1 Cr.W.P.217/09 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO.217 OF 2009 * Raju Natthuji Dhengre, ] Age 45 years, ] Convict No.C-3554, ] Open Jail Paithan, ] Aurangabad. ] ... Petitioner. Versus 1) The State of Maharashtra ] Through the Secretary, ] Home Department, ] Mantralaya, Mumbai 400 032.] ] 2) The Divisional Commissioner,] Divisional Office, ] Aurangabad. ] ] 3) Deputy Inspector General ] (Prisons), Central Region, ] Aurangabad. ] ] 4) The Superintendent, ] Open District Prison, ] Paithan, Aurangabad. ] ... Respondents. -------- Shri. V.P. Maldhure, Advocate for the petitioner. Shri. B.J. Sonwane, Additional Public Prosecutor, for the respondents. -------- 2 Cr.W.P.217/09 CORAM: NARESH H PATIL & SHRIHARI P DAVARE,JJ. Judgment reserved on : 7th August 2009 Judgment pronounced on : 12th August 2009. JUDGMENT (Per Naresh H Patil, J.):-- 1) Rule, returnable forthwith. By consent of the learned counsel for the parties taken up for final hearing. 2) The petitioner was convicted in the year 1995 for an offence punishable under section 302 of the Indian Penal Code and sentenced to suffer life imprisonment. On 6-8-2003 the petitioner was released on parole leave for 30 days. On 10-8-2003 the petitioner moved an application for extension of parole leave by 30 days. The petitioner did not receive any communication from the jail authorities. He made telephonic enquiry on which the respondents assured him that the application for extension of parole leave would be granted. It is further contended by the petitioner that on 19-9-2003 the 3 Cr.W.P.217/09 petitioner moved a fresh application for extension of parole leave by 30 days on the ground of illness of the mother of the petitioner. The petitioner also made telephonic enquiry with the authorities on which the petitioner was assured that his application for extension for parole leave would be granted. 3) The petitioner further contends that on 3-11-2003 the petitioner surrendered before the respondent No.4 on his own. On 24-11-2003 the respondent No.2 for the first time informed the petitioner about rejection of both applications filed for extension of parole leave. On 2-12-2003 the petitioner filed an appeal before respondent No. 1 against the order passed by respondent No.2. Nothing was communicated to the petitioner in respect of the appeal filed by him. In the mean time, the prison authority had imposed punishment of reduction of remission of the petitioner in the ratio of 1 : 3 days and accordingly for the period of over stay total 177 days of remission was 4 Cr.W.P.217/09 reduced. The petitioner filed one more appeal on 16-4-2008 against the same order. Nothing was communicated to the petitioner about this appeal also. According to the petitioner, On 18-8-2008 the respondent No.1 rejected the appeal. 4) The petitioner impugns the said order and even the order of punishment of reduction of 177 days of remission which was approved by the Sessions Judge, Aurangabad. 5) Shri. V.P. Maldhure, learned counsel appearing for the petitioner submits that the impugned order surfers from non application of mind. The petitioner’s appeal was not decided for 5 years. As the petitioner suffered punishment, the petitioner had to file second time appeal before the authorities which was rejected by a cryptic order without going into the merits of the matter. As the petitioner’s mother was ill, petitioner had to overstay the leave period. There were genuine and bone fide reasons with the petitioner. The 5 Cr.W.P.217/09 petitioner’s over all conduct is good. According to the learned counsel, the petitioner is to complete his life imprisonment sentence within 40 to 50 days from today. 6) On behalf of the respondents, affidavit-in- reply was filed by Natha Shankarrao Pardhi, who was working as Head Clerk @ Tahsildar in the office of the Commissioner Aurangabad. In para 4 of the reply the deponent contends that after receipt of the application for extension of leave the office of the deponent called for report from the police for extension of parole period which was not received and, therefore, on 19-9-2003 the petitioner applied for parole leave again. In the meanwhile, report dated 23-9-2003 was received from the Commissioner of Police Nagpur in the office of the deponent on 29-9-2003 and therefore in view of the provisions of Rule 25 of Chapter XXVII of the Maharashtra Prisons Manual 1979, the Divisional Commissioner decided not to extend the parole period as prayed for. 6 Cr.W.P.217/09 7) We do not find any reason on behalf of the respondents as to why the appeal filed by the petitioner in the year 2003 was not disposed of in time. Though the appeal memo is not annexed to the writ petition but it is a fact that the petitioner had filed an appeal against the order passed by respondent No.2. We have perused the order dated 18-8-2008 passed by the Desk officer, Home Department, Government of Maharashtra. The reasons mentioned while rejecting the appeal are not convincing. We have even perused the order passed by the Superintendent of Open District Prison Paithan in respect of imposition of punishment of reduction of 177 days of remission. The then Extra Joint District and Session Judge Aurangabad approved the punishment imposed and communicated the same to the Superintendent of Open District Prison Paithan on 8th / 11th March 2004. 