Bombay High Court
Ganeshlal S/O Hiralal Karwa vs The State Of Maharashtra Through The ... on 8 February, 2008
Author: P.R. Borkar
Bench: Naresh H. Patil, P.R. Borkar
ORDER P.R. Borkar, J.
1. Petitioner-Ganeshlal Karwa is a life convict who has filed this petition challenging the order of deducting period of 102 days and 70 days from remission awarded to him and also for direction to consider the extended period of furlough granted to him while calculating his actual period of sentence.
2. The petitioners case is that there was no prior approval to the deduction of 102 days from remission as required by law. Relying upon the case of Vishnu Tejram Bisen v. State of Maharashtra 2006 (2) Bom.C.R.(Cri.) 338, it is argued that the punishment of 70 days awarded for extended furlough of 14 days should be set aside and the punishment in the proportion 1:5 should be reduced to 1:3 i.e. to 42 days. It is further argued that the period of extended furlough should be considered as sentence undergone and should not be deducted from remission. Reliance was mainly placed on the Single Bench judgment of this Court in the case of Dadu @ Tulsidas Manpher Patel v. State of Maharashtra 2002 (Cri.Supp.) Bom.C.R. 390.
3. It is argued before us that the petitioner had proceeded on parole on 30.10.1993 for a period of 15 days. However, he did not surrender on due date, but was late by 34 days and, therefore, punishment at the rate of 1:3 was imposed upon him by the Superintendent of Prison. The Superintendent of Prison could not have awarded punishment more than 60 days without prior approval of the Inspector General of Prisons as per Rules then prevalent and since there was no prior approval, the punishment of 102 days is illegal and, therefore, there cannot be deduction of 102 days from total remission to which the petitioner is entitled.
4. The learned Counsel for the petitioner relied upon the statutory rules framed in this behalf which are incorporated in the Maharashtra Prison Manual under Chapter XXVII captioned as "Punishments". The statutory rules were made by the Inspector General of Prisons and published under notification No. MJM-1561/39466 on 2.7.1964. They are reproduced on page 407 of the Maharashtra Prison Manual. Rule 2 lays down that a maximum cut of 5 days remission for each day of overstay can be awarded. So far as forfeiture of remission earned in excess of 60 days is concerned, as per Rule 1 prior approval of the Inspector General of Prisons is required. However, the Superintendent of Prison is entitled to award forfeiture of remission earned upto 60 days. The rules are clear and there is no dispute raised regarding the same. The case of the petitioner is that for punishment of deduction of 102 days from remission (for surrendering late by 34 days of parole period) prior approval of the Inspector General of Prisons was not obtained.
5. In the affidavit in reply dated 26.9.2007 in para 3, it is mentioned that the petitioner was granted 15 days parole leave. He surrendered late by 34 days and, therefore, the Superintendent of Prison, Nasik by way of punishment deducted 102 days (34x3) remission by obtaining permission at that time. He sought permission from the District and Sessions Judge, Amravati on 4.4.1994. The copy of the proposal submitted by the Superintendent of Prison, Amravati and the copy of approval given by the District and Sessions Judge, Amravati were annexed and marked as Exh. R-1. Thus there is only proposal dated 4.3.1993 for approval to the proposed punishment of 102 days. It may be noted that as per Rules existed in 1994 prior approval of the Inspector General of Prisons was required, however, subsequently in about 1999 the said powers were delegated to the Deputy Inspector General of Prisons.
6. During the hearing, the learned Additional Public Prosecutor produced certain additional documents In the letter dated 20.11.2001 addressed by the Superintendent of Prison, Amravati Central Prison to the Inspector General of Prisons and Additional Director General of Police, which is marked as Exh.'X', there is reference to punishment of 102 days because of late surrender by 34 days by the petitioner and it is mentioned therein that since punishment was over 60 days the approval was granted by the Deputy Inspector General of Prisons by letter No. KASHI/C=464/C.J./1299 on 23.4.1999. A copy of history sheet of prisoner is also produced on record with documents marked 'X' and it shows the approval received from the Deputy Inspector General of Prisons by the above said letter. It is pointed out to us that as per the directions given in the case of Sunil Batra v. Delhi Admn. appraisal by the District and Sessions Judge is mandatory and, therefore, it was also obtained and therefore the order is legal and valid.
