Bombay High Court
Shaikh Razzak Shaikh Salim ... vs The State Of Maharashtra on 4 May, 2017
Bench: S.S. Shinde
309.2017 Cri.WP.odt
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO.309 OF 2017
Shaikh Razzak Shaikh Salim
(C-8125) (Convict)
Central Prison, Aurangabad PETITIONER
VERSUS
1. The State of Maharashtra
Through its Secretary,
Home Department (Prison),
Mantralaya, Mumbai.
2. The State of Maharashtra
Through D.I.G. (Prisons),
Aurangabad.
3. The Superintendent,
Central Jail, Aurangabad (Harsool),
Tq. & Dist. Aurangabad.
RESPONDENTS
...
Mr.V.N.Shelke [Appointed] Advocate for the
Petitioner
Ms.P.V.Diggikar, APP for the Respondent Nos.1
to 3 / State
...
CORAM: S.S.SHINDE &
K.K.SONAWANE,JJ.
Reserved on : 28.04.2017.
Pronounced on : 04.05.2017
JUDGMENT: (Per S.S.Shinde, J.):
1. Heard.
309.2017 Cri.WP.odt
2. Rule. Rule made returnable
forthwith, and heard finally with the consent
of the parties.
3. This Petition under Article 226 of
the Constitution of India seeks directions to
the respondents to restore all the jail
facilities and include the name of the
petitioner in the register of remission.
4. It is the case of the petitioner
that, in the year 1997, the petitioner has
been convicted under Section 302 r/w. 34 of
the Indian Penal Code and he is directed to
undergo imprisonment for life. Thereafter,
the petitioner preferred Criminal Appeal No.
04/1998 before this Court and the same came
to be dismissed, confirming the conviction of
life imprisonment. At present, he is
undergoing imprisonment in Central Jail at
Aurangabad.
5. It is further the case of the
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petitioner that, thereafter, the petitioner
was granted furlough / parole leave and after
availing the said leave on completion of
period for which he was granted, the
petitioner has remained outside the jail for
1335 days on account of his family problems.
Therefore, due to late reporting, the
petitioner was duly punished by the jail
authorities by curtailing his remission and
other facilities. However, the jail
authorities have permanently removed his name
from the remission register and thereby
caused injustice. It is submitted that, on
10th January, 2017, the petitioner made
application to the registry of the High
Court, requesting therein to issue directions
to the jail authorities to grant him all jail
facilities such as remission and facilities
available to other convicts.
6. It is submitted that, the petitioner
overstayed outside the jail after completion
309.2017 Cri.WP.odt
of period for which leave was granted to him
because of his mother is old and suffering
from ailment of kidney. Both the kidney of
mother of the petitioner are not properly
functioning, and therefore, she was required
to take medical treatment regularly. The
father of the petitioner died, and therefore,
there is no male member in the family to look
after family members. The petitioner is also
having children. Therefore, it is necessary
to grant all the jail facilities and to
restore the name of the petitioner in
remission register. Hence this petition.
7. Learned counsel appearing for the
petitioner at the cost of repetition submits
that, on every occasion the petitioner
himself surrendered after completion of
period of parole / furlough leave. It is
submitted that, overstay of the petitioner
after completion of the furlough / parole
leave granted in his favour was not
309.2017 Cri.WP.odt
intentional and due to unavoidable
circumstances, and therefore, the same
deserves to be condoned, thereby restoring
the name of the petitioner in remission
register. It is submitted that, the mother of
the petitioner is suffering from ailment of
kidney. The father of the petitioner is no
more and there are small children dependent
upon him. He has already undergone period of
imprisonment more than 23 years including
remission. Therefore, he submits that, the
petition may be allowed.
8. On the other hand, the learned APP
appearing for respondent - State relying upon
the affidavit-in-reply filed on behalf of
respondents made following submissions. The
petitioner is convicted by the Sessions
Court, Aurangabad in Crime No.349/1995 and
Sessions Case No.136/1996 on 19th September,
1997, for the offence under Section 302 of
the IPC and ordered to undergo life
309.2017 Cri.WP.odt
imprisonment and total fine of Rs.1,500/- in
default 5 months imprisonment. The
petitioner's under trial period is from 1st
February, 1996 to 18th September, 1997, i.e. 1
year, 7 months and 18 days. The petitioner is
also convicted by the Sessions Court,
Aurangabad on 31st March, 2000 in Crime No.
