1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, NAGPUR BENCH, NAGPUR. Criminal Writ Petition No.652/2008 Panjabrao Vishram Ambhore, Convict, aged about 55 yrs., Central Prison, Amravati (In Jail). District Amravati. ...Petitioner VERSUS 1. State of Maharashtra, through D.I.G. (Prisons), Nagpur. 2. Superintendent, Central Prison, Amravati ... Respondents .... Mr. S.A. Jaiswal, Adv. for the petitioner. Mr. Y.B. Mandpe, APP for the respondents. ..... Criminal Writ Petition No.409/2009 Santosh Bhagwandin Bachchraj, (Convict) (In Jail) Central Prison, Amravati (temporarily transferred to Paithan Open Prison, Paithan, Distt. Aurangabad). ...Petitioner VERSUS 1. State of Maharashtra, through D.I.G. (Prisons), Nagpur. 2. Superintendent, Central Prison, Amravati ... Respondents .... 2 Mr. S.A. Jaiswal, Adv. for the petitioner. Mr. Y.B. Mandpe, APP for the respondents. ... CORAM : A.P. LAVANDE & P.D. KODE, JJ . Date of reserving the judmgent : 15/1//1/2010. Date of pronouncing the judgment : 22/1/2010. JUDGMENT : (Per A.P. Lavande, J.) 1] Both the petitions are disposed of by a common judgment, since the challenge in both petitions is to the punishments imposed on the petitioners for the prison offences and common questions of law are involved in both the petitions. 2] Rule. By consent of learned counsel for the parties, heard forthwith. 3] Writ Petition No. 652/2008 has been filed by the petitioner, who has been convicted for offence punishable under Sections 148, 149 and 302 read with Section 34 of the the Indian Penal Code by Additional Sessions Judge, Akola by judgment and order dated 31.12.1984. The appeal preferred 3 by the petitioner has also been dismissed. 4] While in prison, the petitioner was granted parole and he was released on 21.1.1989. The petitioner did not surrender in time and he was arrested after 107 days. Again on 18.6.1994 the petitioner was released on furlough for two weeks and he did not surrender in time and he was arrested after 125 days. The petitioner was again released on 30.11.1995. The petitioner did not surrender in time and he was arrested after 394 days. Again on 2.12.1998 the petitioner was released on parole. The petitioner did not surrender in time and he was arrested after 220 days. When the petitioner was released on furlough in the year 1997, it is the case of the petitioner that no show cause notice was given to him and the respondents forfeited remission for a period of 535 days i. e. five days for one day's late surrender. On other three occasions, the respondents imposed punishment forfeiting remission of five days for every day's absence. In all these cases, first the appraisal of District & Sessions Judge, Amravati was obtained and thereafter approval of D.I.G. Prison Nagpur was taken. 4 5] According to Mr. Jaiswal, learned counsel for the petitioner, the punishment imposed on the petitioner on the above four occasions is patently contrary to the Maharashtra Prisons (Remission System) Rules (“the Rules” for short) and it is mandatory for the Superintendent of Prison to obtain prior appraisal of D.I.G. Prison, in case remission is forfeited for a period of over 60 days. Learned counsel further submitted that the District & Sessions Judge, Amravati has granted mass appraisal to the punishment imposed on several convicts which is clearly in breach of the judgments passed by this Court. He, therefore, submitted that all those punishments are liable to be set aside and the matter remanded for fresh disposal, in accordance with the Rules. In support of his submission, Mr. Jaiswal relied upon the following judgments:- (I) Gajanan Mohanlal Sikchi Vs. State of Maharashtra and another :1993 (1) Bom.C.R. 147; (II) Dagdu Shripati Doiphode Vs. State of Maharashtra:2004 ALL MR (Cr)2112 ; (III) Shaikh Mohobulla s/o Noor Mohammad Vs. 5 State of Maharashtra and another : 2006 (2) Mh.L.J. 251; (IV) Gajanan Eknath Murle Vs. State of Maharashtra and others : 2008 ALL MR (Cri) 1048; (V) Sanjay s/o Madhukar Kini s. State of Maharashtra and others : 2009 (1) Mh.L.J. 839; (VI) Navneet Vs. State of Maharashtra and others : (2000) 10 SCC 326; (VII) Unreported judgment dated 21st October 1988 of Division Bench of this Court in Criminal Writ Petition No.990 of 1988, and (VIII) Unreported judgment dated 17th February 1998 of Division Bench of this Court in Criminal Writ Petition No. 224/1997. 6] Mr. Mandpe, learned APP appearing for the respondents fairly conceded that in respect of first prison offence, no show cause notice was issued to the petitioner and in respect of other three offences, the punishment imposed on the petitioner is contrary to Rule 23 of the Rules and the judgments delivered by this Court and, therefore, the matter 6 be remanded to the respondents for fresh decision in accordance with the Rules. 