ORAL JUDGMENT

J.A.Patil, J.

The petitioner, who is a convict, undergoing life imprisonment has filed this petition under Article 226 of the Constitution of India challenging the order of the Superintendent, Yerawada Central Prison (Respondent No.1) awarding him the punishment to cut 5 days remission for each day of the petitioners over stay with a further punishment of excluding the petitioner from remission system. The petitioner has also impugned the decision of the State (Respondent No.1) to release him after completion of 20 years of imprisonment including remissions. For proper appreciation of the prayers, a few relevant facts would be necessary:-

2.By an order dated 23rd May, 1980 passed by the Additional Judge, Mumbai in Sessions Case No.126 of 1979 the petitioner was convicted for the offence punishable under section 302 of the IPC and sentenced to suffer imprisonment for life. Accordingly, the petitioner has been serving out the sentence of life imprisonment imposed on him. According to the petitioner, in the month of October, 1984, death occurred to his mother at village Arangoo, Taluka Lanja, Dist. Ratnagiri. He was therefore released on Parole for three days. However, since the parole of three days was not sufficient, the petitioner applied for extention. The petitioner has further stated that at about the same time his father was seriously ill and was required to be taken to Mumbai for check up and treatment. The petitioner therefore could not surrender to the jail authorities. According to him, he was staying with his sister at Tardeo, Mumbai. He was arrested by the police on 16.7.87 and brought to Yerawada Central Prison.

3.The petitioner has stated that by way of punishment for his over stay, remission of 5 days for each day of his over stay was cut. In addition to his punishment, he was also excluded from the remission system. According to the petitioner, his case falls under the category 3(a) of the guidelines relating to premature release and as such, he is required to undergo 24 years imprisonment including remissions. However, the respondents have classified his case as one falling under Category No.6 which would require him to undergo imprisonment of 28 years including remissions. The petitioner has contended that the above mentioned punishments awarded to him are arbitrary and unreasonable besides they amount to double punishment. He has therefore prayed for the above mentioned reliefs.

4.On behalf of the respondents, Shri A.A.M. Sayyed, Jailor of the Yerawada Central Prison, Pune has filed his affidavit and stated that on 17th November, 1984 the petitioner was released on four days parole on account of the death of his mother and he was supposed to surrender himself on 22nd November, 1984. The petitioner however did not surrender within the prescribed time and over stayed for a period of 815 days until he was arrested by the police on 15th February, 1987. Shri Sayyed has further affirmed that as per the rules, the petitioner was awarded punishments by way of cut of 5 days remission for each day of over stay. Thus, the total remission which was liable to be out was calculated as 815 x 5 = 4075 days. It is pointed out that the total remission of 1213 days was available at the credit of the petitioner. But, out of the same the State remission cannot be curtailed. Hence, remission of only 508 days was cut. It is further affirmed that since no remission is available at the credit of the petitioner for inflicting the above mentioned punishment, he was removed from the remission system as provided under the rules. Sayyed has pointed out that the said punishment awarded to the petitioner was duly sanctioned by the Deputy Inspector of Prison as well as the District and Session Judge, Pune. It is further pointed out that the petitioners case has been categorised in clause 6(A) of the guidelines and the Government has passed an order that the petitioner should be released on completion of 28 years of imprisonment including of remissions subject to the actual imprisonment of 14 years. Lastly, Shri Sayyed has stated the petitioner is not entitled for ordinary remission and that on 20th August, 1997 the petitioner has completed the total imprisonment of 21 years, months and 12 days including remissions.

5.We have heard Shri Madhav Jamdar, the learned advocate for the petitioner and Shri Mahispurkar, the learned A.P.P. for the State. The petitioner claims that his case falls under Category 3(a) and as such he is entitled to be released after completion of 22 years imprisonment including remission. The respondents on the other hand have pointed out that since the petitioner has absconded while on parole, his case falls under Category 6(A) of the guidelines and as such he can be released only on completion of 28 years of imprisonment including remission. The petitioner has also a strong grievance about the cut of remissions available to him. In this respect, it will be useful to refer to Rule No.2 of the Statutory Rules made by the Inspector General of Prisons in exercise of his powers under section 11(1) of the Prisons Act, 1994. Rule 2 reads as under :

"In each case of late surrender from furlough or breach of any of the condition of parole, the punishment mentioned below or specified in section 48-A of the Act may be awarded by the Superintendent as his discretion with due regard to the circumstances of the case and after obtaining the prisoners explanation and the prior approval of the Inspector General or the Deputy Inspector General if required under clause 1. If the Superintendent is satisfied that the contravention was for good or sufficient reasons, he may excuse the prisoner.

(a)A maximum cut of 5 days remission for each day of over-stay provided that, where the prisoner has not sufficient remission to his credit he shall cease to earn remission for such period as the Superintendent may direct.

(b)Stoppage of canteen concession for a period of not less than one month, but not more than three months.

(c)Withholding concession of either interviews or letters or both for a period not exceeding three months.

(d)In cases of furlough, the furlough period not to be counted for shortening the sentence."

