Saajanbhai Bhagabhai @ Badubhai ... vs State Of Gujarat
2022 Latest Caselaw 10130 Guj

     R/SCR.A/13053/2022                          ORDER DATED: 15/12/2022




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

          R/SPECIAL CRIMINAL APPLICATION NO. 13053 of 2022

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             SAAJANBHAI BHAGABHAI @ BADUBHAI KATAARAA
                              Versus
                    STATE OF GUJARAT & 1 other(s)
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Appearance:
THROUGH JAIL for the Applicant(s) No. 1
for the Respondent(s) No. 2,3
PUBLIC PROSECUTOR for the Respondent(s) No. 1
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 CORAM:HONOURABLE MS. JUSTICE GITA GOPI

                             Date : 15/12/2022

                              ORAL ORDER

1. RULE. Learned Additional Public Prosecutor

waives service of Rule on behalf of the respondent State.

2. The present application is filed for regularizing

of late surrender by the applicant.

3. Learned Additional Public Prosecutor referred to the

decision of the Division Bench of this Court in Vikas

Narendrabhai v. State of Gujarat and another in

Criminal Misc. Application No.1360 of 2014 (for

regularisation of late surrender) in Criminal Appeal

R/SCR.A/13053/2022 ORDER DATED: 15/12/2022

No.2884 of 2008 and the judgment of this Court dated

10.11.2017 in Criminal Misc. Application (for

regularisation of late surrender) No.16444 of 2017 and

allied matters to submit that the application is not

maintainable since it is only the Jail Superintendent who

has authority to condone the late surrender in accordance

to the Jail Manual and the Prisons Act.

4. In the case of Vikas Narendrabhai (supra), the

Division Bench after considering the provisions of Section

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

Manual has observed 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 the Prisons Act. The Division Bench has

further observed that if the temporary bail is granted in

exercise of the powers conferred under the Code of

Criminal Procedure, the Court would have no power to

R/SCR.A/13053/2022 ORDER DATED: 15/12/2022

set aside subsequent punishment imposed under the Jail

Manual nor can it regularise the default committed by the

petitioners after the imposition of punishment. The Code

of Criminal Procedure does not permit the Appellate

Court granting suspension of sentence to set aside the

subsequent offence committed under the Prisons Act for

violation of the condition of suspension of the sentence

passed in exercise of its power to grant temporary bail,

and thus, held that the petitioners would be entitled to

have condonation of delay in surrendering before the jail

authority and the appropriate authority has to decide

such questions in accordance with law if the aggrieved

approaches such authority.

5. In Criminal Misc. Application (for regularisation

of late surrender) No.16444 of 2017 of Akil

Noormahmadbhai Kachara v. State of Gujarat and others;

this Court has referred to Sections 3(2) and 3(3) of the

Prisons Act, 1894, which defines "criminal prisoner" and

"convicted criminal prisoner", and after taking into

consideration the provisions of Section 48A of the Prisons

R/SCR.A/13053/2022 ORDER DATED: 15/12/2022

Act, 1894, the Coordinate Bench has observed that the

said Section 48A does not distinguish between criminal

prisoner and or convicted prisoner, and has held that,

Section 48A would apply uniformly to both the class of

prisoners, and therefore, observed that the under trial

prisoner is committed to jail custody under warrant of the

Court then such under trial prisoner are brought under

the definition of criminal prisoner, to whom the provisions

of Section 48A of the Prisons Act would apply.

6. In view of the said observations, it was held

that Clause 1287 of the Jail Manual would also apply

uniformly to the criminal prisoner as well as under trial

prisoner. Clause 1287 of the Jail Manual reads as under:

"1287. In each case of later surrender or breach of any of the conditions of furlough or parole, the necessary 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-A of the Prisons Act, 1894 need not necessarily be awarded in each case but it is

R/SCR.A/13053/2022 ORDER DATED: 15/12/2022

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 prison'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's remission for each 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."

R/SCR.A/13053/2022 ORDER DATED: 15/12/2022

7. The above-referred Clause 1287 makes it

explicit that in case of late surrender or breach of any of

the conditions of furlough or parole, the necessary

punishment or punishments should be awarded by the

Superintendent of Prison with due regard to the

circumstances of each case. The discretion is left to the

Superintendent to decide which particular punishment or

punishments should be awarded and the Superintendent

comes to the conclusion that the overstayal of period or

breach of any conditions of furlough or parole were on

sufficient reason, he may in his discretion excuse the

prisoner. The Superintendent therefore before awarding

any punishment invariably has to obtain the prisoner

explanation in each of the case of overstayal of period or

breach of any conditions of furlough or parole.

8. Thus, this Court is also of the consistent view

that, in case of late surrender after temporary bail period,

it would be the Jail Superintendent who has to undertake

the exercise in accordance with Clause 1287 of the Jail

R/SCR.A/13053/2022 ORDER DATED: 15/12/2022

Manual and the discretion would be on the Jail

Superintendent after affording opportunity to the

prisoner to explain the cause of his overstayal of period

or breach of any conditions of furlough or parole. Hence

to the provisions to Clause 1287 of Jail Manual, it is the

prisoner to approach the Jail Superintendent to consider

their prayer for condoning the late surrender, which the

Jail Superintendent, in turn, has to consider the individual

case in accordance to the provisions made under Clause

1287 of the Jail Manual. Hence, there is no reason to

entertain this application.

9. With the aforesaid observations and directions,

the application stand dismissed. Rule is discharged. The

applicant be informed.

(GITA GOPI,J) MARY VADAKKAN