Bombay High Court
Shri Sandeep S/O Kisan Khadse vs State Of Mah., Thr. Its Secretary ... on 17 January, 2020
Author: Madhav J. Jamdar
Bench: Sunil B. Shukre, Madhav J. Jamdar
Judgment 1 Cr.WP850.2019.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL WRIT PETITION NO. 850/2019
Shri Sandeep S/o Kisan Khadse,
Convict No. C/477,
Detained in Central Prison,
Amravati. .... PETITIONER
// VERSUS //
1) State of Maharashtra,
Through the Secretary,
Home Department,
Mantralay Mumbai.
2) D. I. G. (Prison) (E.R.) Amravati.
3) The Superintendent,
Central Prison, Amravati,
District - Amravati.
.... RESPONDENTS
______________________________________________________________
Shri D. A. Sonawane, Advocate (Appointed) for the petitioner.
Ms S. V. Kole, APP for the respondents.
CORAM : SUNIL B. SHUKRE AND
MADHAV J. JAMDAR, JJ.
DATED : 17th January, 2020
ORAL JUDGMENT : ( Per Madhav J. Jamdar, J.)
1. Heard. Rule. Rule made returnable forthwith. Heard finally by consent.
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Judgment 2 Cr.WP850.2019.odt
2. By the present petition filed under Article 226 of the Constitution of India, the petitioner seeks to challenge the order dated 07.12.2019 passed by the respondent No.3- The Superintendent, Amravati Central Prison, Amravati, by which the the petitioner's remission of 605 days was cut and his name was removed from the remission register permanently.
3. It is the contention of the petitioner that, he was released on parole leave for a period 30 days by order dated 02.02.2008 and pursuant to said order he was actually released on parole leave on 16.02.2008 and as he overstayed he was required to be arrested and brought to the jail on 22.08.2009. According to the petitioner, as his brother suffered paralysis and his another brother was in jail, he was constrained to overstay to look after his family. He also submits that the fact that he was arrested from his house itself would show that he was not absconding and there being sufficient reasons for his over stay, he should not be punished. It is further contention of the petitioner that his explanation to the show cause notice is not at all considered by Respondent No.3 while passing the impugned order.
4. On the other hand, the respondent No.3 has filed affidavit- in-reply dated 16.11.2019 and submitted that the explanation given is not found to be proper and the punishment as per the Rules is given. ::: Uploaded on - 31/01/2020 ::: Downloaded on - 09/06/2020 23:32:13 :::
Judgment 3 Cr.WP850.2019.odt The reliance is placed on Rule 23, Chapter XXXVIII of Maharashtra Prison Manual. 1979 and amended Rule 23-A. It is further contended that appraisal from the Principal District and Sessions Judge, Amravati was granted and therefore petition be dismissed.
5. We have heard both the parties. The factual position on record shows that petitioner was sentenced to undergo life imprisonment by judgment and order dated 31.01.2003 and he was released on furlough leave on 16.02.2008 and although, he was required to return back within 30 days, he over stayed and was required to be arrested and brought to jail on 22.08.2009. In view of this over stay, the show cause notice dated 29.08.2009 was issued to him and he has given his explanation to the said show cause notice on 07.09.2009 and thereafter the impugned order dated 07.12.2019 has been passed by the Superintendent, Amravati Central Jail, Amravati. A bare perusal of the impugned order clearly shows that cyclostyled format is used and impugned order has been passed by just filling the blanks in the readymade cyclostyled format. The cyclostyled format inter alia has following paragraphs :
"mDr can;kP;k izdj.kkph eh Lor% O;Drh'k% dkGthiwoZd vH;kl dsyk o mDr canh gk dkjkx`ghu vijk/kklkBh izFke n'kZuh; vkgs dh] dkjkx`ghu xqUg;klkBh ljkbZr vkgs- ;kph eh Lor% [kkrjtek dsyh-::: Uploaded on - 31/01/2020 ::: Downloaded on - 09/06/2020 23:32:13 :::
Judgment 4 Cr.WP850.2019.odt mDr canh vukf/kd`ri.ks dkjkx`gkckgsj jkfgY;kcn~ny dks.kR;kgh izdkjpk@ifjfLFkrhtU; Bksl iqjkok lknj d: 'kdr ukgh- rlsp R;kyk ekS[khd dFkukph la/kh fnyh vlrk mDr can;kus R;kyk vukf/kd`ri.ks dkjkx`gkckgsj jkfgY;kcn~ny ifjfLFkrh lqlxa r o lek/kkudkjd mRrj u fnY;keqGs o R;kus dsysY;k dkjkx`ghu xqUg;kP;k f'k{ksl rks ik= vlY;kus eh vf/k{kd] vejkorh e/;orhZ dkjkx`g] eyk iznku dsysY;k vf/kdkjkpk okij d:u [kkyhy izek.ks dkjkx`ghu f'k{kspk vkns'k izLrkfor djhr vkgs- "
6. The above contents in the cyclostyled format clearly show that the respondent no.3 has not applied his mind to the explanation offered by the petitioner, for his overstay and no reasons are given why the said explanation is found to be not acceptable and even the gist of explanation is not set out. Thus it is clear that the explanation offered by the Petitioner is not at all considered.
