Partly allowed

Haridas S/O. Yedoba Jadhav (C-5610) v. the State of Maharashtra and Anr.

Bombay HC25 Jul 2018WP/345/2018

Case brief

AI extract

What is this about?

This writ petition challenged the order permanently removing the petitioner from the prison remission register due to late surrender after furlough. The High Court held that the impugned orders were unreasoned and violated principles of natural justice, setting them aside and directing fresh action.

What did the court decide?

The impugned orders of the Sessions Judge and the Superintendent of Jail withdrawing remission privileges were quashed; a fresh order was directed to be passed within three months.

Haridas S/O. Yedoba Jadhav (C-5610) Vs the… — Pension and Retirement Benefits | Bombay HC (2018)

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345.18WP

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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CRIMINAL WRIT PETITION NO. 345 OF 2018

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Haridas S/o yedoba Jadhav
[C-5610]
Central Prison, Aurangabad

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..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

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...

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Mr.R.A.Jaiswal, Advocate for the Petitioner
Mr.S.Y. Mahajan, APP for the 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 : 23.07.2018
 Pronounced on : 25.07.2018

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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 27.06.2007 passed by Sessions Judge,
Aurangabad, thereby removing the petitioner

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345.18WP

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from remission register permanently and also
the order dated 09.06.2017 passed by
Respondent No.2.

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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, Aurangabad, 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 Central
Prison, Aurangabad. He is only earning male

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member in his family. On 10.03.2003, the
petitioner was released on furlough; he was

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to surrender within 28 days, however, he
surrendered on 22.07.2006. Therefore, there

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was delay of 3 years, 3 months and 5 days in
surrendering before the Jail Authority. Due
to which, respondent has issued show cause
notice to the petitioner. Thereafter, the

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petitioner has given reply to the said
notice. After receipt of the reply of the

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petitioner, respondent no.1 has sent a

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345.18WP

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proposal to Sessions Court, Aurangabad to
remove the name of the petitioner from the
remission register permanently. By judicial
appraisal dated 27.06.2007, the Sessions
Judge, Aurangabad removed the name of the
petitionerfromremissionregister

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permanently. Hence this Petition.

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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. The show-

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cause notice which has been issued to the petitioner is on the ready-made printed proformas with blank spaces, which have been filled in later on. The petitioner was 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

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345.18WP

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respondent-State submits that there is delay
of 11 years in filing the present Petition,
therefore, on this ground alone this petition
deserves to be dismissed. The petitioner has
applied for furlough leave, and he was
granted furlough on 10.03.2003 for a period
of 28 days. He should have surrendered within

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28 days. However, he surrendered on
22.07.2006 i.e. almost 3 years, 3 months and
5 days late. Respondent No.1 – Superintendent
of Aurangabad Central Prison issued show-
cause notice to the petitioner on 26th July,
2006, stating therein that, as to why the
action of punishment of removing the name of
the petitioner from remission register should
not be initiated. The petitioner submitted

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his reply on 1st August, 2006 to the said
show-cause notice and submitted that, due to
financial difficulties and illness of his
mother, he could not report back to the Jail
authority within time. After receipt of

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345.18WP

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reply, Respondent No.1 found the reply of the
petitioner unsatisfactory and submitted the
proposal of punishment, namely removing the
name of the petitioner from remission
register permanently to Respondent No.2.
Respondent No.2 passed the order, thereby
removing the name of the petitioner from
remission register permanently. Respondent
No.1 sought the judicial appraisal from the

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Sessions Court, Aurangabad and after
obtaining necessary judicial appraisal from
the Sessions Court at Aurangabad, the name of
the petitioner has been permanently removed

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from the remission register. On 26.07.2006,
the Superintendent of Jail has issued show
cause notice to the petitioner stating
therein that, why his remission should not be
deducted for overstay of 3 years, 3 months
and 5 days? Thereafter, the petitioner has
submitted his reply to the said show-cause

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notice on 01.08.2006. Therefore, the

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345.18WP

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principle 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
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. So also
show-cause notice issued to the petitioner is
by using a ready-made printed proforma with

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345.18WP

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blank spaces. So also the impugned order has

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

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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:

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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
the prison offence committed in the

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345.18WP

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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

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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

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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
name is mentioned at serial no.1 in the said
order only on the ground that, the impugned
order is unreasoned one, with further
direction to the Competent Authority to pass

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345.18WP

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a fresh order 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 dated 27.06.2007
passed by Sessions Judge, Aurangabad
is quashed and set aside to the
extent of the present petitioner
only.

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ii]The impugned order dated dated
09.06.2017 passed by Respondent No.2
is quashed and set aside.

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iii]Fresh order shall be passed by the
concerned authorities in the light
of observations made in this
judgment and order and the same be
sent again for judicial appraisal.
While sending the file to the
SessionsJudgeforjudicial

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appraisal, a copy of this judgment
and order shall also be forwarded to
the Sessions Judge.

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iv]A fresh order shall be passed by the

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345.18WP

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concerned authorities within a
period of three months from today.

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v]All contentions on merits are kept
open.

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 (V.K.JADHAV) (S.S.SHINDE)
 JUDGE JUDGE

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SGA

Haridas S/O. Yedoba Jadhav (C-5610) v. the State of Maharashtra and Anr.

Case brief

What is this about?

What did the court decide?

Haridas S/O. Yedoba Jadhav (C-5610) 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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