Bombay High Court
Dipak Subhash Patil (C-6125) vs The State Of Maharashtra And Another on 14 January, 2025
Author: Vibha Kankanwadi
Bench: Vibha Kankanwadi
2025:BHC-AUG:978-DB
1 1124.2023WP.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 1124 OF 2023
Dipak S/o Subhash Patil
(C-6125),
Age : 41 years, Occ : Convict,
R/o Bhairav Nagar, Plot No.59-A,
Gut No.172, Jalgaon
At present confined in Central Jail
Nasik.
..PETITIONER
-VERSUS-
1. State of Maharashtra,
Through Deputy Inspector General,
of Prisons, Central Division,
Aurangabad
2. Superintendent Central Jail,
Nasik Road, Nasik.
..RESPONDENTS
...
Advocate for the petitioner : Mr. R.A. Jaiswal
APP for respondent - State : Mr.N.R. Dayama
...
CORAM : SMT. VIBHA KANKANWADI AND
ROHIT W. JOSHI, JJ.
RESERVED ON : 10th DECEMBER, 2024
PRONOUNCED ON : 14th JANUARY, 2025, 2024.
JUDGMENT (PER ROHIT W. JOSHI, J.) :
. The present petition was filed initially seeking writ of
mandamus directing respondent No.1 to grant remission to the
petitioner as per the Maharashtra Prisons (Remission System) Rules,
1962 (Hereinafter referred to as "the Remission Rules" for brevity) from
2 1124.2023WP.odt
27.01.2012 and onwards. The petition is filed on 25.07.2023.
Thereafter, in view of subsequent development i.e. receipt of judicial
appraisal, the petition was amended and further prayers were added
seeking to (a) quash and set aside judicial appraisal report dated
03.11.2023; (b) claiming remission w.e.f. 04.05.2016 in the light of
circular dated 27.05.2015 and (c) seeking direction to place the
petitioner in open prison.
2. The facts of the case are as under :-
Sr. Date Particulars of Events
No.
1. 07.03.2003 The petitioner was arrested in relation to an
offence registered against him under Section 302 of
the Indian Penal Code (IPC).
2. 20.10.2006 The petitioner was convicted and sentenced to
suffer life imprisonment for the offence punishable
under Section 302 of the IPC in Sessions Case
No.84/2004, vide judgment and order dated
20.10.2006 passed by the learned Sessions Judge,
Jalgaon.
3. 14.11.2007 The petitioner was granted parole leave for a
period of 30 days i.e. upto 15.12.2007.
3 1124.2023WP.odt
4. However, the petitioner did not return after the
period of parole leave was over.
5. 04.05.2011 The petitioner was arrested and brought to prison
after a period of 1237 days from the date on which
the parole leave had expired.
6. 27.01.2012 The name of the petitioner was permanently
removed from remission register.
7. 27.12.2017 The petitioner made application to the Deputy
Inspector General of Prison (DIG, Prison) for
restoring his name in the remission register. This
application came to be rejected.
8. 04.02.2019 The petitioner challenged the order dated
27.01.2012 directing removal of his name from the
remission register permanently and subsequent
order dated 27.12.2017 rejecting his application for
restoration of name in the remission register vide
Criminal Writ Petition No.1581/2018. The said
petition came to be allowed. The matter was
remanded for taking a fresh decision.
9. 25.07.2023 The present petition was filed on 25.07.2023
seeking directions to grant remission to him from
4 1124.2023WP.odt
27.01.2012 till the date of filing of the petition.
10. Meanwhile in view of judgment and order dated
04.02.2019 passed in Criminal Writ Petition
No.1581/2018, the matter pertaining to imposition
of punishment was taken up for consideration
afresh.
11. 17.10.2023 After filing of the petition, respondent No.2 had
passed an order for removal of name of the
petitioner from the register of remission on
permanent basis exercising powers under the
Remission Rules. It is directed that the order shall
come into force upon receiving sanction from the
DIG and subject to positive judicial appraisal report
from the convicting Court. This order dated
17.10.2023 is produced on record by the learned
APP during the course of hearing on 25.11.2023. It
is taken on record and marked as Exhibit - A.
12. 27.10.2023 The DIG, Prison has granted sanction to the order
dated 17.10.2023 for removal of name of the
petitioner from the remission register on
permanent basis.
13. 03.11.2023 The convicting Court i.e. the learned Sessions
5 1124.2023WP.odt
Judge, Jalgaon has made positive recommendation
for removing the name of the petitioner from
remission register.