7. The statutory rules made by the Inspector General of Prisons vide notification No. MJM 1561/39466, dated 02.07.1964, by which the Superintendent has been empowered to award punishment clearly provides in clause No.2 as follows :
"In each case of late surrender from furlough or breach of any of the conditions of parole, the punishment mentioned below or specified in section 48-A of the Act may be awarded by the Superintendent at his discretion with due regard to the circumstances of the case and after obtaining the prisoner's explanation and the prior approval of the ::: Uploaded on - 31/01/2020 ::: Downloaded on - 09/06/2020 23:32:13 ::: Judgment 5 Cr.WP850.2019.odt Inspector General or the Deputy Inspector General if required under clause 1. If the Superintendent is satisfied that the contravention was for good or sufficient reasons, he may excuse the prisoner.
(a) A maximum cut of 5 days' remission for each day of overstay provided that, where the prisoner has not sufficient remission to his credit he shall cease to earn remission for such period as the Superintendent may direct. (Emphasis supplied).
8. The said statutory rules contemplate that, if the Superintendent is satisfied that the contravention is for good or sufficient reasons, he can excuse the prisoner. Thus what is contemplated is application of mind by the Superintendent to the explanation given by the prisoner. The impugned order has been passed by using a cyclostyled format containing paragraphs using stereo-typed language, as set out herein above, thereby showing that the Respondent No.3 has not at all considered the explanation given by the petitioner and failed to give any reasons why the explanation given by the prisoner is not acceptable to him. The respondent no.3 even failed to specify the exact punishment i.e. how many days he was cutting from remission for each day of overstay. This Court in number of decisions deprecated the conduct of the Prison Authorities in using the cyclostyled format for passing orders. In the judgment between Shafi Vazruddin Qureshi Vs. State of Maharashtra and Ors., reported in 2013 ALL MR (Cri) 2076, while deprecating the practice of using ::: Uploaded on - 31/01/2020 ::: Downloaded on - 09/06/2020 23:32:13 ::: Judgment 6 Cr.WP850.2019.odt ready-made printed proformas with blank spaces filled in this Court issued following guidelines :
"(1) Sufficient notice preferably of at least seven day's duration be given to the prisoner for submitting reply to the notice of showing cause to proposed higher punishment.
(2) Cause shown in the reply shall be considered. If no 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 prison punishment may be implemented after following steps (1) to (4)."
The factual position on record clearly shows that the said guidelines are not followed in this case.
