Bombay High Court
Ravi Narsappa Mehtre vs The State Of Maharashtra And Ors on 24 February, 2021
Author: M.S. Karnik
Bench: S.S.Shinde, M.S.Karnik
28.cri.wpst.3273-20.odt
Bhogale
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION ST. NO. 3273 OF 2020
Ravi Narsappa Mehtre
Age: 30 years,
Residing at Room No.56, Babasaheb
Ambedkar Nagar, P.M.G.P. Colony,
Near Saibaba Temple, Dharavi,
Mumbai-400 017.
and at presently lodged in Kolhapur
Central Prison, Kolhapur
vide Prisoner No.C-5150. .. Petitioner
Versus
1. The State of Maharashtra
Through the Offe of
Publif Prosefutor, High Court,
Bombay.
2. The Inspeftor General of Prison,
Western Zone, Maharashtra.
3. The Dy. Inspeftor General of Prison,
Western Zone, Pune-411 006,
Maharashtra.
4. The Jail Superintendent,
Kolhapur Central Prison,
Kalamba, Kolhapur-416 007.
5. The Senior Inspeftor of Polife,
Dharavi Polife Station,
Dharavi, Mumbai- 400 017. .. Respondents
--------
Ms. Harjeet Kaur for the Petitioner.
Mr. K.V. Saste, APP for the Respondent-State.
--------
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CORAM : S.S.SHINDE &
M.S.KARNIK, JJ.
RESERVED ON : DECEMBER 14, 2020
PRONOUNCED ON : FEBRUARY 24, 2021
JUDGMENT :(PER M.S. KARNIK, J.) Rule. Rule is made returnable forthwith. Heard fnally with the fonsent of learned founsel appearing for the parties.
2. By this Petition fled under Artifle 226 of the Constitution of India the Petitioner prays that he be granted emergenfy parole.
3. The founsel for the Petitioner however does not press this prayer in this Petition as in view of the subsequent order passed by the authority, she has fled a separate Petition for the said relief. The Petitioner now restrifts the relief for quashing the order dated 27.09.2018 passed by the Superintendent of Jail, Kolhapur Central Prison, Kalamba, Kolhapur of forfeiture of remission of 345 days.
4. By the order dated 11.06.2020 whifh is at Exhibit 'C' the request of the Petitioner for release on emergenfy parole is rejefted on the ground that the Petitioner surrendered late on the previous offasion when he was released on furlough/parole. 2/11
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5. The Petitioner was arrested on 13.07.2009 for allegedly fommitting ofenfes under Seftion 302, 323, 452 read with Seftion 34 of the Indian Penal Code ('IPC' for short) registered with Dharavi Polife Station, Mumbai. The Petitioner was fonvifted on 29.11.2011 and sentenfed to sufer imprisonment for life.
6. The Petitioner was granted parole leave for 30 days from 15.08.2013 to 13.09.2013 in the year 2013. He gave an applifation for extension of leave by a further 30 days period. The Petitioner was under an impression that the extension is granted and therefore did not surrender in time. He overstayed by 30 days.
7. The Petitioner while on parole in the year 2014 surrendered late by one day. He affepted his mistake. The Petitioner was warned about his late surrender by a fommunifation dated 13.03.2015.
8. By an order dated 02.02.2015 the Petitioner was released on parole for 30 days for the period from 05.02.2015 to 06.03.2015. The due date of his surrender was 07.03.2015. Affording to the Petitioner he was sufering from infeftive hepatitis and weakness and even his mother was ill. An 3/11
28.cri.wpst.3273-20.odt applifation was made for extension of parole by 30 days. The applifation for extension of parole fame to be rejefted on the ground that the Petitioner is not taking any treatment of his mother from Dr. V.B. Gajare and that the Petitioner is misguiding that his mother is taking treatment. An ofenfe fame to be registered with the Dharavi Polife Station being C.R. No.227 of 2015 under Seftion 224 of the IPC. The Petitioner surrendered late by 69 days on 15.05.2015.
