Court held that deduction of remission for days between expiry of parole and substantive rejection of extension application was illegal. Authority directed to recalculate remission without those excess days.
Director directed to recalculate remission period excluding illegal deduction of five days; petition disposed of.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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crwp2.14
IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AURANGABAD
CRIMINAL WRIT PETITION NO. 2 OF 2014
Dhiraj Shantilal Khakordia...Petitioner
VERSUS
The State of Maharashtra & ors. ...Respondents
Shri N.B.Suryawanshi, advocate (appointed) for the
petitioner
Shri K.S.Patil, A.P.P. for respondent
CORAM : S.S.SHINDE
AND
V.M.DESHPANDE, JJ.
DATED : 02.07.2014
PER COURT:-
1]Rule. Rule made returnable forthwith. With
the consent of the learned counsel for the parties, the
petition is heard finally.
2]The petitioner is convict undergoing
imprisonment for life in Open Prison at Paithan,
District Aurangabad. According to the petitioner, his
mother was ailing. Therefore, he sought parole of 30
days. On 11.6.2007, parole was granted to the
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petitioner for 30 days on the ground of ailment of his
mother. On 20.6.2007, the petitioner was released from
prison on parole and he was to report back on
21.7.2007.
It is the case of the petitioner that since the
mother of the petitioner could not recover and the
petitioner was required to look after her, the
petitioner sought 1st extension of parole for 30 days.
On 19.7.2007, the petitioner was granted 30 days
extension of parole and he was required to report back
to the prison after 30 days period is over.
It is further case of the petitioner that since
the mother of the petitioner could not recover fully
and the petitioner was required to look after her, the
petitioner filed an application on 31.7.2007 seeking
second extension of parole for further 30 days. Since
the application of the petitioner, dated 31.7.2007
seeking further extension of parole was not decided,
the petitioner made another application requesting to
decide his application for second extension of parole.
Thereafter, the petitioner filed Criminal Writ
Petition No. 492 of 2007 seeking direction to decide
his application for second extension. However, the
learned Additional Public Prosecutor appearing for the
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State, during the course of hearing, informed the
court that on 24.8.2007 the application of the
petitioner for second extension of parole has been
rejected. Therefore, the petitioner sought leave to
withdraw the said Writ Petition.
It is further case of the petitioner that on
19.9.2007, the petitioner surrendered in jail, however,
there was 31 days delay since he was looking after his
mother and his application for extension of parole was
not decided in time.
On 20.9.2007, a show cause notice was issued to
the petitioner as to why proposal of punishment for
deduction in remission for surrendering 31 days late
should not be forwarded to the Sessions Judge. On
24.9.2007, reply to the said show cause notice was
filed by the petitioner stating the reasons for
surrendering late. On 26.12.2007, respondent no.3
submitted a proposal to the learned Sessions Judge for
deduction of 62 days in remission of the petitioner for
surrendering 31 days late. On 31.12.2007, the learned
Sessions Judge, Aurangabad approved the proposal of
respondent no.3 of deduction of 62 days in remission of
the petitioner for surrendering 31 days late.
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3]On 31.1.2008, respondent no.4 passed the
impugned order thereby deducing 62 days from the
remission of the petitioner for surrendering 31 days
late.
4]Being aggrieved by the order passed by
respondent no.4 on 31.1.2008, the petitioner preferred
an appeal before respondent no.1. On 11.6.2008, the
appeal filed by the petitioner came to be dismissed.
Hence, this petition.
5]Learned counsel for the petitioner invited our
attention to the pleadings in the petition and grounds
taken therein and submits that the application filed by
the petitioner for further extension of parole on
31.7.2007 was not decided by the respondent/authority
before the expiry of period of parole which was to
expire on 19.8.2007. It is submitted that the
authority was bound to decide the application for
second extension of parole within time. However,
belatedly the application is decided on 24.8.2007 that
too on the ground that police report was not received.
It is submitted that the appellate authority
mechanically dealt with the appeal filed by the
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petitioner and did not consider the grounds raised on
merits, and therefore, it caused great prejudice to the
interest of the petitioner, in as much as, there is
deduction of 62 days in remission of the petitioner.
