Sherkhan S/O Mirbas Khan Pathan vs The State Of Maharashtra
2021 Latest Caselaw 6983 Bom

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             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        BENCH AT AURANGABAD

               18 CRIMINAL WRIT PETITION NO.513 OF 2021


 Sherkhan s/o Mirbas Khan Pathan
 Age : 49 years, Occu : Convict,
 R/o. Petitioner is undergoing his
 sentence in Central Jail, Aurangabad
 Permanent Resident of Machigalli, Umri,
 Tal. Umri, Dist. Nanded                                          .. Petitioner

         Versus

 The State of Maharashtra
 Through Superintendent,
 Central Jail, Aurangabad                                        .. Respondent
                                       ...
               Advocate for the Petitioner : Mr Rupesh A Jaiswal
               APP for the Respondent / State : Mr S.D. Ghayal
                                       ...

                                    CORAM : RAVINDRA V. GHUGE
                                                    AND
                                            B. U. DEBADWAR, JJ.

Date : 03-05-2021

ORAL JUDGMENT (PER: RAVINDRA V. GHUGE, J.) :-

1. Rule. Rule made returnable forthwith and heard finally

by the consent of the parties.

2. We have considered the strenuous submissions of the

learned Advocate for the petitioner and the learned Prosecutor on

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behalf of the State. With their assistance, we have perused the

notification dated 08-05-2020, and the judgment of the learned

Division Bench of this Court dated 22-02-2018 delivered in Criminal

Writ Petition No.0071 of 2018 filed by the present petitioner namely

Sherkhan S/o. Mirbaj Khan Pathan Vs. The State of Maharashtra and

Others.

3. The petitioner was an under trial prisoner from

27-04-2010 till he was convicted on 08-12-2011 by the learned

Sessions Judge, Bhokar in Session Case No.65 of 2010 for having

committed offences punishable under Sections 302 and 498-A of the

Indian Penal Code, 1860 (IPC). The petitioner has undergone 9 years

and 6 months of jail term till today.

4. The impugned order indicates that, the petitioner was

earlier granted furlough leave for the period of 28 days and was

expected to report back to the prison within the time prescribed.

However, the petitioner had to be arrested to be brought back to the

prison on 07-08-2014, beyond the furlough leave. The unauthorised

stay of the petitioner out of the prison was for 677 days. This was

considered by the learned Division Bench of this Court in Criminal

Writ Petition No.0071 of 2018 vide Judgment dated 22-02-2018.

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This Court noted that, the petitioner had not reported to the prison

within time and stayed for 677 days unauthorizedly out of the prison

as his wife died and he had four minor daughters. This Court also

noted, that as a consequence of the arrest of the petitioner and he

being brought back to the prison after 677 days delay, he was

rendered ineligible for remission and his name was, therefore,

permanently removed from the remission register. This Court

concluded that, he had suffered the punishment for his late reporting

and allowed his criminal writ petition by granting him furlough leave

subject to compliance of the necessary formalities / conditions. The

learned Advocate for the petitioner submits that, he could not derive

any benefit from this Judgment of the Court as he did not have the

capacity of fulfilling the conditions of surety and, therefore, he did

not avail of the furlough leave.

5. It is well settled that, a person cannot be punished twice

for the same misdeed. The present petitioner, notwithstanding that

his wife died, had not returned to the prison for 677 days beyond the

furlough leave granted and he had to be arrested in order to be

brought back to the prison. This is surely an act which cannot be

countenanced and could not have been pardoned. The Jail

authorities have, therefore, rightly removed his name from the

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remission register thereby meaning that, the present petitioner would

no longer be entitled to seek remission. So also, the law on remission

is that, for one day delay of reporting to the prison, a prisoner forfeits

five days of remission period. Since he has been permanently

removed from the register of remission, he has lost his right to seek

remission at any time in future and even if it was held that he is

entitled for remission in future, the delay of 677 days multiplied by 5

days, which equals to 3385 days, would be forfeited from his

remission.

6. In our view, as has been held by the co-ordinate Bench of

this Court in the Judgment dated 22-02-2018 (supra), the present

petitioner has been penalized for his deeds as recorded above and,

once he has suffered the punishment of his name being removed from

the remission register, we are not inclined to accept the view of the

Superintendent of Aurangabad Central Jail that the present petitioner

would not be entitled for emergency parole under Rule 19 (1)(C) of

the Maharashtra Prisons (Mumbai Furlough and Parole) Rules, 1959,

on this sole ground.

7.       In view of the above, this petition is allowed.         The impugned

order dated 07-08-2020 is quashed and set aside.                Subject to the




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fulfillment of the usual requisite conditions that are made

applicable for granting emergency parole leave, the petitioner shall

be granted such emergency parole leave with effect from 10-05-2021.

         (B. U. DEBADWAR)                (RAVINDRA V. GHUGE)
              JUDGE                            JUDGE




Gajanan Punde, PA.