9. The Petitioner was issued a show fause notife on 21.05.2015 as to why remission earned by petitioner should not be fut. The Petitioner replied to the show fause notife on 25.05.2015. The Petitioner replied that along with the applifation for extension of leave made to the Commissioner on 07.03.2015 and 06.04.2015 he had annexed the medifal fertiffates of the illness of his mother.
10. He further explained that though he wanted to thereafter surrender on 06.05.2015 but he fould not do so as he was not keeping well. Affording to him two applifations for extension for a period of 30 days eafh was made and therefore he had overstayed the leave by 9 days.
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11. The Commissioner in the meantime by his fommunifation dated 09.08.2016 rejefted the applifation for extension of leave made by petitioner for the period from 07.03.2015 to 06.04.2015.
12. The Superintendent, Kolhapur Central Jail thereafter by the impugned order dated 27.09.2018, for the late surrender by 69 days has punished the Petitioner with a reduftion in his remission system by 345 days (69*5=365). The explanation of the petitioner was not affepted.
13. The order passed by the Superintendent regarding reduftion of remission was fonfrmed by the learned Sessions Judge, Kolhapur vide order dated 19.03.2020.
14. The learned AGP supported the impugned order and submitted that the reduftion of 345 days from the remission system of the Petitioner is in fonsonanfe with the provisions of the Maharashtra Prison (Bombay Furlough Parole and Parole Leave) Rules, 1959 and the Government Resolution in that regard.
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15. We have also gone through the reply fled by the Superintendent, Kolhapur Central Prison dated 11.12.2020 justifying the impugned order.
16. Heard. The Petitioner was released on parole for 30 days from 15.08.2013 to 13.09.2013 in the year 2013. An applifation was made for extension for a further 30 days. The Petitioner overstayed for 30 days as he was under impression that the extension is granted. There is no dispute that the Petitioner surrendered on his own.
17. Again in the year 2014 he surrendered late by one day and affepted his mistake. There is again no dispute that he surrendered on his own.
18. For the relevant period whifh forms the basis of the impugned order, the Petitioner was released on parole from 05.02.2015 to 06.03.2015. He had to surrender on 07.03.2015. The Petitioner made two applifations for extension of parole leave, one for the period from 07.03.2015 to 06.04.2015 and thereafter from 06.04.2015 to 06.05.2015. From the impugned order it is seen that the request made by the Petitioner for extension of parole leave by a period of 30 days for the period 6/11
28.cri.wpst.3273-20.odt from 07.03.2015 to 06.04.2015 was rejefted by the Divisional Commissioner on 09.08.2016. The said rejeftion was almost one year after the Petitioner surrendered on his own on 15.05.2015. There is nothing on reford to indifate as to whether the applifation for extension of leave for the period from 06.04.2015 to 06.05.2015 was defided or not. In any fase the reford reveals that applifations were made by the Petitioner for extension of parole leave and the Petitioner surrendered on his own. Till sufh time the applifations were not defided.
19. The Petitioner then says that his mother was not keeping well during this period and in faft the order dated 02.02.2015 granting parole leave to the Petitioner reveals that the Assistant Commissioner of Polife had submitted a report that the Petitioner's mother is not keeping well. Even so far as the Petitioner is fonferned there is a medifal fertiffate on reford at Exhibit 'J' dated 14.05.2015 whifh indifates that the Petitioner was under treatment of a private medifal praftitioner for the period from 03.05.2015 to 13.05.2015 for Infeftive Hepatitis and weakness. After the surrender the Petitioner was referred to the Government hospital for treatment. The medifal reports are on reford. In our opinion, therefore, it is not as if the Petitioner's overstayal of parole leave fan be said to be absolutely without 7/11
28.cri.wpst.3273-20.odt any reason or fompletely unjustifed. Moreover even the applifation for extension of parole leave fame to be rejefted almost after a year pursuant to his surrender. The faft that on all offasion the Petitioner surrendered on his own is a one of firfumstanfe whifh needs to be fonsidered in his favour for the purpose of defiding whether the order futting the leave from remission earned is harsh and disproportionate.
