1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH CRIMINAL APPLICATION NO. 2280 OF 2008 IN WRIT PETITION 597 OF 2006 Mohd. Qadir Mohd. Abdul Majid ... APPLICANT Versus State of Maharashtra & Anr. ... RESPONDENTS Shri S.A. Jaiswal, Advocate for the applicant. Shri S.Y. Deopujari, APP for the respondents. ..... CORAM : D.D. SINHA AND B.P. DHARMADHIKARI, JJ. DATE OF RESERVING THE ORDER : OCTOBER 08, 2008. DATE OF PRONOUNCING THE ORDER : OCTOBER 22, 2008. ORDER : 1. Prayer in this application is for re-hearing of Writ Petition No. 597/2006 or then for review of the judgment dated 24/07/2007 by which it was finally disposed of by us. We have heard Advocate S.A. 2 Jaiswal for petitioner convict & Shri Deopujari, learned APP on behalf of State & the Superintendent, Central Prison, Nagpur. 2. Reconsideration is being sought by pointing out that in view of calculation mistakes in period of overstay, the petitioner is unnecessarily put to suffer extra imprisonment. Second ground in support is, not extending to him the benefit of State Remission of two years as announced and granted by Circular dated 6/8/1997. Full Bench judgment of this Court in the case of S. Sant Singh @ Pilli Singh vs. Secretary, Home Department, Government of Maharashtra reported at 2006 (2) Mah. L.J. 422, is cited to argue that parole is temporary release from custody which does not suspend the sentence or period of detention. Lastly, it is contended that as no previous approval was obtained from Competent Authority while inflicting jail punishment upon him, the orders imposing maximum prescribed punishment of 5 days for 1 day of overstaying stand vitiated. In support of last ground judgment dated 21/10/2008 in Criminal Writ Petition No. 990/1988 (Yusuf Badshah vs. State), delivered by the Division Bench (Shri Jahagirdar & Tipnis, JJ.) at Bombay, judgment 3 dated 23/9/2005 in Criminal Writ Petition No. 249/2001(Shaikh Mahobulla vs. State) delivered at Nagpur by Division Bench ( Shri J.N. Patel & Shri R.C. Chavan, JJ.) are being relied on. Learned APP has while strongly opposing the application stated that there is no ground of requirement of previous approval raised now. It is urged by him that this Court has already applied its mind to all facets and no ground to enable the petitioner to demand review as per law is made out. He argues that there can not be any re-hearing again & effort of the petitioner to re-argue the matter afresh needs to be discouraged. 3. Perusal of the memo of application itself shows that there is no plea or ground in relation to requirement of or absence of the previous approval before inflicting punishment upon petitioner for not reporting back on due date after his release on parole. In judgment dated 24/7/2007 we have considered this aspect and in paragraph 5 we found that there was no specific challenge to the procedure followed by the authorities. We also noted that the order of punishment was reconsidered by the competent authority after 4 following the due procedure applicable in that respect. In this application, therefore, arguments to question this finding cannot be entertained. In any case, if petitioner feels that the said consideration is improper, such an application is not the solution for it. 4. In judgment dated 24/7/2007 we have in paragraph 3 noted that petitioner reported on 10/4/2000 instead of 9/2/2000 and thus he was late by 61 days. State had produced before us the show cause notice dated 4/10/2006 and we were satisfied about the total leave period of 120 days (with extensions ) and late reporting by 61 days. In earlier parole he was due to surrender on 21/7/1997 but, he actually presented himself on 8/10/1997 i.e. late by 79 days. There is no mistake in calculation by the State or its Officers and obvious error or mischief therein by petitioner is apparent from paragraph 4 of his memo of main Writ Petition. No case for review is made out even on these counts. 5. State remission on the eve of golden jubilee celebration of Independence is in terms of Circular dated 6/8/1997. In Writ Petition 5 this circular was alleged to be unconstitutional but then no arguments were advanced to substantiate it. Again in present application similar ground has been raised & S. Sant Singh @ Pilli Singh vs. Secretary, Home Department, Government of Maharashtra (supra) is being pointed out. The Hon'ble Full Bench of this Court observes there that :-- “30. In respect of parole the Constitution Bench of the Supreme Court in the case of Sunil Fulchand Shah Vs. Union of India, reported in 2000 S.C.C. (Cri.) 659 has categorically observed that "parole" is a form of "temporary release" from custody, which does not suspend the sentence or period of detention. From this it is clear that parole does not amount to suspension of sentence. Parole clearly does not fall under remission of sentence. Remission means reducing the period of sentence without changing its character e.g. two years rigorous imprisonment to one year rigorous imprisonment. Thus, as parole does not fall under either of the two categories i.e. suspension or remission, it would not be covered by Section 432 of Cr. P.C. ” We find that these observations in no way help present petitioner, who was not in jail either on 6/8/1997 or 15/8/1997 as he 6 had not reported back on 21/7/1997 which was his due date of return to prison. As per government orders as contained in paragraph 4 of the Circular dated 6/8/1997 issued by Home Department in this connection, it is expressly mentioned that benefit of Golden Jubilee remission is not available to convicts unauthorizedly out of jail on 15/8/1997. Present applicant was out unauthorisedly on said date. It is obvious that State has rightly declined him benefit of said State remission. S. Sant Singh @ Pilli Singh vs. Secretary, Home Department, Government of Maharashtra (supra) is, therefore, not relevant at all in view of this government order. 6. We, therefore, find no merit in this application. The same is accordingly rejected. JUDGE JUDGE ******* Rgd.