Bombay High Court
Dhanraj S/O. Tanhu Marathe vs The State Of Maharashtra And ... on 25 January, 2018
Bench: S.S. Shinde
Cri.W.P.1391/2017
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 1391 OF 2017
Dhanraj s/o Tanhu Marathe,
Age 50 years, Occu. Nil,
R/o At Javkhed (Kh), Post Hingone,
Taluka Erandol, District Jalgaon .. Petitioner
Versus
1. The State of Maharashtra,
Through its Secretary,
Home Department, Mantralaya,
Mumbai 32
2. The Deputy Inspector General
Prisons, Central Jail,
Aurangabad
3. The Superintendent,
Central Jail, Aurangabad,
Taluka and District Aurangabad .. Respondents
Mr N.R. Thorat, Advocate for petitioner
Mr S.P. Sonpawale, A.P.P. for respondents
CORAM : S.S. SHINDE AND
A.M. DHAVALE, JJ
DATE OF RESERVING
THE JUDGMENT : 20.12.2017
DATE OF PRONOUNCING
THE JUDGMENT :
JUDGMENT (Per A.M. Dhavale, J.)
1. The petitioner seeks quashing of orders dated 13.7.2005 and
6.4.2017 passed by the Deputy Inspector General of Prisons whereby his
name was cut off from remission register and his request for re-entering
his name in the remission register was rejected.
Cri.W.P.1391/2017
2. The petitioner was convicted under Section 302 of Indian Penal
Code and was sentenced for life and his appeal was dismissed on
8.7.2003. On 2.12.1999, he was released on furlough for two weeks but
he did not surrender to the jail authorities and was required to be
arrested and brought by police to the jail after a long period of 1457
days. As per provisions of law and prison manual he was treated as
absconding for more than six months and his name was struck off from
the remission register permanently. The petitioner claims that his
mother was suffering from cancer and his father was handicapped and
there was nobody to take care of his mother and, therefore, he could not
surrender in time. After his arrest he was served with show-cause notice
dated 22.12.2003 as to why he should not be penalised for breach of
terms and conditions of parole, for remaining outside for 1457 days and
not returning on his own. H e submitted reply communicating the factum
of his mother's illness. The petitioner was not communicated in this
regard till 2017. Meanwhile, he was granted parole on sixteen occasions
and every time he surrendered in time. As per Apex Court's directions,
for determining term of life imprisonment, opinion of the Sessions Judge
was sought for categorisation of the nature of conviction of the petitioner
and he reported Category 3(b) as per Government Resolution of 2010 as
a period of twenty two years. Thereafter in 2016, the petitioner learnt
that his pending remission of 1235 days was cancelled and his name was
removed from the remission register permanently. The said order was
not communicated to him. He made application dated 5.4.2017 for
taking his name in the remission register, which came to be rejected by
Deputy Inspector General (Prisons) (Respondent no.2). The petitioner
assails the orders on following grounds:
Cri.W.P.1391/2017
(i) No opportunity of hearing was given to the petitioner while passing
the impugned order.
(ii) The petitioner was granted parole sixteen times thereafter and he
was also given certificate of good character.
(iii) His mother was suffering from cancer and his act of not returning
in time was not intentional.
(iv) The guidelines provided by the Government with regard to
imposition of punishment were not followed.
3. Besides the above referred documents, the petitioner's Advocate
Mr Thorat has relied on judgments of this Court in Tanu Marathe Vs.
State (Cri.Appeal No.190 of 1998 decided on 8.7.2003) (Aurangabad
Bench) and Kishor Vaiti Vs. The State (Cri.Writ Petition 216/2013
dated 24.12.2013 by A.S. Oka and S.C. Gupte, JJ.) (by Principal seat
at Bombay).
4. Bapurao More, Superintendent of Central Prison, Aurangabad has
filed affidavit-in-reply on behalf of the respondents. It is stated that after
the order of Deputy Inspector General (Prisons) dated 12.7.2005, the
petitioner had made representation for re-entering his name in remission
register, which was turned down as the petitioner had remained outside
the jail for 1457 days and was required to be brought by police. The
authority has already removed name of the prisoner from remission
register permanently.
5. It is also argued that the impugned order was passed by using
cyclostyle form without application of mind.
Cri.W.P.1391/2017
6. We have carefully considered the arguments advanced by the
respective Advocates and the judgment cited by them. They have taken
us through the pleadings, affidavits, documents on record.
7. The record shows following facts:
(i) The petitioner was prosecuted by 3 rd Additional Sessions Judge,
Jalgaon and was convicted under Section 302 of Indian Penal Code and he
was in jail since September 1997.
