HITESH RAMANBHAI PATEL Vs. STATE OF GUJARAT

JUDGEMENT

(1.) RULE. Learned APP waives service. The petitioner, convicted prisoner, has approached this Court upon denial of his due furlough on the ground of he having absconded from jail for no less than 2939 days. There is no dispute about the fact that the petitioner has been convicted for serious offences under Sections 302 and 452 of indian Penal Code, his appeal is also dismissed in November 2008 and since his conviction on 12. 8. 1992, he has already undergone nearly ten years of imprisonment. He was earlier released on parole on three occasions for ten days, seven days and thirty days when he returned to jail in time. When he was lastly released on parole for seven days on 20th November 1993, he absconded and did not return till the High Court ordered his arrest and he was brought to jail on 14. 12. 2001, i. e. after 2939 days. Consequently, his parole deposit was forfeited and all his furlough leaves falling due thereafter were denied on various other grounds as well as the common ground of he having absconded for the long period of 2939 days.

(2.) BY filing an additional affidavit of the petitioner, it is stated that when the petitioner was last released on parole, he could not surrender to jail in time as his house was destroyed, requiring reconstruction, and his mother met with a serious accident resulting into steel rods being implanted in both her legs. It is further stated that throughout the period of his supposed abscondence, he was, in fact, living at his own home and has not committed any offence outside the jail. It is also alleged that there are many incidents in which the prisoners absconding for long time have been granted parole or furlough. The petitioner has expressed his readiness to file personal undertaking and abide by such conditions as may be imposed for the purpose of his temporary release on furlough.

(3.) AS against the statutory provision contained in Rule 4 of Bombay Furlough and parole Rules, 1959, debarring consideration for furlough of a case of absconding prisoner, the Full Bench of this Court has in bhikhabhai Devshi v. State of Gujarat and others [1987 (2) GLR 1178 (FB)J taken the view that, in case of late surrender, the question of furlough has to be examined on the facts and circumstances and merits of each case. It is settled that the prison authority cannot reject as ineligible the request of due furlough of the prisoner, who has surrendered late in the past. The authorities have the power and the duty to consider grant or refusal of furlough due to prisoner, having regard to the facts and circumstances, including the fact that the prisoner had surrendered late in past. That would be one of the relevant factors to be taken into account. As against that learned app relied upon the observations made by division Bench of this Court in Motisinh kesarisinh v. State of Gujarat [1994 (2)GLR 1445 (DB)] and submitted that a lenient view would embolden and encourage the prisoner to defy jail discipline. However, on facts, learned APP was completely at a loss to explain as to how the petitioner, who claimed to have resided at his permanent address, could not be caught by the police. In fact, the State drew a blank by stating that relevant record of the police station concerned was destroyed and the only record available was as regards the destruction of the record. Then, it may be reasonable to infer that the petitioner remained at large in violation of the conditions of parole and could continue to enjoy his liberty with the acquiescence of the police. That, however, does not derogate from the facts that the petitioner absconded for such a long period, and the requirement of his remaining in jail and the conditions of parole had become meaningless. At the same time, the provisions of Section 48-A of the Prison's act, 1894, as applicable in Gujarat, prescribe punishment for breach of conditions on which sentence were suspended, when the prisoner fails to observe any condition without sufficient cause. Therefore, the prisoner having sufficient cause for not surrendering to jail in time is as much a relevant consideration as the factum of his having absconded or violated the condition of his release. The Court cannot lose sight of the wider purpose that the imprisonment of convicted criminals is required to serve. As observed by the Full Bench in the aforesaid decision, Parole and Furlough rules are part of the penal and prison reforms with a view to humanize the prison system. The Rules enable the prisoner to obtain his release and to return to the outside world for short prescribed period. The objects of such release as mentioned in the model Prison Manual were: (i) to enable inmate to maintain continuity with the family life and deal with family matters, (ii) to save the inmate from the evil effects of continuous prison life, and (iii) to enable the inmate to maintain constructive hope and active interest in life.