Bombay High Court
Dipak S/O. Subhash Patil vs The State Of Maharashtra And Others on 4 February, 2019
Author: S.S. Shinde
Bench: S.S. Shinde, R.G. Avachat
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO.1581 OF 2018
Dipak s/o Subhash Patil,
Age-36 years, Occu:Nil Convict No.6125,
R/o-At present in Central Prison,
Nashik, Dist-Nashik
...PETITIONER
VERSUS
1) The State of Maharashtra,
Through Secretary, Home Department,
Mantralaya, Mumbai-32,
2) The Deputy Inspector General/
Inspector General of Central
Prison, Aurangabad,
3) The Superintendent of Central
Prison, Nashik.
...RESPONDENTS
...
Mrs.Bharati B. Gunjal Advocate for Petitioner.
Mr.A.B. Girase, Public Prosecutor for
Respondent Nos. 1 to 3.
...
CORAM: S.S. SHINDE AND
R.G. AVACHAT, JJ.
DATE OF RESERVING JUDGMENT : 30TH JANUARY, 2019
DATE OF PRONOUNCING JUDGMENT: 4TH FEBRUARY, 2019
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JUDGMENT [PER S.S. SHINDE, J.]:
1. Rule. Rule made returnable forthwith and
heard finally with the consent of the learned
counsel appearing for the parties.
2. By way of present Petition, the
Petitioner seeks quashing of orders dated 27th
January, 2012, and 27th December, 2017, passed by
the Deputy Inspector General of Prisons, Central
Region, Aurangabad, thereby removing his name from
the remission register permanently, and rejecting
his request for re-entering his name in the
remission register.
3. The Petitioner was convicted under
Section 302 of the Indian Penal Code in Sessions
Case No.84 of 2004 by the Additional Sessions
Judge, Jalgaon, and was sentenced for life
imprisonment. The Petitioner was released on
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parole for 30 days on 14th November, 2007, pursuant
to the order passed by the Divisional
Commissioner, Nashik. But after expiry of the said
period of parole, Petitioner did not surrender to
the jail authorities and was required to be
arrested and brought back to the jail by the
police after a long period of 1237 days. As per
the provisions of law and Prison Manual, the
Petitioner was treated as absconding for more than
six months and his name was permanently removed
from the remission register. The Petitioner claims
that due to serious illness of his mother and
sudden death of his father, as there was nobody in
the family to take care of his ailing mother, he
could not surrender before the jail authorities
within time. After his arrest, the Petitioner was
served with show-cause notice dated 5th May, 2011,
as to why he should not be penalized for breach of
terms and conditions of parole, for remaining
outside the jail for 1237 days, unauthorizedly,
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and not returning on his own. The Petitioner
submitted reply communicating the fact of his
mother's illness and sudden death of his father.
After submitting the reply, the Petitioner was not
communicated in this regard and meanwhile he was
granted parole and furlough for nine times and on
each occasion, he surrendered within time before
the jail authority.
4. It is the case of the Petitioner that
he had again filed a request application to
Respondent No.2 on 11th December, 2017, mentioning
therein all the circumstances for his overstay and
requested to re-enter his name in the remission
register. However, Respondent No.2, by its order
dated 27th December, 2017, turned down the request
made by the Petitioner. Hence this Petition is
filed by the Petitioner challenging the orders
passed by Respondent No.2, dated 27th January,
2012 and 27th December, 2017.
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5. Learned counsel appearing for the
Petitioner submits that the Petitioner has given
reply to the show cause and stated that his mother
was seriously ill and due to sudden death of his
father, as there was nobody in the family to take
care of his mother, he could not surrender before
the jail authority within time. It is submitted
that without considering the reply filed by the
Petitioner the impugned orders are passed, and
before passing the impugned orders, no opportunity
of hearing was given to the Petitioner. It is
submitted that the act of the Petitioner in not
returning to the jail within time was not
intentional and due to unavoidable circumstances,
i.e. serious illness of his mother and sudden
death of his father, he could not surrender before
the jail authorities within time. Learned counsel
further submits that the guidelines provided by
the Government with regard to imposition of
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punishment were not followed. Learned counsel
appearing for the Petitioner, therefore, submits
that the Writ Petition deserves to be allowed. In
support of her submissions, learned counsel placed
reliance upon the unreported Judgments of the
Division Bench of the Bombay High Court,
Aurangabad Bench, in the case of Arun Shankar
Ramlingam Naydu vs. the State of Maharashtra
(Criminal Writ Petition No.1478 of 2017, CORAM:
PRASANNA B. VARALE & SMT. VIBHA KANKANWADI, JJ.),
dated 2nd February, 2018, and in the case of
Dhanraj s/o Tanhu Marathe vs. the State of
Maharashtra (Criminal Writ Petition No.1391 of
2017, CORAM: S.S. SHINDE & A.M. DHAVALE, JJ.),
dated 25th January, 2018, and Judgment of the
Bombay High Court at Principal Seat at Mumbai in
the case of Kishor Jairam Vaity vs. the State of
Maharashtra (Criminal Writ Petition No.216 of
2013, CORAM: A.S. OKA & S.C. GUPTE, JJ.) dated 24 th
December, 2013.
