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1988 Supreme(Bom) 159
IN THE HIGH COURT OF BOMBAY
P.S. Shah H.H. Kantharia, JJ.
Ashok Vasudeo Shetye.... Petitioner.
Versus
State of Maharashtra others .... Respondents.
Criminal Writ petition No. 251 of 1987, decided on 6-5-1988.
Advocates appeared :
M.A. Rane with N.N. Gawankar, for petitioner.
J.A. Bardey, P.P., for respondents.
Headnote:Section 432-Government Instructions Home Department No. RLP 51711 54309-IV dated 8-1-1974 and No. RLP-1077-348-XXIV, dated 4-10-1977, Guidelines 3 (1) (6)-Offence of murder-Life imprisonment-Where no iota of evidence or material to show that while parole and/or furlough convict had concealed himself with a view to avoid process of law, he could not be denied benefit of premature release under Guidelines 3 (a) under Circular-Word "absord"-Meaning of.
A prisoner who absconds while the enjoys the benefit of an order of parole or furlough he would be liable to be kept in prison for 24 years of actual sentence. But the fact and circumstance of our case do not show that the petitioner had absconded when he was either on parole or on furlough. It is important to note here that in absconding there should always be an element of concealing or hiding. In our case, there is not even an iota of evidence or material to show that while on parole and/or furlough the petitioner concealed himself with a view to avoid the process of law. On the first occasion, it is stated, that he was arrested from his house on the second occasion, it is further stated, that he was freely moving about and visiting Mantralaya making efforts that the impugned order be revoked or withdrawn by the Government. Thus the record no where shows that he had at any point of time concealed himself in such a manner that he would successfully avoid the process of law. The dictionary meaning of the word "abscond" as can he seen from the New Websters Dictionary is to withdraw or absent on self in a private manner run away, often with stolen valuables, in order to avoid a legal process decamp. In other words, to abscond means to depart clandestinely with a view to steal of or secret ones sell from the jurisdiction of a court for a fraudulent purpose such as nindering or defrauding the creditors by avoiding legal process.
The non-surrender of the petitioner after the completion of parole or furlough period can at the most be construed as a breach of condition of parole and/or furlough for which separate liability has been imposed by notification No. M. J. M. 1561/39466 dated 2nd July, 1964 issued under the statutory rules made by the Inspector General Prisons which provides under Clause 2 (a) that there would he maximum cut of 5 days, remission for each day of overstay. Therefore, we are of the opinion that breach of any of the conditions of parole or furlough would not by itself amount to "absconding" and at the most it may make the petitioner liable for losing the remission of 5 days for each day of overstay after the parole or furlough period was over.
Section 432 (1)-Maharashtra Prisons (Review of Sentence) Rules, 1972-Rules 6 (1) and 25-Remission of sentence of life imprisonment-Convict on parole-Absconding-Consideration of case of voncit for release after 14 years.
Now it is no doubt true that a prisoner who absconds while he enjoys the benefit of an order of parole or furlough he would be liable to be kept in prison for 24 years of actual sentence. But the facts and circumstances of our case do not show that the petitioner had absconded when he was either on parole or on furlough. It is important to note here that in absconding there should always be an element of concealing or binding. In our case there is not even an iota of evidence or material to show that while on parole and or furlough the petitioner concealed himself with a view to avoid the process of law.
Thus the record nowhere shows that he had at any point of time concealed himself in such a manner that he would successfully avoid the process of law.
In the present case the petitioner had not absconded and therefore, his case would be governed by guideline 3 (a) and not by guideline 6. Hence he would be entitled to be released after he undergoes a sentence of 16 years and undoubtedly by now be has undergone more than 16 years of sentence, including remissions earned by him.
WORDS AND PHRASES
Absorb -Meaning of.
See Criminal Procedure Code, 1973, Section 432.
2. It is the case of the petitioner that ever since his day of arrest he was in prison as an under-trial prisoner and thereafter as a convicted prisoner. Thus, according to him, he had undergone, total imprisonment of 16 years, 5 months and 8 days on the day when he had filed the writ petition under Article 226 of the Constitution on 27th February, 1987 as under :
(i) Undertrial period 11-6-1975
to 19-7-1976. : 1 years 1 month 8 days.
(ii) Actual imprisonment
20-7-1976 to 20-2-1987. : 10 years 7 months -days.
(iii) Remission granted by the
Government on 1-5-1984. : 2 years-months -days.
(iv) Remission of Gandhi Jayanti : 0 years-months-days.
(v) Remission for good conduct
according to the provisions : 2 years-month-days
of the Prison Rules. --------------------------------
TOTAL : 16 years 5 months 8 days
---------------------------------
Therefore, he contended that his sentence exceeded 14 years and he was accordingly entitled to be considered for release from prison as was done in case of 9 other life convicts. He also contended that the respondents committed breach of Rule 6(i) and Rule 25 of the Maharashtra Prisons (Review of Sentences) Rules, 1972 inasmuch as his case was not taken up for consideration for premature release as provided by these rules. It appears that when this petition was pending hearing and final disposal in this Court, the Government of Maharashtra, Home Department, vide its order RLP -1087/7/113/PRS-3 dated 19th March, 1987 exercised its jurisdiction under sub-section (1) of section 432 of the Code of Criminal Procedure, 1979 and remitted that portion of the sentence of imprisonment for life which was in excess of 24 (twenty four) years of total imprisonment, including all remissions subject to the condition of the petitioner's good behaviour and conduct in the prison till the time of his release and if the said condition was acceptable to the petitioner. Therefore, the petitioner amended this writ petition and further prayed that the order passed by the Government on 19th March, 1987, be quashed and set aside and he be released forthwith as the said order was totally arbitrary, illegal and unlawful.
3. The State Government filed returns resisting this writ petition, through J.J. Deshmukh, Desk Officer, Home Department. It is their case that a sentence of imprisonment for life is a sentence for the whole of the remaining period of the convicted persons natural life but section 432 of the Criminal Procedure Code gives unfettered powers to the State Government as to when a prisoner who has been awarded life sentence should be released from prison. On behalf of the respondents it was also contended that in accordance with Rules 6(1) of the Maharashtra Prison (Review of Sentences) Rules, 1972 the case of the petitioner was forwarded to the Advisory Board on 31st July, 1985 after he completed 12 years and