7] In Writ Petition No. 409/2009 the petitioner was convicted by the Additional Sessions Judge, Yavatmal in Sessions Case No.109/1995 by judgment and order dated 9.7.1997 for offences punishable under Sections 147, 148, 149, 143, 302 of the Indian Penal Code and sentenced to different periods of imprisonment. The appeal preferred by the petitioner has also been dismissed. 8] While in jail, the petitioner was released on furlough for a period of 14 days on 22.3.2001. He did not surrender on due date and he was surrendered late by 101 days. He was issued show cause notice, which was replied on 25.7.2007. Respondent no.2 forfeited the remission for 505 days. 9] By order dated 28.7.2001 passed by the Superintendent of Prison, Amravati the name of the petitioner was removed from the remission register for one year and three months Thereafter approval of DIG Prison, Nagpur was sought, which was granted on 23.10.2001 and the appraisal of the District & Sessions Judge was obtained on 10.10.2001. 7 10] According to Mr. Jaiswal, learned counsel for the petitioner, the punishment imposed on the petitioners is contrary to Rule 23 of the Rules and also judgments, already relied upon by him. 11] Mr. Mandpe, learned APP has fairly conceded that the punishment imposed on the petitioner is contrary to Rule 23 of the Rules and the judgments delivered by this Court and, therefore, the matter be remanded to the respondents for fresh decision. 12] We have considered submissions made by learned counsel for the petitioner and learned APP and perused the record in both the cases as well as authorities cited by Mr. Jaiswal. 13] In terms of Rule 23 of the Rules, relied upon by Mr. Jaiswal, the Superintendent of Prison is entitled to forfeit any ordinary or special remission for a period not exceeding 60 days or remove any prisoner from the remission system for a period not exceeding one year. Where the Superintendent is of the opinion that higher punishment by way of forfeiture of remission or removal from the remission system (or both) is 8 necessary in the case of any prisoner, he has to obtain prior sanction of D.IG. Prison for awarding such higher punishment. In respect of both the petitioners, while imposing punishment, this mandatory procedure has not been followed and, therefore, punishments imposed on both the petitioners are liable to be set aside. The respondents are also entitled to take into consideration various factors laid down by this Court. In the case of Gajanan Eknath Murle (supra). When DIG Prisons approves punishment and the same is sent to District & Sessions Judge for approval, the District & Sessions Judge is also expected to look into records of the petitioner and then only grant approval to the punishment, which is already approved by the DIG Prison. 14] In Writ Petition No. 652/2009 it has fairly conceded by learned APP that no show cause notice was issued to the petitioner for imposing punishment for late surrender in the year 1997 and, therefore, on this ground alone, the said order is liable to be set aside. Insofar as other offences are concerned, the same are in clear breach of Rule 23 of the Rules, which requires Superintendent of Prison to obtain prior 9 approval of DIG Prison if the punishment is to be imposed on the convict is forfeiture of remission above 60 days. Moreover, the appraisal of District & Sessions Judge has to be obtained only after D.I.G. Prison approves the punishment proposed by the Superintendent of Prison. In the present case, this procedure has not been followed and, therefore, learned APP was justified in conceding that all the punishments imposed on the petitioner be set aside and the matter be remanded to the respondents for fresh decision. 15] We, therefore, quash and set aside all the punishments imposed on the petitioner in respect of above mentioned four late surrender and direct the respondents to pass fresh order after following procedure in terms of Rule 23 of the Rules and the judgments relied upon by Mr. Jaiswal. In respect of late surrender in the year 1989, the Superintendent of Prison shall give show cause notice to the petitioner and thereafter the respondents shall proceed to pass appropriate order in accordance with the judgments delivered by this Court. In respect of three instances of late surrender respondents shall take appropriate decision in accordance 10 with the Rules 23 of the Rules and judgments referred to by Mr. Jaiswal. 16] In Writ Petition No. 409/2009, for the very same reasons punishment imposed by respondent no.2 by order dated 23/10/2001 is quashed and set aside and the respondents are directed to take fresh decision in accordance with the Rule 23 of the Rules and the judgments relied upon by Mr. Jaiswal. The Authorities shall pass appropriate orders in both the petitions expeditiously and in any case within a period of four months from today. 17] Rule is absolute in both the petitions in the aforesaid terms. There shall be no order as to costs. JUDGE JUDGE Ambulkar