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6. On the other hand, learned P.P.
appearing for the State, referring to the reply
filed on behalf of Respondent Nos.2 and 3, submits
that the Petitioner is convicted for the offence
punishable under Section 302 of the Indian Penal
Code and sentenced to suffer life imprisonment. It
is submitted that the Petitioner was released on
parole for 30 days on 14th November, 2007. After
the expiry of parole leave, the Petitioner ought
to have surrendered before the jail authority on
15th December, 2017, but he did not surrender.
Thereafter the Petitioner was arrested by the
police on 4th May, 2011, and brought back to the
jail. The Petitioner was absconding for the long
period of 1237 days and therefore, the prison
authority has passed an order thereby permanently
removing name of the Petitioner from the
remission register. It is submitted that on 5 th
May, 2011, a show cause notice was given to the
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Petitioner calling upon his explanation, as to why
his name should not be removed from the remission
register. However, the Petitioner failed to give
reply to the said show cause notice within
reasonable time. It is submitted that the police
authorities have followed the provisions laid down
under the Maharashtra Prison Manual, 1979. The
order of removal of the name of the Petitioner
permanently from the remission register has been
approved by the District and Sessions Judge,
Nashik. Learned P.P. further submits that
though it was requested by the Petitioner to take
his name again in remission register, but
considering the past history that he was
absconding from the jail for a long period of 1237
days, his request came to be turned down, after
considering the relevant provisions of the
Maharashtra Prison Manual, 1979. It is submitted
that the the Petitioner is not law abiding person
and therefore he is not entitled to seek the
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relief as prayed for. Learned P.P. therefore,
submits that the Petition deserves to be
dismissed.
7. We have given careful consideration to
the submissions made by learned counsel appearing
for the Petitioner and learned P.P. appearing for
the State. With their able assistance, we have
carefully perused the pleadings in the Petition,
grounds taken therein, annexures thereto, reply
filed on behalf of Respondent Nos.2 and 3, and the
exposition of law in the unreported Judgments
relied upon by learned counsel appearing for the
Petitioner.
8. It is true that on 5th May, 2011, a show
cause notice was given to the Petitioner, calling
his explanation for overstay. But perusal of the
impugned order dated 27th January, 2012, shows
total non application of mind. The impugned order
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is very cryptic and without assigning the reasons.
It does not disclose that before passing the
order, explanation given by the Petitioner was
taken into consideration and that the same was not
found satisfactory. In the said order it is
mentioned that the name of the Petitioner should
be removed permanently from the remission register
and it appears from the record that the said order
was not served upon the Petitioner.
9. We have also perused the impugned order
dated 27th December, 2017, thereby rejecting the
request of the Petitioner to re-enter his name in
the remission register. In the request letter
tendered by the Petitioner, he has specifically
stated that as his mother was seriously ill and
due to sudden death of his father, there was
nobody in the family to take care of his ailing
mother, therefore he could not surrender before
the jail authorities within time. It does not
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disclose that before passing the impugned order,
the explanation tendered by the Petitioner was
taken into consideration.
10. It would be useful to refer the
observations made in Para- 5 of the Judgment dated
24th December, 2013, delivered in the case of
Kishor Jairam Vaity vs. State of Maharashtra and
others, cited supra, which reads as under:
"5. In terms of the judgment and order dated
5th September, 2008 passed by the Division
Bench of this Court at Nagpur Bench in
Criminal Writ Petition No.283 of 2006 (Sk.
