Gujarat High Court
Bhanubhai Shanabhai Zala vs State Of Gujarat on 2 December, 2022
Bench: Gita Gopi
R/SCR.A/12622/2022 ORDER DATED: 02/12/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 12622 of 2022
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BHANUBHAI SHANABHAI ZALA
Versus
STATE OF GUJARAT & 1 other(s)
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Appearance:
THROUGH JAIL for the Applicant(s) No. 1
MR.HARDIK MEHTA APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 02/12/2022
ORAL ORDER
1. The present application is filed for regularizing of
late surrender by the petitioner-accused.
2. 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
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 petition is
not maintainable since it is only the Jail
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Superintendent who has authority to condone the
late surrender in accordance to the Jail Manual and
the Prisons Act.
3. 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 set aside subsequent
punishment imposed under the Jail Manual nor can
it regularise the default committed by the petitioner
after the imposition of punishment. The Code of
Criminal Procedure does not permit the Appellate
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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
petitioner 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.
4. 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 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
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of prisoners, and therefore, observed that the
undertrial prisoner is committed to jail custody
under warrant of the Court then such undertrial
prisoner are brought under the definition of criminal
prisoner, to whom the provisions of Section 48A of
the Prisons Act would apply.
5. 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
undertrial 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 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
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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."
6. 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
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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.
7. 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 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
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Clause 1287 of Jail Manual, it is the prisoners 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 petition.
8. With the aforesaid observations and directions, the
petition stands dismissed.
The petitioner be informed.
(GITA GOPI,J)
Manoj
