Dilip Balaso Khilare Vs the State of Maharashtra

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 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
 SIDE JURISDICTION
 CRIMINAL APPLICATION NO.3237 OF 2005

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 Dilip Balaso Khilare ...Applicant.
 V/s.

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 The State of Maharashtra ...Respondent.

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 Ms.Nasreen Ayubi, adv. appointed for the Applicant.
 Mr.Y.S.Shinde, APP for the Respondent/State.

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 CORAM: J.H.BHATIA, J.
 DATE : 10th April, 2007.

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P.C.:

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 1. Heard Ms. Ayubi advocate appointed for the
 applicant, who has filed this application from the jail
 and Mr.Shinde, the learned APP for the State.

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 2. To state in brief, the present applicant is
 undergoing life imprisonment in Kolhapur Central Jail
 since 19-8-1993. On his request, he was granted
 furlough leave for two weeks by the order dated 8-6-2001
 and he was actually released on 9-6-2001. After a
 period of furlough beginning from 9-6-2001 to 22-6-2001,

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 he was expected to surrender himself at the Kolhapur

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 Central jail on 23-6-2001. However, on expiry of the
 furlough leave, he did not surrender. On 10-8-2001 he

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 was found in Sangli and a police head constable from
 local crime branch arrested him and produced before the
 jail authorities on the same day. As he had overstayed

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 for a period of 48 days, he was given notice to show

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 cause as to why he should not be punished for the
 overstay. He submitted his explanation on 23-8-2001
 stating that during the furlough period he had suffered
 from jaundice and he was required to take the long
 treatment and the Doctor had advised him complete rest.
 However, he could not inform the jail authorities about
 this. He also sought one month time to secure and
 produce medical certificate. He explained that he was
 in jail for a long period of 12 years and he had not
 committed any offence in jail. With this he requested
 to be dealt with leniency and he also requested that the
 security amount of Rs.5,000/- deposited by him at the
 time of release on furlough be refunded to him. After
 obtaining consent from the District and Sessions Judge,
 the Superintendent of jail rejected his prayer for
 leniency and directed to deduct 240 days from the
 remission already granted to him. The amount of
 Rs.5,000/- deposited by him was also directed to be
 forfeited . Being aggrieved by the same, the applicant
 has filed this application. Apparently the application
 appears to be under section 482 of the Cr.P.C.

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 3. Perused the record as well as the orders passed
 by the Sessions Court in respect of this matter. The
 order was passed by the Additional Sessions Judge

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 approving the proposal to cut 240 days remission at the
 rate of 5 days for each day of overstay on 4-3-2002.
 Order is cryptic. It only states " Read the proposal.
 Heard the prisoner in person. Explanation given by the
 prisoner is not satisfactory. The proposal submitted by
 the Superintendent, Kalamba Jail is approved." It shows
 that the learned Additional Sessions Judge has not given
 any reasons as to why the explanation given by the
 prisoner was not found satisfactory and why it was
 necessary to cut remission to the extent of 240 days.
 Similarly, request made by him for refund of Rs.5,000/-,
 being the surety amount, was turned down. The order
 passed by the Sessions Judge, Kolhapur on 9-7-2003 only
 reveals that because the prisoner did not turn up after
 leave was over, he had committed breach of prisoners
 furlough rules and therefore, forfeited amount can not
 returned back to him. Here also the learned Sessions
 Judge did not give any reasons as to why the explanation
 given by the accused was not acceptable or satisfactory.

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 4. As per the report from the jail, till 31st
 October, 2006, the applicant was in jail as undertrial
 prisoner for two years ten months and 21 days.
 Thereafter from the date of conviction he had actually
 undergone imprisonment for a period of 13 years 2 months
 and 12 days. Thus, he had been actually in jail for a

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 period of 16 years, one month and 3 days upto 31st

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 October, 2006. He had earned remission of 5 years and 7
 days during the said period. Taking into consideration
 remission period, he had undergone sentence for 21
 years, one month and 10 days till 31st October, 2006.
 The order passed by the Superintendent Central Prison
 does not reveal that prior to this incident, the
 applicant had violated any prison rules or conditions of
 furlough or parole. It appears that after having
 undergone actual sentence for about 16 years, this was
 first instance when he had overstayed for a period of 48
 days for which he had given explanation. The fact
 remains that he had sought time to furnish medical
 certificate but possibly because he is in jail, he could
 not furnish it. Taking into consideration his earlier
 record, his explanation could not have been summarily
 rejected without giving any reason.

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 4. Rules made under Section 11(1) of the Prisons
 Act and notified on 2nd July, 1964 authorises
 superintendent of jail to award certain punishments for
 late surrender or overstay after furlough or breach of
 condition of parole. They are as follows:

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 2. In each case of late surrender from
 furlough or breach of any of the conditions of
 parole, the punishment mentioned below or
 specified in section 48-A of the Act may be
 awarded by the Superintendent at his discretion

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 with due regard to the circumstances of the
 case and after obtaining the prisoner’s
 explanation and the prior approval of the
 Inspector General or the Deputy Inspector
 General if required under clause 1. If the
 Superintendent is satisfied that the
 contravention was for good or sufficient
 reasons, he may excuse the prisoner.

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 (a) 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 for
 such period as the Superintendent may direct:

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 (b) Stoppage of canteen concession for a period
 of not less than one month, but not more than
 three months.

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 (c) Withholding concession of either interviews
 or letters or both for a period not exceeding
 three months.

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 (d) In cases of furlough, the furlough period
 not to be counted for shortening the sentence.

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 The Clause (a) reveals that a maximum cut of 5 days

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 remission for each day and overstay may be awarded. It
 does not mean that in every case, there should be an
 order for maximum cut off 5 days for each day of
 overstay. The word "Maximum" clearly indicates that
 discretion is given to the superintendent of awarding
 the punishment of cut in remission depending upon the
 facts and circumstances of each case. It appears that
 in present case if the complete record of the applicant
 for a period of about 16 years would be considered,
 there could be no justification to award maximum
 prescribed cut of remission at the rate of 5 days for

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 each day of overstay, even if his explanation was not
 satisfactory. As pointed out above, the applicant had
 given explanation that because of jaundice he was bed
 ridden and was required to take complete rest and due to
 this reason, he could not surrender on stipulated date.
 The authorities below have not given any reasons for
 rejection of his explanation. The authorities below
 have also not given any valid reason why maximum
 prescribed sentence of cut in remission was necessary in
 this case. It appears that orders in respect of the
 present applicant were passed by the authorities below
 without application of mind. Therefore, to secure the
 ends of justice, it will be necessary for this Court to
 invoke inherent powers and to set aside both the orders.

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 5. In view of the facts and circumstances and
 legal position discussed above, the impugned orders
 awarding cut off 240 days in remission as well as the
 order not to refund surety amount of Rs.5,000/- to the
 applicant are hereby set aside. Amount of Rs.5,000/- be
 refunded to him.

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 6. Application stands disposed off in terms of the
 above directions.

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(J.H.Bhatia,J.)

Dilip Balaso Khilare v. the State of Maharashtra

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Dilip Balaso Khilare v. the State of Maharashtra

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