Jakir Shaikh Babu vs. State of Maharashtra),
guidelines for imposing the punishment have
been laid down which read thus:-
"(1) Sufficient notice preferably of at
least seven days' duration be given to the
prisoner for submitting reply to the notice
of showing cause to proposed higher
punishment.
(2) Cause shown be considered. If no
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sufficient cause is shown, reasoned order be
passed for not accepting the
contentions/cause shown by prisoner.
(3) If higher punishment is proposed against
the prisoner, then the proposal be submitted
to the higher prison authority competent to
grant sanction for higher punishment for the
prison offence committed in the case.
(4) After receipt of sanction order from the
competent sanctioning authority and judicial
appraisal from the Sessions Judge concerned,
an order imposing higher punishment may be
passed and communicated to the prisoner.
(5) The order of higher punishment may be
implemented after following steps (1) to
(4)."
11. In Sk. Jakir Shaikh Babu's case, cited
supra, the period of overstay of the Petitioner
therein, was of 190 days and his remission of 380
days was curtailed. In the present case, no doubt
the period of overstay is of 1237 days is too
long. However, the procedure prescribed for
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imposing punishment for deducting remission should
be followed and before imposing punishment, an
opportunity of hearing must be given. Besides,
there should be a reasoned order showing the basic
facts as well as the defence raised and the
subjective satisfaction of the authority that the
reason given by the prisoner was not satisfactory.
12. It is pertinent to note that on 2nd
August, 2011, specific rules were framed
prescribing various punishments for overstay,
after furlough and parole period is over. It
discloses that if a convict stays away from the
jail for more than six months (180 days), his name
should be removed permanently from the remission
register. However, these rules are subsequent and
those cannot be applied to the act of the
Petitioner, which took place much earlier.
Admittedly, the Petitioner was arrested on 4th May,
2011, i.e. much before 2nd August, 2011, when
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afore-stated rules were framed.
13. We have also perused the order of
appraisal passed by the learned Extra Joint Ad-hoc
District Judge & Additional Sessions Judge,
Nashik, thereby approving the proposed penalty to
be inflicted on the Petitioner. The order passed
by the Additional Sessions Judge is composite one
and the same is in respect of many convicts and
no individual case of the Petitioner is
considered. It appears that before imposing the
punishment, no reasoned order of appraisal is
passed.
14. In the present case, though the period of
overstay of 1237 days is huge and probably very
difficult to explain, we find that the procedure
prescribed must be followed and a reasoned order
should have been passed by the concerned
authority. The contention of the Petitioner that
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after his arrest on 4th May, 2011, during the
period from 2012 to 2017, he was released for five
times on furlough and four times on parole, is not
seriously disputed by the learned A.P.P. appearing
for the State. Thus it is not clear, if the name
of the Petitioner was permanently removed from the
remission register, how he was granted furlough
and parole on several occasions thereafter. While
determining the period of imprisonment for life,
it will be necessary to determine the period
undergone by the Petitioner in jail, for which
proper order regarding removal of his name from
the remission register is necessary.
15. Since there is non application of mind
and no fair procedure was followed while imposing
the punishment, we deem it proper to quash and set
aside the impugned orders, with directions to the
competent authority to grant opportunity to the
Petitioner to put forth his contentions, and after
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hearing him, to pass the reasoned order. Hence, we
pass the following order:-
O R D E R
(I) The Writ Petition is allowed. The impugned orders dated 27th January, 2012 and 27th December, 2017, passed by the Deputy Inspector General of Prisons, Central Region, Aurangabad, are quashed and set aside.
(II) The Competent Authority - Respondent No.2 is directed to give opportunity to the Petitioner to show cause his absence and to consider the reasons given by the Petitioner and thereafter to pass an appropriate order as per the law and the Maharashtra Prison Manual. When such order will be passed, it should be communicated to the ::: Uploaded on - 05/02/2019 ::: Downloaded on - 06/02/2019 01:04:52 ::: cwp1581.18 17 Petitioner and his acknowledgement should be taken so that he can avail any remedies in case the order is against him.
(III) Rule is made absolute in above terms. The Writ Petition stands disposed of, accordingly.
[R.G. AVACHAT, J.] [S.S. SHINDE, J.] asb/JAN19 ::: Uploaded on - 05/02/2019 ::: Downloaded on - 06/02/2019 01:04:52 :::