Research › Search › Judgment

Bombay High Court · body

2008 DIGILAW 1276 (BOM)

Jakir Sk. Babu v. State of Maharashtra

2008-09-05

A.P.BHANGALE, K.J.ROHEE

body2008
Judgment (Per A.P. Bhangale, J) 1. By this petition, the petitioner-prisoner seeks to quash and set aside notice dated 4.4.2006 and consequent order dated 19.4.2006 passed by respondent no.2. 2. Facts in short are that the petitioner, amongst other, was convicted mainly for the offence punishable under Section 302 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for life by the Additional sessions Judge, Akola vide judgment and order dated 22.7.1993. Petitioner was released on parole for seven days on 29.7.1995 and he was supposed to surrender on 6.8.1995. However, petitioner actually surrendered on 13.2.1996 and thus, he was late by 190 days in surrendering. Respondent no. 2 had imposed punishment by cutting remission by two days for one day of late surrendering (190 x 2 = 380). Being aggrieved by that order, petitioner had approached this Court via Criminal Writ Petition No. 652 of 2005. This Court by order dated 14.2.2006 set aside the order of punishment and referred the matter to the respondent no. 2 for taking up action in accordance with law since it was found that no show cause notice was issued to the petitioner and no reply was sought from him. 3. After remand of the matter, respondent no.2 issued showcause notice dated 4.4.2006 to which petitioner submitted reply dated 6.4.2006. Respondent no. 2 passed the order dated 19.4.2006 which, according to the petitioner, imposes punishment of deduction of 380 days' remission for overstay of 190 days. Order issued by respondent no.2 is assailed on the ground that it is violative of relevant Act and Rules and it does not take into consideration the reply dated 6.4.2006 submitted by the petitioner. In the alternative, it is submitted that the impugned punishment is excessive and arbitrary. 4. Respondent no.2 has filed written submissions and has opposed the petition. It is stated that necessary approval was obtained from the Deputy Inspector General of Prisons, Eastern Region, Nagpur vide order dated 29.4.2006 and appraisal order from the Sessions Judge, Amravati vide order dated 12.6.2006. It is claimed that the order in question has been passed after following due procedure. 5. We have heard Mr S.A. Jaiswal, learned counsel for petitioner and Mr D.M. Kale, learned Assistant Public Prosecutor for respondents. We have perused impugned notice and order. 6. It is claimed that the order in question has been passed after following due procedure. 5. We have heard Mr S.A. Jaiswal, learned counsel for petitioner and Mr D.M. Kale, learned Assistant Public Prosecutor for respondents. We have perused impugned notice and order. 6. It is not in dispute that under rule 23 of the Maharashtra Prisons (Remission System) Rules, 1962, the Superintendent of Prison may punish any prison offence under Section 46 of the Act by forfeiting any ordinary or special remission for a period not exceeding 60 days or by removing any prisoner from the remission system for a period not exceeding one year provided that where the Superintendent is of opinion that higher punishment by way of forfeiture of remission or removal from the remission system (or both) is necessary in the case of any prisoner, he may, with the previous sanction of the Regional Deputy Inspector General, award such higher punishment (including permanent removal from the remission system). 7. In the present case, the question posed before us is, whether the impugned punishment is inflicted after obtaining previous sanction from the Competent Authority in strict adherence to rule 23 of the aforesaid Rules. Order impugned speaks that for unauthorised stay of 190 days, deduction of remission at 380 days is proposed and it would come into force after receipt of appraisal from the Sessions Judge, Amravati and from the date the sanction is accorded to it by the Deputy Inspector General (Prisons), Nagpur. 8. We hasten to say here that requirement of previous sanction is not an empty formality, but a solemn and sacrosanct act which requires higher prison authority to arrive at conscious decision upon applying its mind to the facts and circumstances of the particular case as to whether award of higher punishment for the prison offence committed and so proposed is really necessary or not. The rules require the Superintendent of Jail concerned to send a proposal to the Competent higher prison authority for the purpose of sanction of punishment proposed. As aforesaid, grant or refusal of sanction is not an empty formality. The rules require the Superintendent of Jail concerned to send a proposal to the Competent higher prison authority for the purpose of sanction of punishment proposed. As aforesaid, grant or refusal of sanction is not an empty formality. it requires the higher prison authority to apply its mind to the proposal in the facts and circumstances of each proposed case of higher punishment and to communicate the order or decision to the Superintendent concerned who, upon receipt of such order (previous sanction, if any) shall proceed further to pass an order for higher punishment as sanctioned. This procedure is mandatory. In this case there was no previous sanction and the sanction was received vide order dated 29.4.2006 while judicial appraisal was accorded on 12.6.2006 by the Sessions Judge, Amravati. In the present case the mandatory procedure is definitely deviated and given go-bye. The manner in which the order impugned dated 19.4.2006 proposes the punishment in the present case tantamounts to .empty formality. and words used therein are such as if the Superintendent was sure to receive order of sanction and favourable judicial appraisal. In other words, impugned order declares prison punishment in advance instead of proposing it, as required and assumption of sanction is taken for granted. This cannot be allowed to be done. The impugned order, therefore, overlooks the process of law and cannot be sustained. 