Amit S/O Prakash Takbhavre vs State Of Mha. Thr. Dig Prisons East ...
2023 Latest Caselaw 1877 Bom

Judgment                                                     wp774.22

                                  1


         IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
                   NAGPUR BENCH : NAGPUR.



             CRIMINAL WRIT PETITION No. 774/2022.

Amit s/o Prakash Takbharve,
C-89, Aged about 35 years,
Presently detained in Open Prison,
Gadchiroli.                                 ...      PETITIONER.

                              VERSUS

1.The State of Maharashtra,
DIG Prisons, East Region,
Nagpur.

2.Superintendent of Jail,
Central Jail, Gadchiroli.                   ...   RESPONDENTS.

                        ---------------------------------
         Mr. I. Tambi, Advocate [Appointed] for the Petitioner.
       Shri M.Khan and Ms.N.Tripathi, A.P.Ps. for Respondents.
                        ----------------------------------

                       CORAM : VINAY JOSHI AND
                               VALMIKI SA MENEZES, JJ.
                       DATE     : FEBRUARY 24, 2023.


ORAL JUDGMENT (PER , VINAY JOSHI, J.) :


            Considering the nature of controversy involved in the


Rgd.
 Judgment                                                       wp774.22

                                   2

matter, and by consent of the learned Counsel appearing for the

parties, Writ Petition is taken up for final disposal at the stage of

admission by issuing Rule, making the same returnable forthwith.



2.          The petitioner has overstayed after his release on furlough

leave. The over stay was of 87 days, and as he did not return, he

was required to brought back by way of his arrest.             In the

circumstances, punishment by way of cut in remission of sentence @

1 x 5 x 87 = 435 days has been imposed on the petitioner by

respondent no.2 - Superintendent of Jail vide order dated

26.04.2013. The matter was forwarded to the Sessions Judge for

appraisal and approval, on which the order of the Superintendent of

Jail has been confirmed, which order is impugned in the present

petition.



3.          The entire thrust of the petitioner is about non-

consideration of his case on the parameters laid down by this Court

in Gajanan Eknath Murle and others .vrs. State of Maharashtra and

others - 2008 [1] Bom.C.R.[Cri] 814.         It is submitted that the


Rgd.
 Judgment                                                      wp774.22

                                    3

petitioner did not report in time as he was suffering from typhoid.

Particularly, the petitioner would submit that it was his first

occasion, where he surrendered late. The petitioners' conduct in jail

was fair and he was sent to open prison. Moreover, the petitioner

has already undergone substantial period of sentence and all these

aspects have not been considered.



4.           We have examined both the orders and find that though

the learned Sessions Judge has referred to the decision in case of

Gajanan Murle [supra], however, the order does not reflect that the

case of petitioner was considered on said parameters.



5.           In view of the decision in case of Gajanan Murle [supra],

the factors to be considered are as below :



       [a]    Whether the prisoner surrendered himself or had to be
              arrested.
       [b]    The period of absence,
       [c]    The number of times the prisoner committed prison
              offences and the punishments, if any, imposed on earlier
              occasion;
       [d]    The number of times the prisoner breach of conditions
              imposed at the time of grant of furlough;

Rgd.
 Judgment                                                          wp774.22

                                      4

         [e]     In case of late surrender, the reasons given for not
                 surrendering in time;
         [f]     The conduct of the prisoner in jail;
         [g]     The period of imprisonment already undergone by the
                 prisoner.



It appears that that these factors have not been considered properly

while passing the impugned order, and therefore, the order

impugned would not sustain in the eyes of law. Hence the following

order.



                                   ORDER

[i] Criminal Writ Petition is allowed and disposed of.

[ii] The impugned order passed by respondent no.2 -

Superintendent of Jail, Gadchiroli dated 26.04.2013, as well as the order passed by the District Judge and Additional Sessions Judge, Nagpur dated 12.04.2022, are quashed and set aside.

[iii] The matter is remanded back to respondent no.2 Superintendent of Jail, Gadchiroli for fresh consideration in the light of guidelines issued by this Court in case of Gajanan Murle [supra], and decide the same within a period of three months from the date of receipt of this order.

Rgd.

                           Judgment                                                        wp774.22



                                  [iv]    Fees of the appointed Counsel for the petitioner be paid
                                          as per Rules.

6. Rule is made absolute in the aforesaid terms.

                                             JUDGE                        JUDGE




                         Rgd.

Signed By:RAKESH GANESHLAL DHURIYA Private Secretary High Court of Bombay, at Nagpur Signing Date:28.02.2023 10:43