8) The learned counsel for the petitioner submits that, the Superintendent is entitled to 7 Cr.W.P.217/09 impose punishment up to 60 days and unless the Superintendent obtains prior sanction of the Deputy Inspector General of Prisons the imposition of punishment beyond 60 days is not maintainable. 9) We find substance in the submissions of the learned counsel. From the material placed on record we find that the Deputy Inspector General of Prisons Aurangabad granted sanction to the punishment imposed by the Superintendent by order dated 5-8-2005 which is an ex post facto sanction. 10) In the light of the view adopted by this Court (Coram: Naresh H Patil & P.R. Borkar, JJ.) in Sanjay Madhukar Kini v. State of Maharashtra, 2009 (1) Mh.L.J. 839, we are of the view that though the Superintendent was not empowered to impose punishment beyond 60 days in absence of prior sanction of the DIG Prisons, the punishment imposed by the Superintendent could be reduced from 177 days to 60 days. Perusal of the order passed by the Extra Joint District and Sessions Judge Aurangabad 8 Cr.W.P.217/09 would show that the issue of want of prior sanction ought to have been raised by the Sessions Judge himself at the time of approving the proposal. The approval of the proposal granted by the learned Sessions Judge also suffers from non application of mind. Placing of matters of this nature before the Sessions Judge for the purpose of grant of approval of the punishment is not an empty formality but there is a definite purpose behind the same which is reflected in the reported judgment of this Court (cited supra). It is necessary that the learned Judges before whom such papers are placed shall take into consideration the merits of the proposals along with legal aspect of the same and then pass appropriate orders demonstrating application of mind. 11) As regards the dismissal of appeal we find that there is no explanation on the part of the respondents which is a disturbing factor. The Principal Secretary to Government, Home Department shall take note of this lapse and issue appropriate 9 Cr.W.P.217/09 instructions that in future the appeals filed by prisoners are attended to and disposed of within a time frame as provided in law. 12) We are not satisfied with the reasoning for rejection of the appeal which was filed for the second time. We find that in the facts of the case, according to the learned counsel for the petitioner, the petitioner is to complete his life term sentence after 40 to 50 days from today. His appeal was relating to the punishment imposed by the Superintendent as the petitioner surrendered 59 days late in the year 2003. 13) As we have decided to reduce the period of reduction of remission days to 60 days the petitioner would get substantial relief in the facts of this case. 14) We are therefore of the view that the order passed by the Superintendent of Open District Prison, Paithan (Exhibit E) dated 1-4-2004 requires 10 Cr.W.P.217/09 to be modified and instead of imposing punishment of reduction of 177 days of remission the order passed by the Superintendent shall be operative up to 60 days. We are not inclined to interfere in the order passed by the Appellate Authority i.e. the State Government in view of the peculiar circumstances of the case. We find that appropriate care is required to be taken while attending to the appeals filed by the convicts and strict instructions should be issued to the Superintendents of Prisons in the State of Maharashtra bringing to their notice the requirement of prior sanction of the Deputy Inspector General of Prisons. 15) The writ petition is partly allowed. The order dated 1-4-2004 passed by the Superintendent, Open District Prison Paithan is modified to the extent that punishment of reduction of remission of 177 days is restricted to 60 days only. The order dated 18th August 2008 issued under the signature of the Desk Officer, Home Department rejecting the appeal filed by the petitioner is maintained. 11 Cr.W.P.217/09 16) The Registrar (Judicial) of this Court is directed to forward copy of this order to all the Principal District and Sessions Judges in the State of Maharashtra. The Registry shall also forward copy of this order to respondents Nos.1 to 4. 17) Rule is made partly absolute in the above terms. (SHRIHARI P. DAVARE, J.) (NARESH H PATIL, J.) rsl/ crwp.217.09