7. The original order imposing punishment of 102 days is not produced by the petitioner. The document at Exh. R-1 with letter dated 4.3.1999 produced with affidavit dated 26.9.2007 is a proposal. Even the order of the District and Sessions Judge dated 4.4.1994 refers to the proposal. So, we do not have any document produced by the petitioner to show that it is the Superintendent of Prison who had passed the order of punishment in excess of 60 days in the year 1994 and subsequently approval was obtained from the Deputy Inspector General of Prisons in the year 1999.
8. In absence of evidence to show that the original order of punishment of deduction of 102 days was passed by the Superintendent of Prison and subsequently approval was obtained, it is not possible to set aside the order of punishment of deduction of 102 days from remission. At the most it can be said that in this case the Superintendent of Prison was not diligent enough to immediately obtain approval and matter remained at the stage of proposal from 1994 till 1999. But that itself does not mean that any prejudice is caused to the petitioner and this Court should interfere with the said order in 2008. So on documents on record we are not satisfied that it was the Superintendent who imposed punishment of 102 days of deduction from remission in the year 1994 and obtained subsequent approval of the Deputy Inspector General (Prisons) in the year 1999.
9. So far as deduction of 70 days from remission is concerned, the learned Additional Public Prosecutor produced certain documents. He produced letter dated 18.6.1999 which is submission for approval to the proposed punishment of 70 days for 14 days delay in surrendering to the prison from furlough leave. Furlough leave was granted from 14.1.1999 for a period of 14 days and there was delay of 14 days in surrendering to the jail. The letter dated 18.6.1999 is addressed by the Superintendent of Prison, Central Prison, Amravati to the Deputy Inspector General of Prisons, East Region, Nagpur and therein it is stated that 70 days deduction from remission was proposed and approval may be granted to the proposed punishment, since the punishment of 70 days was beyond the authority of the Superintendent of Prison. There is order passed by the Deputy Inspector General of Prisons on 20.6.1999 giving approval to the said punishment of 70 days. There is also approval issued by the then District and Sessions Judge, Amravati by order dated 10.5.1999. These documents are together marked 'Y'. Therefore, so far as punishment of 70 days is concerned, there was only proposal for punishment, which was approved by the Deputy Inspector General of Prisons and also by the District and Sessions Judge, Amravati and, therefore, it cannot be said that no prior approval was obtained.
10. It is argued by the learned advocate for the petitioner that punishment of deduction of 70 days from remission of sentence for 14 days delay in surrendering after furlough leave is too harsh. Relying on Vishnu Bisen v. State of Maharashtra 2006 (2) Bom.C.R.(Cri.) 338, it is argued that punishment be reduced to 1:3 days instead of 1:5 days. Record shows that the punishment was proposed and approved by the Deputy Inspector General (Prison) on 28.6.1999. It was not challenged till filing of this petition on 2nd April, 2007. The petitioner nowhere disclosed reason for late surrender in his petition or by way of additional affidavit. We find no adequate reason to disturb the punishment awarded in 1999 in this petition.
11. It is argued before us that period during which the petitioner had overstayed after furlough or parole leave should be treated as period of sentence undergone. Before we come to the facts of the present case, we may refer to certain authorities and the provisions of relevant Rules. It is argued before us that the learned Single Judge of this Court in the case of Dadu Patel (supra) has held that period of parole is to be treated and counted as period undergone as part of sentence, and period spent on parole shall not be deducted as remission of the sentence. It does not amount to suspension of sentence. The learned Single Judge in para 2 referred to the judgment in the case of Sunil Fulchand Shah v. Union of Indian and Ors. and held that the case of Poonam Lata v. M.L. Wadhawan does not lay down correct law. The learned Single Judge referred to the case of State of Haryana v. Mohinder Singh and reproduced para 30 thereof.
