Bombay High Court
Chandan Anandrao Rangari vs State Of Maharashtra And Anr. on 15 July, 2003
Equivalent citations: 2004(1)MHLJ120
Author: R.K. Batta
Bench: R.K. Batta, P.S. Brahme
JUDGMENT R.K. Batta, J.
1. Rule returnable forthwith.
2. Heard the learned advocate for the petitioner and the learned APP for the respondents. The petitioner seeks direction to set him at liberty and to grant compensation. The learned advocate for the petitioner submitted before us that the petitioner is only pressing the challenge on two points, viz. (i) The case of the petitioner is covered under Category 3(b) of the Guidelines and as such, he has to serve only 22 years of imprisonment with remission, instead of 24, as ordered by the Government; (ii) The procedure followed in imposing punishment for overstay is irregular and arbitrary and the punishments imposed are liable to be set aside. The learned counsel has categorically stated that the petitioner does not dispute the dates and data given by the respondent regarding the remissions granted to the petitioner. The learned advocate for the petitioner therefore, does not dispute the remissions at all.
3. In support of his first contention, he has submitted that there was no common intention or pre-meditation to commit the crime in question and that he has no previous criminal history and as such, his case falls under Category 3(b) of the Guidelines. Learned APP has, however, invited our attention to paragraph 35 of the judgment dated 31st October, 1985 delivered by the Sessions Judge imposing sentence against the appellant. From the evidence on record, the learned Sessions Judge has held that the petitioner had a clear design to cause the death of the deceased. Thus, the Sessions Judge has clearly come to a conclusion that the crime committed by the petitioner was pre-meditated. Hence we do not find any merit whatsoever in the aforesaid contention of the learned Advocate for the petitioner.
4. The second contention raised by the learned Advocate for the petitioner is that while imposing punishments, the procedure as prescribed in law, has not been followed; The pleadings in this respect are found in para 7 of the petition.
5. The learned advocate for the petitioner, however, restricts his challenge in relation to the punishment for over-stay of 783 days and over-stay of 30 days. In respect of over-stay of 783 days, it is stated that no show cause notice was issued on account of which the punishment is liable to be set aside. In respect of the over-stay for 30 days, it is stated that the punishment is not imposed by following proper procedure laid down in the Maharashtra Prison Manual, 1979. However, which part of the proper procedure has not been followed, is nowhere specified in the writ petition, though the learned advocate for the petitioner in his argument stated that, in respect of both the said punishments, prior permission of Inspector General (Prison) as required under Rule 23 of the Maharashtra Prisons (Remissions System) Rules, 1962 has not been obtained.
6. In reply filed by the State on behalf of the respondents, it is merely stated that the approval for the said punishment was obtained from the District and Sessions Judge, Nagpur. Though specific plea that approval was not obtained from the Inspector General (Prisons), for imposing punishments, has not been taken in the petition, yet, there is nothing on record to show that any such permission was taken except for the appraisal or approval from the District and Sessions Judge, Nagpur. Such appraisal or approval has not been considered to be sufficient compliance of law in a number of judgments and particularly in Namdeo Bapuso Pawar v. State of Maharashtra (Criminal Writ Petition No. 877 of 1988) which was followed in Abhay Shende v. State of Maharashtra (Criminal Writ Petition No. 107 of 1997). The learned APP also stated before us that records are not available as to whether show cause notices were issued.
7. In this view of the matter, punishment for overstay of 783 days and 150 days cannot be sustained. However, in the facts and circumstances of the case, and taking into consideration that the petitioner had over-stayed for more than two years, it is considered necessary that the Jail Authorities should issue appropriate show cause notice to the petitioner and take decision in respect of the said overstay of 783 days and 30 days within a period of one month from today. It appears that the petitioner has not completed 24 years of imprisonment including of remissions, as can be seen from affidavit dated 16-4-2003 filed by the respondent No. 2. The respondent No. 2 shall, therefore, examine the question whether the applicant has completed 24 years of imprisonment including of remissions and pass the appropriate order in accordance with law within a period of one month.
The petition is allowed in aforesaid terms with directions. Rule is made absolute accordingly.