6.Admittedly, the petitioner had over-stayed for 815 days when he was granted parole of only 4 days. It therefore appears that the punishment of cut of 5 days remission for each day of over-stay with a further disqualification from earning remission is in accordance with the Clause (a) of Rule 2. It is however material to note that the punishments provided by Rule 2 are within the discretion of Superintendent of Jail. Similarly, the punishment of cut of 5 days remission for each day of over-stay is a maximum cut provided by the rule. It is therefore within the discretion of the Superintendent of Prison to cut the remission at the rate less than 5 days for each day of over-stay.

7.The Government of Maharashtra has issued an order dated 12.9.95 regarding the release of the petitioner. It reads as under :

"No.RLP.1095/6/163/PRS-3. In exercise of the powers conferred by sub-section (1) of section 432 of the Code of Criminal Procedure, 1973 (2 of 1974) and of all other powers enabling it in this behalf, the Government of Maharashtra hereby remits that portion of the sentence of imprisonment for life which is in excess of 28 (Twenty eight) years of total imprisonment, including all remissions, subject to the completion of actual imprisonment of 14 years, in the case of prisoner No.C-2836 Vithal alias Bhai Khanduji Dalvi undergoing imprisonment in the Yeravada Central Prison, Pune subject to the condition of the said prisoners good behaviour and conduct in prison till the time of his release, if the said condition is accepted by the said Prisoner."

It appears that the available remission of 508 days is already cut and the petitioner has ceased to earn any further remission which can be cut of towards the remaining period of his over-stay.

8.Shri Jamdar, the learned advocate for the petitioner contended that the petitioner is subjected to three punishments for the single lapse of over-stay. This, according to him, is arbitrary and unreasonable. In support of his submission, Shri Jamdar relied upon an unreported decision of a Division Bench comprising of Puranik & E.D.D.S. Da Vilva, JJ. given on 8.10.92 in Criminal Writ Petition No.644 of 1992 in the case of Dnyandeo Sidhu Pote Versus The State of Maharashtra. In that case, the facts were that the convict was undergoing sentence of life imprisonment and he was transferred to open jail at Paithan. It appears that the said convict had on one day gone beyond the premises of open jail in order to visit a nearby temple. He was, however immediately caught and later on prosecuted for committing an offence u/s. 224 of the IPC. He was sentenced to suffer imprisonment for 3 Months on the charge of escaping from Jail. The case of the said convict fell in Category No.2 (a) or 2(b) of the Guidelines for premature release depending upon the fact whether the murder committed by him was with or without pre-meditation. However, because of his act of escaping from jail, his case was classified as one falling under Category 6 which would have required him to undergo imprisonment of 24 years inclusive of remissions. The said convict suffered 3 punishments for his lapse of escaping from the jail. The first punishment was that he was prosecuted, convicted and sentenced to suffer rigorous imprisonment for 3 months. The second punishment was the cancellation of remission earned by him and the third punishment was that his case was classified into Category No.6(a) of the escapes whereby his period of incarceration was increased from the maximum period of 18 years under Category 2(b) to a period of 24 years under Category 6(a). The Division Bench considered this position and made certain observations which hold good in the instant case also.

9.The observations made by the Division Bench are as under :

"We have no hesitation to hold that this is nothing but a case of double jeopardy inflicted upon the petitioner-convict. Article 20 sub-clause 2 of the Constitution also proclaims that no person shall be prosecuted and punished for the same offence more than once. The contention of the respondent that only the imprisonment of rigorous imprisonment for three months is the only punishment imposed upon him while the two disciplinary actions are no punishments and cannot be sustained in as much as the convict has to undergo the longer period sentence which he was not otherwise required to but for the act of escaping from the jail. Thus, for the same act of escaping from the jail the convict has been sentenced to suffer rigorous imprisonment for three months and is also required to suffer additional incarceration for the period of over six years besides the fact that the remissions earned have been reduced. In our opinion, therefore, the orders of reduction of remissions on the ground of incident dated 8.5.1988 and the order classifying the case of the convict-petitioner into category 6 of the Escapes are unjust after having imposed upon him the punishment under section 224 of the Indian Penal Code also. The same are hereby quashed and set aside."

10.It is material to note that in the instance case there was no prosecution nor there could be any, of the petitioner for having over-stayed outside the jail by committing breach of the condition of parole. The punishment of cut of 5 days remission for each day of over-staying and exclusion from remission system has been in accordance with Rule 2(a) mentioned above. Therefore, we do not think that the petitioner can find any fault with the said punishment. However, we are of the opinion that changing the category of the petitioner from category No.3(a) or (b) to category No.6(a) of the guidelines amounts to double punishment for the same lapse for which he has lost his remissions. This, in our opinion is not proper and correct. Therefore, following the ratio of the decision in the case of Dnyandeo Sidhu Pote Vs. The State of Maharashtra, we set aside the order dated 12.9.95 passed by the Government and direct the respondents to classify the petitioners case either in Category 3(a) or 3(b) depending upon whether the murder in question was with or without pre-meditation and, accordingly, release the petitioner as and when he completes the requisite period of imprisonment with remissions, if any.

11.Rule is accordingly made absolute.