Quashed

Dyanoba S/O. Gangadhar Munde (C-6627) v. the State of Maharashtra and Anr.

Bombay HC3 Jul 2018WP/1612/2017

Case brief

AI extract

What is this about?

The High Court quashed an order removing the petitioner from the remission register for five years due to late surrender. The court found the impugned order lacked reasons, suffered from non-application of mind, and disregarded mandated procedural guidelines regarding notice and reasoned decisions.

What did the court decide?

The impugned order was quashed and set aside; a fresh order was directed to be passed within three months following a fresh judicial appraisal by the Sessions Judge.

Dyanoba S/O. Gangadhar Munde (C-6627) Vs the… — Pension and Retirement Benefits | Bombay HC (2018)

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1612.17 Cri.WP

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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CRIMINAL WRIT PETITION NO.1612 OF 2017

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Dyanoba s/o. Gangadhar Munde
[C-6627]
Harsul Central Prison,
Aurangabad PETITIONER

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VERSUS

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1.State of Maharashtra,
Through Superintendent of Jail,
Aurangabad.

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2.State of Maharashtra,
Through D.I.G. Prisons
Aurangabad. RESPONDENTS
...
Mr.R.A.Jaiswal, Advocate for the Petitioner
Mrs.V.N.Patil-Jadhav,APPforthe
Respondent/State

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...

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CORAM: S.S.SHINDE &

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V.K.JADHAV,JJ.

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Reserved on : 15.06.2018
 Pronounced on : 03.07.2018

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JUDGMENT: (Per S.S.Shinde, J.):

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1]This Petition is filed praying

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therein to quash and set aside the order

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dated 21.07.2011 passed by the District &

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1612.17 Cri.WP

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SessionsJudge-3,Aurangabad,thereby

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removing the petitioner from remission
register for a period of 5 years. Further it
is prayed to direct respondent no.1 to take
action on late surrender as per law within
time frame.

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2]It is the case of the petitioner

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that, the petitioner is convicted by the
Sessions Judge, Gangakhed, for the offence
punishable under Section 302 of the Indian
Penal Code. The petitioner is undergoing the

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sentence of life imprisonment at Aurangabad
Central Prison, Aurangabad. The petitioner is
having old age parents. The petitioner has

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wife and three children. He is only earning
male member in his family. On 13.11.2009, the
petitioner was released on furlough; he was

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to surrender on 05.12.2009, however, he
surrendered on 04.05.2010. Therefore, there

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was delay of 150 days in surrendering before
the Jail Authority. Due to which, respondent

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1612.17 Cri.WP

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has issued show cause notice to the

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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

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Sessions Court, Aurangabad to remove the name
of the petitioner from the remission register

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for a period of five years. By judicial
appraisal dated 21.07.2011, the District and
Sessions Judge, Aurangabad removed the
petitioner from remission register for a
period of 5 years. Hence this Petition.

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3]Learned counsel appearing for the

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petitioner submits that the impugned order is

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passed without assigning any reasons, and the

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same is not legally sustainable. As per

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Section 23 of the Maharashtra Prison

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[Remission System Rules, 1962], respondent

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no.2 is empowered to forfeit remission not

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exceeding 60 days. Without considering the
said provision, the impugned order is passed.

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1612.17 Cri.WP

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The impugned order is passed on the ready-
made 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. The petitioner was

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not arrested by the Police, in fact, he had surrendered suo motu . This fact has not been considered. Therefore, the impugned order deserves to be quashed and set aside.

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4]Learned counsel appearing for the
respondent-State submits that there is delay
of 6 years in filing the present Petition,

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therefore, on this ground alone this petition
deserves to be dismissed. The petitioner has
applied for furlough leave, and he was

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granted furlough on 13.11.2009 for a period
of 14 days. On the request of the petitioner
again, his furlough leave was extended by 7
days. However, he should have surrendered on

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1612.17 Cri.WP

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05.12.2009. He surrendered on 04.05.2010

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almost 150 days late. Initially, the proposal
for deduction of remission was forwarded to

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the Deputy Inspector General [Prison] at
Aurangabad. After approval from the Deputy
Inspector General [Prison] and after
obtaining necessary judicial appraisal from

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the Sessions Court at Aurangabad, the
remissions of the petitioner were deducted
for 5 years. In view of Circular dated

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22.05.2009 wherein Schedule-A Clause 8
provides that, if the convict overstayed for
3 months and up to 6 months without authority

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of law, then, he is not entitled for his
remissions for 5 years. On 06.05.2010, the
Superintendent of Jail has issued show cause
notice to the petitioner stating therein

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that, why his remission should not be
deducted for overstay of 150 days?
Thereafter, the petitioner has submitted his
reply on 10.05.2010. Therefore, the principle

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1612.17 Cri.WP

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of natural justice has been followed by the
authorities. As per Chapter 37 Rule 10 [5]
and Rule 10 [14], if the furlough was granted
on certain conditions and if the prisoner
violates any of the conditions mentioned in
the above rules, it amounts to jail offence.
Considering the provisions of law and after
following due procedure of law, the impugned
order is passed. Therefore, the Petition may
be rejected.

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5]We have considered the submissions

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of the learned counsel appearing for the
parties. It is true that there is delay in
approaching the Court. However, the impugned

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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

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1612.17 Cri.WP

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have been filled in. The practice of passing
such orders is repeatedly deprecated by this
Court. The impugned order has been passed in

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a casual manner affecting liberty of the
petitioner. The Division Bench of this Court
at Nagpur Bench in Criminal Writ Petition

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No.283 of 2006 [Sk.Jakir Shaikh Babu Vs.
State of Maharashtra],decided on 5th

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September, 2008, has laid down the guidelines

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for imposing the punishment, as under:

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“(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.

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(2).Cause shown be considered. If no
sufficient cause is shown, reasoned
order be passed for not accepting the
contentions/cause shown by prisoner.

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(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

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1612.17 Cri.WP

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the prison offence committed in the
case.

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(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.

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(5). The order of higher punishment may be implemented after following steps (1) to (4).”

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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

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the present case, there is non application of
mind on the face of the impugned order.
Therefore, we set aside the impugned order to

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the extent of the present petitioner, whose

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name is mentioned at serial no.15 in the said

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order, with further direction to the
Competent Authority to pass a fresh order

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1612.17 Cri.WP

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after a fresh judicial appraisal by the
learned Sessions Judge. Accordingly, we pass
the following order:

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ORDER

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

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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.

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

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iv] All contentions on merits are kept open.

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

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DDC

Dyanoba S/O. Gangadhar Munde (C-6627) v. the State of Maharashtra and Anr.

Case brief

What is this about?

What did the court decide?

Dyanoba S/O. Gangadhar Munde (C-6627) v. the State of Maharashtra and Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

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