Case Note & Summary
The petitioner, Sandeep S/o Kisan Khadse, a life convict sentenced on 31.01.2003, was released on furlough leave on 16.02.2008 for 30 days. He overstayed and was arrested on 22.08.2009. A show cause notice was issued on 29.08.2009, to which he replied explaining that his brother suffered paralysis and another brother was in jail, compelling him to overstay to look after his family. He also contended that he was arrested from his house, indicating he was not absconding. The Superintendent, Central Prison, Amravati, by order dated 07.12.2019, cut 605 days of his remission and permanently removed his name from the remission register. The petitioner challenged this order under Article 226 of the Constitution. The respondents filed an affidavit stating that the explanation was not found proper and that punishment was given as per Rule 23 and amended Rule 23-A of Chapter XXXVIII of the Maharashtra Prison Manual, 1979, with appraisal from the Principal District and Sessions Judge, Amravati. The court heard both parties and found that the factual position showed the petitioner was released on furlough on 16.02.2008 and overstayed until his arrest on 22.08.2009. The court noted that the show cause notice was issued on 29.08.2009 and the petitioner gave his explanation. However, the impugned order did not reflect any consideration of that explanation. The court held that the order was unsustainable as the explanation was not considered, violating principles of natural justice. The court quashed the order dated 07.12.2019 and directed the respondents to restore the petitioner's remission of 605 days and his name in the remission register. The petition was allowed.
Headnote
A) Prison Law - Parole Overstay - Remission Forfeiture - Natural Justice - The petitioner, a life convict, overstayed parole by about 18 months due to family circumstances. The Superintendent cut 605 days remission and permanently removed his name from the remission register without properly considering his explanation. Held that the impugned order is unsustainable as the explanation was not considered, violating principles of natural justice. (Paras 1-6)
B) Prison Law - Maharashtra Prison Manual, 1979 - Rule 23 and Rule 23-A - Remission - The respondents relied on Rule 23 and amended Rule 23-A of Chapter XXXVIII of the Maharashtra Prison Manual, 1979 to justify the punishment. However, the court found that the explanation given by the petitioner was not considered, rendering the order arbitrary. (Paras 4-6)
C) Constitutional Law - Article 226 - Writ Jurisdiction - The High Court exercised its writ jurisdiction to quash the order dated 07.12.2019 passed by the Superintendent, Central Prison, Amravati, and directed restoration of the petitioner's remission and name in the remission register. (Paras 2, 6)
Issue of Consideration
Whether the order cutting 605 days remission and permanently removing the petitioner's name from the remission register, passed without properly considering his explanation, is sustainable in law.
Final Decision
The petition is allowed. The impugned order dated 07.12.2019 passed by respondent No.3 is quashed and set aside. The respondents are directed to restore the petitioner's remission of 605 days and his name in the remission register.
Law Points
- Natural justice
- Consideration of explanation
- Proportionality of punishment
- Parole overstay
- Remission forfeiture
Case Details
2020 LawText (BOM) (01) 159
Criminal Writ Petition No. 850/2019
Sunil B. Shukre, Madhav J. Jamdar
Shri D. A. Sonawane (Appointed) for the petitioner, Ms S. V. Kole, APP for the respondents
State of Maharashtra, D. I. G. (Prison) (E.R.) Amravati, The Superintendent, Central Prison, Amravati
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Nature of Litigation
Criminal writ petition challenging the order of the Superintendent of Central Prison, Amravati, cutting 605 days remission and permanently removing the petitioner's name from the remission register for overstaying parole.
Remedy Sought
The petitioner sought quashing of the order dated 07.12.2019 and restoration of his remission and name in the remission register.
Filing Reason
The petitioner overstayed parole leave by about 18 months due to family circumstances (brother's paralysis and another brother in jail), and his explanation was not considered before imposing punishment.
Previous Decisions
The petitioner was sentenced to life imprisonment on 31.01.2003. He was released on furlough on 16.02.2008 for 30 days, overstayed, and was arrested on 22.08.2009. Show cause notice issued on 29.08.2009, to which he replied. The Superintendent passed the impugned order on 07.12.2019.
Issues
Whether the impugned order cutting 605 days remission and permanently removing the petitioner's name from the remission register is sustainable when the petitioner's explanation was not considered.
Whether the punishment imposed is proportionate and in accordance with the Maharashtra Prison Manual, 1979.
Submissions/Arguments
Petitioner: He overstayed due to family circumstances (brother's paralysis and another brother in jail); he was arrested from his house, not absconding; his explanation was not considered.
Respondents: The explanation was not found proper; punishment as per Rule 23 and Rule 23-A of Maharashtra Prison Manual, 1979; appraisal from Principal District and Sessions Judge was obtained.
Ratio Decidendi
An order forfeiting remission must be passed after due consideration of the convict's explanation; failure to consider the explanation violates principles of natural justice and renders the order unsustainable.
Judgment Excerpts
By the present petition filed under Article 226 of the Constitution of India, the petitioner seeks to challenge the order dated 07.12.2019 passed by the respondent No.3–The Superintendent, Amravati Central Prison, Amravati, by which the petitioner’s remission of 605 days was cut and his name was removed from the remission register permanently.
We have heard both the parties. The factual position on record shows that petitioner was sentenced to undergo life imprisonment by judgment and order dated 31.01.2003 and he was released on furlough leave on 16.02.2008 and although, he was required to return back within 30 days, he over stayed and was required to be arrested and brought to jail on 22.08.2009.
In our considered view, the impugned order is unsustainable as the explanation given by the petitioner is not considered. The petition is allowed.
Procedural History
The petitioner was sentenced to life imprisonment on 31.01.2003. He was released on furlough on 16.02.2008 for 30 days, overstayed, and was arrested on 22.08.2009. Show cause notice was issued on 29.08.2009, to which he replied. The Superintendent passed the impugned order on 07.12.2019 cutting 605 days remission and removing his name from the remission register. The petitioner filed Criminal Writ Petition No. 850/2019 under Article 226 of the Constitution before the Bombay High Court, Nagpur Bench, which was heard and decided on 17.01.2020.
Acts & Sections
- Constitution of India: Article 226
- Maharashtra Prison Manual, 1979: Rule 23, Rule 23-A (Chapter XXXVIII)
