Bombay High Court
Tukaram Datta Potre vs The State Of Maharashtra on 4 April, 2016
Bench: R.M. Borde
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IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO.1611 OF 2015
Tukaram Datta Potare,
age: 30 years, C/6434,
Nasik Road Central Jail,
District Nasik. Petitioner
Versus
1 State of Maharashtra,
through the Principal Secretary,
Home Department, Mantralaya,
Mumbai - 400 032.
2 Inspector General of Prisons,
Maharashtra State, Pune.
3 Deputy Inspector General of
Prisons, Central Department
Aurangabad.
4 The Superintendent,
Nasik Road Central Jail,
Nasik, District Nasik. Respondents
Mr.A.A.Salve, advocate (appointed) for the petitioner.
Mr.K.S.Patil, APP for Respondents.
CORAM : R.M.BORDE &
K.L.WADANE, JJ.
DATE : 04th April, 2016
ORAL JUDGMENT (Per R.M.Borde, J.):
1 Heard. Rule. Rule made returnable forthwith and
heard finally by consent of learned Counsel for respective parties.
2 The petitioner is convicted by the Sessions Judge,
Nanded in Sessions Case No.05 of 2007 for the offences punishable
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under Sections 302, 323, 324, 504 read with Section 34 of the
Indian Penal Code and is undergoing sentence to suffer life
imprisonment and is presently lodged in Nasik Road Central Jail.
3 The petitioner moved an application for furlough which
was forwarded to Respondent No.2 for sanction vide letter dated
22.01.2015. The petitioner was released on furlough for a period of
two weeks. However, as mother of the petitioner was not keeping
well, he tendered an application on 08.06.2015 for extension of
furlough for further fifteen days. The application tendered by the
petitioner for extension of furlough was not decided for quite some
time and same was decided only after surrender of the petitioner to
Central Jail. Petitioner surrendered himself on 04.07.2015,
belatedly after 15 days of sanctioned furlough period. As a
consequence of his late surrender, the jail authorities i.e.
Superintendent of Central Jail, Nasik, directed fifteen days cut in
the remission as a matter of penalty.
4 The petitioner contends that since his mother was not
keeping well and he had tendered an application for extension of
furlough, he was hoping that his application would be considered
favourably and he would be allowed to continue to remain on
furlough for further fifteen days. According to the petitioner, action
of late surrender was not intentional, but was for the reason that
his mother was sick and he was required to take her care. In the
circumstances, petitioner placed reliance on the judgment
delivered by the Gujarat High Court in the matter of Bhipat Vira
Vs. State of Gujarat and others, reported in 1987 (1) GLH 578.
Relying upon earlier Full Bench judgment of the Gujarat High
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Court, the Division Bench of Gujarat High Court has laid down
certain parameters for consideration of issue of imposition of
penalty in the matter of late surrender by the prisoners. It is laid
down by the Division Bench of High Court that the authorities has
to consider, inter alia, whether:
(i) His late surrender was voluntary;
(ii) lateness in surrender was for unduly long period;
(iii) Prisoner escaped and police authorities had arrested
him after chase;
(iv)
(v)
There is any sufficient cause for his late surrender;
The cause is insufficient or if there is no cause, what is
the gravity of the offence.
5 It is observed by the Full Bench of the Gujarat High
Court in paragraph no.21 of the judgment in the matter of
Bhikhabhai Devshi Vs. State of Gujarat & others, reported in
1987 (Special Criminal Application No.795 decided on 03.08.1986,
reported in 1987 (1) GLH 139:
"In every case of late surrender, the authority
has to take a conscious decision under Section
48-A after duly applying its mind as to what
particular punishment or punishments should
be awarded. it is open to the authority to
impose a cut of remission for a particular
number of days and the authority may or may
not combine the punishments, but whatever
punishment the authority ultimately imposes is
to be suffered."
6 In the instant matter, it has not been demonstrated
that the authorities have considered sufficiency of the cause
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shown by the petitioner for his late surrender and in the
circumstances, we quash the order passed by the Respondent
imposing a penalty to cut period of 15 days in the remission and
direct the concerned authorities to reconsider the issue in the light
of observations made in the judgment.
7 Rule is made absolute to the extent specified above.
K.L.WADANE R.M.BORDE
JUDGE ig JUDGE
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