Bombay High Court
Mohd. Asif Mohd. Hanif vs State Of Maharashtra on 16 November, 2010
Bench: A. H. Joshi, A. R. Joshi
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
Criminal Writ Petition No.55 of 2007
Mohd. Asif Mohd. Hanif,
Convict,
Central Prison,
Amravati [in Jail]. .... Petitioner.
Versus
1. State of Maharashtra,
through Secretary,
Home Department,
Mantralaya,
Bombay-32.
2. Superintendent,
Central Prison,
Amravati. .... Respondents.
*****
Mr. S.A. Jaiswal, Adv., for the petitioner.
Mrs. S.S. Jachak, Additional Public Prosecutor for
respondent nos. 1 and 2.
*****
CORAM : A.H. JOSHI AND
A.R. JOSHI,JJ.
Date : 16th November, 2010.
ORAL JUDGMENT [Per A.H. Joshi, J.]:
1. Rule. Rule is made returnable forthwith. Heard
finally by consent.
2. This is a petition by the prisoner, who has been
convicted for offence punishable under Section 302 of Indian
Penal Code. The petitioner claims to have been convicted in
1993, and he is in jail since 24th October, 1991, i.e., from
the date of arrest.
3.
As the petitioner is in prison and mostly he does
not possess the documents of punishments of forfeiture of
remission imposed on him during his jail term, the Writ
Petition does not accompany those documents of two
punishments. Petitioner prays for a direction for production
of relevant documents, and upon production, the relief that
the punishment of forfeiture of remission imposed on him be
set aside.
4. The respondent No.2 Superintendent of Prison has
filed reply. In the reply, details of punishment are given,
which are as follows:-
[1] Petitioner was released on parole on 20-7-1994
for 7 days, however, he has reported on
8-12-94, which reporting was late by 133 days.
Therefore, he was punished for delay of 133
days @ 2 days for each day of delay, for
total 266 days. The approval of Sessions Judge,
Amravati, was taken as per letter dated 3-8.96.
Similarly, appraisal of Inspector General of
Prisons, Pune, was taken vide letter dated
12-12-97.
[2] Even for furlough, petitioner was released on
7-4-98 for 14 days, however, he has reported
on 13-7-1999, which reporting was late by 447
days. Therefore, he was punished for delay of
447 days @ five days for each day of delay for
days. Appraisal of District
Judge, Amravati, was obtained by letter dated
& Sessions
20-10-2000. Similarly, appraisal of Inspector
General of Prisons, Pune, was taken as per
letter dated 20.11.00.
5. The petitioner was again released on furlough on 1st
December, 2000 for thirty days, with extension for thirty
days, however, has reported late by 516 days. It is seen
that no punishment was ordered towards the delay of 516 days
in the background that there was no remission available to
the credit of the petitioner, however, his name was
permanently removed from eligibility of remission.
6. During oral submissions, learned Adv., for the
petitioner has argued that both punishments referred in
paragraph no.4 herein before are illegal on the grounds
that:-
[a] The approval of Deputy Inspector General
of Prisons was not taken prior to passing
of order of forfeiture, though the cut in
remission is in excess of sixty days, as
provided by Rule 25 of Chapter-27 of the
Maharashtra Prisons Manual (1979).
[b] Date of approval is later to the date of
approval by the Sessions Judge.
[c] Similar orders are set aside by Division
Bench of this Court by the Judgment in
case of Raju Natthuji Dhengre Vs. State of
Maharashtra & others (2009 ALL MR (Cri)
2652].
[d] After 2003, petitioner was released on
five occasions either on furlough or on
parole. On all these occasions, he has
returned to Jail on due dates, which
exhibits that he has learnt a lesson and,
therefore, cut in remission be set aside
by taking a lenient view.
[e] If the cut in remission is not set aside,
his imprisonment will be prolonged further
for an indefinite period.
7. Considering facts of the matter, we are of the view
that the failure to take prior approval of the Deputy
Inspector General of Prisons is certainly an illegality.
However, this Court cannot connive at the fact that the
challenge to the order of cut in remission, which was done
in 1994 and 1999 is agitated in the year 2007, i.e.,
belatedly by almost fourteen and nine years respectively.
Moreover, the said challenge is made in the background of
delayed reporting by 516 days in the year 2002.
8. Thus, the approach of the petitioner towards the
law and towards his obligation as to condition of furlough
etc., is of total disrespect and callous. He cares the
least towards the conditions attached to the concessions
granted to him, turns a blind eye to his conduct and habit
and raises an issue belatedly as regards the illegality in
passing the orders.
9. While the petitioner wants that the Court should
interfere when an illegality as is pointed out, he cannot
expect one way traffic, namely he shall keep on violating
the law, when it comes to his obligation, yet, he shall be
entitled to argue that the Executive has not acted according
to law.
10. We do not suggest that the Court is inclined to
condone the illegality committed by the Executive. This
Court would, however, refrain from interfering in the orders
passed after a lapse of fourteen and nine years
respectively, as the corrective action may not really result
in corrective measure, but may result in granting an
incentive to the failure in discharge of obligation on the
part of delinquent prisoner.
11. We, therefore, decline to grant any indulgence in
the facts of the matter. Authorities are, however,
cautioned that they ought to maintain a strong vigil in
adopting proper procedure as regards the prior approval.
12.
In the result, we discharge the Rule.
JUDGE JUDGE
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