In this Special Criminal Application, the applicant sought to regularize late surrender. The Court dismissed the application, holding that regularization of late surrender after temporary bail lies within the domain of the Jail Superintendent pursuant to the Jail Manual and Prisons Act, not the Court.
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R/SCR.A/13053/2022 ORDER DATED: 15/12/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 13053 of 2022
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SAAJANBHAI BHAGABHAI @ BADUBHAI KATAARAA
Versus STATE OF GUJARAT & 1 other(s)
========================================================== Appearance: THROUGH JAIL for the Applicant(s) No. 1 for the Respondent(s) No. 2,3 PUBLIC PROSECUTOR for the Respondent(s) No. 1
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CORAM: HONOURABLE MS. JUSTICE GITA GOPI
Date : 15/12/2022
ORAL ORDER
waives service of Rule on behalf of the respondent State.
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R/SCR.A/13053/2022 ORDER DATED: 15/12/2022
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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R/SCR.A/13053/2022 ORDER DATED: 15/12/2022
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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R/SCR.A/13053/2022 ORDER DATED: 15/12/2022
Act, 1894, 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.
”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
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R/SCR.A/13053/2022 ORDER DATED: 15/12/2022
left to the discretion of the Superintendent to decide which particular punishment or punishments should be awarded. If, in 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 :
(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;
(2) Stoppage of canteen concession for a period of not less than one month and not more than three months.
(3) Withholding concession of either interviews or letters or both, for a maximum period of three months.
(4) In cases of furlough, the furlough period not to be counted towards sentence.”
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R/SCR.A/13053/2022 ORDER DATED: 15/12/2022
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 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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R/SCR.A/13053/2022 ORDER DATED: 15/12/2022
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 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 application.
the application stand dismissed. Rule is discharged. The applicant be informed.
(GITA GOPI,J)
MARY VADAKKAN
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3 issues framed by the court
Whether a High Court can regularize late surrender through a special criminal application or if it must be done by the Jail Superintendent.
Who has the authority to condone delay in surrender under the Prisons Act, 1894 and the Gujarat Jail Manual.
Whether the provisions of Section 48A of the Prisons Act and Rule 1287 of the Jail Manual grant jurisdiction to the Court or the Jail Superintendent.
Saajanbhai Bhagabhai @ Badubhai Kataara
State of Gujarat
Gita Gopi
As recorded by the court registry
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