Bombay High Court: Setting aside an order of the lower court which had penalized a life convict who had jumped parole, a bench comprising of Hon’ble A.S. Oka and S. C. Gupte JJ., held that it was a ruling given without ‘application of mind’ as the judge had not given any reasons on judicial consideration of the material on record. The Court deprecated the practice of giving orders on printed performas by just filing in blank spaces and not recording any reasons for awarding the penalty. In the present case, the petitioner was a prisoner serving his sentence in Yerwada Jail, Pune. He was released on parole and could not surrender in time as he was required to look after his ailing father who was suffering from paralysis. He was given a show-cause notice after being arrested again and subsequently as a penalty his remission for 515 days was cancelled and he was removed from the remission system for 10 years. The lawyer for the petitioner contended that the order was passed on a readymade printed proforma with gaps filed therein and that there was no consideration to the reply to the show-cause notice submitted by the prisoner. The High Court held that the order suffered from infirmities as such a ‘drastic order’ was passed in a casual manner. Setting aside the impugned order, the judges held that ‘non-application of mind’ is writ large on the face of the impugned order and directed the Competent Authority to pass a fresh order after a fresh judicial appraisal by the learned Sessions Judge. [Kishor Jairam Vaity vs. State of Maharashtra, Criminal Writ Petition No. 216 of 2013, decided on 24th December, 2013]
.
By this petition under Article 226 of the Constitution of
India, the Petitioner is challenging the order dated 3 rd December, 2002
(Exhibit “F” to the Petition). The Petitioner was convicted by Judgment
and order dated 15th May, 1992 for the offence punishable under
Section 302 of the Indian Penal Code, 1806 and was sentenced to suffer
imprisonment for life. The Appeal preferred by the Petitioner to this
On 21st January, 1997, the Petitioner was released on
2.
Court was dismissed on 7th December, 1994.
parole. According to the case of the Petitioner, the period of parole was
extended from time to time which expired on 20 th April, 1997.
According to the case of the Petitioner, he could not surrender as he was
required to look after his ailing father who was suffering from paralysis.
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On 8th December, 2001, the Petitioner was arrested and taken to the
prison. A show cause notice was issued on 11 th December, 2001 by
which the Petitioner was called upon to show cause as to why he should
not be penalised for committing breach of the terms and conditions on
which parole was granted. The Petitioner replied to the show cause
notice on 18th December, 2001. By order dated 3 rd December, 2002, the
Petitioner was penalised by cancelling his remission for 515 days and
the Petitioner was ordered to be removed from remission system for a
period of ten years. The challenge in this Petition is to the said order
dated 3rd December, 2002.
3.
The first submission of the learned counsel appearing for
the Petitioner is that the impugned order has been passed in a ready
made format after filling in gaps left therein. He submitted that this
Court has repeatedly deprecated the practice of passing such orders. He
placed reliance on a decision of this Court dated 15 th February, 2013 in
Criminal Writ Petition No.2491 of 2012 (Shafi Vazruddin Qureshi
Vs. State of Maharashtra and others). This Court has deprecated the
practice of use of readymade printed proformas. He urged that the
order of appraisal passed by the learned Sessions Judge must be a
speaking order. The learned APP submitted that there is a gross delay in
approaching this Court inasmuch as the orders passed in 2002 are
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sought to be challenged after 10 or more years. He, therefore,
4.
submitted that no case for interference is made out.
We have carefully considered the submissions. It is true
that there is a delay in approaching the Court. However, the Petitioner
is a prisoner undergoing life sentence. The impugned order is an order
of drastic nature by which not only his remission for 515 days has been
cancelled, but he has been removed from the remission system for a
period of 10 years. The impugned order affects the rights of the
Petitioner inasmuch as the said order will adversely affect the Petitioner
when his case is considered for a premature release. There is one more
reason why this is a fit case to interfere. The impugned order has been
passed by using a readymade printed proforma with blank spaces.
While passing order, only blanks have been filled in. The practice of
passing such orders is repeatedly deprecated by this Court. There was a
detailed reply filed by the Petitioner to the show cause notice. There is
only a passing reference to the said reply in the order. In the said order,
there is no consideration of the reply. Such a drastic order passed
affecting the Petitioner suffers from nonapplication of mind. The order
has been passed in a causal manner affecting liberty of an individual.
Therefore, the impugned order deserves to be set aside only on these
grounds.
In terms of the judgment and order dated 5th September,
5.
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2008 passed by the Division Bench of this Court at Nagpur Bench in
Criminal Writ Petition No.283 of 2006 (Sk. Jakir Shaikh Babu Vs.
State of Maharashtra), guidelines for imposing the punishment have
been laid down which read thus :
“(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.
The order of higher punishment may be implemented
(5).
after following steps (1) to (4).”
6.
We must note here that when the learned Sessions Judge
makes judicial appraisal of the proposed penalty to be inflicted on the
prisoner, the learned Sessions Judge is expected to apply his mind to the
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material on record. He must record brief reasons after consideration of
the record. Only after a reasoned order of appraisal is passed by the
learned Sessions Judge that the punishment can be imposed.
7.
In the present case, nonapplication of mind is writ large on
the face of the impugned order. We, therefore, set aside the impugned
order with a direction to the Competent Authority to pass a fresh order
after a fresh judicial appraisal by the learned Sessions Judge.
Accordingly, we pass the following order :
ORDER
(i)
The impugned order at Exhibit “F” is quashed and set
aside;
(ii)
Fresh order shall be passed by the concerned authorities
in the light of observations made in this Judgment and
Order. While sending the file to the learned Sessions
Judge for judicial appraisal, a copy of this Judgment and
Order shall be also forwarded to the learned Sessions
Judge;
(iii) A fresh order shall be passed by the concerned
All contentions on merits are kept open.
(iv)
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authorities within a period of three months from today;
( A.S. OKA, J )
( S.C. GUPTE, J )