Mohd. Azam Aslam Butt vs The State Of Maharashtra And Anr
2016 Latest Caselaw 1230 Bom

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              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    CRIMINAL APPELLATE JURISDICTION




                                                                          
                       WRIT PETITION NO. 951          OF       2015




                                                  
    Mohd. Azam Aslam Butt                         ]
    48 years, Occupation : Nil                    ]
    residing at 1/G-2, Holiberry Bldg,            ]




                                                 
    Motiram Garden, Near Kher Junction            ]
    Ambarnath, Dist. Thane                        ]
    At present in Nashik Jail,                    ]
    Dist Nashik.                                  ]
    (Confined at Nasik Road Central               ]




                                       
    Prison, Nasik Road)                           ]               ..Petitioner.
            Versus           
    1. State of Maharashtra.              ]
                                          ]
    2. Pradeep Bhanudas Chaudhari,        ]
                            
    Jail Constable, Nasik Road Central    ]
    Prison, Nasik Road.                   ]
                                          ]
    3.The Addl. Director General of Police]
      


    & Inspector General of Prisons        ]
   



    Maharashtra State, Central Bldg,      ]
    Pune - 411 001.                       ]                       ..Respondents.

    Mr. N. N. Gavankar i/b Mr. Manas N. Gavankar for the Petitioner.





    Mr. S. K. Shinde, PP with Mrs. S. V. Sonawane, APP for the State.

                     Coram : RANJIT MORE &
                             V. L. ACHLIYA, JJ.

Date of Reserving Judgment : February 16, 2016.

Date of Pronouncement : April 5, 2016.

Judgment (Per Ranjit More, J.) :

1. In this writ petition filed under Article 226 of the

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Constitution of India read with section 482 of the Code of

Criminal Procedure, 1973, the Petitioner is seeking to quash the

FIR bearing CR No.14 of 2015 registered with Shivaji Nagar Police

Station, Ambernath on 10th January 2015. The said FIR is

registered against the Petitioner at the instance of Respondent

No.2 for an offence punishable under section 224 of the Indian

Penal Code, 1860. The Petitioner has also taken exception to the

communication dated 29th June 2013 issued by Respondent No.1

and the notification dated 19th July 2013 issued by Respondent

No.3, and to Rule-27 of the Maharashtra Prisons (Mumbai

Furlough and Parole) Rules, 1959 which came to be amended by

sub-clause (b) of paragraph 22 of the Notification dated 1 st

December 2015 issued by Home Department.

2. The brief facts giving rise to the filing of the present

petition can be summarised thus :

. The Petitioner is a life-convict in Sessions Case No.

43 of 2006. He was lodged in Nashik Road Central Prison to

undergo the said sentence. By invoking the provisions of Rule 19

of the Maharashtra Prisons (Mumbai Furlough and Parole) Rules

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1959, he obtained 30 days' parole leave on 3 rd September 2014.

He came to be released from the prison on 4 th September 2014

after he complied with the parole order and furnished the bail

bonds. He got extended this parole leave twice, on each occasion

for 30 days' period. In compliance with the order granting and

extending parole leave, the Petitioner was to report back to the

prison authority on 4th December 2014 but he did not report

back. The prison authorities, therefore, declared him to be an

absconder. On that ground, they also registered the subject CR

against him for the offence punishable under section 224 of the

Indian Penal Code, 1860.

. The basis for the registration of said CR is, which the

Respondent-Authorities also agree, the Communication dated

29th June 2013 issued by Respondent No.1 and the Circular dated

19th July 2013 issued by Respondent No.3. As stated above, apart

from seeking quashment of the CR, in this petition the Petitioner

has also assailed this Communication and Circular.

4. Certain important facts having bearing on the issue

at hand also need mention. In the year 2013, Respondent No.3

had sought guidance from Respondent No.1 regarding the action

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to be taken against the prisoners who do not surrender in time

after the expiry of furlough or parole leave period. Respondent

No.1 by its communication dated 29th June 2013 informed

Respondent No.3 that the Prison Authorities themselves are

expected to take action against the prisoners who do not

surrender after the expiry of parole of furlough leave period, by

taking recourse to the provisions of section 224 of IPC and no

separate orders from the Government in this regard are required.

In pursuance of this communication, Respondent No.3 issued

Circular dated 19th July 2013 whereby the guidelines regarding

the registration of FIR against the prisoners who do not surrender

after the expiry of period of parole or furlough are given. Under

these guidelines it is specifically directed to register an FIR

against such prisoner and to arrest him.