12. State of Haryana v. Mohinder Singh (supra) was a case under COFEPOSA. The question before Their Lordships was whether period of parole is to be treated as period of detention. The case before Their Lordships was of preventive detention. At the end of para, Their Lordships laid down law as follows:
The answer to the question, therefore, is that the period of detention would not stand automatically extended by any period of parole granted to the detenu unless the order of parole or rules or instructions specifically indicates as a term and condition of parole, to the contrary. The period during which the detenu is on parole, therefore, requires to be counted towards the total period of detention.
13. While summarising in para 33 it is laid down by the Supreme Court that parole does not interrupt period of detention and, thus, that period needs to be counted towards the total period of detention unless the terms for grant of parole rules or instructions prescribe otherwise.
14. In the case of State of Haryana and Ors. v. Mohinder Singh , Their Lordships were considering the Circular issued by the State of Haryana under Section 432 of the Criminal Procedure Code. It, inter alia, granted special remission to the prisoners who were confined in jails in the State of Haryana on 6.7.1987. It also granted remission to all the convicts who were even on parole/furlough from the jail on 6.7.1987, but remission of sentence was not granted by it to prisoners convicted of rape or dowry deaths. There were 5 appeals before Their Lordships against the orders of the High Court. The High Court was of the opinion that the convict would be entitled to remission for the period during which he was on bail, when the Circular gave the benefit of remission to a prisoner on parole/furlough. The appeals were allowed. Their Lordships stated in para 20 that when the Circular specifically applies to the prisoners who are undergoing sentence or confined in jail and even to those who are on parole or furlough, the Court cannot extend this Circular to convicts who are on bail and thus carve out another category to which the Court is not entitled under Section 432 of the Code. In other words, if the rules or circulars issued by the Government do not give a particular benefit to a particular class or category, the Court cannot extend it to that class or category. There is specific rule regarding furlough leave in the State of Maharashtra and still the present petitioner wants the same benefit to be extended to him, though contrary to the rule.
15. We will have to examine in this case whether in case of Dadu Patel (supra) the learned Single Judge has extended the advantage to parole contrary to the rules prevalent. The law laid down by the Apex Court is very clear. The Court is not entitled to carve out another category and extend benefit to a category not covered by the rules. In State of Haryana v. Mohinder Singh (supra) it is laid down that the circular granting remission is authorised under law. It prescribed limitation both as regards the prisoners who are eligible and those who have been excluded. Conditions for remission of sentence to the prisoners who are eligible are also prescribed by the circular. Prisoners have no absolute right for remission of their sentence unless except what is prescribed by law and the circular issued thereunder. In the said case, terms furlough and "parole" were considered and in paras 17 and 18 it is observed by Their Lordships that terms "Furlough" and "Parole" are two distinct terms now being used in the Jail Manuals or laws relating to temporary release of prisoners. These two terms have acquired different meanings in the statute with varied results. Dictionary meanings, therefore, are not quite helpful. When a prisoner is on parole his period of release does not count towards the total period of sentence while when he is on furlough he is eligible to have the period of release counted towards the total period of his sentence undergone by him.
16. The question raised before us is when the prisoner is on extended period of parole or furlough whether same should be considered as period of sentence undergone. In the case of State of Maharashtra and Ors. v. Suresh Pandurang Darvakar , Their Lordships considered the rules under Bombay Furlough and Parole Rules. Their Lordships observed in para 5 as follows:
The underlying object of the Rules relating to "parole" and "furlough" have been mentioned in the report submitted by All-India Jail Manual Committee and the objects mentioned in Model Prison Manual. The "furlough" and "parole" have two different purposes. It is not necessary to state the reasons while releasing the prisoner on furlough, but in case of parole reasons are to be indicated in terms of Rule 19. But release on furlough cannot be said to be an absolute right of the prisoner as culled out from Rule 17. It is subject to the conditions mentioned in Rules 4(4) and 6. Furlough is allowed periodically under Rule 3 irrespective of any particular reason merely with a view to enable the prisoner to have family association, family and social ties and to avoid ill-effect of continuous prison life. Period of furlough is treated as a period spent in the prison. But Rule 20 shows that period spent on parole is not to be counted as remission of sentence. Since the furlough is granted for no particular reason, it can be denied in the interest of society; whereas parole is to be granted only on sufficient cause being shown.
