IMTIYAZ Vs. STATE OF GUJARAT

JUDGEMENT

(1.) By way of this application, the applicant has challenged the order dtd. 7/11/2022 passed by the Administrative Officer, in the office of the Sanctioning Authority whereby, furlough leave of the applicant has been rejected. The authority concerned has inter alia relied upon three aspects namely the fact of the applicant having been convicted for the offence punishable under Sec. 376 and amongst others of the Indian Penal Code and under the provisions of POCSO Act which are stated to be serious offences, the opinion of the police being negative and that the complaint having lodged an apprehension that in case if the applicant is released, he will create a law and order situation.

(2.) Having regard to the reasons which weighed with the authority concerned, it is required to be noted that Rule 4(2)(3) and (11) of the Prisons (Bombay Parole & Furlough) Rules, 1959, inter alia state with regard to the offences upon conviction under which, the prisoner would not be entitled for being considered for furlough leave. It would appear that the prisoners who are convicted for the offence punishable under Sec. 392 to 402 of the IPC, who are convicted under the Bombay Prohibition Act and who are convicted under the NDPS Act , would be disentitled for grant of furlough leave and whereas, it does not appear that any of the offences for which the present applicant has been convicted, would fall under the category of such offences, which would disentitled the applicant for being considered for grant of furlough leave.

(3.) Further more, it also appears that in so far as the negative opinion of the police is concerned, the same is more or less based upon the apprehension voiced by the complainant, more particularly, the complainant inter alia alleging that if released the applicant might threaten his family members or might jump the furlough. In the considered opinion of this Court, while the police authorities would be perfectly justified in objecting to grant of furlough, if there is any tangible material, with the authorities concerned, whereby, they could come to conclusion that the applicant upon release might disturb the peace and tranquility of the area or might create a law and order problem. At the same time, merely on account of an apprehension voiced by the first informant, a right flowing from the statute ought not to have been denied to the present applicant. Further more, in the considered opinion of this Court, Rule 6 of the Prisons (Bombay Parole & Furlough) Rules, 1959 and Rule 10(6) of the said Rules inter alia provide for the jail authorities to seek for a surety from the prisoner for being released on furlough leave and also empowered the authorities to even direct the prisoner to report to the police station daily for marking his presences, which in the considered opinion of this Court would be enough deterrent for the applicant or the prisoner to commit any offence or to disturb the peace and tranquility of the area. In the considered opinion of this Court, if there is any apprehension voiced by the complainant, the said provisions or other provisions which provide for the prisoner-convict to maintain peace and good behaviour ought to have been resorted to rather than rejecting the application for furlough of the prisoner more particularly having regard to the fact that the prisoner has already undergone approximately 3 years and 6 months of incarceration without being released on furlough leave.