HAIDERKHAN LALKHAN PATHAN Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The petitioner has been convicted for offence punishable under Sec. 302 of I. P. Code by the Court of Addl. Sessions Judge Bombay as per judgment and order dated 16/10/1975 Initially he was sentenced to death by the trial Court. However on reference to the High Court the sentence has been modified to that of it. I. for life. On this point there is no dispute. The petitioner-Prisoner remained in Yaravada Jail in the State of Maharashtra till some time in July 1977 In the month of July 1977 he has been transferred to Sabarmati Central Prison Ahmedabad. Since then he is undergoing imprisonment in the Sabarmati Central Prison.

(2.) During the period of his imprisonment in Sabarmati Central Prison he has enJoyed parole leave on several occasions from 1979 to 198 8/04/1985 he was ordered to be released on parole for 8 period of seven days. He surrendered late by about 116 days. He was tried for the Jail offense inasmuch as late surrender is a Jail offence under the relevant provisions of law. The petitioner was again released on parole for a period of about 21 days in the month of June 1986. Again he surrendered late by 799 days. It is not cleat as to whether on both the occasions he surrendered voluntarily or he was arrested by the police. At page 55 of the compilation the details submitted by the Jail authorities are produced. In these details the aforesaid fact is not stated. However it is stated by the Jail authorities that when the petitioner was released in June 1986 he did not surrender voluntarily and he was arrested by the police. Be that as it may. For the latter offence also he was tried for the Jail offence by the Superintendent of Jail. For this offence punishment was imposed upon the petitioner-Prisoner as per order of punishment dated 26/10/1988 The said order of punishment reads as order: Said convict has committed offence by 799 days late surrender from parole through Police in another offence Therefore out of remission excluding state remission for 4 days per day of late surrender If at present remission is Dot sufficient It would be recovered from remissions likely to be earned by said convict in future Total out of remission 799 X 4 = 3196 days Forfeiture of surety amount of Rs. 500.00 and recovery of amount of Rs 500/- of personal bond from wages or P. D. C. because he has breached parole furlough rule As per the provisions of Rule 1285 of the Bombay Jail Manual punishment of forfeiture of remission in excess of 15 days is required to be confirmed by the Inspector General of Prisons. According to the respondents the Inspector General of Prisons has exercised the powers under Rule 1285 of Bombay Jail Manual and has passed order confirming the punishment imposed upon the petitioner by the Superintendent of Jail with modification. The I. G. Prisons has passed order on 22/02/1989 A copy of the order passed by the I. G. Prisons has not been placed on record but it has been shown to us by the learned Counsel appearing for the respondents from the file of the Jail autho- rities. As per the modifications made by the I. G. Prisons the punishment for overstate of 799 days is reduced from 3196 days to 906 days. Rest of the order passed by the Superintendent of Jail has not been disturbed by the I. G. Prisons. It is against the aforesaid order of I. G Prisons that the present petition is filed by the petitioner-Prisoner.

(3.) Several contentions have been raised challenging the legality and validity of the order of punishment imposed by the Jail authorities. The contentions raised are (i) punishment is excessive (ii) Rules of Maharashtra State will be applicable to the case of the petitioner and not the Rules framed by the State of Gujarat and since the decision is taken as per the provisions applicable to the State of Gujarat the decisions is illegal and void (iii) that no cumulative punishment can be awarded in view of the provisions of Sec. 48A of the Prisons Act 1894 (iv) that Sec. 52 of the Prisons Act provides that punishment cannot be for a period of more than one year and therefore punishment at the most should be limited upto a period of one year and (v) that the concurrence of I. G. Prisons Maharashtra should have been obtained before imposing the punishment and the concurrence of I. G. Prisons Gujarat would not be sufficient. All these contentions raised by the learned Counsel for the petitioner are not required to be gone into in details inasmuch as the petition is capable of being despised of on the short ground that the petitioner has not been afforded an opportunity of being heard before confirming the imposition of punishment as required under Rule 1285 of Bombay Jail Manual reads as follows: