Bablu @ Mahavir Asharfilal Yadav vs State Of Maharashtra & Anr.

ORAL JUDGMENT (PER : URMILA JOSHI-PHALKE, J.)

RULE. Rule made returnable forthwith. Heard finally with consent of the learned counsel for the parties.

By this petition, the petitioner is seeking quashing and setting aside of the impugned order dated 24.02.2024 passed by the respondent no.1 and confirmed by the District Judge-14 and A.S.J., Nagpur vide dated 10.07.2024 and also a direction to the respondents to reinstate the name of the petitioner in the remission register.

The learned counsel for the petitioner submitted that the petitioner was convicted on 30.08.1997 for the offence punishable under Sections 302, 307 of the Indian Penal Code, 1860 and was sentenced to suffer life imprisonment and since then he is behind the bars. He has undergone more than twenty years of actual imprisonment and including remission more than 24 years of imprisonment. He was released on parole leave on 07.10.2013 and he had to surrender on 05.01.2014 before the jail authorities. However, since he did not surrender on the prescribed date, the petitioner was arrested after 3468 days and thereafter since 05.07.2023 he is in jail. After he was arrested, the respondent no.1 had issued the show cause notice to the petitioner on 06.07.2023 for jumping the parole leave and his explanation was called. The petitioner had submitted his response to the said notice wherein he has stated that due to ill-health of his mother and death of his father and since his children are too young, he could not surrender on the prescribed date. However, this explanation of the petitioner was not considered by the respondent no.1 and punishment was proposed to permanently remove his name from the remission register. This proposal was accepted by the District and Sessions Judge, Nagpur. He submitted that in view of Rule 23 of the Maharashtra Prisons (Remission System) Rules, 1962, a prior sanction is necessary which was not obtained before the punishment was proposed and therefore the action on the part of the respondent no.1 as well as the order passed by the District Judge-14 and A.S.J., Nagpur is illegal and liable to be quashed and set aside.

Per contra, Mrs. Sneha Dhote, learned Additional Public Prosecutor has strongly opposed the writ petition and submitted that Rule 23 of the Rules of 1962 is complied with by the respondent no.1 as alongwith the proposal itself the proposal for sanction was forwarded and sanction was obtained and thereafter the punishment was proposed and therefore no illegality is committed by the respondent no.1. The learned Additional Public Prosecutor has specifically invited our attention towards the fact that the petitioner was released on parole leave on 07.10.2013 for ten days and getting extension of 79 days up to 04.01.2014 and his due date for surrender was 05.01.2014 but since he did not surrender on due date, First Information Report No.3001 of 2014 was registered against him under Section 224 of the Indian Penal Code, 1860. Thus, the petitioner has jumped the conditions of parole leave and therefore the punishment was proposed which was accepted by the District Judge-14 and A.S.J., Nagpur. She submitted that a proposal was sent for grant of sanction alongwith the proposed punishment and therefore there was due compliance and hence the petition is devoid of merits and the same is liable to be dismissed.

On hearing the learned counsel for the parties and on perusal of the record, it reveals that undisputedly the petitioner was convicted of the offence punishable under Sections 302, 307 of the IPC. He was released on parole leave. There is no dispute as to the fact that action was taken against him as he surrendered belatedly after 3468 days and therefore the proposal was sent to remove his name permanently from the remission register. It is not in dispute that under Rule 23 of the Rules of 1962, the Superintendent of Prison may punish any prisoner for the offence under Section 46 of the Act by forfeiting any ordinary or special remission for a period not exceeding sixty days or by removing any prisoner’s name from the remission register for a period not exceeding one year provided that where the Superintendent of Prisons is of the opinion that higher punishment by way of forfeiture of remission or removal from the remission register (or both) is necessary in case of any prisoner, he may, with the previous sanction of the Regional Deputy Inspector General, award such higher punishment (including permanent removal of the name from the remission register). Thus, the requirement of Rule 23 is that there has to be a previous sanction before proposing the said punishment.

In the present case, the question which requires to be answered is whether the impugned punishment is inflicted only after obtaining previous sanction from the competent authority in adherence to Rule 23 of the Rules of 1962. The order impugned nowhere shows that the sanction was obtained by the respondent no.1 before proposing the punishment. This aspect is already considered by this Court in Sanjay Madhukar Kini Versus State of Maharashtra & Others [2008 All MR (Cri) 994] wherein after considering the powers under Section 59 of the Prisons Act, 1894 as well as Rule 23 of the Rules of 1962, this Court has observed that in exercise of the powers conferred by sub-Section 1 of Section 11 of the Prisoners Act and all other powers enabling in this behalf, the Inspector General of Prisons has issued an order vide notification No.MJM 1561/ 39466, dated 02.07.1964. As per this order, the Superintendent of the Central Prison is authorized under the provisions of Section 46 of the Prisons Act to impose punishment enumerated under the order with prior approval of the Inspector General of Prisons in the case of Central Prison and Deputy Inspector General of Prisons in case of any other prisons.

By referring to the decision in Sunil Batra Versus Delhi Administration [AIR 1980 SC 1579], this Court observed that “no solitary or punitive cell, no hard labour or dietory change as painful addictive, no other punishment or denial of privileges and amenities, no transfer to other prisoners 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 a period of two days of the action.”

While addressing the issue whether previous sanction is required or not, it is specifically held by this Court that that before sending the proposal, the authority is under obligation to obtain previous sanction and in view of that this Court has directed the respondent to punctually place before the District and Sessions Judge the case papers in the matters which were before that Court.

In the light of the above observations, in the present case also, it is obligatory on the part of the respondent no.1 to obtain previous sanction before sending proposal of punishment. Initially the previous sanction is to be obtained from the Regional Deputy Inspector General and thereafter the proposal is to be sent for higher punishment after obtaining the appraisal from the District and Sessions Judge, which is not done in the present case and therefore the order passed by the respondent no.1 is illegal and liable to be quashed and set aside. Therefore, the following order is passed:-

I. The writ petition is allowed.

II. The order passed by the respondent no.1 and the District Judge-14 and A.S.J., Nagpur is quashed and set aside. The respondent no.1 shall reconsider the aspect of punishment which they are intending to impose on the petitioner after giving him an opportunity to explain in view of Rule 23 of the Maharashtra Prisons (Remission System) Rules, 1962 and after obtaining the previous sanction.

With these directions, the criminal writ petition is disposed of.