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Gujarat High Court

Mitesh @ Mittu @ Mityo Ramjibhai ... vs State Of Gujarat on 27 August, 2021

Author: B.N. Karia

Bench: B.N. Karia

    R/SCR.A/8083/2021                              ORDER DATED: 27/08/2021



           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

          R/SPECIAL CRIMINAL APPLICATION NO. 8083 of 2021
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             MITESH @ MITTU @ MITYO RAMJIBHAI SARVAIYA
                               Versus
                         STATE OF GUJARAT
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Appearance:
THROUGH JAIL(50) for the Applicant(s) No. 1
for the Respondent(s) No. 2
MR HK PATEL, APP for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE B.N. KARIA
                  Date : 27/08/2021
                   ORAL ORDER

Rule returnable forthwith. Learned APP for the respondent-State waives service of notice of rule for and on behalf of the respondent-State.

By way of present application submitted through Jail, the applicant has prayed to regularize the default committed by him in complying with the order of Parole Leave granted by this Court in Special Criminal Application No. 9540 of 2018 for 7 days for preferring an appeal against his conviction order, as he surrendered before the Jail Authorities 37 days beyond the period fixed by this court and according to him, due to providing financial assistance to his family in the prevailing situation of Covid-19 as well as medical treatment of his wife, he could not surrender in time, and for such default, he has prayed for condonation of the aforesaid delay.

As the application was forwarded through jail, this Court has heard learned APP for the Respondent-State.

R/SCR.A/8083/2021 ORDER DATED: 27/08/2021 Learned APP for the respondent-State has referred Section 48A of the Prisons Act and Rule 1287 of the Gujarat Jail Manual and submitted that if any prisoner fails without sufficient cause to observe any of the conditions on which his sentence was suspended, remitted or furlough or parole was granted to him, he shall be deemed to have committed a prison offence and the Superintendent may, after obtaining his explanation, punish such offence as provided under Section 48A of the Prisons Act. He has also referred Rule 1287 of the Gujarat Jail Manual and submitted that it is left to the discretion of the Superintendent to decide whether he was prevented by sufficient cause from surrendering within time. He has further submitted that the parole leave was granted to the present applicant by the Coordinate Bench of this Court, but however, now, this Court Court may not exercise any powers to set aside the subsequent punishment imposed under the Jail Manual nor can it regularize the default committed by the applicant after the imposition of punishment. In support of his arguments, learned APP for the respondent-State has placed reliance on the judgment of Division Bench of this Court passed in Criminal Misc. application No. 1360 of 2014 in Criminal Appeal No. 2884 of 2008 and requested to dismiss present application.

Having gone through the facts of the application submitted by the applicant, jail remarks dated 14.08.2021 Page 2 of 5 Downloaded on : Sun Jan 16 10:48:26 IST 2022 R/SCR.A/8083/2021 ORDER DATED: 27/08/2021 forwarded by Deputy Superintendent, Rajkot Central Jail, Rajkot and having heard learned APP for the respondent-State, it appears that admittedly the applicant has committed breach of condition in which, he was released on parole leave by this Court. Thereafter, he was surrendered late by 37 days. The authorities have resorted to the provisions of Punishment provided in the Gujarat Jail Manual. It appears from the above provision that it is within the province of the Superintendent to decide whether the applicant was prevented by sufficient cause from surrendering within the time. The Jail Authorities having exercised their discretion, it is now for the applicant to challenge such action by filing appropriate writ application under Article 226 of the Constitution of India before this Court. It appears that the coordinate Bench of this Court has granted Parole Leave to the present applicant. In exercise of its appellate jurisdiction conferred under the Code of Criminal Procedure, this Court may not exercise the power to set aside the subsequent punishment imposed under the Jail Manual nor can it regularize the default committed by the applicant after the imposition of punishment as held by the Division Bench of this Court in Criminal Misc. Application No. 1360 OF 2014 IN Criminal Appeal NO. 2884 of 2008. In the said judgment, the learned Division Bench has held in para 4 and 5 as under:

4. In order to appreciate the question, the provisions of Section 48A of the Prisons Act and Rule 1287 of the Gujarat Jail Manual are relevant, Page 3 of 5 Downloaded on : Sun Jan 16 10:48:26 IST 2022 R/SCR.A/8083/2021 ORDER DATED: 27/08/2021 which are quoted below:

48A of the Prisons Act "48.A: Punishment for breach of conditions of suspension or remission of sentence or of grant of furlough or release on parole:

If any prisoner fails without sufficient cause to observe any of the conditions on which his sentence was suspended, remitted or furlough or parole was granted to him, he shall be deemed to have committed a prison offence and the Superintendent may, after obtaining his explanation, punish such offence by -

(1). a formal warning as provided in clause (1) of section 46; (2). reduction in grade if such prisoner has been appointed an officer of prison;

(3). loss of privileges admissible under the remission or furlough system; or (4). loss of such other privileges as the State Government may by a general or special order direct." 1287 of the Gujarat Jail Manual.

"1287. In each case of late surrender or breach of any of the conditions of furlough or parole, the necessary punishment or punishments should be awarded by the Superintendent of Prison with due regard to the circumstances of each case. All the punishments mentioned below or in Section 48-Aof the Prisons Act, 1894 need not necessarily be awarded in each case but it is left to the discretion of the Superintendent to decide which particular punishment or punishments should be awarded. If in certain cases, the Superintendent is satisfied that the overstayal was for good or sufficient reasons, he may excuse the prisoner. However, before awarding any punishment, the Superintendent should invariably obtain a prisoner's explanation in each case of overstayal of period or breach of any conditions of furlough or parole.

[1] A maximum cut of 5 days' remission for each day of overstay;

Provided that where the prisoner has not sufficient remission to his credit, he shall cease to earn remission in future for such period as the Superintendent may direct;

R/SCR.A/8083/2021 ORDER DATED: 27/08/2021 [2] Stoppage of canteen concession for a period of not less than one month and not more than three months.

[3] Withholding concession of either interviews or letters or both, for a maximum period of three months.

[4] In cases of furlough, the furlough period not to be counted towards sentence."

5. A plain reading of the aforesaid provisions makes it abundantly clear that if any person fails to observe any of the conditions on which his sentence was suspended or remitted or furlough or parole was granted to him, he should be deemed to have committed a prison offence and the Superintendent may, after obtaining his explanation, punish such offence as provided therein.

Considering the facts of the case and contents of the application as well as having heard learned APP for the respondent-State, it is made clear that this Court has not otherwise gone into the question whether in the facts of the present case, the applicant is entitled for condonation of delay in surrendering before the jail authority and it is for the appropriate authority to decide such questions in accordance with law if the applicant is approached before such authority.

Accordingly, present application stands dismissed. The dismissal of this application will not stand in the way of the applicant in approaching the appropriate forum in accordance with law.

Rule stands discharged.

(B.N. KARIA, J) K. S. DARJI Page 5 of 5 Downloaded on : Sun Jan 16 10:48:26 IST 2022