5. It is also worthwhile to note certain development

that has taken place during the interregnum of this petition. By

the Notification dated 1st December 2015, Respondent No.1

amended the Maharashtra Prisons (Bombay Furlough and Parole)

Rules, 1959 [for short, "the Rules of 1959"]. Vide paragraph

22(b) of the said Notification, Rule-27 of the Rules of 1959 came

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to be amended whereby the words "may arrest the prisoner, if at

large, and remand him to undergo the unexpired portion of his

sentence" appearing in sub-rule (2) of Rule-27 came to be

substituted by the words "shall arrest the prisoner, if at large,

and remand him to undergo the unexpired portion of his

sentence". By amending the petition, the Petitioner has also

taken an exception to this amended provision of Sub-rule (2) of

Rule 27 of the Rules of 1959.

6. The challenge to the Circular dated 19 th July 2013

and amended provision of sub-rule (2) of Rule 27 of the Rules of

1959 is on the ground that they are illegal and contrary to law.

7. Mr. Gawankar, learned Counsel appearing for the

Petitioner contended that section 224 of IPC has no application in

case the prisoner, who is on parole or furlough leave, overstays.

He contended that the Respondent Authorities have committed

an error in implying that section 224 of the IPC provides for an

action against the prisoner who has overstayed on parole or

furlough. He submitted that by sub-clause (b) of Paragraph 22 of

the notification dated 1st December 2015, Respondent No.1 has

exceeded its jurisdiction.

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Mr. Gawankar submitted that section 224 of IPC is

applicable only when person intentionally offers any resistance or

illegal obstruction to the lawful apprehension of himself for any

offence with which he is charged or of which he has been

convicted, or escapes or attempts to escape from any custody in

which he is lawfully detained for any such offence. He submitted

that overstaying of the prisoner or not surrendering of the

prisoner on expiration of the furlough and parole leave will not

amount to the commission of an offence within the ambit and

scope of section 224 of IPC. He submitted that in order to bring

the action of the prisoner within the ambit and scope of offence

as contemplated by section 224 of the IPC, there must be an

overt act on the part of the prisoner and in the absence of any

such act, the prisoner cannot be prosecuted for the offence

punishable under section 224 of the IPC.

. In support of his submissions, Mr. Gawankar placed

heavy reliance on two authorities : Ashok vs. State of Mah. [1988

Mh.L.J. 903] and Philip John vs. State of HP [1985 Cri.L.J. 397].

8. Mr. Shinde, the learned PP vehemently opposed the

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petition. He submitted that it has been a problem of long time

that in number of cases, the prisoners after obtaining parole or

furlough leave, have not surrendered. The issue in this regard

was earlier raised before this Court in Criminal Writ Petition No.

1098 of 2013. This Court by the order dated 27 th September 2013

took note of the fact that several prisoners have absconded after

obtaining parole or furlough leave and, observed that stringent

measures like provision under section 224 of IPC need to be

invoked against such prisoners who fail to report to custody after

obtaining parole or furlough leave. He submitted that in

pursuant to the observations made by this Court as contained in

the order dated 27th September 2013, a Committee consisting of

high officials of the Government was formed to give suggestions

to implement the system wherein the prisoners granted parole or

furlough leave should be brought back to the prison to undergo

the remainder of sentence period. This Committee gave certain

suggestions, pursuant to which the Rules of 1959 came to be

amended extensively. One of the amended provision is about

the registration of an FIR for the offence punishable under

section 224 of IPC against the prisoner who does not surrender

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after the expiry of the period of furlough or parole leave.

. Mr. Shinde submitted that in the instant case, the

Petitioner was supposed to surrender before the prison

authorities of Nashik Road Central Prison on 4th December 2014,

however, he did not, and accordingly report to that effect was

submitted to the Superintendent of Police and the senior officers

of Thane Police; the Petitioner's surety was called upon and

informed about the fact that the Petitioner has not surrendered,

however, the said surety also did not respond to the notice. The

Petitioner was thereafter declared as absconder and accordingly

an FIR for the offence punishable under section 224 of IPC came

to be registered.

. Mr. Shinde, placed reliance on the Apex Court

decision in Sunil Fulchand Shah vs. Union of India [(2000) 3 SCC

409] and decision of this Court in Dinesh Mitaramji Gabhane vs.

State of Maharashtra [2005 ALL MR (Cri) 484] and submitted that

though the prisoner granted parole or furlough is released from

the actual custody of prison authorities, he remains in legal

custody of the State and non surrendering to the Prison

Authorities after the expiry of the parole of furlough period

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amounts to "escape or attempt to escape" within the meaning of

section 224 of IPC. He lastly submitted that there is no merit in

the petition and the same deserves to be dismissed.

