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2014 Supreme(Bom) 864
In the High Court of Bombay at Nagpur
B.R. GAVAI & C.V. BHADANG, JJ.
Shalik Maruti Kowe (In Jail)
Versus
State of Maharashtra, through its Secretary, Mantralaya, Home Department & Others
Criminal Writ Petition No. 777 of 2013
Decided on: 08-04-2014
For the Petitioner:N.N. Gawankar, Nitesh Samundre, Advocates.
For the Respondents: B.H. Dangre, Public Prosecutor, M.K. Pathan, A.P.P.
Headnote:Maharashtra Prisons (Remission System) Rules, 1962 - Rule 22(i) - Constitution of India, Article 14 - Prisons Act, 1894, Sections 46, 52 and 59 - Maharashtra Prisons (Punishment) Rules, 1963, Rules 25 and 26 - Constitutional validity of Rule 22(i). - Since Rule 22(i) of Rules, 1962, not providing for exercising discretion for forfeiture of remission, is ultra vires of Article 14 of Constitution hence unconstitutional. - Sub-rule (i) of Rule 22 of the Remission Rules which does not provide for discretion to be exercised on the basis of the facts and circumstances of the case is totally violative of Article 14 of the Constitution of India. The perusal of Section 52 of the Prisons Act, 1894, and Rule 24 of the Punishment Rules would itself provide that whenever prisoner is to be penalized, a discretion is vested in the authority. Not only that, but sub-rules (ii) and (iii) of Rule 22 of the Remission Rules itself also provide for a discretion with the authority to pass appropriate order as the circumstances of the case may require.
It is only under sub-rule (i) of Rule 22 that no discretion is provided and it is provided that the entire remission earned by him shall stand forfeited in the case of a prisoner escaping from legal custody. It is to be seen that escaping from legal custody is an offence under Section 224 of the Indian Penal Code also. It can further be seen that sub-rule (iii) includes much more serious offences than Section 224. The anomalous situation, therefore, would be that if a person is convicted for an offence punishable under Sections 302, 304, 304-A or 306 which provides for a much higher sentence than Section 224, the Superintendent of the Prison will have a discretion to forfeit any remission earned by such a prisoner.
Even if Rule 22(i) is held to be ultra vires, the authority can always by taking recourse to sub-rule (iii) of Rule 22 exercise the powers of forfeiting the remission and in a fit case the entire remission, as in the submission of the Public Prosecutor the word "any" includes "all". In that view of the matter, we find that sub-rule (I) of Rule 22 of the Maharashtra Prisons (Remission System) Rules, 1962 is ultra vires of Article 14 of the Constitution of India and is, therefore, held to be unconstitutional.
1. The petitioner though has initially approached this Court being aggrieved by the order dated 19.6.2012 passed by the respondent no.3 and the order dated 22.6.2012 passed by the learned In-charge Principal District & Sessions Judge, Amravati, the petitioner had by way of amendment challenged the vires of Rule 22(i) of the Maharashtra Prisons (Remission System) Rules, 1962 being ultra vires of Article 14 of the Constitution of India.
2. The undisputed facts giving rise to the present petition are as under:-
On 24.8.1996 the petitioner came to be arrested in connection with a murder case. The petitioner stood convicted for an offence punishable under Section 302 of the Indian Penal Code on 23.6.1997 and was put in Amravati Central Prison. Taking into consideration the good conduct of the petitioner, the petitioner came to be transferred to Morshi Open Prison on 14.5.2008. The petitioner had earned remission while he was at Central Prison, Amravati, so also at Open Prison, Morshi. However, it appears that on 17.5.2009 the petitioner escaped from prison to visit his mother at his native place within the jurisdiction of Police Station Pandharkavada. On a report submitted by the Police Inspector, Open Prison, Morshi, a crime came to be registered against the petitioner for the offence punishable under Section 224 of the Indian Penal Code. The petitioner had along with his relatives surrendered to the Police Station Pandharkavada within three days. However, taking into consideration the fact that the petitioner was not present in the Open Prison, Morshi on 17.5.2009 the learned J.M.F.C., Morshi convicted the petitioner for the offence punishable under Section 224 of the Indian Penal Code and sentenced him to suffer imprisonment for three months.
3. It appears that in the meantime, the Superintendent, Morshi Open Prison had submitted a proposal to the Deputy Inspector General of Prisons recommending forfeiture of remission of 2413 days. The Deputy Inspector General of Prisons vide order dated 19.6.2012 in view of Rule 22(i) of the Maharashtra Prisons (Remission System) Rules, 1962 (hereinafter referred to as “the Remission Rules”) granted approval vide order dated 19.6.2012 for forfeiture of 1693 days remission. The learned In-charge Principal District & Sessions Judge, Amravati vide order dated 22.6.2012 granted his approval to the proposal submitted by the Deputy Inspector General of Prisons. Being aggrieved thereby, the petitioner has approached this Court.
4. Mr. N.N. Gawankar, the learned Counsel for the petitioner, submits that in view of Section 52 of the Prisons Act, 1894, the petitioner cannot be sent to the trial before the learned Magistrate and also penalized by the Superintendent. He further submits that escaping from a prison is not included in Section 45 of the Prisons Act and, therefore, since a penalty is provided under Section 224 of the Indian Penal Code, the Prison Authorities have no jurisdiction to impose the penalty on the petitioner for escaping from the prison. The learned Counsel further submits that in view of the Maharashtra Prisons (Punishment) Rules, 1963 (hereinafter referred to as “the Punishment Rules”) also, the only option which the Superintendent of Prisons has is to send a person convicted for an offence punishable under Section 224 of the Indian Penal Code for trial before the Magistrate and in view of the provisions of Rule 26 of the Punishment Rules, the petitioner cannot be penalized twice.
5. In the alternative, the learned Counsel submits that Rule 22(i) of the Remission Rules takes away the entire discretion from the authority. He submits that a straightjacket provision is made without providing for a discretion to be exercised on the facts and circumstances of each case. The learned Counsel submits that non-providing of a discretion depending upon the exigencies in a particular case would also be violative of Article 14 of the Constitution of India.
6. Mrs. B.H. Dangre, the learne
