NATIA JIRIA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) We are concerned here with a very interesting question A Division Bench of this Court felt that what this Court had spoken on the question earlier may call for reconsideration and appropriately therefore referred the matter to a Full Bench. That is how the matter is now before us.

(2.) Poverty is no crime. Even so property oriented approach in statutory provisions often results in a poor man being prized out of justice. The acuteness of extreme poverty could be best understood only by experiencing it. The plight of the impecunious in all its severity may not be fully realised even by an enlightened class engaged in statute and rule making. Whatever may be said of the legislations prior to the Constitution? in an egalitarian society where justice is promised to the poor and the rich alike there is no scope for a law which virtually keeps out a penurious person from the benefit of the law or puts him to the penalty of a provision for reason of his impecuniousness. If an instance or illustration of this situation is necessary to convincingly project the point sought to be made out here there could be no better case than the one now before us. A surety bond for Rs. 100 is by any standard a nominal surety bond and one cannot think of a surety bond for any lesser sum. If there is insistence by law on the furnishing of a surety bond any compassionate and understanding authority cannot stipulate better than to require a surety bond of Rs. 100 But even so there may be many in this country who will not be able to take advantage of a right to free air conferred on him to be availed of on furnishing such a surety bond merely for the reason that he is unable to get anyone to stand surety for him in a bond of Rs. 100.00. Should he forfeit his right for that reason is the question.

(3.) A Prisoner convicted and sentenced to imprisonment in a prison is entitled to furlough in the State of Gujarat under the Prisons (Bombay Furlough and Parole) Rules 1959 made under clauses (5) and (28) of sec. 59 of the Prisons Act 1894 These rules made by the State of Bombay prior to the formation of the State of Gujarat now apply to the entire State of Gujarat. Rule 3 of these rules defines the accruel of the furlough to a prisoner. Detailed provisions are made in the rules how to avail of this furlough leave. In the normal course a prisoner sentenced to imprisonment for a period exceeding one year but not exceeding five is entitled to a period of two weeks furlough at a time for every year of actual imprisonment undergone. To a prisoner who has been deprived of his personal liberty by reason of the confinement within the four walls of a prison a period of two weeks during which he could go home and associate with his wife and children is a great solace. It would be of inestimable value to him. Though no prisoner has a legal right to furlough the rules are applicable to all prisoners alike and therefore when furlough is granted to one prisoner it cannot be denied to another prisoner. To do otherwise would be an arbitrary conferment of favour on some while denying it to the others. For that very reason so long as the system of furlough is in force evey prisoner who just like his companions in the prison earns his furlough is entitled to look forward to the period of annual two weeks at home. If his release on furlough is made dependent upon a condition which has to be complied with but which he is unable to comply with merely for the reason of extreme and utter poverty should he be denied the benefit of furlough ? He sees those in the same prison availing of furlough going home during that period and returning to prison after a temporary happy reunion with their families. If he is unable to get the benefit of the same furlough because of insistence on furnishing a surety bond which he is unable to furnish because he has no money and he has no one to help him with should he be for that reason treated as of a different class? All assurances of equality irrespective of caste creed race colour and sex would sound hollow to him if he is told that all these notwithstanding he will not have the benefit of furlough since in this vast country he is unable to find out a man who is prepared to stand surety for him for Rs. 100.00. It is not that because of his conduct and character none is willing to come forward to stand surety. He has no influence to persuade someone perhaps from his far off village to come forward and offer himself to stand surety. His wife and children anxious to have his company may also not be in a position to come forward and stand surety for him to get him released. All that would cost money and it is a stark reality that there are in this country of ours millions of people who live far far below the poverty line who cannot afford the luxury of going over to a prison and expending money however small it may be to stand surety after convincing the authorities that they are competent and qualified to be sureties. What should happen to a prisoner under such circumstances ?