6010/1999, and Sessions Case No.453/1999
under Section 27 of the NDPS Act and ordered
to undergo imprisonment of 6 months. The
petitioner is undergoing imprisonment in
Central Prison at Aurangabad and till date,
the prisoner has not paid the fine amount.
The petitioner is released on furlough leave
on 10th April, 2009, as per the order dated
27th March, 2008 issued by the Deputy
Inspector General of Prison, Central Region,
Aurangabad. The petitioner was supposed to
surrender on 25th April, 2009, but the
petitioner did not surrender on due date i.e.
on 25th April, 2009, and was arrested by the
309.2017 Cri.WP.odt
police authority on 20th December, 2012, and
thus the petitioner has illegally over stayed
for 1335 days.
9. It is submitted that, as per the
provisions contained in the Government
Resolution dated 2nd October, 2011, if any
prisoner is released on furlough / parole
leave, and if he does not surrender even
after the completion of his leave period,
then the jail authority has to deduct the
remission of the concerned prisoner depending
on number of days he surrendered late. It is
also relevant consideration that, the
prisoner surrendered on his own or is to be
brought back in jail by police authority. In
the present case, as the petitioner is
arrested by the police authority and as he
surrendered late by 1335 days, therefore, as
per Regulation 8 of the Government Resolution
dated 2nd October, 2011, the prisoner's name
is permanently removed from the remission
309.2017 Cri.WP.odt
register. Accordingly, the Superintendent,
Aurangabad Central Prison, submitted the
proposal for removal of the prisoner's name
from remission register and for judicial
appraisal to Sessions Court, Aurangabad. The
same was approved by Sessions Court,
Aurangabad, on 23rd March, 2016. Therefore,
the learned APP submits that, the petition
may be rejected.
10. We have given careful consideration
to the submissions of the learned counsel
appearing for the petitioner and the learned
APP appearing for the respondent - State.
With their able assistance, we have perused
the grounds taken in the petition, annexures
thereto and also the reply filed by the
respondents and annexures thereto. Upon
careful perusal of the Notification issued by
the Department of Home, Government of
Maharashtra, dated 2nd August, 2011, the said
Notification provides for amendment in the
309.2017 Cri.WP.odt
Jail Manual, 1894. By way of said amendment
Regulation No.23 has been added. By way of
said amendment, the convicts who are released
on furlough leave, and if they do not report
back on expiry of the period for which they
are granted such leave, in that case, the
manner in which there should be deduction of
remission, depending upon length of delay in
reporting back to the jail, has been
provided. As per the relevant provision, the
convict / convicts who are released on
furlough leave and after completion of the
period of such furlough leave granted in
their favour, if they unauthorizedly /
illegally stayed outside the jail for more
than 6 months period, in that case, his name
will be struck off from the remission
register and also he will not be entitled for
remission. The relevant provisions reads
thus:
309.2017 Cri.WP.odt
dSnh 6 efgus fdaok R;kis{kk tkLr dS|kaP;k ekQhr dk;eLo:ih
dkyko/khr vuf/kd`ri.ks rq:axkP;k dikr dj.;kr ;sbZy-
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11. Since the said Notification is in
force, and being uniformly applied in all
such cases, applying the said provision in
the case of the petitioner, respondents have
taken decision / action against the
petitioner. It is admitted position that,
the petitioner was released on furlough leave
from 07.05.2003 to 01.04.2004, however, he
did not report back and overstayed illegally
for more than 315 days. Even when he was
released on furlough leave for the period of
18th March, 2009 to 20th December, 2012, he
overstayed for the period of 1335 days.
Therefore, the police authorities have
arrested the petitioner on 20th December, 2012
and he was brought back to the jail. The
respondent authorities invoked aforesaid
provisions from the Notification dated 2nd
309.2017 Cri.WP.odt
August, 2011, issued by the Department of
Home of which reference is already made and
his name is permanently removed from the
remission register.
12. Therefore, we do not find any
infirmity or illegality in the decision taken
by the respondents to permanently remove the
name of the petitioner from the remission
register. Said decision is in conformity with
provision in Notification dated 2nd August,
2011, extensively referred herein above. In
that view of the matter, we are unable to
persuade ourselves to grant any relief in
favour of the petitioner. Hence, the Writ
Petition stands rejected. Rule stands
discharged.
[K.K.SONAWANE] [S.S.SHINDE]
JUDGE JUDGE
DDC
