The High Court quashed an order removing the petitioner from the remission register due to non-application of mind and use of a generic format, directing a fresh appraisal.
Impugned order quashed to the extent of the petitioner; fresh order to be passed within three months after judicial appraisal.
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.
232.18Cri.WP
1
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 &
SessionsJudge-3,Aurangabad,thereby
removing the petitioner from the remission
register permanently.
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232.18Cri.WP
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
232.18Cri.WP
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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 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. Therefore, the
232.18Cri.WP
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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
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232.18Cri.WP
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
232.18Cri.WP
6
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 authority232.18Cri.WP
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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:
232.18Cri.WP
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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
3 issues framed by the court
Whether an order removing a convict from the remission register without recording specific reasons violates natural justice?
Whether the use of a ready-made printed proforma with blanks filled in later vitiates the order?
What direction should be given to pass a fresh order on the merits of the candidature for remission?
Colour shows how this judgement treated each authority
Sk.Jakir Shaikh Babu Vs. State of MaharashtraFollowed¶59
Sk.Jakir Shaikh Babu Vs. State of Maharashtra
1 provisions across 1 enactments
Indraraj s/o Dashrath Sapkale
State of Maharashtra, Through Superintendent of Jail, Aurangabad
State of Maharashtra, Through D.I.G. Prisons Aurangabad
S.S.Shinde
V.K.JadHAV
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court