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Judgment 7 Cr.WP850.2019.odt
9. The Maharashtra Prisons (Remission System) Rules 1962 particularly amended Rule 23(A) by which the punishment to be imposed on prisoner coming late from parole and furlough is prescribed for the prisoner. The table inserted in Rule 23-A in Clause No.8 contemplates that, if the prisoner stays outside the jail unauthorizedly for a period of six months or more, his remission shall be cut permanently. The Respondents have relied on the said provision. For appreciating the said provision contained in clause No.8 of Rule 23-A, it is necessary to reproduce it with other clauses here and they read thus:
vuq- izoxZ f'k{kk ekQhrhy dikrhps
dzekad izek.k
1- tj dSnh] eatwj vfHkopu jtspk dkyko/kh laiY;kuarj lDr rkdhn
nql&;k fno'kh Lor%gwu rq:ax izf/kdk&;akdMs
Lok/khu >kyk vlY;kl]
2- Ekatwj vfHkopu jtspk dkyko/kh laiY;kuarj ifgY;k
osGh 2 rs 15 fnol mf'kjkus]
(v)Lor%gwu rq:axkr Lok/khu >kY;kl]
1:1 fnol
(c)iksyhl izkf/kdk&;kauh rq:axkr vk.kY;kl] 1:2 fnol 3- eatwj vfHkopu jtspk dkyko/kh laiY;kuarj ifgY;k osGh 15 fnolkis{kk tkLr o 1 efgU;ki;Zar mf'kjkus]
(v) Lor%gwu rq:axkr Lok/khu >kY;kl]
(c)iksyhl izkf/kdk&;kauh rq:axkr vk.kY;kl+] 1:3 fnol 1: 4 fnol ::: Uploaded on - 31/01/2020 ::: Downloaded on - 09/06/2020 23:32:13 ::: Judgment 8 Cr.WP850.2019.odt 4- eatwj vfHkopu jtspk dkyko/kh laiY;kuarj 1 efgU;kis{kk tkLr o 2 efgU;ki;Zar mf'kjkus]
(v)Lor%gwu rq:axkr Lok/khu >kY;kl]
(c)iksyhl izkf/kdk&;kauh rq:axkr vk.kY;kl+] 1: 4 fnol 1: 5 fnol 5- eatwj vfHkopu jtspk dkyko/kh laiY;kuarj 2 efgU;kis{kk tkLr o 3 efgU;ki;Zar mf'kjkus] ,drj Lor%gwu Lok/khu] >kY;kl fdaok iksyhl izkf/kdk&;kauh vk.kY;kl] 1: 5 fnol 6- ojhy [kaM ¼1½ rs ¼5½ e/;s uewn dsysY;k 1:5 fnol- rFkkfi] mf'kjk ;s.;kps dkyko/khr] nwl&;kank vfHkopu jtsoj vlrkauk dkj.k U;k¸; vlY;kl] ekQhrhy mf'kjkus vkY;kl] dikr gh ojhy [kaM ¼1½ rs ¼5½ P;k izek.kkr vlsy] 7- rhu efgU;kais{kk tkLr o 6 efgU;kai;ZarP;k ekQh 3 o"kZ ns.;kr ;s.kkj ukgh-
dkyko/khr vuf/kd`ri.ks rq:axkP;k ckgsj jkfgY;kl vFkok iksyhlkauh vk.kY;kl] 8- dSnh 6 efgus fdaok R;kis{kk tkLr dkyko/khr dSn;kaP;k ekQhr dk;eLo:ih vuf/kd`ri.ks rq:axkP;k ckgsj jkfgY;kl] dikr dj.;kr ;sbZy-
10. A perusal of the above clauses shows that as far as clause No.8 and certain other clauses are concerned, there is no provision for considering explanation and for excusing the prisoner, if overstay was for good or sufficient reasons. The respondents appear to have relied on clause No.8 of the said amended Rule 23-A. However, If it is held that for overstaying for more than six months there is automatic punishment of removal of name from remission register permanently without calling for any explanation, then the said Rules will become ultra vires of Articles 14 and 21 of the Constitution of India for the ::: Uploaded on - 31/01/2020 ::: Downloaded on - 09/06/2020 23:32:13 ::: Judgment 9 Cr.WP850.2019.odt reason that principles of natural justice are required to be followed whenever issues regarding arbitrariness, fairness and liberty arise. Grant of remission, or denial of remission or curtailment of remission are all matters which demand fairness and absence of arbitrariness in their decision making and which also impinge directly upon the liberty of a prisoner which cannot be denied or curtailed arbitrarily. Therefore, principles of natural justice are required to be read in the said Rules and it will have to be held that if the explanation is accepted by the Superintendent then either the prisoner can be exempted or lesser punishment can be granted to him. If these requirements are not read in the said Rules, then the said Rules will become ultra vires. It is held in Shafi Vazruddin Qureshi Vs. State of Maharashtra and Ors. (supra) that:-
