Quashed

Abdul Bashid Abu Syeed Chandpasha Kazi v. the State of Maharashtra and Others

Bombay HC18 Jul 2018WP/617/2018

Case brief

AI extract

What is this about?

The High Court quashed an order removing a petitioner's name from the remission register due to overstaying. The order was quashed because it was passed using a printed proforma without recording reasons, violating principles of natural justice and established guidelines.

What did the court decide?

Quashed the orders of 09.02.2011 and 21.07.2011; directed fresh order within three months after fresh judicial appraisal.

Abdul Bashid Abu Syeed Chandpasha Kazi Vs the… — Pension and Retirement Benefits | Bombay HC (2018)

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617.18WP

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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CRIMINAL WRIT PETITION NO.617 OF 2018

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Abdul Bashid Abu Syeed Chandphasha Kazi
Age : 70 years, Occ : Nil Convict No.6259,
R/o At present in Central Prison,
Aurangabad.

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PETITIONER

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VERSUS

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1. State of Maharashtra, Through Secretary, Home Department, Mantralaya, Mumbai-32.

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2. The Deputy Inspector General/ Inspector General of Central Prison, Aurangabad.

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3. The superintendent, Central Prison, Aurangabad.

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RESPONDENTS

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...

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Mrs.Bharati B. Gunjal, Advocate for the
Petitioner

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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 : 10.07.2018
 Pronounced on : 18.07.2018

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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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617.18WP

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dated 9thFebruary, 2011 passed by the
Respondent No.2. Further it is prayed to
directrespondentno.2toconsider
application dated 1st August, 2016 filed by
the petitioner and for enlisting him in
remission register within stipulated period.

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2.It is the case of the petitioner
that, he is convicted by the Additional
Sessions Judge, Udgir, for the offence
punishable under Section 302 of the Indian
Penal Code in Sessions Case No.53/2003 and he
is undergoing sentence of life imprisonment

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at Aurangabad Central Prison, Aurangabad. The
petitioner has wife and children. One son of
the petitioner has died due to serious
illness and therefore, the wife of the
petitioner was under depression. The
petitioner is only earning male member in his
family. On 15.03.2007, the petitioner was
released on furlough for two weeks and he

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617.18WP

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ought to have surrendered before the Jail

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Authorities on 30.03.2007. However, he has

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not surrendered within time and the Police

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authorities have arrested the petitioner on

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08.09.2009. Thus the petitioner had

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overstayed for 893 days. Due to which,
respondent has issued show cause notice to

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the petitioner on 13.09.2009. Thereafter, the

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

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petitioner, respondent no.3 has sent a
proposal to the Respondent No.2 to remove the

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name of the petitioner from the remission

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register. Thereafter, by order dated
09.02.2011, the Respondent No.2 has removed
the name of the petitioner from remission

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register. By judicial appraisal dated
21.07.2011, the District and Sessions Judge-

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3, Aurangabad granted approval to the order

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dated 09.02.2011 thereby removing the name of

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the petitioner from remission register

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617.18WP

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permanently. Hence this Petition.

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3.Learned counsel appearing for the
petitioner submits that the order giving
judicial appraisal by the District and
Sessions Judge-3, Aurangabad is passed

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without assigning any reasons, and the same
is not legally sustainable. The impugned

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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. This fact has not

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been considered by the authorities.
Therefore, the impugned order deserves to be
quashed and set aside.

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4. Learned A.P.P. appearing for the

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respondent-State submits that there is delay

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of more than 7 years in filing the present

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617.18WP

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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 15.03.2007 for
a period of two weeks. The petitioner ought
to have surrendered on 30.03.2007, however,

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he failed to surrender within time, and the

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Police authorities have arrested the
petitioner on 08.09.2009 and thus the
petitioner has overstayed for almost 893
days. Initially, the proposal for deduction
of remission was forwarded to the Deputy
Inspector General [Prison] at Aurangabad.

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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 permanently removed from
the remission register. The Annexure-C of the

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Circular dated 22.05.2009 provides for the
procedure to be adopted for removing the name

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of the convict from the remission register.

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Accordingly, by following the due process, on
13.09.2009, the Superintendent of Jail has
issued show cause notice to the petitioner
stating therein that, why his name should not
be removed permanently from the remission

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register for overstay of 893 days?
Thereafter, the petitioner has submitted his
reply on 11.12.2009. Therefore, the principle
of natural justice have been followed by the
authorities. After considering the provisions
of law and following due procedure of law,
the impugned order is passed. Therefore,
learned A.P.P. submits that, 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

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parties. It is true that there is delay in
approaching the Court by filing this Writ
Petition. However, the impugned order affects

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the rights of the petitioner in as much as

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617.18WP

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the said order will adversely affect the
petitioner when his case will be considered
for 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 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:

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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

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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
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

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documents, it appears that the Sessions Judge

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has not recorded the reasons while granting
judicial appraisal for removing the name of

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the petitioner permanently from the remission

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register. 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 dated 09.02.2011
passed by Respondent No.2. We further quash
and set aside the order dated 21.07.2011
passed by the District and Sessions Judge,

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Aurangabad, to the extent of the present
petitioner, whose name is mentioned at serial
no.22 in the said order, with further
direction to the Competent Authority to pass
a fresh order after fresh judicial appraisal
by the Sessions Judge. Accordingly, we pass
the following order:

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i]The impugned order dated 09.02.2011
passed by Respondent No.2 is quashed
and set aside. So also the order
dated 21.07.2011 passed by the
DistrictandSessionsJudge,
Aurangabad, to the extent of the
present petitioner, is quashed and
set aside.

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617.18WP

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

Abdul Bashid Abu Syeed Chandpasha Kazi v. the State of Maharashtra and Others

Case brief

What is this about?

What did the court decide?

Abdul Bashid Abu Syeed Chandpasha Kazi v. the State of Maharashtra and Others

Case brief

What is this about?

What did the court decide?

What the court decided

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