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 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 passed, then, since three furlough leave of the convict has been forfeited, there will be two punishment for the same offence which is against the Bombay Jail Manual Rules. On this point, she has relied upon the judgment of the Division Bench of this Court rendered in Criminal Misc. On this point, she has relied upon the judgment of the Division Bench of this Court rendered in Criminal Misc. Application No.1360 of 2014 (for regularization of late surrender) in Criminal Appeal No.2884 of 2008 dated 04.02.2014 wherein the Division Bench has referred to the Gujarat Jail Manual Rules. 5.1 Ms.Jadeja, learned advocate has relied upon the following orders:- (1) Jasminbhai Bharatbhai Kothari through Sampurnaben @ Sonalben Jasminbhai Kothari Vs. Jail Superintendent in Criminal Misc. Application No.9 of 2019 in Criminal Appeal No.417 of 2019 dated 30.05.2019; (2) Jasminbhai Bharatbhai Kothari Vs. Jail Superintendent in Criminal Misc. Application No.10 of 2019 in Criminal Appeal No.417 of 2019 dated 13.06.2019; (3) Hemraj Muljibhai Muchhadiya Vs. Jail Superintendent in Criminal Misc. Application No.1 of 2021 in Criminal Appeal No.522 of 2016 dated 11.01.2021; (4) Faridbhai Aiyyubbhai Ganchi through Aiyyubbhai Ahmedbhai Ghanchi Vs. Jail Superintendent in Criminal Misc. Application No.8 of 2020 in Criminal Appeal No.22 of 2017 dated 23.12.2020; (5) Motibhai Masarabhai Meghval (Paregi) Vs. Jail Superintendent in Criminal Misc. Application No.2 of 2010 in Criminal Appeal No.157 of 2016 dated 10.12.2020; (6) Mohammad Aijaz Adbdul Sattar Vora Vs. Jail Superintendent in Criminal Misc. Application No.8 of 2020 in Criminal Appeal No.428 of 2017 dated 10.12.2020; (7) Mohammad Imram Adbdul Sattar Vora Vs. Jail Superintendent in Criminal Misc. Application No.7 of 2020 in Criminal Appeal No.428 of 2017 dated 10.12.2020; (8) Jitendrakumar Ramanlal Shah Vs. State of Gujarat in Criminal Misc. Application No.5 of 2020 in Criminal Appeal No.6398 of 2020 dated 22.09.2020; 5.2 Ms.Jadeja, learned advocate has also relied upon various orders passed by the concerned I. G. Prison whereby the late surrender of various days which includes 3262 days, 971 days, 1437 days, 1432 days, 273 days, 173 days and 277 days were regularized by the authority keeping jail punishment awarded as it is with condition that the concerned convicts shall not surrender late in future. According to her submissions, the authority has, in a particular case, regularized late surrender of 3262 days, whereas in the present case, the convict has been arrested after 318 days and, therefore, by keeping jail punishment in fact, late surrender may be regularized. 6. According to her submissions, the authority has, in a particular case, regularized late surrender of 3262 days, whereas in the present case, the convict has been arrested after 318 days and, therefore, by keeping jail punishment in fact, late surrender may be regularized. 6. Per contra, Ms.Moxa Thakker, learned Additional Public Prosecutor has vehemently opposed the application and has submitted that the Division Bench of this Court has already rejected the prayer of the convict for extension of temporary bail vide order dated 13.06.2019 passed in Criminal Misc. Application No.10 of 2019 in Criminal Appeal No.417 of 2019 and, therefore, since the Division Bench of this Court has rejected the prayer for extension of temporary bail period, this Court may not entertain the present application. She has submitted that the reliance placed upon by the learned advocate for the convict on various orders of this Court, the orders are based on the factual aspects of the case and out of the same, certain cases are pertaining to the late surrender due to covid-19. She has submitted that in the present case, there is no such thing happened as convict is absconding since 2019 and, therefore, the application be rejected. While referring to the impugned order passed by the authority, learned APP has submitted that the authority has clearly mentioned in the communication dated 05.01.2021 that the convict ought to have filed appropriate application for extension of temporary bail before High Court. She has submitted that there is no illegality committed by the authority in rejecting the application for regularization of 318 days late surrender. She has prayed to reject the application. 7. Having considered the submissions made by learned advocates for both the sides and the materials placed on record, it is an admitted fact that initially, 15 days temporary bail was granted by this Court vide order dated 30.05.2019 and since then, the convict has not surrendered to the jail. It is also an admitted fact that the application for extension of temporary bail filed by the convict has been rejected by the Division Bench of this Court vide order dated 13.06.2019 passed in Criminal Misc. Application No.10 of 2019 in Criminal Appeal No.417 of 2019 wherein reference has been made to the initial order passed by this Court in granting temporary bail for 15 days vide order dated 30.05.2019. Application No.10 of 2019 in Criminal Appeal No.417 of 2019 wherein reference has been made to the initial order passed by this Court in granting temporary bail for 15 days vide order dated 30.05.2019. The Division Bench has also observed that the convict has undergone 5 years, 3 months and 16 days and during such period, he has availed of temporary bail as many as 13 occasions and almost, on all the occasions, such temporary bail has been extended for 3 to 5 times. The Division Bench has further observed that the convict has enjoyed furlough in the month of January 2019, whereas, he has been enlarged on temporary bail for a period of 15 days in the month of June 2019 for the purpose of paying the school fees of his children. Ultimately, the Division Bench of this Court has rejected the prayer of extension of temporary bail which was sought on the ground of illness of his aunt. 8. It also appears from the various judgments relied upon by the learned