1 11.wp.321-11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.321 OF 2011 Shri Liladhar Dattaram Nagvekar. ..Petitioner. Vs. The State of Maharashtra and others. ..Respondents. .......... Mr.Madhav Jamdar, Advocate for the Petitioner. Mr.P.A. Pol, Public Prosecutor for the State. .......... CORAM : A.M. KHANWILKAR AND A.R. JOSHI, JJ. DATED : 25th FEBRUARY, 2011. P.C. 1. This Petition takes exception to the decision of the Superintendent, Open District Prison, Paithan dated 15.12.2008 whereby the explanation offered by the Petitioner for delay in reporting back to jail of two days and five days respectively was not accepted and instead the Petitioner was punished for two days and five days for over-staying the furlough period. 2. Broadly two questions have been raised before us during the arguments -- firstly, that the order passed by the Authority is PPD 2 11.wp.321-11 cyclostyled copy which itself reveals non-application of mind by the Authority with regard to explanation offered by the Petitioner for over-staying furlough period. Secondly, the Authority has not analyzed the explanation offered by the Petitioner and found as of fact that the same is incorrect or otherwise and further that it is not a sufficient cause. 3. On both these contentions, we are in agreement with the Petitioner that the order impugned before us cannot stand the test of judicial scrutiny. Original copy of the order which was received by the Petitioner from the concerned Authority has been produced before us. In the first place, it is a cyclostyled copy and secondly inapplicable clauses have not been scored off at all. That itself reinforces the argument of the Petitioner that decision under Appeal suffers from non-application of mind. 4. Besides, we are in agreement with the argument of the Petitioner that the Authority who rejected the explanation offered by the Petitioner ought to record its opinion one way or the other as to the fact whether the excuse offered by the Petitioner was correct and then also to record opinion as to whether such excuse 3 11.wp.321-11 can be accepted as sufficient cause or otherwise. That is imperative in view of the language of Rule 2 of the statutory Rules framed under the Prisons Act. Inasmuch as, the expression used in the said Rules is : ".... Superintendent at his discretion with due regard to the circumstances of the case .....". Again in the later part, it is observed that “If the Superintendent is satisfied that the contravention was for good or sufficient reasons, he may excuse the prisoner." 5. In view of the above, the impugned order is set aside. Instead, the Petitioner is relegated before the Appropriate Authority for reconsideration of his matter on merits afresh in accordance with law and keeping in mind the observations made by us hitherto. The Appropriate Authority shall take the final decision in the matter within four weeks from today. 6. Petition is disposed of on above terms. (A. R. JOSHI, J.) (A. M. KHANWILKAR, J.)