High Court · 2024
Legal Reasoning
cwp-1875.231 IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL WRIT PETITION NO.1875 OF 2023Satish Shankar Shinde,Age-55 years, Occu:Prisoner,R/o-Central Jail, Aurangabad ...PETITIONER VERSUS 1) The State of Maharashtra, Through its Principal Secretary, Home Department, Mantralaya, Mumbai-32,2) The Dy. Inspector General of Prison, Central Prison, Aurangabad, Taluka and District-Aurangabad 431008,3) The Learned Sessions Court (3rd), District and Sessions Court, Aurangabad. ...RESPONDENTS ... Mr. Madhukar M. Parghane Advocate for Petitioner. Ms. P.R. Bharaswadkar, A.P.P. for Respondent Nos. 1 and 2. Mr. C.K. Shinde Advocate for Respondent No.3. ... CORAM: SMT. VIBHA KANKANWADI AND S.G. CHAPALGAONKAR, JJ.DATE OF RESERVING JUDGMENT : 10th OCTOBER 2024DATE OF PRONOUNCING JUDGMENT : 24th OCTOBER 2024 cwp-1875.232JUDGMENT [PER SMT. VIBHA KANKANWADI, J.] :1.Rule. Rule made returnable forthwith. Heard learnedcounsel for the appearing parties finally, by consent. 2.By this Petition, the petitioner is challenging order dated 7thNovember 2009 passed by the learned Sessions Judge,Aurangabad thereby approving or ordering the removal of thename of the petitioner from remission register permanently.3.The petitioner has come with the case that he isundergoing imprisonment in Central Jail, Aurangabad forconviction under Section 302 of the Indian Penal Code. Thepetitioner was released on parole leave by order dated 6thSeptember 2006 for about 30 days, however, he had notsurrendered within the stipulated period. He had surrenderedbefore the jail authorities on 17th March 2009. Thereupon showcause notice was issued to him seeking explanation for latesurrender. He had answered the said show cause notice. Motherof the petitioner had preferred an application on 30th October2023 seeking addition of name of her son in the remissionregister kept by respondent No.2. Thereafter the petitionercollected the documents and came to know that respondent No.2 cwp-1875.233after getting explanation from the petitioner, had passed anorder on 18th September 2009, which was an erroneous order,thereby removing the name of the petitioner from the remissionregister for a period of seven years. The Sessions Court, withoutassigning any reason, had approved / passed an order forremoval of the name of the petitioner permanently from theremission register. The petitioner accepts that he hadapproached late to this Court by filing present petition, however,he relies on the decision of this Court in Indraraj DashrathSapkale vs. State of Maharashtra (Criminal Writ Petition No.232of 2018), decided on 6th July 2018, wherein it has been held thatwhen the impugned order affects the rights of the prisoner whichwill have effect on his right to consider his name for prematurerelease, then such delay cannot be taken adversely against thepetitioner inmate. The petitioner submits that the order passedby the learned Sessions Judge is illegal and therefore, itdeserves to be set aside. 4.Respondent No.2 has filed affidavit of Mr. ShivshankarPatil, Superintendent, Central Prison, Chhatrapati Sambhajinagarand submits that the petitioner was convicted by learnedAdditional Sessions Judge, Latur in Sessions Case No.2 of 1999on 14th December 1999 for the offence punishable under Section cwp-1875.234302, 309 of the Indian Penal Code and was sentenced to sufferimprisonment for life and to pay a fine of Rs.1,000/-, in defaultto suffer simple imprisonment for six months. The petitionercame to be released on parole leave on 3rd October 2006,however, he did not surrender himself in time. He was requiredto be arrested and brought back to the jail by the policeauthorities, thereby overstay of the petitioner was for 802 days.Paragraph No.4 of the Circular dated 2nd October 1984 issued bythe Government of Maharashtra, provides that no penalconsequences shall be imposed without judicial appraisal of thelearned Sessions Judge. Further, some directions were given inCriminal Writ Petition No.284 of 2006 decided on 5th September2008 by this Court, Bench at Nagpur, in respect of the prisonerswho have surrendered belatedly. Accordingly, show cause noticewas issued to the petitioner in the present case and hisexplanation was sought. When the sufficient cause was notshown in the said explanation by the petitioner, order wasrequired to be passed in respect of not accepting thecontentions. Further, as per the procedure prescribed, if higherpunishment was proposed then it should be got sanctioned fromthe higher authority and after the sanction order is received, itshould be sent for judicial appraisal by the learned Sessions cwp-1875.235Judge. In this case, the learned Sessions Judge, Aurangabad byletter dated 7th November 2009 approved the punishment andordered to remove the name of the petitioner permanently fromthe remission register. That order was served on the petitioner,however, he had not challenged it within time. On one moreoccasion the petitioner had overstayed and was required to bebrought to the prison by arrest. At that time the period ofoverstay was 580 days. Thereafter, the petitioner was releasedon furlough leave on 5th June 2020 and at that time also heoverstayed for about 14 days. Now, in view of the Circular dated7th October 2019, the Additional Director General of Police andInspector General of Prisons and Correctional Service, has laiddown the procedure to take names of prisoners on remissionregister. Accordingly, the committee has taken the name of thepetitioner back on the remission register on 12th August 2024.The action has been taken against the petitioner under the fourcorners of law. 5.Heard both sides and perused the documents on record.6.The first and foremost fact to be noted is that when thepetitioner was granted leave on 3rd October 2006, he wassupposed to return to the jail on 3rd November 2006, but the cwp-1875.236leave was extended by further thirty days vide order dated 21stNovember 2006. Then, the petitioner ought to have surrenderedbefore the jail authorities on 2nd January 2007 but he has notsurrendered and he was ultimately required to be brought afterarrest, on 14th March 2009. The Superintendent of Jail gaveproposal that his name should be removed from the remissionregister for about seven years. However, it appears that thelearned District and Sessions Judge-3, Aurangabad gave thejudicial appraisal stating that since the petitioner has reportedbelatedly by 802 days, his name should be removed from theremission register, permanently. Here, we would like to considerthe decision, which is referred by respondent No.2, of thisCourt, at Nagpur Bench in Criminal Writ Petition No. 284 of2006 (Sk. Jakir Sk. Babu vs. State of Maharashtra), decided on5th September 2008, wherein following guidelines have been laiddown 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 cause isshown, reasoned order be passed for not accepting thecontentions/cause shown by prisoner.