Gujarat High Court
Rafikmahmad Durmahmad Makarani vs State Of Gujarat on 5 December, 2018
Author: K.M.Thaker
Bench: K.M.Thaker
R/CR.A/1259/2013 IA ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION NO. 3 of 2018 IN R/CRIMINAL APPEAL NO. 1259 of 2013 RAFIKMAHMAD DURMAHMAD MAKARANI Versus JAIL SUPERINTENDENT Appearance:
THROUGH JAIL for the PETITIONER(s) No. for the RESPONDENT(s) No. MS MONALI H BHATT APP for the RESPONDENT(s) No. CORAM: HONOURABLE MR.JUSTICE K.M.THAKER and HONOURABLE MR.JUSTICE V. B. MAYANI Date : 05/12/2018 IA ORDER (PER : HONOURABLE MR.JUSTICE K.M.THAKER) Heard Ms. Bhatt, learned APP for the opponent - State.
2. This application is taken out by convict in Sessions Case No.139 of 2008 whereby he is ordered to suffer sentence of life imprisonment for the offence punishable under Sections 302 of Indian Penal Code.
3. The applicant has preferred this application with a prayer to regularize his conduct/default and delay (3 days) in surrendering to jail authority after expiry of period of temporary bail and to also regularize his late surrender.
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R/CR.A/1259/2013 IA ORDER
4. The applicant is undergoing life imprisonment for the offence punishable under Sections 302 of Indian Penal Code.
5. We have perused the averments in the application as well as jail record.
It is noticed from the jail record that on earlier occasion also the applicant caused some delay while surrendering before the jail authority (on expiry of period of temporary bail).
The jail remark also shows that his conduct is not good.
However, we would refrain from making any observation with regard to jail remarks in view of the fact that before approaching this Court, the applicant should have approached concerned authority competent to take decision with regard to regularizing late surrender.
6. At this stage, it is appropriate to note that in the decision dated 4.2.2014 in Criminal Misc. Application No.1360 of 2014 in Criminal Appeal No.2884 of 2008 in case of Vikas Narendrabhai v. State of Gujarat & Anr., the Division Bench has taken a view that for regularization of late surrender the provision under the Gujarat Jail Manual & Prisons Act would be attracted and applicable and according to said provision, the Superintendent of Jail (or other authority as may be prescribed) is competent to take Page 2 R/CR.A/1259/2013 IA ORDER decision with regard to such regularization after taking into account the reasons or circumstances for late surrender. The Court has observed, in the said decision that:-
"4. In order to appreciate the question, the provisions of Section 48A of the Prisons Act and Rule 1287 of the Gujarat Jail Manual are relevant, which are quoted below:
48A of the Prisons Act
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.
1287 of the Gujarat Jail Manual.
1287. In each case of late 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 prisoners explanation in each case of overstayal of period or breach of any conditions of furlough or parole.
[1] 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 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 maximum period of three months.
[4] In cases of furlough, the furlough period not to be counted towards sentence.
5. A plain reading of the aforesaid provisions makes it abundantly clear that if any person fails to observe any of the conditions on which his sentence was suspended or remitted or furlough or parole was granted to him, he should be deemed to have committed a prison offence and the Superintendent may, after obtaining his explanation, punish such offence as provided therein.
6. In the case before us, there is no dispute that the petitioner has committed a breach of conditions on which his sentence was suspended by the Division Bench by granting him temporary bail and consequently, the authorities have resorted to the provisions of punishment provided in the Gujarat Jail Manual. As it appears from the above provision, it is within the province of the Superintendent to decide whether the petitioner was prevented by sufficient cause from surrendering within the time. The jail authorities having exercised their discretion, it is now for the petitioner to challenge such action by filing appropriate writ-application under Article 226 of the Constitution of India before this Court.
7. Thus, the Division Bench which granted temporary bail in exercise of its appellate jurisdiction conferred under the Code of Criminal Procedure has no power to set aside the subsequent punishment imposed under the Jail Manual nor can it regularize the Page 3 R/CR.A/1259/2013 IA ORDER default committed by the petitioner after the imposition of punishment.
8. The Code of Criminal Procedure does not permit the appellate court granting suspension of sentence to set aside the subsequent offence committed under the Prisons Act for violation of the condition of suspension of the sentence passed in exercise of its power to grant temporary bail.
9. On the above ground alone, we dismiss this application. We make it clear that we have not otherwise gone into the question whether in the facts of the present case, the petitioner is entitled to have condonation of delay in surrendering before the jail authority and it is for the appropriate authority to decide such questions in accordance with law if the petitioner approaches such authority.
9.1 The dismissal of this application will not stand in the way of the petitioner in approaching the appropriate forum in accordance with law."
7. Thus, the applicant should have approached concerned authority.
8. Under the circumstances, we are of the view that in light of the facts of the case and in light of the decision in case of Vikas Narendrabhai (supra), the applicant should first approach the concerned authority and this application cannot be entertained.
9. We leave it to the competent authority to take appropriate decision in accordance with applicable rules and regulations.
With said observation and clarification, present application stands disposed of.
Sd/-
(K.M.THAKER, J) Sd/-
(V. B. MAYANI, J) SURESH SOLANKI Page 4