Gujarat High Court
Manuji @ Manaji Amratji Thakor vs State Of Gujarat on 11 January, 2023
NEUTRAL CITATION
R/SCR.A/11192/2022 ORDER DATED: 11/01/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 11192 of 2022
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MANUJI @ MANAJI AMRATJI THAKOR
Versus
STATE OF GUJARAT
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Appearance:
PIYUSHKUMAR K BASERI(7933) for the Applicant(s) No. 1
MS. M.H. BHATT, APP for the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 2,3
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CORAM:HONOURABLE MS. JUSTICE NISHA M. THAKORE
Date : 11/01/2023
ORAL ORDER
1. This is an application filed by the applicant-convict under Article 226 of the Constitution of India read with Articles 14 and 21, seeking direction from this Court to regularize period of 162 days late surrender in respect of parole leave being granted by this Court vide order dated 17.02.2020 in Special Criminal Application No.1096 of 2020. The writ applicant convict has also challenged the order dated 25.08.2022 by the I.G.P. Prison, whereby the prayer of applicant convict to regularize late surrender of 162 days, came to be rejected and the order of punishment of forfeiting two furlough leaves came to be passed.
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2. I have heard Mr. Piyushkumar K. Baseri, learned advocate for the applicant-convict and Ms. M.H. Bhatt, learned APP for the respondent-State.
3. Mr. Piyushkumar K. Baseri, learned advocate for the applicant has invited attention of this Court to the Circular dated 09.07.2019 issued by the Administrative Office, Jail and Reformative Administrative Officer, State of Gujarat, whereby in case of co- prisoner, the Authority has condoned late surrender of almost 3992 days, though being arrested subsequently by police. He has submitted that the applicant-convict who has otherwise less period of days towards late surrender, his case is on better fotting and is entitled to equal treatment. He, therefore, submitted that the impugned order passed by the jail authority to be quashed and set aside and the consequential order of imposing punishment forfeiting two furlough leaves be quashed.
4. On the other hand, the aforesaid submissions made by learned advocate appearing for the applicant-convict has been strongly objected by Ms. M.H. Bhatt, learned APP appearing for the respondent-State. She has placed on record the jail remarks of the applicant-convict and has submitted that the applicant-convict was Page 2 of 8 Downloaded on : Sun Sep 17 20:43:29 IST 2023 NEUTRAL CITATION R/SCR.A/11192/2022 ORDER DATED: 11/01/2023 undefined enlarged on parole leave for a period of 14 days by this Court vide order dated 17.02.2020, whereby the applicant-convict was directed to surrender on expiry of such period. The applicant- convict had failed to surrender and in fact remained absconded for a period of 162 days and was arrested by the police. She, therefore, submitted that no error has been committed by the respondent authority while not entertaining the application of the applicant- convict in regularizing of late surrender of 162 days. She has further submitted that the provisions of Prisons Act and the Rules provided under Jail Manual empowers the respondent State Authorities to impose such punishment. She, therefore, urged this Court not to entertain the present application.
5. Having heard the learned advocates appearing for the respective parties. It is not in dispute that the applicant convict was enlarged on parole leave for a period of two weeks only, by order dated 17.02.2020 passed by this Court in Special Criminal Application No.1096 of 2020. It is not in dispute that the applicant- convict was released on 12.03.2020 and was required to surrender on 27.03.2020. Indisputably, no application seeking extension of the aforesaid period has been filed by the applicant-convict. In such Page 3 of 8 Downloaded on : Sun Sep 17 20:43:29 IST 2023 NEUTRAL CITATION R/SCR.A/11192/2022 ORDER DATED: 11/01/2023 undefined circumstances, the applicant-convict has remained absconded for a period of 162 days and was arrested by the police.
6. Considering the prayer sought for in this application seeking regularization of late surrender, it would be appropriate to consider the relevant provisions provided under the Prisons Act. Section 48(A) of the Prisons Act reads as under:
Section 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.
7. At the same time, it would be relevant to look into Clause 1287 of the Gujarat Jail Manual, the same reads as under: Page 4 of 8 Downloaded on : Sun Sep 17 20:43:29 IST 2023
NEUTRAL CITATION R/SCR.A/11192/2022 ORDER DATED: 11/01/2023 undefined "1287. In each case of later 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 prison'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's remission for each 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 months.
(3) Withholding concession of either
interviews or letters or both, for a
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NEUTRAL CITATION
R/SCR.A/11192/2022 ORDER DATED: 11/01/2023
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maximum period of three months.
(4) In cases of furlough, the furlough period not to be counted towards sentence."
8. Considering the aforesaid provisions, the powers have been given to the Jail Authority to take appropriate decision as regards regularization of late surrender and imposition of punishment is concerned. The explanation, which is offered by the applicant- convict in the present application is that he came to be released on 12.03.2020 up to 26.03.2020. However, in the month of March- 2020, pandemic of Covid-19 had spread across the whole world including in the State of Gujarat. This was followed by the stringent action being taken by the State Authorities, wherein lock down was imposed by the State Government by issuing notification.
9. In such circumstances, the applicant-convict was confined to his home because of the notification of lock down being imposed. Even otherwise, considering the special circumstances as it existed, the applicant-convict had stayed back at home. It is, therefore, submitted by the applicant-convict that he had not absconded, but was very much available at his home and when the police had arrested him, he had surrendered before the jail authority. Page 6 of 8 Downloaded on : Sun Sep 17 20:43:29 IST 2023
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10. This Court is of the view that considering the aforesaid explanation, this is a fit case to regularize the period of late surrender of 162 days. There cannot be any denial of the fact that in the month of March-2020, the whole world was engripped in the Covid-19 pandemic. The Authorities were constrained to take stringent steps to avoid spread of Covid-19 cases for which lock down was started from 22.03.2020 and the people were confined to their houses.
11. This Court has also gone into the jail record of the applicant- convict. The Court notices that the applicant-convict has been convicted for an offence punishable under Sections 302 and 498A of the I.P.C. for life sentence. The applicant-convict has already undergone period of 18 years 10 months 01 day as on day. It transpires from the jail record that the applicant convict has been released on various occasions on parole and furlough leave and all throughout, he has surrendered in time except the present situation. Hence, the present application requires consideration and the same is allowed. The order passed by the respondent authorities refusing to entertain the application seeking regularization of late surrender of 162 days of applicant-convict by order dated 25.08.2022 is hereby quashed and set aside. Page 7 of 8 Downloaded on : Sun Sep 17 20:43:29 IST 2023
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12. Rule is made absolute to the aforesaid extent.
(NISHA M. THAKORE,J) SUYASH Page 8 of 8 Downloaded on : Sun Sep 17 20:43:29 IST 2023