The Jail Superintendent has the authority to condone late surrender and award necessary punishments in case of breach of furlough or parole conditions, as per the provisions of the Prisons Act and the Gujarat Jail Manual.

ORDER :

1. RULE. Learned Additional Public Prosecutor waives service of Rule on behalf of the respondent-State.

2. The present application is filed for regularizing of late surrender by the petitioner-accused.

3. Learned Additional Public Prosecutor referred to the decision of the Division Bench of this Court in Vikas Narendrabhai vs. State of Gujarat and Another in Criminal Misc. Application No. 1360 of 2014 (for regularisation of late surrender) in Criminal Appeal No. 2884 of 2008 and the judgment of this Court dated 10.11.2017 in Criminal Misc. Application (for regularisation of late surrender) No. 16444 of 2017 and allied matters to submit that the petition is not maintainable since it is only the Jail Superintendent who has authority to condone the late surrender in accordance to the Jail Manual and the Prisons Act.

4. In the case of Vikas Narendrabhai (supra), the Division Bench after considering the provisions of Section 48A of the Prisons Act and Rule 1287 of the Gujarat Jail Manual has observed that, if any prisoner fails without sufficient cause to observe any of the conditions on which his sentence was suspended, remitted or furlough or parole was granted to him, he shall be deemed to have committed a prison offence, and the Superintendent may, after obtaining his explanation, punish such offence as provided under the Prisons Act. The Division Bench has further observed that if the temporary bail is granted in exercise of the powers conferred under the Code of Criminal Procedure, the Court would have no power to set aside subsequent punishment imposed under the Jail Manual nor can it regularise the default committed by the petitioner after the imposition of punishment. The Code of Criminal Procedure does not permit the Appellate Court granting suspension of sentence to set aside the subsequent offence committed under the Prisons Act for violation of the condition of suspension of the sentence passed in exercise of its power to grant temporary bail, and thus, held that the petitioner would be entitled to have condonation of delay in surrendering before the jail authority and the appropriate authority has to decide such questions in accordance with law if the aggrieved approaches such authority.

5. In Criminal Misc. Application (for regularisation of late surrender) No. 16444 of 2017 of Akil Noormahmadbhai Kachara vs. State of Gujarat and Others; this Court has referred to Sections 3(2) and 3(3) of the Prisons Act, 1894, which defines “criminal prisoner” and “convicted criminal prisoner”, and after taking into consideration the provisions of Section 48A of the Prisons Act, 1894, the Coordinate Bench has observed that the said Section 48A does not distinguish between criminal prisoner and or convicted prisoner, and has held that, Section 48A would apply uniformly to both the class of prisoners, and therefore, observed that the under-trial prisoner is committed to jail custody under warrant of the Court then such under-trial prisoner are brought under the definition of criminal prisoner, to whom the provisions of Section 48A of the Prisons Act would apply.

6. In view of the said observations, it was held that Clause 1287 of the Jail Manual would also apply uniformly to the criminal prisoner as well as under-trial prisoner. Clause 1287 of the Jail Manual reads as under:

“1287. In each case of later surrender or breach of any of the conditions of furlough or parole, the necessary punishment or punishments should be awarded by the Superintendent of Prison with due regard to the circumstances of each case. All the punishments mentioned below or in Section 48-A of the Prisons Act, 1894 need not necessarily be awarded in each case but it is left to the discretion of the Superintendent to decide which particular punishment or punishments should be awarded. If, in certain cases, the Superintendent is satisfied that the overstayal was for good or sufficient reasons, he may excuse the prisoner. However, before awarding any punishment, t