offence has been registered against him; and (8) That upto 31-5-1992, in all he has earned remission of 4 years, 6 months and 5 days. On the basis of the above, it was further contended that despite the aforesaid -satisfactory record' in favour of the petitioner for all these 13 years, the District Magistrate straightway without taking them into consideration and solely relying upon the alleged one-sided adverse police opinion has dismissed the parole application which is quite illegal and unjust. It was further pointed out by the learned Advocate for the petitioner that this Court in number of cases before it and at least in three of its reported decisions has repeatedly enlightened the authorities as to how the parole or furlough applications are to be decided more particularly when even the police opinion is found to be adverse, and yet the same have consistently failed to engage the due attention of the competent authorities. These three decisions are : (1) 1989 (2) GLH 163 : (1988 (2) GLR 1268) (Narsinh N. Gamit v. State of Gujarat and Ors.); (2) 1990 (2) GLH 95 (Nijar Ramjan v. State of Gujarat and Ors.}; (3) 1991 (2) GLH 98 (Batukbhai Ramjibhai v. State of Gujarat and Ors.}.