Partly allowed

Ramdas @ Anna Chimaji Shinde v. the State of Maharashtra and Others

Bombay HC9 Jul 2018WP/708/2018

Case brief

AI extract

What is this about?

The High Court held that a prisoner could not be prosecuted under IPC S. 224 for overstaying parole within the 90-day protection period. It directed authorities to reconsider double/ multiple punishments imposed on the petitioner for a single act of overstaying.

What did the court decide?

Quashing of orders registering offence and deducting remission; Order remit to authorities for reconsideration of grievances and decisions within two months.

Ramdas @ Anna Chimaji Shinde Vs the State of… — Execution and Attachment | Bombay HC (2018)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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BENCH AT AURANGABAD

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CRIMINAL WRIT PETITION NO.708 OF 2018

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Ramdas @ Anna Chimaji Shinde,
Age-34 years, Occu:Nil,
Convict No.56, R/o-At Talwada,
Tq-Georai, Dist-Beed,
At present in Central Prison,
Aurangabad.
...PETITIONER

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 VERSUS

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

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2) The Divisional Commissioner, Aurangabad,

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3) The Superintendent,
 Central Prison, Aurangabad.
...RESPONDENTS

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...

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 Mrs. Bharati B. Gunjal Advocate for
 Petitioner.

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 Mr.Y.G. Gujrathi, A.P.P. for Respondent
 Nos. 1 to 3.

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...

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CORAM: S.S. SHINDE AND

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 V.K. JADHAV, JJ.

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DATE OF RESERVING JUDGMENT : 3RD JULY, 2018

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 DATE OF PRONOUNCING JUDGMENT: 9TH JULY, 2018

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JUDGMENT [PER S.S. SHINDE, J.]:

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1. Rule. Rule made returnable forthwith and

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heard finally with the consent of the learned
counsel appearing for the parties.

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2.This Petition under Article 226 of the
Constitution of India, has been filed by the
Petitioner with following prayers:

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"B] By issuing appropriate writ or
direction in like nature the order
passed by Respondent No.2 dated 12-04-
2018 may kindly be quashed and set
aside. [Exh.'D'],

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C] By issuing appropriate writ or
direction in like nature the order
passed by Respondent No.3 dated 19-05-
2018 may kindly be quashed and set
aside. [Exh.'H'],

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D] By issuing appropriate writ or
direction in like nature the Respondent
No.3 be directed to release the
Petitioner on extension of Parole
Leave,

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E] By issuing appropriate writ or
direction in like nature the Respondent
No.3 be directed to commute the
punishment as the ratio 1:1 for
overstayed period and transfer him in
open prison."

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3.It is the case of the Petitioner that he

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is undergoing the sentence of life imprisonment in
Central Prison, Aurangabad. Due to serious illness
of his wife, the Petitioner filed an application
for parole. The said application came to be
allowed as per order dated 2nd January, 2018, and
the Petitioner was granted parole leave for 45
days. As per the said order the Petitioner was

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actually released on 21st February, 2018, and he
was supposed to return to the jail on 8th April,

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2018.

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4.While the Petitioner was on parole leave,

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the condition of his wife became serious and
therefore on 12th March, 2018, he filed an
application for extension of further thirty days
parole. Pursuant to the said application, the
police report was called from the concerned police
station, which was in favour of the Petitioner.

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However, relying upon the said police report, the

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Sub Divisional Police Officer, Georai, has
forwarded a report taking objection for extension

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of parole leave on the ground that statement of
doctor was not recorded. On the basis of report
submitted by Sub Divisional Police Officer, the
Divisional Commissioner, Aurangabad has rejected

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the request of the Petitioner for extension of
parole by order dated 12th April, 2018.

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5.In the mean time, as the Petitioner did

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not report back to the jail authorities within

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time after expiry of parole, crime under Section
224 of the Indian Penal Code came to be registered
against the Petitioner on 25th April, 2018 at
Talwada Police Station, Tq-Georai, Dist-Beed. So
also the proposal for deducting 85 days from the
remission of the Petitioner was forwarded and the
same was approved by Deputy Inspector General of
Prison, Aurangabad by order dated 2nd June, 2018.
As a crime has been registered against the
Petitioner, another proposal has been sent to the
Inspector General of Prison, Maharashtra State, on
26th April, 2018, for removing the Petitioner from
open prison and transferring him to close prison.
Hence this Petition.