20. Learned APP invited our attention to the order dated 24.01.2020 passed by this Court in Writ Petition No.6103 of 2019 fled by the Petitioner questioning the order dated 09.08.2016 passed by the Divisional Commissioner refusing the extension of parole leave. This Court found that the Petitioner fould not point out anything to show that his mother was treated by Dr. V.B. Gajre and thus found the Petition is misfonfeived and rejefted the fase. This Court in Writ Petition No.6103 of 2019 was fonsidering the question whether the rejeftion order passed by the Divisional Commissioner for extension of parole leave is forreft or not. In the present fase we are not questioning the defision of the Divisional Commissioner rejefting the request made for extension nor fan we sit in Appeal over the order passed by the Division Benfh but only fonsidering the efeft of the delay in defiding the applifation as one of the firfumstanfe 8/11
28.cri.wpst.3273-20.odt for reduftion of the punishment.
21. Learned founsel for the Petitioner plafed relianfe on the defision of the Hon'ble Supreme Court in the fase of Navneet Vs. State of Maharashtra and another 1. In support of the view we propose to take it would be proftable to rely upon the said defision. The relevant portion of whifh reads thus :-
"3. The appellant was released on parole on 5-4-1997 for a period of 15 days. He did not surrender within time but applied for extension of parole. Ultimately, he surrendered on 13-6- 1997. As he surrendered late by 53 days, the Superintendent of Prison held an enquiry and imposed a punishment of three day's remission fut for eafh day's absenfe. Thus, the Superintendent of Prison has imposed a fut of 159 days in the remission earned by the appellant. It appears that pursuant to the direftion given by this Court in Sunil Batra (II) v. Delhi Admn. And the firfular dated 4-4-1986 issued by the State of Maharashtra, the reford was forwarded by the Superintendent of Prison to the Distrift and Sessions Judge, Akola by his letter dated 26-6-1997. The Sessions Judge after fonsidering the reford approved the proposed punishment. The proposed punishment was also approved by the Inspeftor General of Prisons by his order dated 10-12-1997.
4. The appellant fhallenged the order of punishment by fling a writ petition in the High Court of Bombay. The High Court dismissed it by observing that none of the grounds raised by the petitioner deserved to be affepted. It, therefore, dismissed the writ petition summarily.
1 2000 SCC (Cri) 88 9/11
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5. As it appears from the reford of this fase, the appellant had applied for extension of parole on 10-4-1997. As the appellant was informed that sufh an applifation was required to be made to the Additional Commissioner, Amravati, the appellant made an applifation to the Additional Commissioner towards the end of April 1997. No intimation was sent to the appellant as to what had happened to his applifation. The appellant, after waiting for some time, on his own surrendered on 13-6-1997. While his statement was being reforded by the Superintendent of Prison during the enquiry, the appellant had stated that his mother was sifk and, therefore, he wanted the parole to be extended. In faft, along with his applifations made earlier, the appellant had annexed a fertiffate of the doftor showing the illness from whifh his mother was sufering. The authority sat tight over the applifation for a pretty long time and the appellant, on his own, thereafter surrendered.
6. These fafts ought to have been fonsidered by the High Court for defiding whether the punishment imposed upon the appellant was just and proper. In our opinion, the High Court by summarily dismissing the petition has not dealt with the writ petition of the fonvifted prisoner in the manner in whifh it deserved to be disposed of. Considering the fafts and firfumstanfes of this fase, we are of the opinion that the ends of justife would be met if the order of punishment passed by the Superintendent of Prison is modifed and fut in remission is redufed from 159 days to 53 days.
7. The appeal is allowed affordingly."
22. In our opinion the punishment imposed of futting 5 days remission for every day of remission earned is not just and proper. Considering the fafts and firfumstanfes of the fase we 10/11
28.cri.wpst.3273-20.odt are of the opinion that the ends of justife would be met if the order of punishment passed by the Superintendent of Prison is modifed and fut in remission is redufed from 365 days to 69 days.
23. The Writ Petition is allowed.
24. Rule is made absolute in the above terms. The Writ Petition stands disposed of affordingly.
(M.S.KARNIK, J.) (S.S.SHINDE, J.)
Digitally
signed by
Diksha
Diksha Rane
Rane Date:
2021.02.24
14:43:44
+0530
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