Shankar Govindrao Landge vs State Of Mah., Thr.Its Secretary ...
2021 Latest Caselaw 1020 Bom

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      IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

                           NAGPUR BENCH, NAGPUR



            CRIMINAL WRIT PETITION NO.504 OF 2019




  Shankar Govindrao Landge,
  Aged about 37 years, r/o. Village
  Mahakal, Tq. and District
  Wardha, Presently detained in
  Central Prison, Nagpur as
  Convict No.C-8019.               ..........         PETITIONER



          // VERSUS //



  1.The State of Maharashtra,
    Through the Secretary,
     Home Department,
     Mantralaya, Mumbai.

  2.The Inspector General of
     Prison, Pune, Maharashtra.

  3.The Superintendent of Prison,
     Central Prison, Nagpur,
     Maharashtra.                 ..........          RESPONDENTS



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  ____________________________________________________________
  Mr.Ganesh Krishna Iyer, Advocate (appointed) for the
  petitioner.
  Ms N.R.Tripathi, A.P.P. for respondent nos. 1 to 3.
  ____________________________________________________________



                               CORAM   : SUNIL B. SHUKRE &
                                         AVINASH G. GHAROTE, JJ.

DATE : 15.1.2021.

ORAL JUDGMENT (Per Sunil B. Shukre, J) :

1. Rule, made returnable forthwith. Heard finally by

consent.

2. The petitioner had overstayed himself after his

release on parole by a period of 88 days and therefore,

punishment by way of cut in remission of sentence at the

rate of 1 x 5 x 88 = 440 days has been imposed upon the

petitioner by the impugned order dated 15.3.2019.

3. While it is the contention of learned Counsel for

the petitioner that such factors as are stated in the case of

Gajanan Eknath Murle and Others vs. State of

Maharashtra and Others reported in 2008 (1) Bom.C.R.

(Cri) 814 have not been properly considered by the learned

Chief Judicial Magistrate, learned Additional Public

Prosecutor disputes this.

4. We have gone through the impugned order and

also the view taken by the Division Bench of this Court in

the aforestated case of Gajanan Eknath Murle and Others.

The facts which must be taken into consideration, as per

this view, are as follows :

i) Whether the prisoner surrendered himself or had to be arrested;

ii) The period of absence;

iii) The number of times the prisoner committed prison offences and the punishments, if any, imposed on earlier occasions;

iv) The number of times the prisoner breached the conditions imposed at the time of grant of parole/ furlough.

v) In case of late surrender, the reasons given for not surrendering in time. Needless to mention that the burden is entirely on the prisoner to place on record the relevant materials justifying late surrender;

vi) The conduct of the prisoner in jail;

vii) The period of imprisonment already undergone by the prisoner.

5. It appears that these factors have not been

considered appropriately while passing the impugned order

and therefore, such order cannot sustain in the eye of law.

6. The petition is, therefore, allowed. The

impugned order is hereby quashed and set aside. The

matter is remanded back to the Court of Chief Judicial

Magistrate, Nagpur for fresh consideration and decision, in

accordance with law, within a period of four weeks from the

date of receipt of the order. Rule is made absolute

accordingly.

7. Learned Counsel (appointed) for the petitioner be

paid remuneration of Rs.2,500/-.

                               JUDGE                     JUDGE




  [jaiswal]