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6. Learned counsel appearing for the

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Petitioner submitted that as the wife of the
Petitioner was serious, before expiry of parole
leave, the Petitioner filed an application for
extension of leave. Though the police report was
favourable to the Petitioner, the said application

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was wrongly rejected by Respondent No.2. As the
Petitioner was under bona fide impression that his
application for extension of parole would be
granted, he remained away from the jail and
therefore crime under Section 224 of the Indian
Penal Code should not have been registered against
the Petitioner. The Respondent Authorities have
wrongly deducted remission of the Petitioner by 85
days. She therefore prayed that the Petition
deserves to be allowed.

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7.Learned A.P.P. appearing for the State,

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referring to the affidavits in reply filed by the
Respondents submits that, as the wife of the
Petitioner was not suffering from any serious
illness, his application for extension of parole

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was rightly rejected by Respondent No.2. He
further submits that, the Petitioner did not
report back to the jail authorities within time

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after expiry of leave, therefore crime under
Section 224 of the Indian Penal Code came to be

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registered. He further submits that, the
Petitioner overstayed for 17 days after expiry of
parole leave and therefore the proposal for
deducting 85 days from the remission of the
Petitioner was forwarded and the same was approved
by Deputy Inspector General of Prison, Aurangabad.
Learned A.P.P., therefore, submits that the
Petition may be rejected.

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8.We have heard learned counsel appearing

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for the Petitioner, and learned A.P.P. appearing
for the Respondent – State. With their able
assistance, we have carefully perused the grounds
taken in the Petition, annexures thereto, and the
replies filed by the Respondents. Upon careful
perusal of the documents placed on record, it is
clear that due to illness of his wife the
Petitioner has requested to release him on parole
leave. The Divisional Commissioner, Aurangabad
has sanctioned the Petitioner's parole for 45 days
by order dated 2nd January, 2018, and actually the

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Petitioner was released on parole on 21st
February, 2018. The Petitioner was supposed to
report to the jail authorities on 8th April, 2018,
after expiry of parole. However, when the
Petitioner was on parole, due to serious illness

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of his wife, he filed an application for extension
of parole on 12th March, 2018, much before expiry
of parole granted to him. Pursuant to the said
application, police report was called. Assistant
Police Inspector, Police Station Talwada, Tq-
Georai, Dist-Beed has sent the report in favour of
the Petitioner. It is stated in the said report

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that the reason for extension of parole is

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genuine, the medical certificate is issued by the
authorized medical officer stating therein that
ailment of the wife of the Petitioner is serious,
no offence was registered against the Petitioner
when earlier he was released on parole and during
the said period he has regularly attended the
police station at Talwada and his conduct was
good. Stating the aforesaid reasons, the Assistant

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Police Inspector, police station, Talwada has
recommended that extension of parole may be
granted to the Petitioner. The Sub Divisional
Police Officer, Georai though considered the said
police report, he has not recommended the case of

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the Petitioner for extension of parole on the
ground that along with the medical certificate
regarding the ailment of wife of the Petitioner,

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statement of doctor was not recorded. As the
police report was favourable to the Petitioner,
the Sub Divisional Police Officer ought to have
recommended the case of the Petitioner for

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extension of parole. There was no reason to record
the statement of the doctor and attach the same

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along with the application for extension of
parole. Further the Divisional Commissioner has

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rejected the request of the Petitioner for
extension of parole, without considering the
facts that the police report was in favour of the

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Petitioner, an authorized doctor has certified
that wife of the Petitioner was suffering from

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serious illness requiring further treatment, the
past conduct of the Petitioner was not
objectionable when earlier he was released on
parole/furlough.

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9.It is pertinent to note that the

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Petitioner has applied for extension of parole
leave on 12th March, 2018. Though Rule 25 of the
Prisons (Bombay Furlough and Parole) Rules, 1959
(for short, "the Prisons Rules, 1959) came to be
deleted as per the Notification dated 16th April,
2018, issued by the Home Department, State of
Maharashtra, at the relevant time when the
Petitioner has applied for extension of parole
leave, the said Rule 25 of the Prisons Rules,
1959, was in force, which reads as under:

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"25. Extension of the period of parole.

