-: 1 :- IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 1149 OF 2005 CRIMINAL WRIT PETITION NO. 1149 OF 2005 CRIMINAL WRIT PETITION NO. 1149 OF 2005 Ashok Govind Pagare .. Petitioner. V/s. The State of Maharashtra & Ors. .. Respondents. ... Through Jail : Mr.Arfan Sait, Advocate appointed for the Petitioner in jail. Mr.P.S.Hingorani, APP for the Respondent -State. --- CORAM : R.M.S.KHANDEPARKAR & CORAM : R.M.S.KHANDEPARKAR & CORAM : R.M.S.KHANDEPARKAR & A. A. SAYED, JJ. A. A. SAYED, JJ. A. A. SAYED, JJ. DATED : 25TH FEBRUARY, 2008. DATED : 25TH FEBRUARY, 2008. DATED : 25TH FEBRUARY, 2008. P.C. : P.C. : P.C. :- . Heard. 2. The petitioner challenges the order dated 16th December, 1998 passed by the Respondent, forfeiting the facility of remission which was otherwise available to the petitioner. The forfeiture has been ordered on the ground that the petitioner has over stayed for a period of 600 days, beyond the period of furlough granted by the competent authority. 3. The contention on behalf of the petitioner is -: 2 :- that the authorities have removed the name of the petitioner from the remission register under the impugned order, ignoring the provisions of Rule 23 of the Maharashtra Prisons (Remission System) Rules, 1962 in as much as the authority who had passed the order has not obtained prior sanction of the Inspector General while awarding such punishment. In that regard reliance is placed on the decisions of the division bench of this court in the Cri. Writ Petition No. 990/1988- Yusuf Yusuf Yusuf Badshah Abdul Hamid vs. The State of Maharashtra Badshah Abdul Hamid vs. The State of Maharashtra Badshah Abdul Hamid vs. The State of Maharashtra delivered on 21st of October, 1988; Kusum Devidas Kusum Devidas Kusum Devidas Wankhede vs. State of Maharashtra reported in 2002(2) Wankhede vs. State of Maharashtra reported in 2002(2) Wankhede vs. State of Maharashtra reported in 2002(2) Mh.L.J.921 Mh.L.J.921 Mh.L.J.921 and Shaikh Mobobulla vs. State of Shaikh Mobobulla vs. State of Shaikh Mobobulla vs. State of Maharashtra 2006 (2) Mh.L.J.251 Maharashtra 2006 (2) Mh.L.J.251 Maharashtra 2006 (2) Mh.L.J.251 and Cri. Writ Petition No.101/1989 alongwith Cri.Writ Petition Nos. 102/1989 & 105/1989 delivered on 16th February, 1990; in Cri. Writ petition No.84/1989 in the matter of Shamsuddin Lal Shamsuddin Lal Shamsuddin Lal Mohammed Shaikh vs. State of Maharashtra Mohammed Shaikh vs. State of Maharashtra Mohammed Shaikh vs. State of Maharashtra delivered on 23rd of January, 1990 as also Nagesh Ganpat Agadnyan vs. Nagesh Ganpat Agadnyan vs. Nagesh Ganpat Agadnyan vs. State of Maharashtra State of Maharashtra State of Maharashtra in Cri. Writ Petition No. 1207 of 1986 delivered on 22nd July, 1987. 4. Undoubtedly in all these decisions referring to Rule 23 of the said Rules, it has been held that previous sanction of the Inspector General is necessary for imposing punishment in relation to the forfeiture of -: 3 :- the remission. 5. Rule 23 of the said rule provides that subject to the provisions of Rule 22, a Superintendent may punish any prison-offence under section 46 of the Prisons Act, 1894 either by forfeiting any ordinary or special remission for a period not exceeding 60 days or for removing any prisoner from the remission system for a period not exceeding one year provided that the Superintendent is of the opinion that higher punishment by way of forfeiture of remission or removal from the remission system or both is necessary in the case of any prisoner, the Superintendent may with the previous sanction of the Inspector General, award such higher punishment including permanent removal from the remission system. Rule 23, therefore, clearly provides that the power of the Superintendent to punish any prison-offence is subject to the provisions of Rule 22 of the said Rule. Undoubtedly in case of forfeiture of remission or removal from the remission system, a sanction from the Inspector General is necessary and it is also provided that the sanction should be obtained prior to such order. 6. Rule 22 subject to which power under Rule 23 is to be exercised provides that where a prisoner escapes -: 4 :- from legal custody, the total remission earned by him upto the date of his escape shall stand forfeited. Where a prisoner attempts to escape from legal custody or plans or abets escape, the Superintendent shall with the previous approval of the Inspector General pass such orders thereon as the circumstances of the case may require. It further provides that where a prisoner after his admission into the prison is convicted of an offence under sections enumerated thereunder the Superintendent shall with the previous sanction of the Inspector General forfeit any remission earned by such prisoner. Obviously even for exercising the powers under section 22, the Superintendent has to obtain previous sanction of the Inspector of General. 7. Plain reading of both these Rules, therefore, would disclose that the Superintendent has been specified as a competent authority to decide about the forfeiture of the remission with the previous sanction of the Inspector General. The sanction is obviously for giving effect to any such decision which the Superintendent may arrive at on the basis of the facts of each case. It is essentially to avoid arbitrary exercise of powers on the part of the Superintendent and to have proper check by the higher authority in the matter of punishment to be imposed on prisoner by the -: 5 :- Superintendent. 8. At this stage, it is to be noted that remission is not a matter of right. It is purely a concession and Rule 3 of the said Rule has clearly specified about the same. It provides that subject to the provisions of the said Rules remission may be granted, as is provided therein, as a matter of concession only and not as of right. It is also to be noted that a prisoner is sent to jail upon he being found to have committed offence and the same having been established by the cogent evidence before the judicial authority, who is empowered to order conviction of such prisoner on commission of said offence. Power of remission is not given to any judicial officer but to the jail authorities. Certainly, therefore, bearing the same in mind and the requirements of the provisions of the Code of Criminal Procedure, the authorities have clearly provided that the remission which is to be availed is a matter of concession and not as a matter of right. This being so, even assuming that there is some irregularity in the matter of obtaining sanction, once it is established that the higher authority on application of mind has considered the whole matter and where the decision of forfeiture of remission has been justifiably arrived at, merely because the same is considered ex-post facto, it -: 6 :- would not render the decision of forefiture bad in law. 9. Viewed from the above angle, with utmost respect we are unable to subscribe to the view expressed by the division bench in the each of the decisions cited above in relation to the requirement of previous sanction. In normal course, we would have been compelled to refer this matter to a larger bench, however, the learned Advocate for the petitioner at this stage fairly submitted that the petitioner may be allowed to withdraw the petition with liberty to approach the competent authority with necessary representation for recall of the impugned order and or modification thereof. 10. The petition is, therefore, allowed to be withdrawn with the liberty as prayed for. (R.M.S.KHANDEPARKAR,) (A. A.SAYED, J.) .....