14. The petition is amended in order to challenge
judicial appraisal granted on 03.11.2023. Apart
from this prayers are also made to include his name
in the remission register w.e.f. 04.05.2016 and to
put him in open prison.
3. As mentioned above, after remand of the matter, the fresh
order for removing the name of the petitioner from remission register
has been passed on 17.10.2023. This order dated 17.10.2023, which is
passed by the competent authority namely the Superintendent, Central
Jail is issued without prior approval / permission of the DIG which is
received subsequently on 27.10.2023. Likewise, judicial appraisal is
done on 03.11.2023 i.e. after passing of the order dated 17.10.2023.
4. The order of removal of name from remission register on
permanent basis is passed under Rule 23 of the Remission Rules. It is
undisputed that punishment of removal of name from the remission
register on permanent basis is higher punishment. Respondent No.2 -
Superintendent is the competent authority to issue higher punishment
6 1124.2023WP.odt
of removal of name from the remission register on permanent basis.
However, in view of mandate of proviso to rule 23 of the Remission
Rules, this order of higher punishment can be passed only upon
obtaining previous sanction from the DIG, Prison. It is undisputed that
the order imposing higher punishment is issued on 17.10.2023 and
sanction is granted thereafter vide order dated 27.10.2023. The
mandate of prior sanction is clearly breached and as such, order dated
17.10.2023 removing the name of petitioner from remission register on
permanent basis can not be sustained.
5. Apart from sanction from the DIG, Prison, judicial appraisal is
obtained from the convicting Court on 03.11.2023. Thus judicial
appraisal is also subsequent to passing of the order dated 17.10.2023
by which the name of the petitioner is ordered to be removed from the
remission register.
6. Legal position with respect to procedure for removal of
name from the remission register is explained in the judgment of this
Court in the case of Sk. Jakir Sk. Babu Vs. State of Maharashtra,
through Secretary and Another reported in 2008(4) Mh.L.J. (Cri) 495,
wherein it is held that when higher punishment is proposed against a
prisoner, then the proposal should be submitted to the higher prison
7 1124.2023WP.odt
authority for seeking sanction for higher punishment and after receipt
of sanction, judicial appraisal should be obtained from the convicting
Court. Once order imposing higher punishment can be imposed only
after receiving prior sanction and positive judicial appraisal.
7. Procedure prescribed for passing order is completely
reversed, in as much as, the order which was required to be passed
with prior sanction is passed subject to sanction and moreover, judicial
approval which is required to be obtained before taking a decision is
not obtained and rather the order made subject to recommendation in
the judicial approval. The procedure prescribed under law is completely
disregarded while passing the impugned order. The impugned order
removing the name of the petitioner from the remission register is
therefore unsustainable in law and deserves to be quashed and set
aside.
8. Even if, we consider the order dated 17.10.2023 passed by
respondent No.2 - Superintendent to be a mere proposal for imposition
of higher punishment of removal of name of the petitioner from
remission register on permanent basis and not the actual order
imposing the said punishment, we find that after receiving sanction
from DIG on 27.10.2023 and positive judicial appraisal on 03.11.2023,
8 1124.2023WP.odt
respondent No.2 - Superintendent has not passed any fresh order
imposing any punishment. This is undisputed position on record.
9. We are of the opinion that till such time as an order
imposing higher punishment is passed, the petitioner will be entitled to
the benefit of computation of remissions in accordance with law.
10. The petitioner claims that he is entitled for confinement in
open prison in accordance with the Maharashtra Open Prisons Rules,
1971. Rule 5 of the said Rules confers authority on the Superintendent
of Prisons to prepare a list of prisoners who are eligible and willing to
confine in open prison. The petitioner has expressed his willingness to
be confined in open prison. If he is otherwise eligible for the same, his
case may be processed for confinement in open prison in accordance
with the said Rules.
11. In view of the aforesaid, we pass the following order :-
ORDER
(i) The petition is partly allowed.
(ii) The order dated 17.10.2023 directing removal of name of the
petitioner from register of remissions is quashed.
9 1124.2023WP.odt
(iii) The matter is remanded back to Respondent No.2 -
Superintendent, Central Jail Nashik Road, Nashik, for consideration of
the matter afresh in the light of the above observations.
(iv) Respondent Authorities are also directed to consider the case of
petitioner for confinement in open prison and take appropriate decision
in the matter at the earliest.
[ROHIT W. JOSHI] [SMT. VIBHA KANKANWADI]
JUDGE JUDGE
sga/