9. In view of what is stated hereinabove, we must quash and set aside the impugned order dated 19.4.2006. However, since we do not find any fault with respondent no.2 to have issued show-cause notice dated 4.4.2006, the Superintendent of Central Prison, Amravati will be at liberty to proceed in accordance with the provisions contained in the Maharashtra Prisons (Remission System) Rules, 1962 for the purpose of obtaining previous sanction from the Deputy Inspector General of Prisons and thereafter pass an appropriate order. 10. Before parting with the judgment, we propose to lay down guidelines to deal with the cases where prisoner is sought to be inflicted with higher punishment for having committed prison offence. In exercise of the powers conferred by clause (5) of Section 59 of the Prisons Act, 1894 (IX of 1894), the Government of Maharashtra introduced Maharashtra Prisons (Remission System) Rules, 1962. In exercise of the powers conferred by clause (5) of Section 59 of the Prisons Act, 1894 (IX of 1894), the Government of Maharashtra introduced Maharashtra Prisons (Remission System) Rules, 1962. These Rules contemplate and prescribe procedure for the purpose of higher punishment of forfeiture of remission for a period exceeding 60 days or removal of prisoner from remission system exceeding a year or both. Previous sanction has to be obtained from the Regional Deputy Inspector General of Prisons (competent sanctioning authority) before Superintendent of Prison can award higher punishment, as may be proposed. Higher punishments can be imposed only after obtaining prior sanction from the Inspector General Prisons and judicial appraisal thereafter. The action involves punishment to be imposed against prisoner for prison offence committed by him. Hence, following principles of natural justice are implied requirement – 1. No prisoner shall be condemned unheard i.e. audi alteram partem. 2. Competent Prison Authority has duty to act fairly and not in arbitrary , biased or unreasonable manner. Procedure for awarding punishment in respect of any prison offence has to be just, fair and reasonable even though no specific provision is made in the Rules or in the Statute. Thus, a prisoner is entitled to have an opportunity to show cause against action/punishment proposed as the proposed action is affecting right of the prisoner . to get released from confinement. Decision has to be taken in accordance with the Rules/Statute after the prisoner is given opportunity of putting forward his case. The principles of natural justice do apply even where statute or Rules are silent on the point of pre-decisional notice or hearing. Opportunity of hearing is considered fundamental right in any civilized legal system. Hence, it must be presumed that the law makers intended that failure to observe the principles of natural justice shall render null and void any decision contrary to the requirements as above. 11. We have observed tendency of prison authorities to use ready-made printed proformas with blank spaces filled in even in cases where higher punishment is proposed or ordered. Such practice is deprecable. It must be borne in mind by the prison authority concerned that show-cause notice and an opportunity of hearing to the prisoner must be real and reasonable - not a pretence. It must be reasonable opportunity of genuine hearing and not a mere empty formality or mere ritualistic procedural exercise. Such practice is deprecable. It must be borne in mind by the prison authority concerned that show-cause notice and an opportunity of hearing to the prisoner must be real and reasonable - not a pretence. It must be reasonable opportunity of genuine hearing and not a mere empty formality or mere ritualistic procedural exercise. It is true that prison authority need not adhere to regular forms of legal procedure, but it would be sufficient if prisoner is heard in quasi-judicial spirits and in accordance with principles of substantial justice. Competent Prison Authorities acting fairly in the light of circumstances of the case is legitimate expectation of any prisoner. If the Prison Authority is of the opinion that higher punishment may be imposed for any prison offence committed, may adopt following guidelines to comply with the principles of natural justice. Guidelines may be stated as under : (1). Sufficient notice preferably of at least seven days' duration be given to the prisoner for submitting reply to the notice of showing cause to proposed higher punishment. (2). Cause shown be considered. If no sufficient cause is shown, reasoned order be passed for not accepting the contentions/cause shown by prisoner. (3). If higher punishment is proposed against the prisoner, then the proposal be submitted to the higher prison authority competent to grant sanction for higher punishment for the prison offence committed in the case. (4). After receipt of sanction order from the competent sanctioning authority and judicial appraisal from the Sessions Judge concerned, an order imposing higher punishment may be passed and communicated to the prisoner. (5). The order of higher punishment may be implemented after following steps (1) to (4). 12. We are sure, the guidelines if followed in their true spirit will not only curtail lot of unnecessary flow of petitions to this Court, 11 but would be apt compliance of the principles of natural justice in such cases. 13. In the result, the petition partly succeeds. Impugned order dated 19.4.2006 is quashed and set aside with direction to respondent no.2 Superintendent, Central Prison, Amravati to proceed according to law as is observed above, as expeditiously as possible. Rule is made absolute to the aforesaid extent.