2015 ALL MR (Cri) 2386
IN THE HIGH COURT OF JUDICATURE AT BOMBAY (AURANGABAD BENCH)
S. S. SHINDE AND V. L. ACHLIYA, JJ.
Pradeep s/o. Manohar Banate Vs. The State of Maharashtra & Anr.
Criminal Writ Petition No.608 of 2014
14th November, 2014.
Petitioner Counsel: Mrs. DEEPALI JAPE-ANSINGKAR
Respondent Counsel: Mr. G.K. NAIK THIGALE
Constitution of India, Art.227 - Furlough leave - Petitioner had surrendered late by 5 days to jail even after completion of furlough leave - As such, jail authority proposed punishment of forfeiting his remission at ratio 1:1 - However, Court below directed to forfeit remission by applying ratio of 1:5, i.e. forfeiture of 5 days against overstay of one day of petitioner, without recording any reasons to take view contrary to recommendation made by jail authority - Challenge - Held, when Court below was not in agreement with punishment proposed by jail authorities, one of best way was to return said proposal with such remark to jail authorities than to impose more severe punishment - Court below must record brief reasons after consideration of record - Court below, before whom proposals were put up for appraisal purposes, was not supposed to exercise powers like Appellate Forum - Thus, impugned order, not sustainable and hence, set aside - Matter remitted back to Court below for fresh consideration. (Paras 7, 8, 9)
Kishor Jairam Vaity, C.W.P.216/2013, Dt.24/12/2013 [Para 8]
Sk.Jakir Shaikh Babu Vs. State of Maharashtra, 2008 ALL MR (Cri) 3389 =C.W.P.283/2006, Dt.5/09/2008 [Para 9]
Arun Nevlaji More Vs. State of Maharashtra, C.W.P.663/2010, Dt.16/03/2011 [Para 9]
3. By this Petition under Article 227 of the Constitution, the petitioner is challenging the order dated 27.08.2008 passed by the District & Sessions Judge, Aurangabad, in exercise of powers of appraisal, whereby directed to forfeit the period of remission earned by petitioner in the ratio of 1:5 (i.e. 25 days for the period of overstay of 5 days).
4. The petitioner was convicted by the Judgment and order dated 31.01.1997 in Sessions Case No.25/1996 for the offences punishable under Section 302, 450, 201 of I.P. Code, which was confirmed in Criminal Appeal No.74/1997. Petitioner applied for furlough leave, and accordingly, his prayer was granted. He was released on furlough leave for 14 days on 07.11.2007. It is the case of the petitioner that, due to illness of his wife, he wanted extension of furlough leave for further two weeks and accordingly he applied for extension of leave and same was granted. It is further case of the petitioner that, even in extended period of furlough leave, his wife could not recover from the ailment. Therefore, he was required to stay for further 5 days and such there was delay of 5 days in reporting back to the prison. Respondent No.2 by applying the guidelines in force proposed to forfeit period of remission in the ratio of 1:1 i.e. 5 days for his unauthorized stay beyond prison for 5 days, deducted 5 days from remission.
5. It is further case of the petitioner that, he was released on parole leave on 13.02.2008 for the treatment of his wife, however, he could not report back on completion of period of parole leave and there was overstay by 9 days in surrendering to prison. The respondent No.2, by way of punishment for overstay of 9 days, proposed forfeiting of remission in the ratio of 1:1.
6. It is the contention of the petitioner that, the respondent No.2 forwarded proposal to the District & Sessions Judge, Aurangabad, for judicial appraisal on 16.08.2008. The District & Sessions Judge, Aurangabad, in exercised of its powers of appraisal pleased to direct forfeiture of remission in the ratio 1:5 and thereby directed to make deduction of remission 5 times more than proposed by the Jail Authority.
"4] I say and submit that, the petitioner is convicted in sessions case No.25/1996 by the Ld.Add.Sessions Court, At Hingoli on dated 31.01.1997 for the offence under section 302, 450, 201 of IPC and ordered to undergo life imprisonment with fine Rs.500/- in each section I/d 2 months imprisonment for each default. The petitioner is undergoing imprisonment in this prison and till the date prisoner has not paid fine amount.
5] I say and submit that as per Maharashtra Prison Manual 1979 Chapter No.38 Remission System rule No.23 superintendent has right to forfeit remission of the prisoners in such cases.
6] I say and submit that, the petitioner was released on furlough leave by the order of Dy.Inspector General of Prison, Aurangabad dated 17.10.2007 from 07.11.2007 for 14 days. The sanctioning authority extended furlough leave for 14 days. Accordingly, his furlough leave was expired on 06.12.2007. However, Petitioner did not surrendered to jail after completion of aforesaid furlough leave. He was surrendered on 11.12.2007 i.e. late by 5 days.
7] I say and submit that the jail authority proposed the punishment of forfeiting his remission at ratio 1:1, i.e. 5x1=5 days. The jail authority has given notice pertaining to the proposal on 12.12.2007 and the prisoner replied on 14.12.2007.
