Dismissed

Kalpesh @ Aapa Dayabhai Dhandhalaka v. State of Gujarat

Gujarat HC9 Dec 2022SCR.A/12878/2022

Case brief

AI extract

What is this about?

The High Court considered a petition seeking regularization of late surrender. Relying on Clause 1287 of the Gujarat Jail Manual and Section 48A of the Prisons Act, the court held that jurisdiction lies with the Jail Superintendent, not the court, deciding the matter as a rule discharging the petition. Quality is thin.

What did the court decide?

Petition dismissed; rule discharged; applicant informed.

Kalpesh @ Aapa Dayabhai Dhandhalaka Vs State… — Civil Procedure and Limitation | Gujarat HC (2022)

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R/SCR.A/12878/2022 ORDER DATED: 09/12/2022

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

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R/SPECIAL CRIMINAL APPLICATION NO. 12878 of 2022

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KALPESH @ AAPA DAYABHAI DHANDHALAKA

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Versus STATE OF GUJARAT

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================================================================ Appearance:

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THROUGH JAIL for the Applicant(s) No. 1 for the Respondent(s) No. 2,3

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MR HARDIK MEHTA, ADDITIONAL PUBLIC PROSECUTOR for the Respondent(s) No. 1

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================================================================

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CORAM: HONOURABLE MS. JUSTICE GITA GOPI

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Date : 09/12/2022

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ORAL ORDER

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RULE. Learned Additional Public Prosecutor waives service of notice of Rule on behalf of the respondent State.

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The present petition, through jail, is filed for regularizing the late surrender by the petitioner.

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Learned Additional Public Prosecutor referred to the decision of the Division Bench of this Court in Vikas Narendrabhai v. State of Gujarat and another in Criminal Misc. Application No.1360 of 2014 (for regularisation of late surrender) in Criminal Appeal

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Page 1 of 7

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R/SCR.A/12878/2022 ORDER DATED: 09/12/2022

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No.2884 of 2008 and the judgment of this Court dated 10.11.2017 in Criminal Misc. Application (for regularisation of late surrender) No.16444 of 2017 and allied matters to submit that the application is not maintainable since it is only the Jail Superintendent who has authority to condone the late surrender in accordance to the Jail Manual and the Prisons Act.

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In the case of Vikas Narendrabhai (supra), the Division Bench after considering the provisions of Section 48A of the Prisons Act and Rule 1287 of the Gujarat Jail Manual has observed that, if any prisoner fails without sufficient cause to observe any of the conditions on which his sentence was suspended, remitted or furlough or parole was granted to him, he shall be deemed to have committed a prison offence, and the Superintendent may, after obtaining his explanation, punish such offence as provided under the Prisons Act. The Division Bench has further observed that if the temporary bail is granted in exercise of the powers conferred under the Code of Criminal Procedure, the Court would have no power

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Page 2 of 7

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R/SCR.A/12878/2022 ORDER DATED: 09/12/2022

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to set aside subsequent punishment imposed under the Jail Manual nor can it regularise the default committed by the petitioners after the imposition of punishment. The Code of Criminal Procedure does not permit the Appellate Court granting suspension of sentence to set aside the subsequent offence committed under the Prisons Act for violation of the condition of suspension of the sentence passed in exercise of its power to grant temporary bail, and thus, held that the petitioners would be entitled to have condonation of delay in surrendering before the jail authority and the appropriate authority has to decide such questions in accordance with law if the aggrieved approaches such authority.

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In Criminal Misc. Application (for regularisation of late surrender) No.16444 of 2017 of Akil Noormahmadbhai Kachara v. State of Gujarat and Others ; this Court has referred to Sections 3(2) and 3(3) of the Prisons Act, 1894, which defines “criminal prisoner” and “convicted criminal prisoner”, and after taking into consideration the provisions of Section 48A of the Prisons Act, 1894,

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Page 3 of 7

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R/SCR.A/12878/2022 ORDER DATED: 09/12/2022

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the Coordinate Bench has observed that the said Section 48A does not distinguish between criminal prisoner and or convicted prisoner, and has held that, Section 48A would apply uniformly to both the class of prisoners, and therefore, observed that the under trial prisoner is committed to jail custody under warrant of the Court then such under trial prisoner are brought under the definition of criminal prisoner, to whom the provisions of Section 48A of the Prisons Act would apply.

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In view of the said observations, it was held that Clause 1287 of the Jail Manual would also apply uniformly to the criminal prisoner as well as under trial prisoner. Clause 1287 of the Jail Manual reads as under :-

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"1287. In each case of later surrender or breach of any of the conditions of furlough or parole, the necessary punishment or punishments should be awarded by the Superintendent of Prison with due regard to the circumstances of each case. All the punishments mentioned below or in Section 48-A of the Prisons Act, 1894 need not necessarily be awarded in each case but it is left to the discretion of the Superintendent to decide which particular punishment or punishments should be awarded. If, in

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Page 4 of 7

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R/SCR.A/12878/2022 ORDER DATED: 09/12/2022

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certain cases, the Superintendent is satisfied that the overstayal was for good or sufficient reasons, he may excuse the prisoner. However, before awarding any punishment, the Superintendent should invariably obtain a prison's explanation in each case of overstayal of period or breach of any conditions of furlough or parole :

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(1) A maximum cut of 5 days's remission for each of overstay; Provided that where the prisoner has not sufficient remission to his credit, he shall cease to earn remission in future for such period as the Superintendent may direct;

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(2) Stoppage of canteen concession for a period of not less than one month and not more than three months.

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(3) Withholding concession of either interviews or letters or both, for a maximum period of three months.

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(4) In cases of furlough, the furlough period not to be counted towards sentence.”

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The above-referred Clause 1287 makes it explicit that in case of late surrender or breach of any of the conditions of furlough or parole, the necessary punishment or punishments should be awarded by the Superintendent of Prison with due regard to the

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Page 5 of 7

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R/SCR.A/12878/2022 ORDER DATED: 09/12/2022

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circumstances of each case. The discretion is left to the Superintendent to decide which particular punishment or punishments should be awarded and the Superintendent comes to the conclusion that the overstayal of period or breach of any conditions of furlough or parole were on sufficient reason, he may in his discretion excuse the prisoner. The Superintendent therefore before awarding any punishment invariably has to obtain the prisoner explanation in each of the case of overstayal of period or breach of any conditions of furlough or parole.

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Thus, this Court is also of the consistent view that, in case of late surrender after temporary bail period, it would be the Jail Superintendent who has to undertake the exercise in accordance with Clause 1287 of the Jail Manual and the discretion would be on the Jail Superintendent after affording opportunity to the prisoner to explain the cause of his overstayal of period or breach of any conditions of furlough or parole. Hence to the provisions to Clause 1287 of Jail Manual, it is the prisoner to approach the Jail

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Page 6 of 7

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R/SCR.A/12878/2022 ORDER DATED: 09/12/2022

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Superintendent to consider their prayer for condoning the late surrender, which the Jail Superintendent, in turn, has to consider the individual case in accordance to the provisions made under Clause 1287 of the Jail Manual. Hence, there is no reason to entertain this petition.

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With the aforesaid observations and directions, the petition stands dismissed. Rule is discharged. The petitioner be informed.

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Sd/- (GITA GOPI, J)

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CAROLINE

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Kalpesh @ Aapa Dayabhai Dhandhalaka v. State of Gujarat

Case brief

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Kalpesh @ Aapa Dayabhai Dhandhalaka v. State of Gujarat

Case brief

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