Phulchand Kamalakar Bhalshankar vs The State Of Maharashtra And Ors
2017 Latest Caselaw 7923 Bom

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RMA      
                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                      CRIMINAL APPELLATE JURISDICTION

                          CRIMINAL WRIT PETITION NO. 1767 OF 2017


            Phulchand Kamalakar Bhalshankar                                  .. Petitioner

                                 Versus
            The State of Maharashtra & Ors.                                  .. Respondents

                                                  ...................
            Appearances
            Ms. Harjeet Kaur Bhagwant Singh                    Advocate for the Petitioner
            Mrs. G.P. Mulekar                                  APP for the State
                                                   ...................



                              CORAM       : SMT. V.K. TAHILRAMANI &
                                              M.S. KARNIK, JJ.

DATE : OCTOBER 9, 2017.

ORAL JUDGMENT [PER SMT. V.K. TAHILRAMANI, J.] :

1. Heard learned counsel for the petitioner and learned

APP for the State.

2. The petitioner is undergoing life imprisonment in

Yerwada Central Prison, Pune. The grievance of the

petitioner is that his remission was permanently forfeited,

hence, he has approached the Court against the order of

permanent forfeiture of remission.

            jfoanz vkacsjdj                                                                       1 of 7





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3. On 17.2.2008, the petitioner preferred an application

for parole leave on the ground of illness of his wife. The

Divisional Commissioner, Pune granted parole leave to the

petition for 30 days by order dated 25.5.2010. Pursuant to

the said order, the petitioner was released on parole on

26.6.2010. Thereafter, the petitioner preferred first

application for extension of parole for a further period of 30

days. The said parole leave was further extended for a

period of 30 days by order dated 8.9.2010. Thus, the parole

was extended from 27.7.2010 to 25.8.2010. The petitioner

was supposed to surrender on due date i.e 26.8.2010,

however, the petitioner did not surrender back to the prison,

hence, complaint No. 722/11 under Section 172 of IPC came

to be registered against the petitioner on 6.7.2011. As the

petitioner did not surrender on due date and he was required

to be arrested, C.R. No. 247/13 under Section 224 of IPC

came to be registered on 10.10.2013 at Dattawadi Police

Station, Pune. Ultimately, the police traced and arrested

the petitioner and brought him back to the prison on

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5.3.2014. Thus, there was overstay of 1247 days on the part

of the petitioner in reporting back to the prison.

4. Learned counsel for the petitioner submitted that the

petitioner has submitted an explanation for his overstay.

The said explanation was not considered, hence, principle of

natural justice was not followed, hence, the punishment is

vitiated and deserved to be set aside. In support of her

contention, she has placed reliance on the decision of this

Court in the case of Shivraj s/o. Hanmantrao Patil Vs.

The State of Maharashtra & Ors.1 . In the said decision,

it is held that in the case of punishment for overstay on

parole, if the said punishment is imposed without considering

the explanation of the prisoner, as no opportunity was given

to the prisoner, the punishment would be vitiated.

As far as this contention is concerned, the affidavit of

Shri. Kaustubh Hari Kurlekar, Deputy Superintendent of

Yerwada Central Prison where the petitioner is lodged shows

that on account of the overstay, a show-cause-notice was

1 1993(3) Bom.C.R. 717 (Aurangabad Bench)

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issued to the petitioner vide office letter No. 4774/2014

dated 7.3.2014 and office letter No. 4098/2015 dated

16.4.2015. It is stated in the said affidavit that despite

giving two opportunities to the petitioner, the petitioner did

not submit any explanation or submitted any document by

way of proof as a good ground for late surrender. Learned

counsel for the petitioner was also unable to show us any

proof that any such explanation was submitted by the

petitioner to the Authorities. Thus, the decision in the case

of Shivraj Patil (supra) cannot be made applicable to the

facts of the present case.

5. On account of the overstay of 1247 days, the

Superintendent had proposed the punishment of permanent

forfeiture of remission. This proposal was in view of Clause 8

of the Notification dated 2.8.2011 which deals with the

prisoners coming late from parole leave. Clause 8 provides

that if a prisoner stays outside the jail unauthorizedly for a

period of six months or more, the remission of the prisoner

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shall be cut permanently i.e in other words, his remission will

be permanently forfeited. The said proposal was submitted

by the Superintendent of Yerwada Central Prison to Dy.

Inspector General of Prisons, Western Region, Pune vide

office letter No. 6611/15 dated 9.6.15 for prior sanction. The

Dy. Inspector General of Prisons, Western Region, Pune

sanctioned the said proposal vide letter No. 3931/2015 dated

24.7.2015. Thereafter, the proposal was forwarded to the

learned Sessions Judge, Pune for judicial appraisal vide letter

No. 9107/2015 dated 30.7.2015. The learned Sessions

Judge, Pune approved the said proposal vide letter No.

940/2016 dated 12.2.2016. Pursuant thereto, the

punishment of permanent forfeiture of remission was

imposed on the petitioner and he was removed from the

remission register permanently.

6. Learned counsel for the petitioner submitted that when

the petitioner was released on 26.6.2010, he preferred an

application for extension of parole for a period of 30 days

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which came to be granted. In the meanwhile, the wife of the

petitioner became pregnant and as there was no one in the

house to look after her, the petitioner could not surrender.

She submitted that this is an explanation for the overstay on

the part of the petitioner. As stated earlier, this explanation

was not given to the Authorities. Even otherwise, we do not

think that this explanation is an appropriate explanation,

because it is seen that the baby was born on 25.6.2011 i.e

almost one year after the release of the petitioner on parole

leave. In such case, if the petitioner had surrendered back to

the prison on the due date i.e on 26.8.2010, he would have

been able to avail another parole leave at the time of

delivery.

7. The Notification dated 2.8.2011 clearly envisages that if

a prisoner stays outside the jail unauthorizedly for more than

six months, his remission would be cut permanently. Such

punishment is necessary to maintain discipline among the

prisoners and to avoid overstay on parole leave. As stated

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earlier, the punishment has been sanctioned by higher

Authority i.e Dy. Inspector General of Prisons and it has also

been ratified by the learned Sessions Judge. Looking to the

inordinate delay of 1247 days and the fact that the petitioner

had not surrendered back to the prison on his own even after

this delay but he was required to be arrested and brought

back to the prison, no case is made out for interference.

Rule is discharged.

[ M.S. KARNIK, J ]                    [ SMT. V.K. TAHILRAMANI, J. ]




jfoanz vkacsjdj                                                         7 of 7