Padamsing Daulatsing Jarhade ... vs The State Of Maharashtra
2017 Latest Caselaw 7225 Bom

                                                                   Cri.W.P.987/2017
                                       1

          IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                     BENCH AT AURANGABAD

                   CRIMINAL WRIT PETITION NO. 987 OF 2017

Padamsing Daulatsing Jarhade,
Convict No.6169,
Age 68 years,
Central Prison, Aurangabad                               .. Petitioner

        Versus

1.      The Deputy Inspector of
        Prisons, Central Region,
        Aurangabad

2.      The Jail Superintendent,
        Aurangabad Central Prison,
        Aurangabad

3.      The Police Inspector,
        Police Station, Khultabad
        District Aurangabad                              .. Respondents

Mr P.D. Jarare, Advocate (appointed) for petitioner Mr A.R. Borulkar, Advocate for respondents

CORAM : S.S. SHINDE AND A.M. DHAVALE, JJ

DATE : 15th September 2017

ORAL JUDGMENT (Per A.M. Dhavale, J.)

1. Rule. Rule returnable forthwith. With the consent of parties,

matter is taken up for final disposal at admission stage.

2. The petitioner under Article 226 of the Constitution seeks writ of

mandamus for following reliefs :

(i) To direct the respondents - D.I.G. Central Prison, Aurangabad

and Jail authorities to consider the furlough request of the present

petitioner, as expeditiously as possible.

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(II) By amended prayer clause B-1 to quash and set aside the F.I.R.

registered at C.R.No.76 of 2016 against the petitioner at Khultabad

Police Station under Section 224 of Indian Penal Code.

3. The letter received from the petitioner from jail has been

converted into writ petition by appointing learned Advocate Mr P.D.

Jarare for the petitioner at State expenses.

4. As per the petition, the petitioner is convicted with

imprisonment for life and is lodged in Central Prison, Aurangabad. He

has so far undergone sentence of 13 years and 5 months. On

21.3.2016, he applied for furlough leave, which was kept in abeyance.

He was released on parole on 30.4.2016. The said parole was further

extended by the Divisional Commissioner, Aurangabad for a period of

sixty days. The petitioner was expected to return back to the jail on

30.7.2016, but according to him, he was not keeping good health and,

therefore, he returned to jail on 6.8.2016 i.e. after seven days, of his

own. The authorities served him with show-cause notice dated

8.8.2016 as to why his remission should not be curtailed by 35 days in

the proportion 1 to 5. He was also intimated that due to delay in his

arrival crime was registered at C.R. No.76/2016 under Section 224 of

Indian Penal Code at Khultabad police station. The petitioner claimed

that he was suffering from jaundice and needed attention and family

care. He had no deliberate intention nor he has from the jail

authorities. Besides, the act of curtailment of remission as well as

prosecution under Section 224 of Cr.P.C. amounts to double jeopardy.

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5. Respondent no.2 has filed affidavit dated 16.8.2017. It

discloses that the application of the petitioner dated 21.3.2016 for

furlough leave of 14 days was duly forwarded to D.I.G. Central Prison,

Aurangabad. Though the enquiry report 16.4.2016 submitted by Sub

Divisional Police Officer, Gangapur was adverse, still, D.I.G., Central

Prison, Aurangabad by letter dated 29.4.2016, called upon the

petitioner to furnish the name of one additional surety. It was

received on 3.5.2016. Meanwhile, on 30.4.2016, the petitioner was

released on parole for thirty days each. The said leave was further

extended by 30 + 30 days and the petitioner was expected to return

upto 30.7.2016. As he did not return, F.I.R. was lodged against him on

5.8.2016 under Section 224 of Indian Penal Code. Thereafter, the

petitioner returned on 6.8.2016. The application for furlough leave of

the petitioner was rejected by the D.I.G. Central Prisons, Aurangabad

on 5.5.2017. The curtailment of remission by 35 days is according to

the procedure laid down. The petitioner had earlier come late on four

occasions by 250 days, 23 days, 79 days and 20 days. In the last case

of parole, even after enjoying 90 days of parole, he came late by

seven days. His remission was cut off by 35 days as per Rules dated

2.8.2011.

6. Heard learned Advocate Mr Jarare for the petitioner and learned

A.P.P. Mr A.R. Borulkar for the State. Learned Advocate Mr Jarare

submitted that since the prayer for taking quick decision on the

application of the petitioner for furlough has been duly complied, the

said prayer no more survives, but he pressed this petition for

quashing of F.I.R. under Section 224 of Indian Penal Code. He

submitted that the petitioner has been subjected to double jeopardy,

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namely curtailment of remission by 35 days (+) prosecution under

Section 224 of Indian Penal Code. He also submitted that the

ingredients of Section 224 of Indian Penal Code are not disclosed.

