Indraraj S/O. Dashrath Sapkale (C-6743) v. The State Of Maharashtra And ANR

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO.232 OF 2018 Indraraj s/o Dashrath Sapkale [C-6743] Central Prison, Aurangabad PETITIONER

VERSUS

1.

State of Maharashtra, Through Superintendent of Jail, Aurangabad.

2.

State of Maharashtra, Through D.I.G. Prisons Aurangabad.

RESPONDENTS ...

Mr.R.A.Jaiswal, Advocate for the Petitioner Mr.D.R.Kale, APP for the Respondent/State ...

CORAM: S.S.SHINDE & V.K.JADHAV,JJ.

Reserved on : 03.07.2018 Pronounced on : 06.07.2018 JUDGMENT: (Per S.S.Shinde, J.):

1] This Petition is filed praying therein to quash and set aside the order dated 21.07.2011 passed by the District & Sessions Judge-3, Aurangabad, thereby removing the petitioner from the remission register permanently.

2] It is the case of the petitioner that, the petitioner is convicted by the Sessions Judge, Jalgaon, for the offence punishable under Section 302 of the Indian Penal Code. The petitioner is undergoing the sentence of life imprisonment at Aurangabad Central Prison, Aurangabad. The petitioner is only earning male member in his family. On 24.12.2008, the petitioner was released on parole and he should have surrendered within 30 days, however, he surrendered to the jail by 528 days late. Therefore, there was delay of 528 days in surrendering before the Jail Authority. Due to which, respondent has issued show cause notice to the petitioner.

Thereafter, the petitioner has given reply to the said notice. After receipt of the reply of the petitioner, respondent no.1 has sent a proposal to the District and Sessions Court, Aurangabad to remove the name of the petitioner from the remission register

permanently. By judicial appraisal dated 21.07.2011, the District and Sessions Judge, Aurangabad removed the petitioner from the remission register permanently. Hence this Petition.

3] Learned counsel appearing for the petitioner submits that the impugned order is passed without assigning any reasons, and the same is not legally sustainable. As per Section 23 of the Maharashtra Prison [Remission System Rules, 1962], respondent no.2 is empowered to forfeit remission not exceeding 60 days. Without considering the said provision, the impugned order is passed. The impugned order is passed on the readymade printed proformas with blank spaces, which have been filled in later on. The order passed by respondent in a prepared printed or cyclostyled format does not disclose that a specific ground of defence raised by the petitioner is dealt with. Therefore, the

impugned order deserves to be quashed and set aside.

4] Learned counsel appearing for the respondent-State submits that the petitioner has applied for parole leave, and he was granted parole on 24.12.2008 for a period of 30 days and therefore he should have surrendered before the jail authority within 30 days. However, he came to be arrested by the police after 528 days. Initially, the proposal for deduction of remission was forwarded to the Deputy Inspector General [Prison] at Aurangabad. After approval from the Deputy Inspector General [Prison] and after obtaining necessary judicial appraisal from the Sessions Court at Aurangabad, the name of the petitioner has been removed from the remission register permanently. In view of Circular dated 22.05.2009 wherein Schedule-A Clause 9 provides that, the prisoner who was unauthorizedly overstayed

for a period of more than 6 months, his name may be removed from the remission register and he will not be entitled for any of the remission. Considering the provisions of law and after following due procedure of law, the impugned order is passed. Therefore, the Petition may be rejected.

5] We have considered the submissions of the learned counsel appearing for the parties. It is true that there is delay in approaching the Court. However, the impugned order affects the rights of the petitioner inasmuch as the said order will adversely affect the petitioner when his case will be considered for a premature release. The impugned order has been passed by using a ready-made printed proforma with blank spaces. While passing the order, only blanks have been filled in. The practice of passing such orders is repeatedly deprecated by this Court. The impugned order has been passed in

a casual manner affecting liberty of the petitioner. 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], decided on 5th September, 2008, has laid down the guidelines for imposing the punishment, as under:

"(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] Upon careful perusal of the impugned order, it appears that the learned Sessions Judge has not recorded the reasons after consideration of the record. In the facts of the present case, there is non application of mind on the face of the impugned order. Therefore, we set aside the impugned order to the extent of the present petitioner, whose name is mentioned at serial no.16 in the said order, with further direction to the Competent Authority to pass a fresh order after a fresh judicial appraisal by the learned Sessions Judge. Accordingly, we pass the following order:

ORDER

i] The impugned order at Exhibit-B is quashed and set aside to the extent of the present petitioner only.

ii] Fresh order shall be passed by the concerned authorities in the light of observations made in this judgment and order. While sending the file to the learned Sessions Judge for judicial appraisal, a copy of this judgment and order shall be also forwarded to the learned Sessions Judge.

iii] A fresh order shall be passed by the concerned authorities within a period of three months from today.

iv] All contentions on merits are kept open.

[V.K.JADHAV] [S.S.SHINDE] JUDGE JUDGE DDC