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2017 Supreme(Bom) 1467
IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD
S.S. SHINDE, A.M. DHAVALE, JJ.
Ashishrao Venkatrao Phad (Convict No. C/10398) – Appellant
Versus
State of Maharashtra, Through Home Department, Through its Chief Secretary & Others – Respondent
Writ Petition No. 904 of 2017
Decided On : 14-09-2017
For the Petitioner:Monali Patil, Advocate.
For the Respondent: V.N. Patil Jadhav, APP.
The delayed return to jail by a prisoner may not always warrant prosecution under IPC 224, and the rejection of parole extensions must be justified.
Headnote:
Prisoner - Parole - Indian Penal Code - 224 - 307 r/w 34 - Prisons (Bombay Furlough and Parole) Rules, 1959 - Notification dt. 26.08.2016 - Government Circular dt. 01.01.2015
Fact of the Case:
The petitioner, a prisoner, sought to quash a show cause notice for curtailment of remission and an FIR for not returning after a furlough period. The petitioner had applied for parole extensions due to his mother's illness, but the second extension was rejected, and an FIR was lodged against him.
Finding of the Court:
The court held that the show cause notice for curtailment of remission was valid, but the FIR for not returning after the furlough period was quashed.
Issues: Whether the show cause notice and the FIR should be quashed.
Ratio Decidendi: The court found that the petitioner's delayed return to jail did not warrant an FIR as per the Government Circular, and the rejection of the second parole extension was justified.
Final Decision: The court allowed the quashing of the FIR but rejected the quashing of the show cause notice.
A. M. DHAVALE, J.
1. A request letter received from the petitioner, who is in Jail, has been treated as Writ Petition and by appointing Ms Monali Patil, learned counsel, to espouse the cause of the petitioner, this petition is entertained.
2. Rule. Rule made returnable forthwith. Heard finally with the consent of the parties and taken up for final disposal at admission stage.
3. By the present petition, the petitioner has made two material prayers which are as follows:
B. To quash and set aside the show cause notice dated 22.9.2016 issued by respondent No. 5Superintendent, Nashik Road Central Prison, Nashik for curtailment of remission by 75 days for late arrival by 25 days.
C. To quash & set aside F.I.R. bearing No. 0189/2016 registered with Majalgaon Police Station, Beed dated 16.9.2016 for the offence punishable under section 224 of Indian Penal Code for not returning after furlough period in time.
4. There is no factual dispute that the applicant is undergoing imprisonment of seven years for offence punishable u/s 307 r/w 34 of the Indian Penal Code and is lodged in Nashik Road Central Prison, Nashik. The applicant had made an application seeking parole for 30 days on account of illness of his mother and same was allowed on 08.06.2016 subject to regular terms regarding furnishing security and others. He was actually released from Jail on 23.06.2016.
5. On 04.07.2016, he had made another application for extension of parole for 30 days as his mother was still ill. There was supporting report from Police Department and he was granted 30 days extended parole from 24.07.2016 to 22.08.2016.
6. The applicant had again moved an application on 06.08.2016 for further extension of 30 days on the same ground of illness of his mother. Meanwhile, there was amendment to the rules of furlough and parole by Notification dt. 26.08.2016. The Divisional Commissioner, Nashik by order dt. 03.09.2016 (Exh. ‘C’) rejected the application on the ground that as per Notification dt. 26.08.2016, the applicant was not entitled for further extension of parole. This order was communicated by Superintendent of Jail by letter dt. 09.09.2016 and was served on the applicant on 12.09.2016.
7. On 17.09.2016, the applicant voluntarily attended the Jail.
8. Meanwhile, on 16.09.2016, FIR was lodged against the applicant with Majalgaon Police Station for the offence punishable u/s 224 of the Indian Penal Code and a show-cause notice dt.22.09.2016 was served upon him by Superintendent of Nashik Road Central Prison, Nashik thereby calling upon him to explain as to why his remission should not be reduced by 75 days (i.e. 1:3 ratio) by way of punishment.
9. Learned counsel for the petitioner Ms Monali Patil argues that the applicant had no intention to jump the parole. His mother was seriously ill and order of rejection of his application for extension of parole was not communicated to him in time. On receipt of the said communication, within five days the petitioner has voluntarily returned to the Jail, which shows his bona fides. His application shows that he returned on 17.09.2016 when there was his Birthday. Ms Patil submitted that, the Notification dt. 26.08.2016 will not be applicable as the application for extension of parole itself was moved on 06.08.2016. She also submitted that, the conduct of the petitioner does not attract any of the ingredients of Section 224 of the IPC. The petitioner had neither any intention to offer any resistance or illegal obstruction to his lawful apprehension of himself for any offence for which he was charged or of which he has been convicted or to escape or to attempt to escape from any custody and, therefore, there could not have been prosecution u/s 224 of the IPC. She has also submitted that, for imposition of curtailment of remission of above 60 days, the sanction of Director Inspector of General (DIG) is essential. In this regard, she relied upon Sanjay Vs State of Maharashtra 2009(1) Mh.L.J. 839.
10. Per contra, learned APP