advocate for the convict that in most of the cases, the convict could not be reported in time due to covid-19. In one of the case, this Court has regularized late surrender of 55 days as convict was ill and his treatment was going on. Thus, the reasons for granting regularization of late surrender in a particular case is different from the present one. 9. On perusal of various orders passed by the authority in respect of other convicts, it appears that the authority has regularized various days i.e. from 1 day to 3262 days while maintaining jail punishment with condition that the convict/s shall surrender in time to the jail authority in future. Now, so far as the present convict is concerned, the authority has taken into consideration the fact that the convict has applied before this Court and this Court has granted temporary bail. It has been observed in the impugned communication dated 05.01.2021 that the convict came to be arrested as he was absconding for 318 days. 10. Now, the observation made by the Division Bench of this Court in the case of Vikas Narendrabhai Vs. State of Gujarat and another in Criminal Misc. Application No.1360 of 2014 in Criminal Appeal No.2884 of 2008 dated 04.02.2014 needs to be taken into account for deciding the present application. 10. Now, the observation made by the Division Bench of this Court in the case of Vikas Narendrabhai Vs. State of Gujarat and another in Criminal Misc. Application No.1360 of 2014 in Criminal Appeal No.2884 of 2008 dated 04.02.2014 needs to be taken into account for deciding the present application. The Division Bench has considered Section 48 of the Prison Act and Rules 1287 of the Gujarat Jail Manual. The Division Bench has observed in paras-4 and 5 which reads as under:- “4. In order to appreciate the question, the provisions of Section 48A of the Prisons Act and Rule 1287 of the Gujarat Jail Manual are relevant, which are quoted below: 48A of the Prisons Act “48A: Punishment for breach of conditions of suspension or remission of sentence or of grant of furlough or release on parole: 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 by - (1) a formal warning as provided in clause (1) of section 46; (2) reduction in grade if such prisoner has been appointed an officer of prison; (3) loss of privileges admissible under the remission or furlough system; or (4) loss of such other privileges as the State Government may by a general or special order direct.” 1287 of the Gujarat Jail Manual “1287. In each case of late 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 execute the prisoner. However, before awarding any punishment, the Superintendent should invariably obtain a prisoner's explanation in each case of overstayal of period or breach of any conditions of furlough or parole. If in certain cases, the Superintendent is satisfied that the overstayal was for good or sufficient reasons, he may execute the prisoner. However, before awarding any punishment, the Superintendent should invariably obtain a prisoner's explanation in each case of overstayal of period or breach of any conditions of furlough or parole. [1] A maximum out of 5 days' remission for each day of overstay; Provided that where the prisoner has not sufficient remission to his credit, he shall cease to earn remission in future for such period as the Superintendent may direct; [2] Stoppage of canteen concession for a period of not less than one month and not more than three months. [3] Withholding concession of either interview or letters or both, for a maximum period of three months. [4] In cases of furlough, the furlough period not to be counted towards sentence.” 5. A plain reading of the aforesaid provisions makes it abundantly clear that if any person fails to observe any of the 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 the Superintendent may, after obtaining his explanation, punish such offence as provided therein.” 11. The Division Bench has observed in paras-6 which reads as under:- “6. In the case before us, there is no dispute that the petitioner has committed a breach of conditions on which his sentence was suspended by the Division Bench by granting him temporary bail and consequently, the authorities have resorted to the provisions of punishment provided in the Gujarat Jail Manual. As it appears from the above provision, it is within the province of the Superintendent to decide whether the petitioner was prevented by sufficient cause from surrendering within the time. The jail authorities having exercised their discretion, it is now for the petitioner to challenge such action by filing appropriate writ-application under Article 226 of the Constitution of India before this Court.” 12. In the present case, on perusal of the jail remarks, it appears that three furlough has been forfeited by the authority for late surrender of 318 days. The convict has applied to the concerned jail authority for cancellation of three furlough, however, the same came to be rejected by the authority below. In the present case, on perusal of the jail remarks, it appears that three furlough has been forfeited by the authority for late surrender of 318 days. The convict has applied to the concerned jail authority for cancellation of three furlough, however, the same came to be rejected by the authority below. Thus, it appears that the jail punishment has been inflicted upon the convict for his late surrender of 318 days. Now, considering the fact that the authority in other cases has regularized late surrender of various days i.e. from 1 day to 3262 days by maintaining jail punishment with condition that in future, the concerned convict shall surrender to the jail authority in time. If this course is adopted in this matter also, it would serve the end of justice. 13. In view of the aforesaid, the application is allowed. The late surrender of 318 days is regularized while maintaining jail punishment and in future, the convict shall report in time before the concerned jail authority as and when he is granted any sought of leave. Rule is made absolute to the aforesaid extent.