Bombay High Court
Sheikh Said Sheikh Najir vs The State Of Maharashtra on 27 September, 2010
Author: A.H. Joshi
Bench: A.H. Joshi, A.R. Joshi
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
Criminal Writ Petition No.378 of 2010
Sheikh Said Sheikh Najir,
Convict,
Central Prison,
Amravati (In Jail). .... Petitioner.
Versus
1. The State of Maharashtra,
through Deputy Inspector General of
Prisons, Nagpur.
2. The Superintendent,
Central Prison, Amravati. .... Respondents.
*****
Mr. S.A. Jaiswal with Mr. Rupesh A. Jaiswal, Advocates
for the petitioner.
Mrs. B.P. Maldhure, Additional Public Prosecutor for
respondents.
*****
CORAM : A.H. JOSHI AND
A.R. JOSHI,JJ.
th
Date : 27 Sept., 2010.
ORAL JUDGMENT [Per A.H. Joshi, J.]:
1. Rule. Rule is made returnable forthwith. Heard finally.
::: Downloaded on - 09/06/2013 16:29:19 ::: 22. Petitioner reported late by 585 days after availing furlough leave. By order dated 4th February, 1998, the Respondent No.2 had punished him for jail offence by forfeiture of remission at the rate of five days for each day s delay. This order was challenged by the petitioner by filing Writ Petition No. 674 of 2009.
3. The challenge in Writ Petition No. 674 of 2009 was raised on the ground that the remission was for more than sixty days duration, however, the Respondent No.2, who was required under existing rules to take prior approval from Deputy Inspector General of Prisons, had failed to take the approval.
4. This Court has allowed the Writ Petition No. 674/2009 by Judgment and Order dated 24th February, 2010 by setting aside order dated 4th February, 1998 passed by Superintendent, Central Jail, Amravati, and has remanded the case for a fresh decision according to law.
5. After remand, a fresh Show-cause-Notice dated 9th March, 2010 was issued by the Respondent No.2, reply thereto has been submitted by the petitioner on 10th March, 2010, and order has been passed by Respondent No.2 on 10 th March, 2010. Copy of said order is at Annexure-R-4 [page 16 ::: Downloaded on - 09/06/2013 16:29:19 ::: 3 of the Writ Petition Paper-book].
6. The punishment proposed by the Respondent No.2 has been approved by the Special Inspector General of Police and Deputy Inspector General of Prisons, East Division, Nagpur, by order dated 13th April, 2010.
7. The punishment has been approved by District Judge, Amravati by his order dated 20th April, 2010.
8. In the present Writ Petition, all these three orders have been challenged. The grounds of challenge as urged before us are :-
[a] All the three orders do not reflect that those are reasoned orders.
[b] It is not reflected that:-
(i) entire material available before
the authorities concerned was
considered,
(ii) application of mind was done.
[c] Order passed by Superintendent of Jail
is in a printed or pre-prepared format. It does not show that the defence of the prisoner is considered.
9. To support his case, the petitioner has placed ::: Downloaded on - 09/06/2013 16:29:19 ::: 4 reliance on reported judgment of this Court in case of Raju Natthuji Dhengre Vs. State of Maharashtra & ors.[2009 ALL MR (Cri) 2652].
This judgment is relied upon to urge that the orders impugned ought to be speaking orders, and must reflect application of mind and consideration of material.
10. Perusal of Annexure-R-4 - order passed by the Respondent No.2 reveals that it is a prototype order in a pre-prepared printed or cyclostyled disclose that a specific ground of defence raised by the format. It does not prisoner is dealt with.
11. Same is the case with order passed by Deputy Inspector General of Prisons.
12. The orders passed by Deputy Inspector General of Prisons as well as by the District Judge also do not disclose that the material was placed before them and they have applied mind to the record and the case.
13. It is well known that the reasons recorded in an order are the only source of intelligence for the higher Courts and authorities including this Court to know the factors on which the decision-making authority was ::: Downloaded on - 09/06/2013 16:29:19 ::: 5 satisfied for passing any particular order.
In absence of reasons, therefore, the order turns out to be subjective.
14. We are conscious of position that length of reasons is not material. Application of mind and consideration of the reason and thereafter its acceptance or rejection for the reasons disclosed therein would constitute adequate reasons.
15. In the orders impugned, consideration of the material on record is not expressed. It is also not expressed as to the reason, if any, due to which the authority concerned was not convinced.
16. Failure to record reasons, therefore, results in denying to the party concerned an opportunity to know that the person has lost the case, or has won it even.
17. In this background, it is necessary, in the interest of justice, that all the three impugned orders be set aside.
18. In the case at hand the punishment subject-
matter relates to late reporting by the petitioner in the ::: Downloaded on - 09/06/2013 16:29:19 ::: 6 year 1997, i.e., it is being considered after about thirteen years.
Keeping this point in view, it is necessary to direct that after remand, decisions by all the three authorities should, in any event, be rendered within sixty days from the date of receipt of writ of this Court.
19. It is noticed that this Court is receiving petitions now and then from the prisoners where the grievance, is represented, that the Superintendents of Jails as well as highly placed officers orders passed by of the rank of Deputy Inspector General of Prisons are unreasoned.
20. It is well-settled that if the orders passed by original authority consist of all details and reasons which are eloquent, the order of approving or higher authority need not have the same reasons with same length.
21. The authorities have to be serious as the aspect that they are dealing with rights as to prisoners towards concession of limited liberty conferred upon them by law.
There should be no apathy towards the rights of prisoners.
22. Therefore, it is necessary that Director General ::: Downloaded on - 09/06/2013 16:29:19 ::: 7 of Prisons, Maharashtra State, should directed to issue appropriate directions to all Prison Authorities to ensure that in future cryptic or unreasoned orders failing to disclose mind of the authority deciding the case are not issued. The directions be issued by the Director General of Prisons expeditiously and at the most within one month from the date of receipt of order of this Court.
23. We, therefore, make the Rule absolute in following terms:-
(a) We set aside orders dated :-
[i] 10th March, 2010 [Annex.R-4 at page 16] passed by Superintendent, Central Prison, Amravati, [ii] 13th April, 2010 [Annex.R-5 at page 17] passed by Special Inspector General of Police & Deputy Inspector General of Prisons, East Division, Nagpur, and [iii] Letter of Approval dated 19th/ 20th April, 2010 [Annex.R-6 at page 18] sent by the District & Sessions Judge, Amravati, to the Superintendent, Central Prison, Amravati.
We remand the case to the Superintendent of Prison, Amravati, for compliance in terms of foregoing para No. 18.::: Downloaded on - 09/06/2013 16:29:19 ::: 8
(b) We further direct the Director General of Prisons to take appropriate steps to issue instructions to all the Superintendents of Jails & Inspector General of Prisons directing them to issue reasoned orders governing furlough etc., and disclosing consideration of material on the basis of which the orders are passed, in terms of this Judgment.
(c) Learned Additional Public Prosecutor is directed to communicate this order to the Director General of Prisons, Maharashtra State, for necessary compliance, and to other respondents.
(d) In the circumstances, there shall be no order as to costs.
JUDGE JUDGE
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