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 The Competent Authority may, on the
application made by the prisoner or by
his relatives or friends, or legal

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advisor one week in advance, before the
expiry of the period of parole granted,
by an order in writing, extend the
period of parole for such further
period or periods as may be specified
in such order, on the same grounds, and
on the same conditions on which the
prisoner was originally granted parole,
or on such other conditions as the
Competent Authority may determine:

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Provided that the total period of
parole so extended shall not exceed
ninety days."

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10.Said Rule 25 of the Prisons Rules, 1959,
was applicable to the facts of the case of the

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Petitioner. Considering the above provisions, the
jail authorities should not have lodged the
offence against the Petitioner under the
provisions of Section 224 of the Indian Penal Code
before expiry of period of 90 days from the date
of release of the Petitioner on parole. The
Division Bench of the Bombay High Court, Bench at

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Aurangabad in the case of Ashishrao Venkatrao Phad
vs. State of Maharashtra1, in the similar fact
situation, in Para 18 of the Judgment, held thus:

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"18. However, the petitioner was
releasedon 23.6.2016.Asper
Government guideline dt. 1.1.2015, the
prosecution under Section 224 of IPC
could have been filed against him only
after period of 90 days was over from
23.6.2016. The Petitioner has returned
late by 25 days after enjoying parole
of 60 days and thus he has returned to
Jail on 85th days and as per the
GovernmentPolicyitself,the
petitioner could not have been
prosecuted under Section 224 of IPC. It
is relevant here to state that the
petitioner has returned to the Jail of
his own. He was served with order
rejecting extension of parole for
second time on 12.9.2016 and he
returned on 17.9.2016. Considering the
Government policy, we hold that no FIR
could have been lodged against the

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12017(4) Bom.C.R. (Cri.) 766

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Petitioner when he had returned within
90 days."

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11.In the present case also, the Petitioner

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was released on parole for 45 days, and during the

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said period he had applied for extension of parole
which came to be rejected by the Respondent
Authorities. The said order was intimated to the
Petitioner on 21st April, 2018, and thereafter the
Petitioner on his own reported back to the jail
authorities on 25th April, 2018. There was delay

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of 17 days in surrendering before the jail
authorities. Considering the fact that the
Petitioner was released on parole for 45 days and
thereafter he overstayed for 17 days, it is clear
that he reported back to the jail authorities on

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62nd day, much before the expiry of the period of
90 days. Therefore the offence under Section 224
of the Indian Penal Code should not have been
registered against the Petitioner before expiry of
the period of 90 days.

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12.It is admitted fact that the Petitioner

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has overstayed for 17 days after the expiry of
parole, under the bona fide impression that his
application for extension of parole would be
favourably considered due to illness of his wife.
For the said misconduct of overstay, the
Respondent Authorities have registered a crime
against the Petitioner for the offence punishable
under Section 224 of the Indian Penal Code. For
the same misconduct, the Respondent Authorities
have deducted his remission by 85 days. So also
for the same misconduct the Respondent Authorities
have also transferred the Petitioner from open
prison to closed prison. Considering the above
aspects of the matter, it is clear that for one
misconduct, the Respondent Authorities have
imposed multiple punishments upon the Petitioner.
Therefore, we are of the considered view that the
matter requires reconsideration by the Respondent
authorities.

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13.For the reasons afore stated, the matter

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is remitted back to Respondent Nos.2 and 3 to
reconsider the grievances raised by the Petitioner
in this Petition. Respondent Nos. 2 and 3 are
directed to take decision, after taking into
consideration the observations made herein above,
as expeditiously as possible, however within TWO
MONTHS from today. Rule is made absolute on above
terms. The Writ Petition stands disposed of,
accordingly.

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.This order be communicated to the
Petitioner immediately, through the concerned
Superintendent of Jail.

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[V.K. JADHAV, J.] [S.S. SHINDE, J.]
asb/JUL18

Ramdas @ Anna Chimaji Shinde v. the State of Maharashtra and Others

Case brief

What is this about?

What did the court decide?

Ramdas @ Anna Chimaji Shinde 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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