- 1 - IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL CRIMINAL CRIMINAL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION CRIMINAL CRIMINAL CRIMINAL WRIT PETITION NO.2430 OF 2007 WRIT PETITION NO.2430 OF 2007 WRIT PETITION NO.2430 OF 2007 The State of Maharashtra ...Petitioner vs. Shankar Gopal Patil ...Respondent Ms P.P.Shinde A.P.P. for State Mr.K.S.Patil for the Respondent CORAM: CORAM: CORAM: A.S.OKA,J. A.S.OKA,J. A.S.OKA,J. DATE DATE DATE : AUGUST 27,2008 : AUGUST 27,2008 : AUGUST 27,2008 P.C.: P.C.: P.C.: 1. Heard learned A.P.P for the State. The respondent was convicted for an offence under section 302 of the Indian Penal Code and was sentenced to suffer life imprisonment. 2. According to the case of the petitioner, he was granted parole leave on 10th October 2004. However, he overstayed for 183 days. 3. The respondent was penalised by the Jail Authorities by forfeiting 732 days of remission. The order of the authority was sent to the Sessions Court for judicial appraisal in terms of the decision of the Apex Court in case of Sunil Batra Vs. Delhi Administration [(1980 3 S.C.C. page 4880]. The learned Additional Sessions Judge recommended 92 days reduction of the exempted sentence. An application for modification of the said order was moved by the petitioner before the learned Additional Sessions Judge. By order dated 8th June 2006, the learned Additional Sessions Judge directed that remission shall be deducted for 2 days for absence of one day instead of - 2 - remission of 1/2 day for unauthorised absence for one day. The said subsequent order dated 8th July 2006 was set aside by a Division Bench of this court. While setting aside the said order, the Division Bench granted liberty to the petitioner to challenge the earlier order dated 19th January 2006 passed by the learned Additional Sessions Judge. 4. The learned A.P.P placed reliance on the decision of the Division Bench of this court in case of Ramrao Naresh Charansingh Vs State of Maharashtra and other [2007 All M.R. (cri) page 3411] and submitted that the relevant facts which ought to have been taken into consideration by the learned Additional Sessions Judge while exercising the discretion have not been considered by the learned Judge. She submitted that the Respondent had overstayed on three previous occasions and therefore, penalty of 92 days reduction of the exempted sentence is not consistent with the deplorable conduct of the respondent. It is submitted that the discretion has been arbitrarily exercised by the learned Judge. 5. I have carefully considered the submissions. The rules provide for maximum cut of 5 days remission for each day of over stay. The learned Additional Sessions Judge has held that the proper punishment in this case would be for 2 days of unauthorised freedom, one day of reduction in exempted sentence. - 3 - 6. The decision of the Division Bench in the case of Ramrao (supra) holds that the power to impose penalty on account of over-stay is discretionary but the discretion is required to be exercised by keeping in view the cause and reason for over-stay. 7. In the present case, the first over stay-was by one day and the second over stay was of 15 days and the third was for 183 days. Two grounds are mentioned by the learned Additional Sessions Judge for recommending 92 days of reduction. The first ground is that when the respondent was granted leave, his mother was suffering from serious heart disease and she was advised to undergo heart surgery. The learned Judge found that the mother could not undergo the heart surgery due to lack of funds and finance. The second reason for showing leniency was that the respondent had already undergone actual sentence for 13 years and has come to fag end of the sentence. The learned Judge found that if the sentence recommended by the Superintendent is accepted, it would prolong the sentence by two more years. 8. Perusal of the impugned order shows that the learned Judge has considered all relevant factors which are required to be considered for exercising the discretion. The exercise of discretion by the learned Judge cannot be faulted with. There is no merit in the petition and the same is accordingly rejected. - 4 - JUDGE JUDGE JUDGE