Gujarat High Court
Vikas Narendrabhai vs State Of Gujarat & Anr on 4 February, 2014
Author: Bhaskar Bhattacharya
Bench: Bhaskar Bhattacharya
R/CR.MA/1360/2014 CAV JUDGMENT
CR.MA13602008Rj1.doc
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION NO. 1360 of 2014
(FOR REGULARIZATION OF LATE SURRENDER)
In
CRIMINAL APPEAL NO. 2884 of 2008
FOR APPROVAL AND SIGNATURE:
HONOURABLE THE CHIEF JUSTICE Sd/-
MR. BHASKAR BHATTACHARYA
HONOURABLE MR.JUSTICE Sd/-
J.B.PARDIWALA
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1 Whether Reporters of Local Papers may be allowed Yes
to see the judgment ?
2 To be referred to the Reporter or not ?` Yes
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the constitution of
India, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ? No
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VIKAS NARENDRABHAI
Versus
STATE OF GUJARAT & ANR.
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Appearance:
THROUGH JAIL for the Applicant(s) No. 1
MR MAULIK G NANAVATI, with MS CHETANA M SHAH, ADDL. PUBLIC
PROSECUTOR for the Respondent.
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CORAM: HONOURABLE THE CHIEF JUSTICE MR.
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R/CR.MA/1360/2014 CAV JUDGMENT
BHASKAR BHATTACHARYA
and
HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 04/02/2014
CAV JUDGMENT
(PER : HONOURABLE THE CHIEF JUSTICE MR. BHASKAR BHATTACHARYA)
1. By this application, a convict under section 302 of the Indian Penal Code has prayed for regularization of the default committed by him in complying with the order of temporary bail granted by a Division Bench of this Court by order dated 12th July 2013. It appears that the petitioner surrendered before the jail authorities one day beyond the period fixed by the Division Bench and according to him, as he had fallen ill and was hospitalized, he could not surrender in time. According to the petitioner, for such default, the jail authorities have deducted 5 days from the period of remission available to him under the law. The petitioner has, thus, prayed for condonation of the aforesaid delay and for cancellation of the punishment.
2. After hearing Mr. Nanavati, the learned Additional Public Prosecutor appearing on behalf of the respondent, and after going through the provisions contained in Indian Prison Act and the Gujarat Jail Manual, we are of the view that this application, at the instance of the petitioner for regularization, is not maintainable before the Bench of the High Court which granted temporary bail after the jail authorities have already imposed the punishment. The position would have been different, if before the expiry of the period for Page 2 of 6 R/CR.MA/1360/2014 CAV JUDGMENT surrender fixed by the Division Bench granting temporary bail, he had come to the said Bench with an application praying for extension of time to surrender by showing sufficient cause.
3. The petitioner did not pray for such extension to surrender one day beyond the time fixed by the Division Bench and consequently, the jail authorities have, under the provisions of Rule 1287 the Gujarat Jail Manual, has imposed punishment by deducting 5 days remission available to the convict under the law.
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 Page 3 of 6 R/CR.MA/1360/2014 CAV JUDGMENT 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 prisoner'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' 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."Page 4 of 6 R/CR.MA/1360/2014 CAV JUDGMENT
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 default committed by the petitioner after the imposition of punishment.
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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.
9.2 The applicant be informed accordingly.
Sd/-
(BHASKAR BHATTACHARYA, CJ.) Sd/-
(J.B.PARDIWALA, J.) mathew Page 6 of 6