Gujarat High Court

Akil @ Gabharu Salimbhai @ ... vs State Of Gujarat on 2 September, 2021

Bench: B.N. Karia

    R/SCR.A/7893/2021                                       ORDER DATED: 02/09/2021




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

          R/SPECIAL CRIMINAL APPLICATION NO. 7893 of 2021

==========================================================
           AKIL @ GABHARU SALIMBHAI @ HANIFBHAI SUMRA
                              Versus
                        STATE OF GUJARAT
==========================================================
Appearance:
THROUGH JAIL(50) for the Applicant(s) No. 1
for the Respondent(s) No. 2,3
MR HK PATEL, APP for the Respondent(s) No. 1
==========================================================

 CORAM:HONOURABLE MR. JUSTICE B.N. KARIA

                                 Date : 02/09/2021

                                  ORAL ORDER

Rule returnable forthwith. Learned APP for the

respondent-State waives service of notice of rule for and on

behalf of the respondent-State.

By way of present application submitted through Jail,

the applicant has prayed to regularize the default committed

by him in complying with the order of Parole Leave granted by

this Court in Special Criminal Application No. 3500 of 2021

for 14 days, as he surrendered before the Jail Authorities 45

days beyond the period fixed by this Court and according to

him, due to prevailing situation of Covid-19, he could not

surrender in time, and therefore, he has prayed for

condonation of the aforesaid delay.

R/SCR.A/7893/2021 ORDER DATED: 02/09/2021

As the application was forwarded through jail, this Court

has heard learned APP for the Respondent-State.

Learned APP for the respondent-State has referred

Section 48A of the Prisons Act and Rule 1287 of the Gujarat

Jail Manual and submitted that if any prisoner fails without

sufficient cause to observe any of the conditions on which his

sentence was suspended, remitted or furlough or parole was

granted to him, he shall be deemed to have committed a

prison offence and the Superintendent may, after obtaining

his explanation, punish such offence as provided under

Section 48A of the Prisons Act. He has also referred Rule 1287

of the Gujarat Jail Manual and submitted that it is left to the

discretion of the Superintendent to decide whether he was

prevented by sufficient cause from surrendering within time.

He has further submitted that the parole leave was granted to

the present applicant by the Coordinate Bench of this Court,

but however, now, this Court Court may not exercise any

powers to set aside the subsequent punishment imposed

under the Jail Manual nor can it regularize the default

committed by the applicant after the imposition of

punishment. In support of his arguments, learned APP for the

respondent-State has placed reliance on the judgment of

R/SCR.A/7893/2021 ORDER DATED: 02/09/2021

Division Bench of this Court passed in Criminal Misc.

application No. 1360 of 2014 in Criminal Appeal No. 2884 of

2008 and requested to dismiss present application.

Having gone through the facts of the application

submitted by the applicant, jail remarks dated 07.08.2021

forwarded by Deputy Superintendent, Rajkot Central Jail,

Rajkot and having heard learned APP for the respondent-

State, it appears that admittedly the applicant has committed

breach of condition in which, he was released on parole leave.

Thereafter, he was surrendered late by 45 days. The

authorities have resorted to the provisions of Punishment

provided in the Gujarat Jail Manual. It appears from the above

provision that it is within the province of the Superintendent

to decide whether the applicant was prevented by sufficient

cause from surrendering within the time. The Jail Authorities

having exercised their discretion, it is now for the applicant to

challenge such action by filing appropriate writ application

under Article 226 of the Constitution of India before this

Court. It appears that the coordinate Bench of this Court has

granted Parole Leave to the present applicant. In exercise of its

appellate jurisdiction conferred under the Code of Criminal

Procedure, this Court may not exercise the power to set aside

R/SCR.A/7893/2021 ORDER DATED: 02/09/2021

the subsequent punishment imposed under the Jail Manual

nor can it regularize the default committed by the applicant

after the imposition of punishment as held by the Division

Bench of this Court in Criminal Misc. Application No. 1360 OF

2014 IN Criminal Appeal NO. 2884 of 2008. In the said

judgment, the learned Division Bench has held in para 4 and

5 as under:

4. In order to appreciate the question, the provisions of Section 48A of the Prisons Act and Rule 1287 of the Gujarat Jail Manual are relevant, which are quoted below:

48A of the Prisons Act "48.A: Punishment for breach of conditions of suspension or remission of sentence or of grant of furlough or release on parole:

If any prisoner fails without sufficient cause to observe any of the conditions on which his sentence was suspended, remitted or furlough or parole was granted to him, he shall be deemed to have committed a prison offence and the Superintendent may, after obtaining his explanation, punish such offence by -

(1). a formal warning as provided in clause (1) of section 46;

(2). reduction in grade if such prisoner has been appointed an officer of prison;

(3). loss of privileges admissible under the remission or furlough system; or (4). loss of such other privileges as the State Government may by a general or special order direct." 1287 of the Gujarat Jail Manual.

"1287. In each case of late surrender or breach of any of the conditions of furlough or parole, the necessary

R/SCR.A/7893/2021 ORDER DATED: 02/09/2021

punishment or punishments should be awarded by the Superintendent of Prison with due regard to the circumstances of each case. All the punishments mentioned below or in Section 48-Aof the Prisons Act, 1894 need not necessarily be awarded in each case but it is left to the discretion of the Superintendent to decide which particular punishment or punishments should be awarded. If in certain cases, the Superintendent is satisfied that the overstayal was for good or sufficient reasons, he may excuse the prisoner. However, before awarding any punishment, the Superintendent should invariably obtain a prisoner's explanation in each case of overstayal of period or breach of any conditions of furlough or parole.

[1] A maximum cut of 5 days' remission for each day of overstay;

Provided that where the prisoner has not sufficient remission to his credit, he shall cease to earn remission in future for such period as the Superintendent may direct;

[2] Stoppage of canteen concession for a period of not less than one month and not more than three months.

[3] Withholding concession of either interviews or letters or both, for a maximum period of three months.

[4] In cases of furlough, the furlough period not to be counted towards sentence."

5. A plain reading of the aforesaid provisions makes it abundantly clear that if any person fails to observe any of the

R/SCR.A/7893/2021 ORDER DATED: 02/09/2021

conditions on which his sentence was suspended or remitted or furlough or parole was granted to him, he should be deemed to have committed a prison offence and the Superintendent may, after obtaining his explanation, punish such offence as provided therein."

Considering the facts of the case and contents of the

application as well as having heard learned APP for the

respondent-State, it is made clear that this Court has not

otherwise gone into the question whether in the facts of the

present case, the applicant is entitled for condonation of delay

in surrendering before the jail authority and it is for the

appropriate authority to decide such questions in accordance

with law if the applicant is approached before such authority.

Accordingly, present application stands dismissed.

The dismissal of this application will not stand in the

way of the applicant in approaching the appropriate forum in

accordance with law.