Ms. Bharati B. Gunjal, Advocate for the v. K. Kotecha, APP for
Legal Reasoning
wp-905-2025.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL WRIT PETITION NO.905 OF 2025Vijay s/o Kisanrao Mate .. PetitionerVersus1.The State of MaharashtraThrough Under Secretary HomeDepartment, Mantralaya, Mumbai.2.The Superintendent ofChh. Sambhaji NagarCentral Prison.3.The Deputy Inspector General,Chh. Sambhaji Nagar Central Prison. .. Respondents…Ms. Bharati B. Gunjal, Advocate for the petitioner.Mr. V. K. Kotecha, APP for respondents/State.... CORAM : SMT. VIBHA KANKANWADI & SANJAY A. DESHMUKH, JJ.DATE : 18 SEPTEMBER 2025ORDER (Per Smt. Vibha Kankanwadi, J.) :-..Present petitioner is a convict, who has prayed for thefollowing reliefs :-“B]By issuing appropriate writ or direction in likenature the order passed by respondent No.2 dated01.04.2025 may kindly be quashed and set aside.B-1]By issuing appropriate writ or direction in likenature respondent No.2 (The Superintendent of Chh.Sambhaji Nagar Central Prison) and respondent No.3 (The[1] wp-905-2025.odtDeputy Inspector General Chh. Sambhaji Nagar CentralPrison) may kindly be directed to decide the proceeding inorder dated 01.04.2025 issued by respondent No.2 within astipulated period.C]By issuing appropriate writ or direction in likenature the respondent No.3 may kindly be directed todischarge the petitioner from further proceeding and beconsidered to transfer him in open prison.”2.Heard learned Advocate Ms. Bharati B. Gunjal for the petitionerand learned APP Mr. V. K. Kotecha for respondents/State.3.The learned Advocate for the petitioner submits that the petitionerwas released on corona parole leave on 10.05.2020 for 45 days,however, that was extended by the State Government for 30 days till itscancellation in view of the pandemic situation. He was thereaftersupposed to surrender on 17.05.2022. In spite of knowledge about thesaid fact, the petitioner surrendered on 02.10.2022 i.e. after a delay of139 days and, therefore on 24.12.2022, show cause notice was issuedto the petitioner as to why his name should not be taken off from theremission register. Reply has been given by the petitioner on29.12.2022, wherein he had stated that he had not received anyauthentic letter and no understanding was given by the jail authoritiesthat he was supposed to surrender on 17.05.2022. Though the petitionerhas given genuine reason for his overstay, yet respondent No.2 was not[2] wp-905-2025.odtsatisfied on his reply. Therefore, to give an opportunity for explanation,second chance was given to the petitioner and second show causenotice was issued to the petitioner and seven days time was granted forfiling reply. Petitioner has give the same reason for his overstayedperiod. His explanation has not been accepted and the impugned orderhas been passed on 01.04.2025. The proposal for judicial appraisal hasbeen sent to the District and Sessions Court, Aurangabad and it ispending there. She relies on the Full Bench decision of the Hon’bleGujarat High Court in Bhikhabhai Devshi Vs. State of Gujarat andOrs., [MANU/GJ/0058/ 1987], wherein it has been observed thus :-“However, in cases of late surrender, where there is no elementof escape, but merely there is a delay in surrendering, thequestion will have to be examined on the facts andcircumstances and merits of each case. A given case of aprisoner defaulting in timely surrender, who is wanted by the jailauthorities and who is not available at the place whereordinarily he should be and who is apprehended by the policeor who surrenders because of the chase by the authority, mayfall under the first part where he cannot be trusted to bereleased on furlough again. But such cases are at the otherextreme.”The past record of the petitioner has not been considered. It washis bona fide mistake since he could not come to know about theGovernment Circular dated 04.05.2022.[3] wp-905-2025.odt4.The learned APP relies on the affidavit-in-reply by Mr. SachinRamesh Salve, the Superintendent of Open Prison, ChhatrapatiSambhajinagar Central Prison, District Chhatrapati Sambhajinagar,wherein it is stated that the petitioner came to be convicted by thelearned Sessions Judge, Nagpur in Sessions Case No.554 of 2002 on18.10.2013 thereby holding him guilty of committing offence punishableunder Section 302, 120-B, 147, 148 of Indian Penal Code and has beensentenced to suffer imprisonment for life and to pay fine of Rs.2,000/- indefault to suffer simple imprisonment for nine months. The fact about hewas released on corona parole has been admitted and then it is statedthat by Government Circular dated 04.05.2022, all the prisoners whowere released on corona parole leave were asked to surrender with therespective prisons within 15 days maximum. However, the petitioner hadnot surrendered. He surrendered on 03.10.2022 i.e. 139 days late. Asper Circular dated 02.08.2011, a proposal to deduct the petitioner’sname from remission register for three years is forwarded to DeputyInspector General of Prison, Central Region Aurangabad on 08.04.2025and it has been approved by order dated 02.06.2025 by the saidauthority on condition of judicial appraisal. On 30.07.2025, petitioner’sproposal for judicial appraisal was forwarded to District and SessionsCourt, Aurangabad. In fact, it should have been forwarded to theconvicting Court i.e. Sessions Court, Nagpur.