1 Criminal Writ Petition No.128 of 2011 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO.128 OF 2011 Keshav Manik Salgar Age-Major, Occu-Nil, Prisoner No.6352, Central Jail, Aurangabad PETITIONER VERSUS State of Maharashtra, RESPONDENT Mr.Ujjwal Patil, learned counsel for the petitioner (Appointed) Mrs.R.K.Ladda, learned A.P.P. for respondent State. (CORAM : NARESH H.PATIL, AND A.V.POTDAR, J.J.) DATE : 16/03/2011 ORAL JUDGMENT : (Per Naresh H.Patil, J.) 1. Rule. Rule returnable forthwith. 2. The petitioner, seeks directions to quash and set aside the impugned order passed by the learned Sessions Judge-3, Aurangabad on 07/11/2009, directing permanent removal of name of the petitioner convict from remission register. The jail authorities had forwarded the proposal in respect of the petitioner for cancellation of his name from remission register, as the prisoner surrendered to jail late after 303 days. Inspector General restricted it to 156 days. The proposal was forwarded to District and Sessions 2 Criminal Writ Petition No.128 of 2011 Judge, Aurangabad. By common order dated 07/11/2009, the learned District and Sessions Judge-3, Aurangabad, informed the Superintendent, Central Jail, Harsul of the impugned order, alongwith orders of 10 other convict prisoners. 3. The learned counsel appearing for the petitioner submits that in the identical circumstances, the order passed by the learned Sessions Judge was set aside in Criminal Writ Petition No.212/2010 dated 22/03/2010. The respondent has filed affidavit in reply and submitted that the learned Sessions Judge, Aurangabad, after considering the case of the petitioner, has struck down the name of the petitioner from remission register permanently. 4. The learned A.P.P. supports the order passed by the learned Sessions Judge. The issue in respect of forwarding proposals for appraisal of the Session Judges, was considered by the Division Bench of this Court (Coram : Naresh H.Patil, J. and P.R.Borkar, J.) in 2008(1) Bombay C.R. (Cri.) 1004, Sanjay Kini Versus State. Para no.14 and 20 of the said judgment reads as : “14. We have perused the judgment of the Apex Court in Sunil Batra’s Case (cited supra). This judgment is of 3-Judge Bench of the Apex Court (Coram : V.R.Krishna Iyer, R.S.Pathak and O.Chinnappa Reddy, JJ.) The Apex Court issued certain directions in para no.79 of the judgment. Direction No.6 reads as under : 3 Criminal Writ Petition No.128 of 2011 “6. No solitary or punitive cell, no hard labour or dietary change as painful additive, no other punishment or denial of privileges and amenities, no transfer to other prisons with penal consequences, shall be imposed without judicial appraisal of the Sessions Judge and where such intimation, on account of emergency, is difficult, such information shall be given within two days of the action.” (emphasis supplied). His Lordship R.S.Pathak, J. (as he then was) observed in para no.88 as under : “88. Besides this, I am in general agreement with my learned brother on the pressing need for prison reform and the expeditious provision for adequate facilities enabling the prisoners, not only to be acquainted with their legal rights, but also to enable them to record their complaints and grievances, and to have confidential interviews periodically with lawyers nominated for the purpose by the District Magistrate or the Court having jurisdiction subject, of course, to considerations of prison discipline and security. It is imperative that District Magistrates and Sessions Judges should visit the prisons in their jurisdiction and afford effective opportunity to the prisoners for ventilating their grievances and, where the matter lies within their powers, to make expeditious enquiry therein and take suitable remedial action. It is also necessary that the Sessions Judge should be informed by the jail authorities of any punitive action taken against a prisoner within two days of such action. A statement by the Sessions Judge in regard to his visits, enquiries made and action taken thereon shall be submitted periodically to the High Court to 4 Criminal Writ Petition No.128 of 2011 acquaint it with the conditions prevailing in the prisons within the jurisdiction of the High Court.” (Emphasis supplied). The word “appraisal” used by the Apex Court in the judgment (supra) is defined in Black’s Law Dictionary as under : “Appraisal, the determination of what constitute a fair price, valuation, estimation of worth.” “20. We, therefore, direct the respondents to punctually place before the District and Sessions Judge the case papers in matters of imposition of punishment for appraisal. In case the District and Sessions Judge finds any error of law in the order of punishment or notices any serious infirmity then the same shall be immediately brought to the notice of the concerned authorities so that the purpose of placing the relevant papers before the District and Sessions Judge is served. The respondents – prison authorities shall maintain appropriate record of the same. The matters in which punishments are imposed shall be dealt with diligently and the papers thereof shall be placed for appraisal and sanction without much loss of time. In the light of the discussions and observations made above, we hold that in the second case of petitioner’s 18 days late surrender the punishment of forfeiture of remission shall be restricted upto 60 days only. 5. This Court had observed in para no.20 of the said judgment (supra) that in case the District and Sessions Judge finds any error of law in the order of punishment or notices any serious infirmity then the same shall be immediately brought to the notice of the 5 Criminal Writ Petition No.128 of 2011 concerned authorities so that the purpose of placing the relevant papers before the District and Sessions Judge is served. 5. In the facts of the case, when the learned District Judge was not in agreement with the punishment imposed/proposed by the jail authorities, one of the best way was to return the said proposal with such remark to the jail authorities, than to impose more severe punishment. In the light of the judgment cited supra, the learned District Judge, before whom the proposals were put up for appraisal purposes, was not supposed to exercise powers like Appellate Forum. Even otherwise, the manner in which impugned order was passed is not at all convincing. 6. The impugned order, passed by the learned District Judge, is therefore, quashed and set aside. Matter is remanded back to the learned District Judge. 7. Rule is made absolute in the above terms. 8. Advocate’s fees be disbursed to the learned counsel appointed to represent the petitioner as per rules. (A.V.POTDAR, J.) (NARESH H.PATIL, J.) khs/MAR. 2011/cri-w-p-128-10