(ii) On 2.12.1999, the petitioner was released for two weeks on
furlough. That time, his mother was ill. His father was handicapped and
suffered disability in right leg. The petitioner did not return and was
required to be brought by police after 1457 days of overstay. He was
issued a show-cause notice and he had filed reply.
(iii) The impugned order dated 12.7.2005 shows total non application
of mind. Cyclostyle form has been used. It does not disclose that show-
cause notice was given to the petitioner. It does not disclose the period
for which he was outside the jail. It does not disclose the explanation
given by the petitioner and that the same was not found satisfactory. It
only shows the punishment that his name should be removed from
remission register. It does not show that the said order was served on
the petitioner.
8. In Kishor Vaiti's case (supra), relying on Sk. Jakir Shaikh Babu
Vs. State of Maharashtra, (Writ Petition no.283 of 2016), (2008
ALL MR (Cri.) 3389), following guidelines are laid down for imposing
punishment:
Cri.W.P.1391/2017
"(1) Sufficient notice preferably of at least seven days'
duration be given to the prisoner for submitting reply to the
notice of showing cause to proposed higher punishment.
(2) Cause shown be considered. If no sufficient cause is
shown reasoned order be passed for not accepting the
contentions/cause shown by prisoner.
(3) If higher punishment is proposed against the prisoner,
then the proposal be submitted to the higher prison authority
competent to grant sanction for higher punishment for the
prison offence committed in the case.
(4) After receipt of sanction order from the competent
sanctioning authority and judicial appraisal from the Sessions
Judge concerned, an order imposing higher punishment may
be passed and communicated to the petitioner.
(5) The order of higher punishment may be implemented
after following steps (1) to (4)."
9. We find that in Sk. Jakir's case, the delay was of 190 days and
his remission of 380 days was curtailed. In the present case, no doubt
the period of overstay of 1457 days is too large. Nonetheless, nobody
can be condemned unheard and the procedure prescribed for imposing
punishment by way of cutting off remission should be followed. Besides,
there should be a reasoned order showing the basic facts as well as the
defence raised and the subjective satisfaction of the authority that the
reason given was not satisfactory.
10. It may be stated here that on 2.8.2011, specific rules were framed
prescribing various punishments for overstay, after furlough and parole
Cri.W.P.1391/2017
period is over. It discloses that if a convict stays away for more than six
months (180 days), his entire remission is liable to be cut off. However,
these rules are subsequent and those cannot be applied to the act of the
petitioner, which took place much earlier.
11. The impugned order imposing the punishment is not produced by
either party, but the order passed by D.I.G. (Prisons), Aurangabad dated
14.10.1998 after granting sanction to the order of removing the name
from remission register is produced. Though delay of 1457 days is huge
and probably very difficult to explain if not impossible, we find that the
procedure described must be followed and a reasoned order should have
been passed by the concerned authority. It is not clear if the name of the
petitioner was removed from the remission register, how he was granted
furlough and parole on several occasions thereafter. While determining
the period of imprisonment for life, it will be necessary to determine the
period undergone by the petitioner in jail, for which proper order
regarding cutting of the name of the petitioner from the remission
register is necessary.
12. Since there is non application of mind and no fair procedure was
followed while imposing the punishment, we deem it fit to quash and set
aside the impugned order with directions to the competent authority to
grant opportunity to the petitioner and after hearing him, to pass
reasoned order. Hence, we pass the following order:
Cri.W.P.1391/2017
- ORDER -
(I) The Writ Petition is allowed. The impugned orders dated 13 th July
2005 passed by and 5th April 2017 passed by the Deputy Inspector
General (Prisons), Aurangabad.
(II) The competent authority - respondent no.2 is directed to give
opportunity to the petitioner to show cause his absence and to consider
the reasons given by him and thereafter to pass appropriate order as per
the law and Prison Manual. When such order will be passed, it should be
communicated to the petitioner and his acknowledgement should be
taken so that he can avail any remedies in case the order is against him.
(III) Rule is made absolute in above terms with no order as to costs.
( A.M. DHAVALE, J.) ( S.S. SHINDE, J.)
vvr
Cri.W.P.1391/2017
In State, Represented by Inspector of Police, Chennai Vs.
N.S. Gnaneswaran, 2013 CRI L.J. 3619, it is held that "In judging a
question of prejudice, Court must act with a broad vision and look to
substance and not to the technicalities, unless aggrieved makes out a
case of prejudice or injustice. Some infraction of law would not vitiate
the order/enquiry or result."