6]The learned counsel for the petitioner submits
that the appellate authority did not follow the
principles of natural justice and did not take into
consideration the contentions of the petitioner. It is
submitted that the Division Bench of this court in the
case of Vishnu Tejram Bisen vs State of Maharashtra and
others [2006 ALL MR (Cri.) 1618] and in the case of
Mahendra Digambarrao Deshmukh vs State of Maharashtra
and others [2012 All MR (Cri.) 1289], in the facts of
that case held that, in case the application for
extension of parole is not decided within time, in that
case, there cannot be deduction of remission.
Therefore, the learned counsel appearing for the
petitioner submits that the petition may be allowed.
7]On the other hand, learned Additional Public
Prosecutor submits that the application for extension
of parole second time was decided on 24.8.2007.
Therefore, the petitioner is not right in contending
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that his application was not decided. It is submitted
that though the application of the petitioner was
rejected on 24.8.2007, the petitioner reported back to
the jail on 19.9.2007. Therefore, there was delay of
31 days in reporting back, and therefore, the authority
has rightly deducted 62 days from the remission.
Therefore, this court may not interfere in the impugned
order.
8]We have heard the learned counsel for the
petitioner and the learned A.P.P. for the State. With
their able assistance, we have perused the pleadings in
the petition, grounds taken therein, annexures thereto
and the judgments cited across Bar by the counsel for
the petitioner.
9]Upon perusal of the petition, it appears that
the petitioner did apply for extension of parole on
second occasion on 31.7.2007. The period of parole was
extended on 19.8.2007. Therefore, it was expected on
the part of the authority to decide the application of
the petitioner on or before 19.8.2007 either way.
However, admittedly the authority decided the said
application on 24.8.2007. The application filed by the
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petitioner for extension of parole on second occasion
was rejected on 24.8.2007. The counsel appearing for
he petitioner is right in placing reliance on the
judgment in the case of Vishnu Tejram Bisen and
contending that in case application of the convict for
extension of parole is not decided within the period of
parole granted to him earlier, in that case there
cannot be deduction in remission.
10]Therefore, upon considering the facts in the
present case, since the application of the petitioner
for extension of parole on second occasion was not
decided by the authoritybefore 19.8.2007 and same was
rejected on 24.8.2007, in our opinion, the authority
could not have deducted the said period from the
remission. The said period would begin from 19.8.2007
till 24.8.2007. Therefore, the deduction of these five
days from the remission was not in conformity with the
ratio laid down in the judgment by the court in the
case of Vishnu Tejram Bisen. Therefore, we observe
that the said deduction of five days i.e. from
19.8.2007 to 24.8.2007 was illegal and contrary to the
law laid down by this court. However, admittedly the
petitioner surrendered to jail on 19.9.2007. In our
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opinion, since the application of the petitioner was
rejected on 24.8.2007, he should have reported back to
the jail on 25.8.2007. Therefore, by deducting five
days from 31 days which were calculated by the
authority, we are of the opinion that the authority was
entitled to deduct only 26 days from the remission,
however, the authority did not calculate the said
period properly. Therefore, at the most the said act
of the authority would amount to irregularity and not
illegality.
11] The contention of the counsel appearing for
the appellant is that his appeal was not heard on
merits, and therefore, the said appeal deserves to be
restored and heard by the appellate authority afresh.
In our opinion, since we have heard the petitioner
fully on facts as well as law, in the peculiar facts of
this case, it is not necessary to relegate back the
parties before the appellate authority.
12]In that view of the matter, we direct the
respondent/authority to recalculate the period of
remission in the light of discussion herein above and
pass appropriate order in that regard.
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13]The petition is partly allowed. Rule made
absolute in above terms. Petition stands disposed of.
(V.M.DESHPANDE, J.) (S.S.SHINDE, J.)
dbm/crwp2.14
2 issues framed by the court
Whether deduction of remission days is permissible when a parole extension application is decided after the expiry of the parole period.
Whether delayed consideration of a parole extension application penalizing the convict with deduction from remission complies with natural justice.
Colour shows how this judgement treated each authority
Vishnu Tejram Bisen vs State of Maharashtra and othersFollowed¶10
Vishnu Tejram Bisen vs State of Maharashtra and others [2006 ALL MR (Cri.) 1618]
Mahendra Digambarrao Deshmukh vs State of Maharashtra and othersReferred¶10
Mahendra Digambarrao Deshmukh vs State of Maharashtra and others [2012 All MR (Cri.) 1289]
Dhiraj Shantilal Khakordia
The State of Maharashtra
S.S. SHINDE
V.M. DESHPANDE
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court