There was no resistance or obstruction to the arrest nor escape or any

intentional act on the part of petitioner. He has voluntarily

surrendered. Hence, the F.I.R. should be quashed.

7. Learned A.P.P. supported the impugned order.

8. Learned Advocate for the petitioner has placed reliance on the

judgment in Criminal Writ Petition no.77 of 2013 of Nagpur Bench in

Shalik M. Kowe Vs. State of Maharashtra and others, dated 8.4.2014

and Smt. Jaya Chheda Vs. State of Maharashtra in Criminal Writ

Petition No.1917 of 2016 decided by Division Bench at principal seat,

High Court, Bombay on 14.10.2016.

9. After carefully considering the arguments advanced and the

record produced and considering the judgments cited before us, we

proceed to decide the issue of quashing of F.I.R. under Section 224 of

the Indian Penal Code.

10. In Shalik Kowe's case (cited supra), the petitioner undergoing

sentence of life imprisonment under Section 302 of Indian Penal Code

had escaped from the open jail at Morshi to meet his ailing mother.

The jail authorities initiated prosecution under Section 224 of Indian

Penal Code and at the same time, there was proposal for forfeiture of

entire remission of 2413 days. The D.I.G. Central Prison, Aurangabad

granted approval for forfeiture of remission of 1693 days, which was

approved by the Principal District Judge, Amravati. Rule 22 (1) of

Remission Rules giving no discretion, but providing a straight jacket

Cri.W.P.987/2017

formula for curtailment of remission on account of escape from jail

custody was challenged on the ground of violative of Article 14 of

Constitution. Besides, the simultaneous actions under two provisions

were also challenged. After considering the provisions of Section 46

(4), 52, 59 (1) (2) (3) (4) (5) of Prisons Act and Rules 24, 25, 26 of

Maharashtra Prisons Punishment Rules 1963, it was held that Rule 22

(1) of the Maharashtra Prisons (Remission System) Rules was ultra

virus of Article 14, however, under Rule 22 (3) of the Maharashtra

Prisons (Remission System) Rules, the authority had right to forfeit the

remission either in part or in entirety. Rule 22 of the Maharashtra

Prisons (Remission System) Rules was relied upon, which reads as

under :

"22. [Forfeiture] of remissions -

(1) Where a prisoner escape from a legal custody the total remission earned by him upto the date of his escape shall stand [Forfeited].

(2) Where a prisoner attempts to escape from legal custody or plans or abets escape, the Superintendent shall, with the previous approval of the (the Regional Deputy Inspector General], pass such orders thereon as the circumstances of the case may require.

(3) Where a prisoner, after his admission into the prison, is convicted of an offence under section 147, 148, 152, 224, 302, 304, 304A, 306, 307, 308, 323, 324, 325, 326, 327, 332, 333, 352, 353 or 377 of the Indian Penal Code, the Superintendent shall with the previous sanction of the [Regional Deputy Inspector General] [forfeit] any remission earned by such prisoner."

Cri.W.P.987/2017

Rule 26 of the Maharashtra Prisons (Remission System) Rules

provides proviso was also relied upon, which reads as under :

"26. Power of State Government and Inspector General to revoke remissions-

The State Government or the Inspector General may, at any time, called for the record of the case regarding remissions granted to a prisoner and if it or he is satisfied that any prisoner was granted remission without sufficient reasons, by order, revoke, in whole or in part, any ordinary special remission granted to such prisoner or remove him from the remission system for the period specified in the order."

11. In this case, the prisoner was convicted by learned Judicial

Magistrate, First Class, Morshi under Section 224 of Indian Penal Code

and was sentenced to suffer imprisonment for three months. It was

held that Rule 22 (1) of the Maharashtra Remission Prison System

Rules, which provides for forfeiting the entire remission was ultra

virus, but the right to forfeit appropriate remission under Rule 22 (3)

of the Maharashtra Remission Prison System Rules was recognised.

12. The judgment in Jaya Chheda's case relates to the suspension of

sentence for temporary period of sixteen weeks on the ground of

taking medical treatment by the petitioner. In this case, referring to

the ingredients of Section 224 of Indian Penal Code and the meaning

of word "escape" appearing therefrom, it is observed :

"26. The Division Bench of this court in case of Mohd. Azam Aslam Butt (supra) has adverted to the dictionary meaning of the word "escape" which reads thus : -

Cri.W.P.987/2017

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.

27. This Court held that if in the context of second part of Section 224 of IPC, the meaning of the word "escape" as given in clause (2) of the dictionary meaning of "escape" 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. This court after adverting to the Prison Rules, Clause 10(5) of Chapter XXXVII (Furlough and Parole to the Prisoners) held that the 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 and it could be safely said that the petitioner had 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."