Principles of natural justice are implied requirement-
1. No prisoner shall be condemned unheard i.e. Audi alteram partem.
2. Competent Prison Authority has duty to act fairly and not in arbitrarily, or biased or unreasonable manner.
Procedure for awarding punishment in respect of any prison offence has to be just, fair and reasonable even though no specific provision is made in the Rules or in the Statue. Thus, a prisoner is entitled to have an opportunity to show cause against action/punishment proposed as the proposed action is affecting entitlement of the prisoner under the rules to get pre- mature release from confinement. Decision has to be taken in accordance with the Rules/Statute after the ::: Uploaded on - 31/01/2020 ::: Downloaded on - 09/06/2020 23:32:13 ::: Judgment 10 Cr.WP850.2019.odt prisoner is given opportunity of putting forward his case. The principles of natural justice do apply even where statute or Rules are silent on the point of pre- decisional notice or hearing. Opportunity of hearing is considered fundamental right in any civilized legal system. Hence, it must be presumed that the law makers intended that failure to observe the principles of natural justice shall render null and void any decision contrary to the requirements as above.
11. Thus as held in aforesaid case the principles of natural justice do apply even where Statutes or Rules are silent on the point of pre-decisional notice or hearing. Opportunity of hearing is considered fundamental right in any civilized legal system. The principles of natural justice also includes passing reasoned order and therefore, it is absolutely essential that while imposing punishment for prison offences the prison authorities must pass the reasoned order and in appropriate cases the prisoner can be excused and in other cases while imposing punishment the extent of punishment can depend on the facts and circumstances of each and every case. All these requirements are part and parcel of the principles of natural justice.
12. The learned counsel for the petitioner has relied on the judgment between Shivraj S/o. Hanmantrao Patil vs. The State of Maharashtra and Ors., reported in 199(3) Bom.C.R. 717, wherein it is held that, for awarding punishment under Section 48-A for over stay on the parole, same would have to be done after obtaining explanation ::: Uploaded on - 31/01/2020 ::: Downloaded on - 09/06/2020 23:32:13 ::: Judgment 11 Cr.WP850.2019.odt of the prisoner alleged to have committed such offence and opportunity is required to be given to such prisoner. It is further held that, enquiry into the prison offence is of a quasi-judicial nature, and hence they will have to follow the principles of natural justice.
13. The respondents in the affidavit-in-reply have also contended that the petitioner has not produced any documentary evidence along with his explanation in support of his contention. The explanation given by the petitioner on 7.09.2009 specifically mentions that medical papers in support of the explanation are annexed with the explanation. On perusal of the impugned order, it is clearly shows that even the said aspect that supporting documents are not produced is not mentioned in the impugned order. If the Superintendent would have found that the petitioner has not annexed supporting documents to his explanation, he could have called upon the petitioner to produce the said documents within reasonable time and in spite of granting the opportunity, if the petitioner would have failed to produce the said documents, then he could have drawn adverse inference against the petitioner. It is pertinent to note that the prisoner has produced medical documents in this writ petition. Therefore, it is clear that the Superintendent, Amravati Central Prison has not at all applied his mind to the factual position, particularly the explanation offered by the petitioner and acted contrary to the principles of natural justice and ::: Uploaded on - 31/01/2020 ::: Downloaded on - 09/06/2020 23:32:13 ::: Judgment 12 Cr.WP850.2019.odt failed to pass the reasoned order and therefore, the impugned order dated 07.12.2009 is set aside.
14. In view of above, we set aside the impugned order dated 07.12.2009 passed by the respondent No.3. The Superintendent, Amravati Central Prison is directed to again consider case of the petitioner afresh and pass the reasoned order after considering his explanation and after giving him opportunity to produce the documents to support his explanation, if not already produced. The said exercise be performed within a period of eight weeks from the date of receipt of this order.
15. The remuneration of Rs.1500/- (Rs.One Thousand Five Hundred only) be paid to the learned Advocate appointed on behalf of the petitioner.
Rule is made absolute in aforesaid terms. No costs.
(MADHAV J. JAMDAR, J.) (SUNIL B. SHUKRE J.)
Kirtak
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