1 wp101610 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 1016 OF 2010 Sanjay Jaiwant Kamble ...Petitioner V/s. The State of Maharashtra ...Respondent Mr. Shyam Mehta for the Petitioner Dr. F.R. Shaikh, Additional Public Prosecutor, for the State. CORAM: A.M. KHANWILKAR AND A.P. BHANGALE, JJ. DATE: 25TH NOVEMBER, 2010 P.C.:- This petition is filed through jail. 2. The grievance in this petition is that the Appropriate Authority committed error in imposing punishment of deduction of 150 days of remission period of the petitioner on account of over-stay of parole for 30 days. 2 wp101610 3. In response to the letter-petition, affidavit of S.N.Kingre, stated to be Superintendent of Yerwada Central Prison, Pune, was filed in this Court dated 12th October, 2010. Paragraph 3 of the said affidavit reads thus:- "I say that the petitioner is undergoing the sentence of imprisonment for life presently at Open Prison, Paithan, in an offence under Section 302 of the Indian Penal Code. I say that the petitioner was released on parole leave on 22.11.2007 for a period of thirty days and it was extended for the period from 23.12.2007 to 21.1.2008 i.e. for thirty days and the same was further extended for thirty days i.e. from 22.1.2008 to 20.2.2008. I say that the petitioner was supposed to return/surrender to the jail on or before 21.2.2008. I say that the petitioner himself surrendered to the jail on 21.2.2008 in time." (emphasis supplied) Going by the facts stated in this affidavit, it is intriguing as to how the punishment of deduction of 150 days of remission period could be resorted to, inasmuch as it is stated in the affidavit that the petitioner eventually surrendered to the jail on 21st February, 2008 within time, viz., the extended parole period, which was up to 20th February, 2008. 4. Realising this position, the learned Additional Public Prosecutor was called upon to explain this anomaly. However, no explanation could be offered for want of proper instructions. We, therefore, expressed our displeasure in our order dated 3 wp101610 22nd November, 2010 as to the manner in which the matter was being handled by the concerned officer, who had come to instruct the learned Additional Public Prosecutor. We were orally informed that the grievance of the petitioner is not in respect of period between November, 2007 to February, 2008, but in respect of action taken for over-stay of parole period in the year 2006. No explanation was forthcoming as to why that position was not mentioned in the affidavit dated 12th October, 2010. As the matter was required to be adjourned for want of instructions, we ordered payment of costs by the officer who had come to instruct the learned Additional Public Prosecutor and was present in Court with the original record. 5. The Superintendent of Yerwada Central Prison, Pune, has now prepared a better affidavit sworn on 25th November, 2010. This affidavit gives details of events as unfolded, including for the period pertaining to release of the petitioner on parole on 19th July, 2006, which order was to operate till 17th September, 2006. However, the petitioner surrendered to jail on 18th October, 2006. Thus, he over-stayed for a period of 30 days, for which punishment was imposed by issuing show-cause notice vide order dated 21st July, 2007 under the signature of the Superintendent, Yerwada Central Prison, Pune, which, according to 4 wp101610 the respondents, has been duly communicated to the petitioner. In other words, the grievance of the petitioner will have to be considered in the context of the punishment order now placed on record at Exhibit 'M' to the further affidavit dated 21st July, 2007. Although the affidavit records the fact that the petitioner, during the period when the parole order was in operation, had applied for extension on 2nd September, 2006 to the Divisional Commissioner, Pune, no communication of extension from the said office was received. This position is stated in paragraph 7 of the further affidavit. The fact remains that there is no express statement in the affidavit that the said application for extension of parole period was rejected before the petitioner surrendered in jail. If the said request of the petitioner for extension was to be eventually allowed and if the extension was to be granted till 17th of October, 2006, it would necessarily follow that the petitioner had not over-stayed the parole period. There is nothing on record to indicate that any decision was taken by the Divisional Commissioner on the application for extension made by the petitioner dated 2nd September, 2006. Without waiting for the said decision, much less ascertaining the decision on the extension request of the petitioner, the Appropriate Authority should not have rushed to pass the order of punishment on the assumption that the petitioner had over-stayed the parole period. 5 wp101610 6. It could be a different matter if the request for extension of parole period made by the petitioner on 2nd September, 2006 was to be rejected. In that case, the conclusion reached by the Appropriate Authority may be valid, and can be upheld. As aforesaid, the order passed by the Superintendent, Yerwada Central Prison, Pune, dated 21st July, 2007, Exhibit 'M' to the further affidavit, makes no reference to the factum of the outcome of the application for extension of parole period submitted by the petitioner on 2nd September, 2006. 7. Considering the above, the order dated 21st July, 2007, which is impugned before us by way of letter-petition, Exhibit 'M' to the further affidavit, will have to be quashed and set aside. Instead, the show-cause notice issued to the petitioner for imposing punishment for having over-stayed the parole period on or after 18th September, 2006 is restored to the file, with liberty to the Appropriate Authority to consider the same afresh on its own merits in accordance with law, and in particular, examine the efficacy of the decision taken on the extension of parole period application preferred by the petitioner on 2nd September, 2006 to the Divisional Commissioner, Pune. If no decision has been taken thereon so far, the said authority (i.e., Divisional Commissioner, 6 wp101610 Pune) will have to take appropriate decision thereon in the first place, only whereafter the show-cause proceedings can proceed further. The Divisional Commissioner, Pune, shall take decision on the said extension of parole period application dated 2nd September, 2006 within four weeks from today, if the said application is still undecided. Thereafter, the Appropriate Authority may proceed with the hearing of the show-cause notice and take decision as may be warranted in the fact situation of the case. All questions in that behalf are left open. Petition is disposed of on the above terms. 8. Realising that the earlier affidavit filed before us on 12th October, 2010 was incomplete, the Superintendent, Yerwada Central Prison, Pune, who is present in Court, tenders unconditional apology. The same is accepted. 9. We record our word of gratitude for the able assistance rendered by Mr. Shyam Mehta. A copy of the order be forwarded to the petitioner. A.P. BHANGALE, J. A.M. KHANWILKAR, J.