13. In the facts of the said case, it was observed that the applicant

had not escaped from the hospital, where she was admitted pursuant

to the order passed by the Honourable High Court for treatment and

where she was allowed to continue to stay in the hospital. In that

case, the petitioner was released on furlough on 26.4.2016. On

10.5.2016, she suffered serious chest pain and was referred to Civil

General Hospital, Thane. As she fell down, she was taken for

treatment for angiography and spine fracture of neck. Her application

for temporary bail was rejected but the Honourable High Court

Cri.W.P.987/2017

directed that she should be treated in J.J. Hospital, Mumbai. In this

situation, on 28.5.2016, F.I.R. came to be lodged against the applicant

for not returning within twenty days. In this context, it was observed

that lodging of F.I.R. under Section 224 of Indian Penal Code against

her by the jail authorities was gross abuse of process of law and the

same was quashed.

14. In Ashishrao Venkatrao Phad Vs. State of Maharashtra and Ors.,

Criminal Writ Petition No.904 of 2017, decided by us on 14.9.2017, we

have taken view that a deliberate omission to return to the jail by a

convict, after completion of period of furlough or parole amounts to

escape from the lawful custody of the jailor. In paragraph 14 of the

judgment, we observed as under:

"...When the law assumes that they continue to be in the custody of Jailor and if they do not return to the jail after the furlough or parole period is over, it will be an offence u/s 224 of the IPC. As per Section 33 of the IPC, offence can be committed by act as well as by omission. Wherever the word "act" has been used in the IPC, it includes the word 'omission'. A deliberate omission to return to the jail by a convict certainly amounts to escaping from the lawful custody of the Jailor and, therefore, the prosecution u/s 224 of the IPC in appropriate cases of delay in returning to the jail is justified and legal. When a prisoner remains outside the Jail beyond the period of furlough or parole, he removes himself from the lawful custody of the Superintendent of Jail and thereby commits offence u/s 224 of IPC. It amounts to jumping the bail & committing breach of understanding as well."

Cri.W.P.987/2017

15. We have relied upon the Circular dated 1.1.2015 of the State of

Maharashtra wherein the guidelines for filing F.I.R. under Section 224

of Indian Penal Code against convicts not returning to furlough or

parole have been laid down. In the said circular, the maximum

permissible period of furlough 14 + 14 = 28 days and maximum

permissible period of parole of 30 + 30 + 30 = 90 days was

considered as a guideline even though the extension of

furlough/parole might not have been granted to the convict. It is held

that if the convict does not return even after the permissible limit of

furlough or parole, F.I.R. under Section 224 of Indian Penal Code can

be filed. In paragraph 20 of the judgment, we have also given due

consideration to the inability of the convicts to return to the jail even

after the permissible period is over on account of grounds beyond

their control and have held that Jail Superintendent should use the

judicial discretion in case of marginal delay even beyond the

maximum permissible limit and after verifying the grounds for delay

should take appropriate decision as to whether F.I.R. should be filed or

not.

16. In the present case, the petitioner enjoyed parole of maximum

permissible period of ninety days. He was released on 30.4.2016 and

his bail period came to an end on 30.7.2016. Though the petitioner

voluntarily returned on 6.8.2016, i.e. after seven days, it cannot be

ignored that one day earlier, F.I.R. was lodged against him at the

concerned Police Station.

17. The petitioner has produced some documents to show that his

physical condition was such that it was beyond his control to return to

the jail on 31.7.2016. His hemogram report dated 28.7.2016 shows

Cri.W.P.987/2017

Hemoglobin level 5.60 gms. We find that since the petitioner has not

returned even after the maximum permissible period of ninety days,

the lodging of F.I.R. by jail authorities was fully justified. If the

petitioner was unable to join even after ninety days on account of his

ill health, it will be open for him to lead such evidence in the Court by

way of defence as absence of mens rea. We find that in this petition,

it will not be permissible for us to give any finding on the merits and

demerits of the case initiated on the basis of F.I.R. under Section 224

of Indian Penal Code lodged against the petitioner. We, therefore,

hold that this is not a fit case for quashing the F.I.R. under Section 224

of the Indian Penal Code lodged against the petitioner.

18. With the above observations, Criminal Writ Petition is dismissed.

The Rule is discharged.

19. However, we make it clear that the observations made herein

are prima facie in nature and made only for the purpose of deciding

this petition.

20. We appreciate the valuable assistance provided by learned

Advocate Mr P.D. Jarare appointed by this Court. He shall be entitled

for fees as per rules.

       ( A.M. DHAVALE, J.)                    ( S.S. SHINDE, J.)




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