[4] wp-905-2025.odt5.The first and the foremost fact that is required to be noted is thatthe act of taking the name of the petitioner from the remission register byway of overstay is considered to be an act of punishment as per the jailmanual. As regards the requirement of taking judicial appraisal in case ofpunishment in the form of taking the name of a convict out of theremission register is concerned, a procedure has been prescribed by thisCourt and accordingly the judicial appraisals have been taken. ThisCourt Bench at Nagpur in Criminal Writ Petition No.284 of 2006 (Sk.Jakir Sk. Babu vs. State of Maharashtra) decided on 15.09.2008, haslaid down the following guidelines for imposing the punishment :-“(1)Sufficient notice preferably of at least seven days’duration be given to the prisoner for submitting reply to thenotice of showing cause to proposed higher punishment.(2)Cause shown be considered. If no sufficient causeis shown, reasoned order be passed for not accepting thecontentions/cause shown by prisoner.(3)If higher punishment is proposed against theprisoner, then the proposal be submitted to the higher prisonauthority competent to grant sanction for higher punishmentfor the prison offence committed in the case.(4)After receipt of sanction order from the competentsanctioning authority and judicial appraisal from the SessionsJudge concerned, an order imposing higher punishment maybe passed and communicated to the prisoner.(5)The order of higher punishment may beimplemented after following steps (1) to (4).”[5] wp-905-2025.odt6.Thus, from this decision, it can be said that when higherpunishment is proposed, then show cause notice is to be given and thefurther procedure is required to be followed. Now, in guideline No.4,there is a stipulation of taking judicial appraisal and the word used is“judicial appraisal from the Sessions Judge concerned”. That means, itshould be taken from the convicting Court and not from any other Court.Here, in this case, the proposal dated 08.04.2025 for imposingpunishment of three years i.e. taking his name out of the remissionregister was sent to the wrong Court i.e. learned District and SessionsCourt, Aurangabad and and it is pending before the said Court. Whenthe conviction to the petitioner was given by the learned Sessions Judge,Nagpur, District Nagpur, how the judicial appraisal can be taken from aJudge, who had not convicted the petitioner, is a question and, therefore,we say that when in Sk. Jakir Sk. Babu (Supra) while laying down theguidelines, the word used is “Sessions Judge concerned”, then it shouldbe interpreted that the opinion or appraisal should be from the convictingCourt and not from the Sessions Judge within whose jurisdiction the jailis situated. Now, the petitioner herein challenged the proposal for judicialappraisal, which is pending before the learned District and SessionsCourt, Aurangabad, before this Court. No such rule has been pointed outby the learned APP which states that the judicial appraisal can be takenfrom the learned Additional Sessions Judge or learned Sessions Judge,[6] wp-905-2025.odtwithin whose jurisdiction, the prisoner is located, where the petitionerhas been lodged or the said convict has been lodged.7.Another fact to be noted is that from the above guidelines in Sk.Jakir Sk. Babu (Supra), it can be seen that when the higher punishmentis proposed, then the sanction is required to be given by the higherauthorities and after the higher authority gives sanction and judicialappraisal from the Sessions Judge is given, an order imposing higherpunishment may be passed and communicated to the prisoner. Thatmeans, a final order is required to be passed by the concerned authoritytaking into consideration the sanction and the judicial appraisal. We hadtherefore made a query with the learned APP as to whether till date thefinal order has been passed or not as per the decision in Sk. Jakir Sk.Babu (Supra), he said it in the negative. It will not be out of place tomention here that in Satish Kumar Shhinde vs. State of Maharashtraand others, [Criminal Writ Petition No.1875 of 2023 2023 decided on24.10.2024], this Court has once again taken note of the decision in Sk.Jakir Sk. Babu (Supra) and directed the respondent/State and theDeputy Inspector General of Prisons to follow the steps as directed inSk. Jakir Sk. Babu (Supra). It appears that still the practice of takingthe judicial appraisal from the convicting Court (Sessions Courtconcerned) and passing final order as contemplated under the said[7]
Decision
wp-905-2025.odtdecision is not yet followed. Recently, in Dnyanoba s/o GangadharMundhe vs. The State of Maharashtra and others, [Criminal WritPetition No.645 of 2025 decided on 08.08.2025], we have givenfollowing directions :-“I)…………………………………………………….II)…………………………………………………….III)We direct respondent No.1/State to issue Circular /Guidelines stating that the guidelines in Sk. Jakir Sk.Babu (Supra) should be adhered to in all the prisons andthe judicial appraisal should be taken as contemplatedunder the guidelines from the convicting Courts and notfrom the Court in whose jurisdiction the prison is situated,where such convict is lodged.IV)Such Guidelines / Circular be issued within aperiod of 15 days from today. V)Compliance be reported on 27.08.2025.VI)With these directions, the writ petition standsdisposed of.” 8.When in the present case the proposal for judicial appraisal hasnot been sent to the “Sessions Judge concerned”, we set aside the orderdated 01.04.2025 and direct respondent No.2 to take the proposal forjudicial appraisal from the “Sessions Judge concerned” i.e. the learnedSessions Judge, Nagpur, District Nagpur, who had convicted the[8] wp-905-2025.odtpetitioner within a period of one month from today and thereafter, to passthe final order as contemplated under clause (4) in Sk. Jakir Sk. Babu(Supra).9.With these directions, the writ petition stands disposed of.[ SANJAY A. DESHMUKH ] [ SMT. VIBHA KANKANWADI ] JUDGEJUDGEscm[9]