8] I say and submit that, the petitioner was released on parole leave by the order of Div.Commissioner at Aurangabad dated 25.01.2008 from 13.02.2008 fro 30 days. The sanctioning authority extended his furlough leave for 30+30 = 60 days. Accordingly, his parole leave was expired on 14.05.2008. However, Petitioner did not surrendered to the jail after completion of aforesaid parole leave. He was surrendered on 23.05.2008 I.e.late by 9 days. The jail authority has served him notice pertaining to the proposal on 24.05.2008 and the prisoner replied on 27.05.2008.
9] I say and submit that the jail authority referred the proposals of punishment to the Hon'ble Sessions Court, Aurangabad separately on dated 16.08.2008.
10] I say and submit that, the proposal of punishment was forwarded to the Add Sessions Judge At Aurangabad on 16.08.2008, and the Add Sessions Judge At Aurangabad passed the judicial appraisal of prison punishment to the prisoner on 27.08.2008.
11] I say and submit that the State Government had recently passed the order dated 03.08.2011 mentioning that if the prisoner who surrenders late from parole or furlough for more than once time, then the remission should be forfeit at the ratio 1:5, i.e. 5 days should be forfeited against one day."
8. We have considered the case of the petitioner and also affidavit filed by the respondent authority. It is true that, there is delay in approaching this Court. However, the petitioner is prisoner undergoing life sentence and the impugned order directly affects upon interest of the petitioner, therefore, we proposed to deal the matter on merits by condoning delay. Learned counsel for the petitioner has rightly placed reliance on the decision of this Court in the case of Kishor Jairam Vaity in Criminal Writ Petition No.216/2013 decided by the Division Bench of the Bombay High Court on 24th December, 2013, wherein while dealing with the similar facts situation, in paragraphs No.5 and 6 this Court observed as under:
"5] In terms of the judgment and order dated 5th September, 2008 passed by the Division Bench of this Court at Nagpur Bench in Criminal Writ Petition No.283 of 2006 [Sk. Jakir Shaikh Babu Vs. State of Maharashtra], guidelines for imposing the punishment have been laid down which read thus:-
(1) Sufficient notice preferably of at least seven days' duration be given to the prisoner for submitting reply to the notice of showing cause to proposed higher punishment.
(2) Cause shown be considered. If no sufficient cause is shown, reasoned order be passed for not accepting the contentions / cause shown by prisoner.
(3) If higher punishment is proposed against the prisoner, then the proposal be submitted to the higher prison authority competent to grant sanction for higher punishment for the prison offence committed in the case.
(4) After receipt of sanction order from the competent sanctioning authority and judicial appraisal from the Sessions Judge concerned, an order imposing higher punishment may be passed and communicated to the prisoner.
(5) The order of higher punishment may be implemented after following steps (1) to (4).
(6) We must note here that when the learned Sessions Judge makes judicial appraisal of the proposed penalty to be inflicted on the prisoner, the learned Sessions Judge is expected to apply his mind to the material on record. He must record brief reasons after consideration of the record. Only after a reasoned order of appraisal is passed by the learned Sessions Judge that the punishment can be imposed.
9. In the present case, the District and Sessions Court directed to deduct / forfeit remission by applying ratio of 1:5 i.e. 5 days should be forfeited against overstay of one day. In fact, order passed by the District and Sessions Judge, Aurangabad is not in accordance with the proposal submitted by the Jail Authority. The Jail Authority forwarded the proposal with recommendation to deduct remission by applying 1:1 ratio. However, the District and Sessions Court directed to deduct / forfeit the same by applying 1:5 ratio, without recording any reasons to take view contrary to recommendation made by Competent Authority. Therefore, it was incumbent upon the concerned Court to follow the guide lines laid down by the Bombay High Court in the case of Sk.Jakir Shaikh Babu Vs. State of Maharashtra in Criminal Writ Petition No.283/2006 decided on 5th September, 2008 : [2008 ALL MR (Cri) 3389] and then assign brief reasons for not accepting proposal of the Jail Authority. In short, the concerned Court ought to have assigned brief reasons for directing forfeiture of remission by applying ratio of 1:5 i.e. 5 days deduction of remission for one day overstay from the Jail as against the proposal made to forfeit remission in the ratio of 1:1. This Court in the case of Arun Nevlaji More Vs. State of Maharashtra in Criminal Writ Petition No.663/2010 decided on 16.03.2011 based on identical facts while setting aside the order impugned in the said Petition passed by the District Judge, made following observations in para No.5, which reads as under:
"5. In the facts of the case, when the learned District Judge was not in agreement with the punishment imposed / proposed by the jail authorities, one of the best way was to return the said proposal with such remark to the jail authorities, than to impose more severe punishment. In the light of the judgment cited supra, the learned District Judge, before whom the proposals were put up for appraisal purposes, was not supposed to exercise powers like Appellate Forum. Even otherwise, the manner in which impugned order was passed is not at all convincing."
10. In the light of discussion made herein above, the impugned order dated 27.08.2008 passed by the District & Sessions Judge, Aurangabad, is not sustainable in law and accordingly we quash and set aside the impugned order and the matter is remitted back to the Sessions Court for fresh consideration.