Point of Law: Offence of Murder - Convicted - Regularization of period - If any person fails to observe any of conditions on which his sentence was suspended or remitted or furlough or parole was granted to him, he should be deemed to have committed a prison offence and Superintendent may, after obtaining his explanation, punish such offence as provided therein.

ORDER :

1. RULE. Ms.Moxa Thakker, learned Additional Public Prosecutor waives service of notice of rule on behalf of the respondent - State.

2. The present application is filed by the convict through his wife for the following prayers:-

(A) YOUR LORDSHIPS be pleased to regularize the period of late surrender of 318 days of applicant on appropriate terms and conditions.

(B) YOUR LORDSHIPS be pleased to quash and set aside the order dated 05/01/2021 of Respondent No.3 (Annexure-I) and direct the respondent authorities to consider the grant of applicant's regularization of late surrender application at the earliest.

(C) YOUR LORDSHIPS be pleased to grant such other and further reliefs as may be deemed fit in the interest of justice.

3. The facts of the present case are that the prison has been convicted and sentenced in Sessions Case No.105 of 2013 by the learned District Court, Bhavnagar vide judgment and order dated 03.11.2018 by which he was convicted for the offence punishable under Section 302 of the Indian Penal Code and Section 25(1)(B)(A) of the Arms Act and ordered to undergo rigorous imprisonment of life. It is contended that the convict has preferred Criminal Appeal No.417 of 2019 before this Court and it is admitted and pending for final disposal. It is also contended that this Court was pleased to grant temporary bail to the convict on the ground of arrangement of the school fees of his children. It is contended that thereafter, the convict has preferred an application for extension of temporary bail, which came to be rejected by the Division Bench of this Court vide order dated 13.06.2019. According to the convict, when he was released from the jail, he could not surrender in time to the jail due to the fact that he was in jail for six years and there was no earning member in his family and there were only widow mother, wife and minor children and his family was facing many problems for survival. It is also contended that due to covid-19, he could not surrender in time. It is further contended that he has not misused his liberty nor even any single case was registered against him during absconding period. It is also contended that he was caught by the police when he was at his home, but he was not arrested by the police from any other place. It is further contended that the bypass surgery was required to his aunt and she was admitted in ICU and since his aunt was not having children and as being a nephew, his presence was required for treatment of his aunt and his aunt expired on 09.08.2019. The convict has prayed to regularize late surrender of 318 days. It is further contended that due to late surrender of 318 days, his three furlough leave has been forfeited by the authority. According to him, since his three furlough leave is already forfeited by the authority and if late surrender of 318 days is not regularized, then, it would be second punishment for the same offence. While referring to the Bombay Jail Manual Rule 1316, it is contended that no prisoner shall be punished twice for the same offence and accordingly, he has prayed to regularize his late surrender of 318 days.

4. Heard Ms.Gayatriba Jadeja, learned advocate for the applicant and Ms.Moxa Thakker, learned Additional Public Prosecutor for the respondent - State at length through video conferencing.

5. Ms.Gayatriba Jadeja, learned advocate has vehemently submitted the same facts which are narrated in the memo of application and has submitted that in many cases, this Court has regularized late surrender of the convict. She has referred to various documents wherein the jail authority has regularized late surrender with condition that the jail punishment has been maintained. She has also referred to various orders in respect of the other convicts. She has also referred to the medical papers of the aunt of the convict and death certificate of his aunt and educational papers of his children. She has vehemently submitted that if the order of regularization is not pa