Bombay High Court
Phulchand Kamalakar Bhalshankar vs The State Of Maharashtra And Ors on 9 October, 2017
Author: V.K. Tahilramani
Bench: V.K. Tahilramani, M.S. Karnik
15. cri wp 1767-17.doc
RMA
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO. 1767 OF 2017
Phulchand Kamalakar Bhalshankar .. Petitioner
Versus
The State of Maharashtra & Ors. .. Respondents
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Appearances
Ms. Harjeet Kaur Bhagwant Singh Advocate for the Petitioner
Mrs. G.P. Mulekar APP for the State
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CORAM : SMT. V.K. TAHILRAMANI &
M.S. KARNIK, JJ.
DATE : OCTOBER 9, 2017.
ORAL JUDGMENT [PER SMT. V.K. TAHILRAMANI, J.] :
1. Heard learned counsel for the petitioner and learned APP for the State.
2. The petitioner is undergoing life imprisonment in Yerwada Central Prison, Pune. The grievance of the petitioner is that his remission was permanently forfeited, hence, he has approached the Court against the order of permanent forfeiture of remission.
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15. cri wp 1767-17.doc
3. On 17.2.2008, the petitioner preferred an application for parole leave on the ground of illness of his wife. The Divisional Commissioner, Pune granted parole leave to the petition for 30 days by order dated 25.5.2010. Pursuant to the said order, the petitioner was released on parole on 26.6.2010. Thereafter, the petitioner preferred first application for extension of parole for a further period of 30 days. The said parole leave was further extended for a period of 30 days by order dated 8.9.2010. Thus, the parole was extended from 27.7.2010 to 25.8.2010. The petitioner was supposed to surrender on due date i.e 26.8.2010, however, the petitioner did not surrender back to the prison, hence, complaint No. 722/11 under Section 172 of IPC came to be registered against the petitioner on 6.7.2011. As the petitioner did not surrender on due date and he was required to be arrested, C.R. No. 247/13 under Section 224 of IPC came to be registered on 10.10.2013 at Dattawadi Police Station, Pune. Ultimately, the police traced and arrested the petitioner and brought him back to the prison on jfoanz vkacsjdj 2 of 7 ::: Uploaded on - 13/10/2017 ::: Downloaded on - 14/10/2017 01:54:55 :::
15. cri wp 1767-17.doc 5.3.2014. Thus, there was overstay of 1247 days on the part of the petitioner in reporting back to the prison.
4. Learned counsel for the petitioner submitted that the petitioner has submitted an explanation for his overstay. The said explanation was not considered, hence, principle of natural justice was not followed, hence, the punishment is vitiated and deserved to be set aside. In support of her contention, she has placed reliance on the decision of this Court in the case of Shivraj s/o. Hanmantrao Patil Vs. The State of Maharashtra & Ors.1 . In the said decision, it is held that in the case of punishment for overstay on parole, if the said punishment is imposed without considering the explanation of the prisoner, as no opportunity was given to the prisoner, the punishment would be vitiated.
As far as this contention is concerned, the affidavit of Shri. Kaustubh Hari Kurlekar, Deputy Superintendent of Yerwada Central Prison where the petitioner is lodged shows that on account of the overstay, a show-cause-notice was 1 1993(3) Bom.C.R. 717 (Aurangabad Bench) jfoanz vkacsjdj 3 of 7 ::: Uploaded on - 13/10/2017 ::: Downloaded on - 14/10/2017 01:54:55 :::
15. cri wp 1767-17.doc issued to the petitioner vide office letter No. 4774/2014 dated 7.3.2014 and office letter No. 4098/2015 dated 16.4.2015. It is stated in the said affidavit that despite giving two opportunities to the petitioner, the petitioner did not submit any explanation or submitted any document by way of proof as a good ground for late surrender. Learned counsel for the petitioner was also unable to show us any proof that any such explanation was submitted by the petitioner to the Authorities. Thus, the decision in the case of Shivraj Patil (supra) cannot be made applicable to the facts of the present case.
5. On account of the overstay of 1247 days, the Superintendent had proposed the punishment of permanent forfeiture of remission. This proposal was in view of Clause 8 of the Notification dated 2.8.2011 which deals with the prisoners coming late from parole leave. Clause 8 provides that if a prisoner stays outside the jail unauthorizedly for a period of six months or more, the remission of the prisoner jfoanz vkacsjdj 4 of 7 ::: Uploaded on - 13/10/2017 ::: Downloaded on - 14/10/2017 01:54:55 :::
15. cri wp 1767-17.doc shall be cut permanently i.e in other words, his remission will be permanently forfeited. The said proposal was submitted by the Superintendent of Yerwada Central Prison to Dy. Inspector General of Prisons, Western Region, Pune vide office letter No. 6611/15 dated 9.6.15 for prior sanction. The Dy. Inspector General of Prisons, Western Region, Pune sanctioned the said proposal vide letter No. 3931/2015 dated 24.7.2015. Thereafter, the proposal was forwarded to the learned Sessions Judge, Pune for judicial appraisal vide letter No. 9107/2015 dated 30.7.2015. The learned Sessions Judge, Pune approved the said proposal vide letter No. 940/2016 dated 12.2.2016. Pursuant thereto, the punishment of permanent forfeiture of remission was imposed on the petitioner and he was removed from the remission register permanently.
6. Learned counsel for the petitioner submitted that when the petitioner was released on 26.6.2010, he preferred an application for extension of parole for a period of 30 days jfoanz vkacsjdj 5 of 7 ::: Uploaded on - 13/10/2017 ::: Downloaded on - 14/10/2017 01:54:55 :::
15. cri wp 1767-17.doc which came to be granted. In the meanwhile, the wife of the petitioner became pregnant and as there was no one in the house to look after her, the petitioner could not surrender. She submitted that this is an explanation for the overstay on the part of the petitioner. As stated earlier, this explanation was not given to the Authorities. Even otherwise, we do not think that this explanation is an appropriate explanation, because it is seen that the baby was born on 25.6.2011 i.e almost one year after the release of the petitioner on parole leave. In such case, if the petitioner had surrendered back to the prison on the due date i.e on 26.8.2010, he would have been able to avail another parole leave at the time of delivery.
7. The Notification dated 2.8.2011 clearly envisages that if a prisoner stays outside the jail unauthorizedly for more than six months, his remission would be cut permanently. Such punishment is necessary to maintain discipline among the prisoners and to avoid overstay on parole leave. As stated jfoanz vkacsjdj 6 of 7 ::: Uploaded on - 13/10/2017 ::: Downloaded on - 14/10/2017 01:54:55 :::
15. cri wp 1767-17.doc earlier, the punishment has been sanctioned by higher Authority i.e Dy. Inspector General of Prisons and it has also been ratified by the learned Sessions Judge. Looking to the inordinate delay of 1247 days and the fact that the petitioner had not surrendered back to the prison on his own even after this delay but he was required to be arrested and brought back to the prison, no case is made out for interference. Rule is discharged.
[ M.S. KARNIK, J ] [ SMT. V.K. TAHILRAMANI, J. ]
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