Bombay High Court
Sandip Suresh Gurav @ Khatmal vs State Of Maharashtra on 25 July, 2024
Author: Bharati Dangre
Bench: Bharati Dangre
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MANDIRA MILIND
SALGAONKAR
Digitally signed by MANDIRA
MILIND SALGAONKAR
Date: 2024.07.26 20:40:49 +0530 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO.3458 OF 2023
Sandip Suresh Gurav @ Khatmal .. Petitioner
Versus
The State of Maharashtra .. Respondent
...
Mr.Siddharth Jagushte,Appointed Advocate, for the Petitioner.
Mr.Y.M.Nakhwa, A.P.P. for the State/Respondent.
...
CORAM: BHARATI DANGRE &
MANJUSHA DESHPANDE, JJ.
DATED : 25th JULY, 2024 P.C:-
1. In contesting the forfeiture of the amount of security furnished by the Petitioner at the time of his release on furlough, the learned counsel Mr.Jagushte, relied upon our decision in the case of Kailas Balu Punjara Vs. The State of Maharashtra (Writ Petition No.4265 of 2022 dated 01/07/2024), where by referring to Rule 11 of the Prisons (Bombay Furlough and Parole) Rules, 1959 (for short, "Rules of 1959"), we have recorded that in the wake of the undertaking signed by the convict, he narrated that when he went to report to the police station on 30/05/2022, he was told that unless and until a letter is issued to him for reporting back to the prison, it is not necessary for him to do so. It is in this background, we have categorically held that since the M.M.Salgaonkar ::: Uploaded on - 26/07/2024 ::: Downloaded on - 08/08/2024 13:35:47 ::: 2/5 24 WP-3458-23(24-7).odt Petitioner was conscious of the date of his surrender, but chosen not to report in time, the forfeiture of the security amount was perfectly justified.
2. Mr.Jagushte has also invited our attention to the observations by the Division Bench of this Court in Ravi Dhiren @ Jadhav @ Rubi Ghosh Vs. State of Maharashtra (Writ Petition No.3321 of 2017 dated 17/06/2022), where the Petitioner overstayed 167 days and, thereafter surrendered to the jail authorities and, therefore, his security deposit amount was forfeited.
The Division Bench, in para 4, observed as under :-
"4. It appears that for overstay of the petitioner for 167 days upon his release on furlough, his remission of three years has been deducted and the amount of Rs.40,000/- furnished as surety has also been forfeited. It is well established in law that the person cannot be punished twice for the same offence committed by him. In that view of the matter, in our opinion, forfeiture of amount of Rs.40,000/- would amount to double jeopardy when the petitioner's remission of three years was deducted for his overstay of 167 days when he was released on furlough."
With due respect, the attention of the Division Bench was not invited to Rule 11, which is inserted in the Prisons (Bombay Furlough and Parole) Rules, 1959, w.e.f. 16/04/2018, which reads to the following effect :-
"11. Declaration before release.
Before releasing a prisoner on furlough, declaration as under
shall be taken from him on the release order itself :- "I hereby accept and agree to abide by the above conditions of the release order and in acknowledge that should I fail to fulfill these conditions or any portions of them, the Sanctioning Authority may revoke the order of release and forfeit the amount of security furnished by me, and I may be arrested by any Police Officer without warrant and remanded to undergo the unexpired portion of M.M.Salgaonkar ::: Uploaded on - 26/07/2024 ::: Downloaded on - 08/08/2024 13:35:47 ::: 3/5 24 WP-3458-23(24-7).odt my sentence, and I further acknowledge that should I fail to fulfill these conditions or any portion of them, I am liable to be punished, on conviction, with imprisonment for the term which may extend to two years or with fine which may extend to Rs.1,000 or with both, under Section 51-B of the Prisons Act, 1894, as applicable to the State. I further acknowledge that should I fail to surrender on the due date after the expiry of furlough period then I shall be liable to be prosecuted under Section 224 I.P.C."
3. Another decision on which reliance is placed by the learned counsel for the Petitioner is in the case of Baljit Singh Gurudatta Singh Bhatia Vs. The State of Maharashtra (Writ Petition No.2026 of 2014 dated 22/01/2020) by the Division Bench of this Court, where when the Petitioner protested against forfeiture of the amount of Rs.15,000/- on account of his overstay outside the prison, after availing furlough leave and he justified illness of his mother as a ground and also an additional fact that he was physically handicapped, the Division Bench, permitted the respondent to forfeit the amount of Rs.5,000/- and direct refund of amount of Rs.10,000/-.
4. Mr.Jagushte, therefore, relying upon the language used in Rule 11, would submit that the discretion vests in the sanctioning authority, to revoke the order of release and forfeit the amount of security, if there is a failure to fulfill the conditions, when a prisoner is released on furlough and he gives an undertaking to that effect that the sanctioning authority is well within its power to revoke the order of release and forfeit the amount of security and is liable to be arrested by the police officer, without warrant and remanded to undergo unexpired portion of sentence.
M.M.Salgaonkar
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In addition, the declaration given by him also
contemplate that he shall be liable to be prosecuted under Section 224 of IPC and in addition, is liable to be punished, on conviction, with imprisonment for the term which may extend to two years or with fine, under Section 51-B of the Prisons Act, 1894.
5. When we have perused the provisions in the Prisons Act, 1894 for award of punishment under Sections 46 and 47, the power to be exercised by the Superintendent, our attention is invited to the Maharashtra Amendment, by insertion of Section 48-A, which reads thus :-
"48-A. Punishment for breach of conditions of suspension or remission of sentence or grant of furlough-If any prisoner fails without sufficient cause to observe any of the conditions on which his sentence was suspended or remitted or furlough or release on 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 or parole system; or (4) loss of such other privileges as the State Government may by general or special order, direct".
6. It is no doubt true that for overstaying the period for which a prisoner is released on furlough leave or parole, he can be imposed with a penalty for his overstaying and absence from jail being treated as prison offence and, therefore, on being released on furlough or parole, without any sufficient cause, if there is breach of any of the conditions, subject to M.M.Salgaonkar ::: Uploaded on - 26/07/2024 ::: Downloaded on - 08/08/2024 13:35:47 ::: 5/5 24 WP-3458-23(24-7).odt which he was released, as per the Maharashtra amendment, he is deemed to have committed prison offence, which empower the Superintendent, after obtaining his explanation to impose a punishment as prescribed.
Relying upon the aforesaid provision, it is the submission of Mr.Jagushte that the word used 'may' in Rule 11 is indicative of discretion and he would submit that in a case, where a prisoner in fact was desirous of surrendering on the due date but to an unavoidable circumstance like severe illness suffered by him or his near and dear one and for some other unavoidable circumstance, if he was constrained to overstay, then if a penalty was to be imposed upon him, by treating his overstay as prison offence, since it is contemplated that he should be given an opportunity to show cause and the circumstances justifying his overstay would be taken into consideration.
He would, therefore, submit that some parameters shall be applied by the prison authorities, when a decision is taken to forfeit the amount of security deposit, as according to him, it would cause grave hardship for the prisoner, if a huge amount furnished by way of security deposit, in its entirety is forfeited.
We expect the State Government to respond to this particular submission, since we would be dealing with the argument of Mr.Jagushte on the next date of hearing.
7. Re-notify to 02/08/2024.
(MANJUSHA DESHPANDE,J.) (BHARATI DANGRE, J.) M.M.Salgaonkar ::: Uploaded on - 26/07/2024 ::: Downloaded on - 08/08/2024 13:35:47 :::