22 Jun 2023 4:47 AM GMT
The Gujarat High Court has said the Inspector General of Police (IGP) himself is required to take a decision on the applications for furlough leave and Prison Rules do not envisage exercise of such power on basis of file notings by the Administrative Officer in the IGP's office. The ruling came in a case where an applicant challenged the rejection of their furlough leave application by...
The Gujarat High Court has said the Inspector General of Police (IGP) himself is required to take a decision on the applications for furlough leave and Prison Rules do not envisage exercise of such power on basis of file notings by the Administrative Officer in the IGP's office.
The ruling came in a case where an applicant challenged the rejection of their furlough leave application by the Administrative Officer (Jails), Gujarat State, on the apparent orders of the Additional Director General of Police/Inspector General of Police. The rejection was based on negative opinion from police officials in the area where the offense had occurred and the applicant's conviction under Section 125(3) of the Code of Criminal Procedure.
Justice Nikhil S Kariel, referring to Rule (2) of the Prison (Bombay Furlough and Parole) Rules, 1959, which specifies the competent authority for granting furlough, noted that the Inspector General of Police is the designated decision-maker for such matters, subject to the rights and restrictions outlined in the rules.
"In the instant case while the requirement of taking a decision vested with the authority named hereinabove, it appears that by taking the decision in a truncated manner as noted hereinabove, and the onus of providing reasons being placed on the Administrative Officer, it would clearly appear that the mandate of the rule is being followed it its breach," said the court.
Regarding the negative police opinion, the court noted that while there were past cases of theft and assault involving the applicant, the apprehension that he would engage in criminal activities to arrange the maintenance amount was unfounded.
“In the considered opinion of this Court, the police officials, more particularly when it comes to exercising a statutory right closely connected with the liberty of an individual, are required to exercise their duty, with due care and caution and whereas more particularly when the opinion submitted by such officers, has the result of impinging the liberty of an individual,” the court said.
While referring to the observations made by a Division Bench of the high court in the case of Narsing N. Gamit vs. State of Gujarat 1989 (2) G.L.H., the bench observed that even approximately 24 years earlier, the court in similar scenario had observed that an adverse police opinion should not be sole ground for rejecting an application for furlough leave and whereas the application is required to be considered as per the guidelines as laid down in the Prisons (Bombay Furlough and Parole) Rules, 1959.
On conviction under Section 125 of the Code of Criminal Procedure, which pertains to maintenance payments to a spouse, the court said:
“In the considered opinion of this Court, while Section 125 of Cr.P.C, compliance of order of Court for payment of maintenance, being an offence as provided under the statute, is undeniable but the fact remains that the said offence, cannot be classified as a serious offence, conviction under which, would automatically disentitle the prisoner for claiming the benefit of furlough leave.”
The court noted that the applicant is convicted of two different offences under Section 125 of Cr.P.C and convicted for imprisonment for 480 days each, and as of now he has completed around one year and seven months in incarceration.
However, considering the applicant's imprisonment period, good jail conduct, and the availability of a surety, the said the decision on his application for furlough suffers from the vice of non application of mind and also "from the vice of being passed by an authority, who was not the competent authority as per the rule in question is required to be quashed and set aside."
The court said process of grant or refusal of furlough has to be done strictly in conformity with the mandate of the Rules and the authorities as envisaged in the Rules are required to take an independent decision.
"In the instant case while it could be contended that the power had in fact been exercised by I.G. Prison himself, in the considered opinion of this Court, the manner and method in which the exercise is contemplated as described hereinabove clearly reflect that the Inspector General has only decided whether furlough leave is to be granted or not more particularly on basis of file notings and whereas the actual application of mind including giving of reasons and communicating the decisions has been taken by the Administrative Officer in the office of the I.G. Prisons. In the considered opinion of this Court such an exercise of power is not what is envisaged under the Rules."
The court directed that the Inspector General of Police, as the sanctioning authority under Rule (2) of the Prisons (Bombay Furlough and Parole) Rules, 1959, shall personally take decisions and communicate them under their sign and seal. The court further emphasized that reasons for rejection should weigh with the designated authority and not an administrative officer.
"It is directed that henceforth the procedure of the Inspector General of Police taking a decision on the file, and reasons for rejection being communicated by the Administrative Officer of the office of the Inspector General of Police shall be forthwith discontinued," it added.
In the present case, the court ordered the appropriate sanctioning authority to reconsider the applicant's furlough leave application within 15 days, adhering strictly to the law and without being influenced by the fact that the present application was preferred or the current order was passed.
“Needless to clarify that in case the order passed by the authority is in the nature of rejecting the application then it would be open for the applicant to challenge the same before the appropriate forum in accordance with law,” the court said.
Case Title: Mahebubbhai Bhachubhai Bhati Versus State Of Gujarat & 1 Other(S) R/Special Criminal Application No. 1403 Of 2023.
Case Citation: 2023 Livelaw (Guj) 104
Appearance: Through Jail For The Applicant(S) No. 1
For The Respondent(S) No. 3 M RC Kodekar, APP For the Respondent(S) No. 1
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