Bombay High Court
Shivaji Shrimant Mandale vs The State Of Maharashtra on 18 October, 2016
Bench: S.S. Shinde
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 903 OF 2016
Shivaji S/o Shrimant Mandale
Age : 40 years, Occ : Convic No.13679,
At present : Prisoner (Open Prison),
At Paithan, Dist. Aurangabad.
..PETITIONER
-VERSUS-
1.
The State of Maharashtra
2. Divisional Commissioner,
Pune Region, Pune.
3. The Superintendent of Prison,
Yerwada Central Jail,
Pune.
4. The Superintendent of Open Prison,
Paithan, Dist. Aurangabad.
..RESPONDENTS
...
Mr.D.M. Hange, advocate for petitioner
Mr.D.R. Kale, APP for Respondent/State
...
CORAM : S.S. SHINDE &
SANGITRAO S. PATIL, JJ.
Dated: October 18, 2016
...
ORAL JUDGMENT (SANGITRAO S. PATIL, J):-
Rule. Rule made returnable
forthwith. Heard finally with the consent of
the learned counsel appearing for the
parties.
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2. The petitioner has challenged the
order dated 10th June, 2008 passed by
respondent no.3, whereby due to overstay of
the petitioner for 127 days after expiry of
parole, he was punished by way of deduction
of 422 days of his remission period.
3. The learned counsel appearing for
the petitioner submits that after reporting
back to the prison, the petitioner filed
application on 29th January, 2008 before
respondent no.3 explaining that two days
prior to 29th August, 2007, when he was
proposed to report back to suffer his
sentence in prison, his wife sustained
injuries in an accident in a flour-mill. She
was required to undergo medical treatment.
Since there was nobody to look after her in
the house of the petitioner, he was required
to stay there. In that emergent and
inevitable circumstances, he could not report
back to the prison immediately after the
period of parole was over. He attended the
prison immediately after recovery of his
wife. The learned counsel for the petitioner
submits that as per the circular dated 7th
September, 2013, and more particularly,
clause (4) thereof, it was necessary for
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respondent no.3 to verify the ground that was
shown by the petitioner for the delay in
reporting back to the prison after expiry of
the period of parole. However, no such
verification was done by respondent no.3 and
his remission period has been wrongly reduced
by 422 days. He, therefore, submits that the
impugned order may be quashed and set aside.
4.
As against this, the learned A.P.P.
appearing for the respondent/State on the
basis of the contents of the reply filed on
behalf of respondent no.3, submits that the
period of parole granted to the petitioner
had come to an end on 29th August, 2007. He
was supposed to attend the prison on 29th
August, 2007. The alleged incident in which
the wife of the petitioner is stated to have
sustained injuries took place on 27th August,
2007. He submits that the circular dated 7th
September 2013 cannot be given retrospective
effect to extend the benefit thereof to the
petitioner in respect of his unauthorized
absence of the year 2008. He submits that the
period of remission has been rightly deducted
by respondent no.3, because of his wrongful
overstay after the period of parole was over,
as per the Rules prevailing at the relevant
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time. He, therefore, submits that the
petition may be dismissed.
5. We have considered the contents of
the application dated 29th January, 2008 filed
by the petitioner after reporting back to
prison belatedly as well as the circular
dated 7th September, 2013. The remission
period of the petitioner has been reduced by
respondent no.3 by 422 days vide the impugned
order dated 10th June, 2008, as per the Rules
which were prevailing at the relevant time.
The circular dated 7th September, 2013 does
not show that it was to be made applicable
with retrospective effect. In the
circumstances, the petitioner is not entitled
to get the benefits of the said circular.
Consequently, we do not find any reason to
interfere with the impugned order. Hence the
following order :-
ORDER
(i) The Criminal Writ Petition is dismissed.
(ii) The Rule stands discharged accordingly.
(iii) Since Mr. D.M. Hange, the learned
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counsel is appointed as Amicus Curie to
prosecute the cause of the petitioner, his
fees be paid as per the schedule of fees
maintained by the High Court Legal Services
Sub-Committee, Aurangabad.
(SANGITRAO S. PATIL, J.) (S.S. SHINDE, J.)
SGA