The case of Dadu Patel was decided on 1.11.2001 i.e. prior to the decision in State of Maharashtra v. Suresh Darvakar.
17. In the case of Avtar Singh v. State of Haryana and Anr. under Haryana Good Conduct Prisoners (Temporary Release) Act, 1988 under Section 3(3) there was prohibition in and against counting of period of temporary release under Section 3 towards total sentence period. It was held that the said provision is not ultra vires Article 21. In that case the appellant was a convict undergoing sentence of imprisonment. He had sought direction from the High Court for including the period of parole availed of by him in the total period of imprisonment undergone by him. Not being successful in the High Court, he preferred appeal to the Supreme Court. It is argued that the Haryana Good Conduct Prisoners (Temporary Release) Act, 1988 was discriminatory inasmuch as a prisoner released temporarily under Section 3 shall not be entitled to count such period of release towards total period of sentence, whereas temporary release of a prisoner on furlough under Section 4 was to be counted towards the total period of sentence. He also challenged Section 3(3) being ultra vires Article 21. Their Lordships in para 7 observed that under Sections 3 and 4 the legislature has made two categories of prisoners for temporary release; a prisoner released on parole under Section 3 is not entitled for counting the period of release towards the total period of sentence of imprisonment undergone by him whereas in case of a prisoner released on furlough, period of such temporary release shall be counted towards his total period of imprisonment. In para 9, after referring to the case of Sunil Fulchand Shah v. Union of India and Ors. , it is laid down that parole generally speaking is an administrative action and is a form of temporary release from custody, which does not suspend the sentence of the period of detention, but provides conditional release from the custody and changes the mode of undergoing the sentence. Their Lordships reproduced para 30 from page 432 of SCC as follows:
Since release on parole is only a temporary arrangement by which a detenu is released for a temporary fixed period to meet certain situations, it does not interrupt the period of detention and thus, needs to be counted towards the total period of detention unless the rules, instructions or terms for grant of parole, prescribe otherwise.
Their Lordships in para 11 observed that:
Parole is essentially an executive function and now it has become an integral part of our justice delivery system as has been recognised by the courts. Though, the case of Sunil Fulchand Shah was a case of preventive detention, we are of the opinion that the same principle would also apply in the case of punitive detention.
18. The Division Bench of this Court in the case of Pralhad Dnyanoba Gajbhiye v. The State of Maharashtra and Anr. has considered the provisions of Prisons (Bombay Furlough and Parole) Rules, 1959 under Rules 3 and 4 and Prison Act, 1894 Sections 59(9) and (29). The Court observed that the furlough and parole have two different purposes. Furlough is a matter of right whereas parole cannot be claimed as a matter of right. Furlough is to be granted periodically under Rule 3 of the Furlough Rules and the principal object of grant of furlough is to enable the prisoner to have family association and to avoid ill-effect of continuous prison life. While undergoing sentence, in according with the Furlough Rules, a prisoner is accorded social inter-action, man being a social animal. Social life is brought into existence periodically for a prisoner by providing furlough. Furlough is not provided or granted for any particular reason and if he is not illegible under Rule 4 of the Furlough Rules, furlough has to be granted and even if a disqualification is there under Rule 4, still it is not necessary that grant of furlough shall be refused. Their Lordships were considering whether detention during trial which was actual imprisonment can be considered for counting furlough.
19. Now we may turn to the Prisons (Bombay Furlough and Parole) Rules, 1959 (hereinafter referred to as, "the Rules of 1959"). Rule 3 is as follows:
3. When prisoner may be granted furlough:
(1) A prisoner, who is sentenced to imprisonment for a period exceeding one year but not exceeding five years, may be released on furlough for a period of two weeks at a time for every year for actual imprisonment undergone.