(3). If higher punishment is proposed against the prisoner,then the proposal be submitted to the higher prison cwp-1875.237authority 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 theSessions Judge concerned, an order imposing higherpunishment may be passed and communicated to theprisoner.(5). The order of higher punishment may be implementedafter following steps (1) to (4). “ 7.Thus, it is to be noted from the decision referred abovethat when higher punishment is proposed then show causenotice is to be given preferably of seven days duration forsubmitting the prisoner’s reply. Then if cause is shown, it is to beconsidered by the competent authority and if the competentauthority comes to the conclusion that no sufficient cause isshown, then reasoned order has to be passed not accepting thecontentions / cause shown by the prisoner and then if the higherpunishment is proposed, then proposal is to be submitted to thehigher prison authority competent to grant sanction for higherpunishment for the prison offence. Then, after receiving thesanction from the competent authority, judicial appraisal is alsorequired to be taken from the Sessions Judge concerned. Afterboth these reports / orders are received, then an order imposing cwp-1875.238higher punishment may be passed and communicated to theprisoner.8.Here, we had seen from the documents, as well asspecifically the matter was adjourned so that the learned APPcan take instructions, as to whether the final order was passedafter the order of judicial appraisal was passed or communicatedby the learned District and Sessions Judge. The learned APP hasspecifically stated that no order appears to have been passed.What has been produced or given, which is signed by the SpecialPolice Inspector General (Prison), Aurangabad dated 18thSeptember 2009, appears to be the sanction of the higherauthority, which is in the form of order. However, the opinion /judicial appraisal has been given on 7th November 2009 by thelearned District and Sessions Judge-3, Aurangabad. The decisionin Sk. Jakir Sk. Babu vs. State of Maharashtra, (supra) wasgiven on 5th September 2008 i.e. much prior to the judicialappraisal and sanction, as referred above. Therefore, what wasexpected from the respondents, was to follow the steps thosewere directed in the decision of Sk. Jakir Sk. Babu vs. State ofMaharashtra, (supra). But there is absolutely no final order thatwas passed by the competent authority in this case. Further,from the judicial appraisal dated 7th November 2009, it can be
Decision
cwp-1875.239seen that no reasons have been assigned for coming to theconclusion that the name of the petitioner should be removedfrom the remission register permanently. Here what wasproposed and sanctioned was for removal of the name of thepetitioner from the remission register for about seven years. Butwhat has been stated in the judicial appraisal, is the permanentremoval of the name of the petitioner from remission register.Therefore, we hold that both the authorities totally erred in notfollowing the decision in Sk. Jakir Sk. Babu vs. State ofMaharashtra, (supra). 9.It is then now stated in the affidavit that in view of theCircular dated 7th October 2019, the name of the petitioner hasbeen taken again on the remission register from 12th August2024. At the cost of repetition, we would say that when there isno final order and the judicial appraisal says that name of thepetitioner should be removed permanently from the remissionregister, unless the respondents would have approached theconcerned Judge once again, the name of the petitioner couldnot have been taken on the remission register. Now, when hisname has been taken, it cannot be removed. The question is,therefore, of the period between 18.09.2009 / 07.11.2009 to12.08.2024. It appears that in between many times the cwp-1875.2310petitioner was allowed to go on leave and it appears that he hasoverstayed on almost all occasions. Still, his name has beentaken on the remission register on 12th August 2024. Thepetitioner was not at fault as regards the mandatoryrequirements of observance of steps by the respondents andtherefore, he cannot be denied the benefit if he is entitled to.However, what we found here is that no final order has beenpassed and even the order passed by the learned District andSessions Judge-3, Aurangabad is a cryptic order wherein reasonshave not been given. Then such decision deserves to be setaside. The matter deserves to be remitted back to the competentauthority to pass final order, after taking a fresh judicialappraisal of the learned Sessions Judge. We do not, therefore,consider that the Petition suffers from any delay and laches.Hence, we pass following order:- O R D E R(I)The Writ Petition stands partly allowed.(II)The impugned order dated 7th November2009 passed by the learned District and SessionsJudge-3 Aurangabad is hereby quashed and setaside. cwp-1875.2311(III)Respondent No.2 should submit thenecessary documents for fresh judicial appraisalwithin a period of 15 days from today. Whilesending the file to respondent No.3, respondentNo.2 should forward copy of show cause noticedated 18th March 2009, reply of the petitionerdated 26th March 2009, sanction of the SpecialPolice Inspector General (Prison), Aurangabaddated 18th September 2009 along with the copy ofthis Judgment and order. (IV)After receipt of all these documents,respondent No.3 to pass an order within a periodof one month.(V)After receipt of the judicial appraisal, thecompetent authority to pass the final order and thesame be communicated to the petitioner. (VI)Respondent Nos.1 and 2 to follow the stepsas directed in (Sk. Jakir Sk. Babu vs. State ofMaharashtra) (supra), henceforth.(VII)Rule is made absolute in above terms. [S.G. CHAPALGAONKAR] [SMT. VIBHA KANKANWADI] JUDGE JUDGEasb/OCT24