Bombay High Court Quashes FIR Under Section 224 IPC for Late Return After Parole While Upholding Curtailment Notice. Show-Cause Notice for Curtailment of Remission Is Preliminary and Not Liable to Be Quashed; Prosecution Under Section 224 IPC Requires Mens Rea and Is Not Justified When Convict Returns Within Maximum Permissible Parole Period.

Case Note & Summary

The petitioner, a convict serving a seven-year sentence for an offence under Section 307 read with Section 34 of the Indian Penal Code, was lodged at Nashik Road Central Prison. He was granted parole for 30 days from 23 June 2016 on account of his mother's illness, which was later extended by another 30 days until 22 August 2016. On 6 August 2016, he applied for a second extension of 30 days on the same ground. By an order dated 3 September 2016, the Divisional Commissioner rejected the application, relying on a Notification dated 26 August 2016 that amended the parole rules. The rejection was communicated to the convict on 9 September 2016 and served on him on 12 September 2016. He voluntarily returned to jail on 17 September 2016, i.e., 25 days after the expiry of his parole period. Meanwhile, on 16 September 2016, an FIR was registered against him under Section 224 of the Indian Penal Code at Majalgaon Police Station for not returning in time. On 22 September 2016, the Superintendent of Jail issued a show-cause notice proposing to curtail his remission by 75 days at the ratio of 1:3 for the 25-day delay. The convict challenged both actions by filing a writ petition before the Aurangabad Bench of the Bombay High Court, which was entertained on the basis of a letter sent from jail and with appointed counsel. The central legal questions were whether the show-cause notice for curtailment of remission and the FIR under Section 224 IPC could be quashed. The petitioner's counsel argued that there was no intention to escape; the mother's illness was genuine; communication of rejection was delayed; he returned voluntarily within five days of receiving the order; the Notification of 26 August 2016 should not apply as his application was made earlier; the ingredients of Section 224 IPC were not fulfilled; and curtailment of remission exceeding 60 days required DIG sanction which was absent. The State argued that a convict's failure to return after the parole period automatically amounts to escape from custody, justifying prosecution under Section 224 IPC, and that the convict returned only after the FIR was lodged. The court distinguished between departmental punishment for breach of discipline (curtailment of remission) and criminal prosecution for escaping from lawful custody. It held that the show-cause notice was merely a preliminary step in the disciplinary proceedings, giving the convict an opportunity to explain before the Superintendent; any final order would require approval of the DIG and judicial appraisal by the Sessions Judge. Hence, the challenge to the notice was premature and liable to be dismissed. Addressing the FIR under Section 224 IPC, the court observed that although the law deems a convict on furlough/parole to be in constructive custody, mens rea is an essential ingredient of the offence. The Maharashtra Government had issued circulars prescribing that an FIR under Section 224 should be lodged only if the convict fails to return within the maximum permissible period of furlough (28 days) or parole (91 days), giving due weight to the convict's legitimate expectation of extension. In the present case, the convict returned within 25 days, i.e., well within the maximum period for parole, so no criminal intent could be inferred. Moreover, the rejection of the extension application based on the Notification dated 26 August 2016 was incorrect as per the decision in Subhash Hiralal Bhosale v. State of Maharashtra, which held that such amendments apply prospectively and the date of application is the relevant factor. Consequently, the court quashed the FIR but refused to interfere with the show-cause notice, thereby partly allowing the writ petition.

Headnote

Issue of Consideration

Final Decision

The writ petition was partly allowed. Prayer B to quash the show-cause notice for curtailment of remission was dismissed; Prayer C to quash the FIR under Section 224 IPC was allowed, and the FIR was quashed.

Law Points