(2) A prisoner, who is sentenced to imprisonment for a period exceeding five years may be released on furlough for a period of two weeks at a time of every two years of actual imprisonment undergone;
Provided that a prisoner sentenced to imprisonment for more than five years but not to imprisonment for life may be released on furlough every year instead of every two years during the last five years of his unexpired period of sentence;
Provided that a prisoner sentenced to life imprisonment may be released on furlough every year instead of every two years after he completes seven years actual imprisonment.
There are 5 Notes below Rule 3. Note (3) lays down that if furlough is not granted or refused, the same shall not be carried forward (to next year) but shall lapse. Thus Rule 3 clearly lays down that by undergoing particular period of imprisonment furlough is earned. Furlough is akin to earned leave or full pay leave which a Government servant earns by performing duties for particular period. The rule clearly lays down howmuch furlough one earns by undergoing howmuch sentence. So whenever one overstays after period of furlough granted is over and does not surrender to jail in time, it cannot be said that the extended period should be treated on par with furlough earned. It is like having enjoyed full pay leave to ones credit, claiming pay for further absence from duty. Not surrendering to jail in time after furlough period is over, is an offence under the Prison Manual. Still law envisages that there should be inquiry and if prison authorities are satisfied, they may grant extended furlough which is a concession, and if they are not satisfied with the reason given, they may award any of the punishments, to which we have referred to at the out set. They are included in Chapter XXVII in Maharashtra Prison Manual.
20. On the other hand, the Rules of 1959 show that parole can be sanctioned under certain circumstances and relevant Rule 19, as amended in 2007, is as follows:
9. When a prisoner may be released on parole: A prisoner will be released on parole for such period for such as the Competent Authority referred to in Rule 18 in its discretion may order, in case of serious illness, or death of any member of the prisoners family or of his nearest relatives, or pregnant woman prisoner for delivery (except high security risk prisoner), or for any other sufficient cause.
Thus it is clear that parole is granted for meeting particular exigency or emergency. Rule 20 lays down that parole is not to be counted as remission of sentence and Rule 20 is as follows:
20. Parole not to be counted as remission of sentence: The period spent on parole shall not count as remission of the sentence.
It is necessary to consider the case of Dadu Patel in the light of Rule 20. So far as furlough is concerned, as per Rule 4, furlough is not granted to all categories of prisoners and certain categories, such as habitual offenders, prisoners convicted of offence under Sections 392 to 402 of the Indian Penal Code, prisoners convicted under Bombay Prohibition Act, 1949 and prisoners whose release is not recommended in Greater Bombay by Commissioner of Police and elsewhere by District Magistrate on the ground of public peace and tranquillity, etc. are excluded. At the time of release of a person on furlough, certain conditions are prescribed subject to which person is released on furlough. Similarly, Section 24 lays down certain conditions on which a person on parole is released.
21. So far as considering furlough as remission of sentence is concerned, relevant Rule 16 is as follows:
16. Furlough to be counted as remission of sentence: The furlough period shall be counted as a remission of sentence:
Provided that where any furlough period has been extended under Note 4 below Rule 3 or under Rule 13, the period of extension shall not be counted as a remission of sentence.
The poviso makes it clear that where any furlough period has been extended under Note 4 below Rule 3 or under Rule 13, the period of extension shall not be counted as a remission of sentence. Note 4 below Rule 3 and Rule 13 are as follows:
Rule 3. ...
Note 4: The period of two weeks may be initially extended up to three weeks in the case of prisoners desiring to spend the furlough outside the State of Bombay.
Rule 13. Extension of the period of furlough: Notwithstanding anything contained in the foregoing rules, the Sanctioning Authority may, on the application of a prisoner or otherwise, by an order in writing extend the period of furlough for such further period as may be specified in such order on the same conditions on which the prisoner was originally granted furlough or on such other conditions as the Sanctioning Authority may determine.