9. Having considered the rival submissions and having

gone through the petition and affidavit-in-reply and decisions

cited at bar, in our view following issues deserve consideration in

the present petition :

[1] Whether releasing of prisoner on furlough or parole

amounts to releasing him from lawful custody ? [2] Whether on releasing prisoner on furlough or parole,

prison authorities cease to have any control over him ? [3] Whether not reporting back by the prisoner to the prison

authorities after the expiry of furlough or parole leave, amounts to "escaping the custody of prison authorities" ?

10. A look at section 224 of IPC at this stage would be

apposite, which reads thus :

"224. Resistance or obstruction by a person to his lawful apprehension.--

Whoever intentionally offers any resistance or illegal obstruction to the lawful apprehension of himself for any offence with which he is charged or of which he has been convicted, or escapes or attempts to escape from any custody in which he is lawfully detained for any such offence, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.

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Explanation.-The punishment in this section is in addition to the punishment for which the person to be apprehended or

detained in custody was liable for the offence with which he was charged, or of which he was convicted. "

11. The Apex Court in Sunil (supra) distinguished parole

from bail and held that both have different connotations in law

though the substantive legal effect may be release of prisoner

from the custody. The Apex Court held that since release on

parole is a temporary arrangement by which the detenu is

released from custody, which does not suspend the sentence or

the period of detention, but provides conditional release from

custody and changes the mode of undergoing the sentence, that

parole does not interrupt the period of detention and, thus, that

period needs to be counted towards the total period of detention

unless the terms for grant of parole, rules or instructions,

prescribe otherwise. The Apex Court further held that the detenu

is not a free man even while out on parole. Even while on parole

he continues to serve the sentence or undergo the period of

detention in a manner different than from being in custody. He is

not a free person. Parole does not keep the period of detention

in a state of suspended animation. The period of detention keeps

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ticking during this period of temporary release of a detenu also

because a parolee remains in legal custody of the State and

under the control of its agents, subject at any time, for breach of

condition, to be returned to custody.

12. The Division Bench of this Court in Dinesh (supra)

relied upon the above decision of the Apex Court in Sunil (supra)

and held that the period of parole is a part of sentence and is

therefore required to be counted towards the sentence. The

Division Bench further held that the parole is a temporary release

from the custody which does not suspend or interrupt the

sentence like in bail and although the prisoner while on parole is

temporarily released from actual custody, he is still in the legal or

constructive custody and he thus continues to serve the sentence

though in a different manner.

13. Thus, the proposition of law propounded by the

Apex Court and the Division Bench of this Court, is that though

the prisoner is released from prison on parole for temporary

period, he still continues in legal or constructive custody of the

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prison authorities. The period of parole is part of the sentence

and is therefore required to be counted towards the sentence.

14. Having taken the view that the Petitioner during his

parole leave is in legal or constructive custody of the prison

authorities, let us consider whether his non-surrender to the

prison authorities after the expiry of the parole period or

extended parole period will amount to escape or attempt to

escape from legal custody as contemplated under section 224 of

the IPC.

15. The dictionary meaning of the word "escape" is :

(1) the act or instance of breaking free from confinement,

restraint, or an obligation.

(2) An unlawful departure from legal custody without the use of force.

[Reference : Black's Law Dictionary, 8th Edition]

. If in the context of second part of section 224 of IPC,

the meaning of the word "escape" as given in clause (2) above is

considered, then, the unlawful departure from the legal custody

without the use of force does amount to "escape" in the context

of provisions of section 224 of IPC.

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16. As stated above, though the Petitioner was not in

actual prison on account of grant of parole leave, is deemed to be

in the legal custody of the prison authorities and his act of non

surrendering after the expiry of period of parole leave can be

safely said to be an act amounting to escape, the reason being

the "departure" connotes a deviation or divergence from a

standard rule or regulation. Under the Prison Rules, Clause 10(5)

of Chapter XXXVII (Furlough and Parole to the Prisoners) it is

stipulated that the prisoner will surrender himself to the

Superintendent of Prison from which he was released on the

expiry of the period of parole or furlough. In our considered

view, non surrendering to the prison authorities after the expiry

of parole or furlough leave period will amount to divergence from

the standard rules and regulations. Thus, it can be safely said

that the Petitioner has unlawfully departed from the legal custody

by non surrendering to the Prison authorities after the expiry of

his parole period and the same amounts to escape from the legal

custody. The Petitioner's conduct of non surrendering on time

after the expiry of parole leave period amounts to escape. Clause

(11) of the said Chapter incorporates that before releasing a

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prisoner on furlough, declaration as under shall be given by him

on the release order itself :

"I hereby accept and agree to abide by the above conditions of

the release order and I acknowledge that should I fail to fulfill these conditions or any portion of them, the Sanctioning Authority may revoke the order of release and forfeit the amount of security furnished by me, and I may be arrested by

any police officer without warrant and remanded to undergo the unexpired portion of my sentence, and I further acknowledge that should I fail to fulfill these conditions or any protion of them, I am liable to be punished on conviction, with imprisonment for a term which may extend to two years or with

fine which may extend to Rs.1,000/- or with both, under section 51-B of the Prisons Act, 1894."

