IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CRIMINAL WRIT PETITION NO. 1465 OF 2009 KHAJABHAI MOHAMED PATHAN .. .. PETITIONER Vs. THE STATE OF MAHARASHTRA & ORS. .. .. RESPONDENTS Mr. N. N. Gawankar with Arfan Sait for the petitioner Mr. V. R. Bhonsale, APP CORAM: SMT. RANJANA DESAI & R. G. KETKAR, JJ. DATED: 6/7/2009 P.C. The petitioner is a life convict. He is at present lodged in Yerwada Open Prison. The petitioner has prayed that punishment imposed on him of forfeiture of 929 days of ordinary remission be set aside. 2. Admittedly the petitioner was released on parole on 22/3/2006 because he was suffering from heart ailment. The petitioner was to surrender on 1/6/06. According to the petitioner prior to surrender he was under the treatment for heart ailment at Bombay Hospital. The medical record annexed to the petition supports this submission of the petitioner. Medical Certificate dated 5/6/06 issued by the Bombay Hospital indicates that the petitioner was indoor patient of the Bombay Hospital from 5/6/06. The medical certificate dated 15/6/06 states that the petitioner was operated upon on 7/6/06 for MICAS surgery. From this certificate it appears that the petitioner was suffering from Coronary Artery Disease Myocardial Infection. The certificate further states that the petitioner was advised rest for six months and that he needs to go slow due to severely compromised left ventricular ejection fraction. 3. It appears that due to the operation the petitioner could not surrender to the prison on 1/6/06. Instead he surrendered to the prison on 2/10/06. He surrendered late by 128 days. On 21/11/06 Yerawada Central Prison issued a notice to the petitioner calling upon him to tender an explanation as to why he surrendered late and informing him that upon his failure to tender explanation he would be punished under the relevant rules. 4. The petitioner forwarded his representation. A copy of the representation is annexed to the petition at Exhibit-D. It is undated. By order dated 26/11/06 the Superintendent Yerawada Central Prison forfeited the petitioner’s remission of 929 days. The petitioner is aggrieved by this and hence this petition. 5. We have heard Mr. Gawankar, learned counsel for the petitioner. Mr. Gawankar has drawn our attention to the relevant provisions of the Prisons Act, 1894 and the order is issued by the 3rd respondent dated 2/7/64 under the provisions of the Prisons Act, 1894. Under Section 48-A of The Prisons Act 1894 punishment is provided for failure to observe any conditions on which the sentence of a prisoner is suspended or remitted or furlough is granted to him. One of the punishments is loss of privilege admissible under the remission or furlough or parole system. 6. On 2/7/1964 an order is issued by the Inspector General of Prisons State of Maharashtra in exercise of powers conferred on him by sub-section 1 of Section 11 of the Prisons Act, 1894. Rule 2 thereof so far as it is relevent reads as under: “2. In each case of late surrender from furlough or breach of any of the conditions of parole, the punishment mentioned below or specified in section 48-A of the Act may be awarded by the Superintendent at his discretion with due regard to the circumstances of the case and after obtaining the prisoner’s explanation and the prior approval of the Inspector General or the Deputy Inspector General, if required under clause 1. If the Superintendent is satisfied that the contravention was for good or sufficient reasons, he may excuse the prisoner”. 7. Therefore, in a given case if a prisoner makes out a good or sufficient reason, his surrendering late to the prison can be condoned. In the facts of the case, the order forfeiting remission is harsh. Firstly the order passed by the Superintendent of Yerwada Central Prison does not indicate that it was served on the petitioner. Secondly the medical record submitted by the petitioner clearly indicates that he was suffering from heart ailment. Mr. Gawankar tells us that the petitioner had suffered a heart attack. That the petitioner was operated upon can hardly be disputed because the Bombay Hospital has issued a certificate to that effect. In such circumstances this was indeed a case where the Superintendent of Prison should have in exercise of his power under Rule 2 of the Notification No. MJM 1561/39466 dated 2/7/1964 condoned the petitioner’s late surrender. His ordinary remission of 929 days ought not to have been forfeited. 8. In the circumstances, we quash and set aside the order dated 22/11/06 passed by the Superintendent of Jail, Yerwada Central Prison. We direct that the 929 days of ordinary remission of the petitioner be restored in his remission register. The petition is disposed of in the aforestated terms. (Smt. Ranjana Desai, J.) (R. G. Ketkar, J.)