Thus the Rules of 1959 make it very clear that where any furlough period extended under Note 4 below Rule 3 or under Rule 13 the period of extension shall not be counted as remission of sentence. So, in view of this position of rules, the petitioner is not entitled to direction that extended period of furlough be considered as sentence undergone and should not be deducted from remission earned by the petitioner.
22. It is not disputed that the original period of furlough to which the petitioner was entitled under Rule 3 was counted as remission of sentence as per the main provision of Rule 16.
23. In view of Rule 20, which we have reproduced above, and the law laid down by the Supreme Court referred to above the case of Dadu Patel decided by the learned Single Judge needs to be re-examined. However, the present petition is restricted to only extended period of furlough leave granted to the petitioner while calculating the actual period of sentence of 14 years. In this case it is not possible for us to follow the principle regarding parole laid down in the case of Dadu Patel, particularly when it is contrary to Rule 20. As laid down in the case of State of Haryana v. Mohinder Singh (supra), the Court cannot extend benefit of original provision and thus carve out another category. The Courts are not empowered to do so under Section 432 of the Criminal Procedure Code. It may be noted that validity of Rule 20 was not challenged in the case of Dadu Patel. As observed in para 30 of judgment delivered by the Constitution Bench which is reproduced in para 2 of Dadu Patels case, the period of detention would not stand automatically extended by any period of parole granted to the detenu unless the order of parole or Rules or instructions specifically indicates as a term and condition of parole, to the contrary. Even at the out set of para 30 it is observed that since release on parole is only a temporary arrangement by which a detenu is released for a temporary fixed period to meet certain situations, it does not interrupt the period of detention and, thus, needs to be counted towards the total period of detention unless the rules, instructions or terms for grant of parole, prescribe otherwise. So whenever rules specifically prescribe otherwise, inclusion of period of parole as period of sentence needs to be examined afresh and so we cannot accede to the request of the petitioners advocate Shri Rathi that we should follow the case of Dadu Patel and extend benefit of extended period of furlough to the petitioner contrary to the specific proviso to Rule 16.
24. It is argued before us by learned Additional Public Prosecutor that the case of Sunil Fulchand Shah (supra) is of preventive detention and under the preventive detention the period of detention is specified in the order itself. Once such period commences to run it cannot be extended on the ground that in the mean time the detenu was released on parole. The learned Additional Public Prosecutor further drew our attention to Form E which is the Form of order of release on furlough/parole. Relevant portion of the order of Form E is as follows:
FORM E ...hereby suspends, for a period of...days with effect from the date of release on furlough/parole, the execution of the imprisonment awarded to the prisoner...(No.), subject to the following conditions, namely:
...
Thus, under the Rules of 1959, as they apply in the State of Maharashtra, the furlough or parole is considered to be a suspension of execution of sentence of imprisonment. Learned Additional Public Prosecutor produced certain orders marked Z in support of his arguments. So in the State of Maharashtra when a person is on furlough or parole it is treated as suspension of sentence and because of Rule 16, the furlough period granted is counted as remission of sentence, but not period extended under Note 4 of Rule 3 or under Rule 13. So, learned Additional Public Prosecutor argued that the law laid down in the case of Dadu Patel needs to be re-examined. However, since that is beyond the scope of this petition as prayer D is only limited to extended period of furlough leave, we do not wish to make further observations.
25. In the facts and circumstances of the case, in our opinion, this petition must fail for various reasons stated by us above. We hold that so far as punishments of 102 days and 70 days are concerned, there is nothing to show that the Superintendent had passed orders imposing said punishments prior to obtaining approval of the Inspector General (Prisons) or the Deputy Inspector General (Prisons). On the other hand, record shows that he only proposed punishments and sought approval and therefore there is no illegality or even irregularity. We are also not inclined to interfere with discretion used in awarding punishments after lapse of 6-7 years. We hold that extended period of furlough cannot be treated on par with period of furlough under proviso to Section 16 of Rules of 1959 and same cannot be deducted from remission.
26. In the result, the petition is dismissed.