17. The rule and regulations granting parole to the

prisoner put the parolee under an obligation to surrender to the

prison authorities upon the expiry of parole period. If prisoner

does not surrender accordingly on the expiry of parole period, it

undoubtedly amounts to deviation or divergence from the

standard rule or regulation. Such a deviation or divergence from

the rules and regulations of parole will bring the act of the

prisoner within the ambit and scope of definition of "escape" as

postulated by section 224 of IPC.

18. Here, it would be worthwhile to mention that

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number of prisoners have absconded after obtaining the parole

and furlough leave. The cases of misuse of the liberty of parole

and furlough are large. The details given by the prison Authority

in their affidavit-in-reply are indeed shocking and alarming. The

Division Bench of this Court in Writ Petition No. 1098 of 2013 had

also taken note of this fact and suggested the Government to take

appropriate measures in order to ensure that prisoners released

on parole or furlough, who have not reported back after the

expiry of parole or furlough period, are brought back to prison to

undergo the remaining sentence. In the light of those

observations, a committee was constituted and in accordance

with the recommendations made by the said committee, rules

are amended by issuing notification dated 1st December 2015.

19. Before parting with the matter, we must make

reference to the decisions cited by Mr. Gawankar, learned

Counsel appearing for the Petitioner. In Philip (supra), the

Petitioner was handcuffed by two constables while he was being

medically examined by doctor. The Petitioner therefore prayed

for an action against them for contempt of Court for having

committed contempt of Court by acting in utter disregard of the

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directions issued by the Supreme Court to the effect that the

prisoner in transit shall not be handcuffed. The Division Bench of

HP High Court held that High Court has no jurisdiction to commit

for contempt any person who acts in willful disregard/breach of

the directions issued by the Supreme Court in regard to the hand

cuffing of undertrial prisoners/convicts while in transit. The

Court further held that the high Court however cannot throw out

the petition on that ground, for the law declared by the Supreme

Court is binding on all Courts within the territory of India and it is

not only within the power, authority, and jurisdiction of the High

Court to secure the enforcement of such law by issuance of an

appropriate writ, but also it is the constitutional obligation and

duty to do so. The Division Bench after perusal of the provisions

of section 55 of the Prisons Act, 1894 and section 224 of the IPC

observed that a prisoner when being taken to or from any prison

in which he might have been lawfully confined, for the purposes,

inter alia, of medical treatment, or when he is working outside or

is otherwise beyond the limits of any prison, such as when he is

being actually medically examined or is taking medical treatment

in any hospital, in or under the lawful custody or control of a

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prison officer belonging to such prison, will be regarded as if in

prison, by virtue of the legal fiction enacted in section 55 of the

Prison Act and that he can be dealt with under section 224 of the

Penal Code in case he escapes or attempts to escape from such

custody. These observations show that the prisoner is deemed to

be in custody when he is taken out of the prison for the medical

treatment or when he is working outside or beyond the limits of

the prison. The question whether parolee is in legal custody or

constructive custody of prison authorities did not fell for

consideration before the Division Bench of the HP High Court in

Philis's case. Besides, in view of the the latest proposition of law

as laid down by the Apex Court in Sunil Fulchand Shah's case

(supra), the decision of the HP High Court in Philip's case will not

take the Petitioner's case any further.

20. The Division Bench of this Court in Ashok Shetye

(supra) held that non-surrender of the prisoner after the

completion of parole or furlough period can at the most be

construed as a breach of condition or parole and/or furlough for

which separate liability has been imposed by a notification

whereby it is provided that there would be a maximum cut of 5

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days' remission for each day of overstay. The Division Bench

further held that breach of any of the conditions of parole or

furlough would not by itself amount to "absconding" and at the

most it may make the prisoner liable for losing the remission of 5

days for each day of overstay. The Court interpreted the words

"absconding" and held that in "absconding" there should always

be an element of concealing or hiding. The question of

application of the provisions of section 224 of IPC was not under

consideration before the Division Bench nor the same is

considered. This authority, therefore, has no application in the

present case.

21. Since we have come to the conclusion that parolee

is in legal custody of the State or its agents and his non-surrender

to the prison authorities after the expiry of the parole period

amounts to escaping from the legal custody within the meaning

of section 224, the petition fails and the same is accordingly

dismissed.

              [V. L. ACHLIYA, J.]                [RANJIT MORE, J.]




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