Gokul Oharilal Joshi 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 a direction to the respondents to restore his name on remission register, which was directed to be removed by the respondent no.1 vide order dated 29.08.2024 and also seeking grant of remission to the petitioner.

The learned counsel for the petitioner submitted that the petitioner was arrested in connection with the crime in question and Sessions Trial No.422 of 2002 was conducted against him. He was convicted on 06.12.2004 for the offence punishable under Sections 302, 147 and 148 of the Indian Penal Code, 1860 and was sentenced to suffer rigorous imprisonment for life.

The learned counsel for the petitioner submitted that the petitioner has undergone actual imprisonment for more than 14 Years and with remission he has completed more than 23 years. It is submitted that now the respondent no.1 has directed to remove name of the petitioner from the remission register merely because he has belatedly surrendered before the Prison Authority when he was released on parole as well as furlough leave. By relying on the order pased by the Hon’ble Apex Court in Bhumeshwar Versus The State of Maharashtra [Criminal Appeal No.2255 of 2022], it is submitted that the petitioner is entitled to get the benefit of Clause 4(d) of the policy which would require 14 years of actual sentence including remission and the name of the petitioner be restored in the remission register.

Per contra, Mrs.N.R. Tripathi, learned Additional Public Prosecutor has strongly opposed the petition and submitted that the petitioner is habitual in surrendering belatedly. Initially, the petitioner was released on furlough leave on 13.05.2009 however, he surrendered 18 days late, i.e. on 15.06.2009; On second occasion, he was released on furlough leave for 14 days on 01.08.2011 and since he did not surrender, he was arrested and brought back to the Prison 959 days late, i.e. on 01.04.2014; Again, the petitioner was released on furlough leave for 28 days on 19.11.2018, however, he surrendered two days late i.e. on 20.12.2018; Then, when he was released on furlough leave for 28 days on 05.12.2019, he surrendered himself 1220 days late, i.e. on 08.05.2023. Therefore, an offence under Section 224 of the Indian Penal Code, 1860 was registered against the petitioner at Police Station Yashodhara Nagar, Nagpur vide Crime No.5 of 2020.

The learned Additional Public Prosecutor also invited our attention to the fact that when the petitioner was released on parole leave for 7 days with extended 30 days on 20.12.2006, he surrendered himself 461 days late, i.e. on 02.05.2008; when the petitioner was released on parole leave for 30 days on 05.08.2009, he surrendered himself 51 days late, i.e. on 26.10.2009. It is, thus, submitted that the petitioner is in the habit of surrendering himself belatedly before the Prison Authorities and therefore his name was rightly removed from the remission register, permanently. She submitted that in view of Rule 23 of the Maharashtra Prisons (Remission System) Rules, 1962 (for short, ‘the Rules of 1962’), there is necessity to obtain previous sanction, which is obtained in the present case on 10.08.2023. Thereafter, the appraisal of the District Judge-14 and A.S.J., Nagpur was also obtained on 06.07.2024, wherein it is observed that the prisoner (the petitioner herein) has violated the Furlough as well as Parole Rules and therefore, the Special Inspector General of Police (Prisons) has rightly deprived the petitioner from getting the benefit of remission. It is therefore submitted that no interference is called for and the criminal writ petition is liable to be dismissed.

On hearing the learned counsel for the parties and on perusal of the record, it reveals that the petitioner was convicted of the offence punishable under Sections 302, 147 and 148 of the Indian Penal Code, 1860. It is the contention of the learned counsel for the petitioner that the petitioner’s case is covered under Clause 4(d) of the Government Resolution dated 15.03.2010. Clause 4 deals with the murders for other reasons and sub-Clause (d) of the same deals with murders committed by more than one person/group of persons and it is prescribed that the period of imprisonment to be undergone including remission subject to a minimum of 14 years of actual imprisonment including set off period as 24 years. The Hon’ble Supreme Court in Bhumeshwar (supra) has also considered this aspect and held that the appellant therein falls in Clause 4(d) of the policy which would require 14 years of actual sentence including remission. The facts before the Hon’ble Apex Court were that the the appellant therein had completed 16 years of imprisonment and the appellant’s name had been struck off from the remission register in view of his conduct in jumping parole on three occasions and therefore the Hon’ble Apex Court quashed and set aside the order impugned therein.

As far as the facts of the case in hand are concerned, there are series of instances quoted in the reply by the learned Additional Public Prosecutor. If the petitioner’s release on furlough and parole leave are concerned, there are nine occasions on which the petitioner had surrendered belatedly before the Prison Authorities. Notably, when the petitioner was released on furlough leave for 28 days on 05.12.2019, he surrendered himself 1220 days late, i.e. on 08.05.2023 and on another occasion, he was required to be arrested since he did not surrender for 959 days. The respondent nos.1 and 2 have considered these aspects. In the present case, the previous sanction was received on 10.08.2023 and the appraisal of the District Judge-14 and A.S.J., Nagpur was also obtained on 06.07.2024.

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 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 Prisons Act, 1894 and all other powers enabling in this behalf, the Inspector General of Prisons has issued an order vide notification No.MJM1561/39466, 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 prison.

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, the previous sanction was received on 10.08.2023 and the appraisal of the District Judge-14 and A.S.J., Nagpur was also obtained on 06.07.2024 and thereafter the final order came to be passed. Thus, there is due compliance of Rule 23 of the Rules of 1962. As far as the contention of the learned counsel for the petitioner regarding undergoing imprisonment of 14 years is concerned, which is considered by the Hon’ble Apex Court in Bhumeshwar (supra), wherein the appellant therein has jumped the parole on three occasions. In the present case, the petitioner has not only jumped parole but also the furlough on multiple occasions. On one occasion, he was required to be arrested since he did not return for 959 days and on another occasion he surrendered before the Prison Authorities after 1220 days. Therefore, the judgment relied on by the counsel for the petitioner cannot be made applicable to the case of the petitioner.

In view of aforesaid discussion, since the criminal writ petition is devoid of merits, the same stands dismissed.