Gujarat High Court
Ranjeet @ Lalo Hardasbhai Pachanbhai ... vs State Of Gujarat on 8 October, 2018
Author: Anant S. Dave
Bench: Anant S. Dave, Biren Vaishnav
R/CR.A/1401/2017 IA ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION NO. 8 of 2018
IN
R/CRIMINAL APPEAL NO. 1401 of 2017
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RANJEET @ LALO HARDASBHAI PACHANBHAI GOHIL Versus JAIL SUPERINTENDENT =============================================== Appearance:
THROUGH JAIL for the PETITIONER(s) No. MR RUTVIZ OZA APP for the RESPONDENT(s) No. =============================================== CORAM: HONOURABLE MR.JUSTICE ANANT S. DAVE and HONOURABLE MR.JUSTICE BIREN VAISHNAV Date : 08/10/2018 IA ORDER (PER : HONOURABLE MR.JUSTICE ANANT S. DAVE)
1. The applicant has filed this application for regularization of the period of late surrender by five days while he was released on temporary bail.
2. Heard learned APP for the respondent-State and perused the record.
3. Similar issue came up for hearing before a coordinate Bench of this Court in Criminal Misc. Application No.1360 of 2014 in Criminal Appeal No.2884 of 2008. This Court vide judgment dated 4.2.2014 held 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, which are quoted below:
48A of the Prisons Act Page 1 of 4 R/CR.A/1401/2017 IA ORDER "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-A of 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;
[2] Stoppage of canteen concession for a period of not less than one month and not more than three Page 2 of 4 R/CR.A/1401/2017 IA ORDER 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.
6. In the case before us, there is no dispute that the petitioner has committed a breach of conditions on which his sentence was suspended by the Division Bench by granting him temporary bail and consequently, the authorities have resorted to the provisions of punishment provided in the Gujarat Jail Manual. As it appears from the above provision, it is within the province of the Superintendent to decide whether the petitioner was prevented by sufficient cause from surrendering within the time. The jail authorities having exercised their discretion, it is now for the petitioner to challenge such action by filing appropriate writ-application under Article 226 of the Constitution of India before this Court.
7. Thus, the Division Bench which granted temporary bail in exercise of its appellate jurisdiction conferred under the Code of Criminal Procedure has no power to set aside the subsequent punishment imposed under the Jail Manual nor can it regularize the default committed by the petitioner after the imposition of punishment.
8. The Code of Criminal Procedure does not permit the appellate court granting suspension of sentence to set aside the subsequent offence committed under the Prisons Act for violation of the condition of suspension of the sentence passed in exercise of its power to grant temporary bail.
9. On the above ground alone, we dismiss this application. We make it clear that we have not otherwise gone into the question whether in the facts of the present case, the petitioner is entitled to have Page 3 of 4 R/CR.A/1401/2017 IA ORDER 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 petitioner approaches such authority.
9.1 The dismissal of this application will not stand in the way of the petitioner in approaching the appropriate forum in accordance with law."
4. In view of above observations made by this Court in its earlier decision, present application is dismissed. However, it will be open for the jail authority to pass appropriate order in accordance with law, if the petitioner approaches such authority. The applicant be informed accordingly.
(ANANT S. DAVE, J) (BIREN VAISHNAV, J) NAIR SMITA V. Page 4 of 4