Chh HC | Does forfeiture of earned remission of a convict without giving reasonable opportunity of hearing would amount to violation of fundamental right under Art. 21 Constitution of India? HC observes

Chhattisgarh High Court

Chhattisgarh High Court: Sanjay K Agrawal J., allowed the petition and held that forfeiture of earned remission of a convict is violative of fundamental rights under Article 21 of the Constitution of India.

The facts of the case are such that the petitioner is a convicted prisoner undergoing sentence in Central Jail, Bilaspur for commission of offences under Sections 302, 307 and 149 of Penal Code, 1860. It was alleged that petitioner was found in possession of prohibited article, a prison offence under Section 45 of the Prisons Act, 1894, the Octagon Officer submitted his report to the Jailor, made a recommendation to the Jail Superintendent which was then simply approved by the Jail Superintendent on the same date and as such, the order of forfeiture of 10 days of petitioner’s earned remission was passed. The petitioner has assailed the said order on the ground that such forfeiture of his earned remission, without affording him an opportunity of hearing, is in violation of his fundamental right guaranteed under Article 21 of the Constitution of India.

Counsel for the petitioner submitted that remission forfeited by the Jail Superintendent on account of a prohibited article found in possession of the petitioner, which is a prison offence under Section 45(12) of the Prisons Act, 1894, is absolutely unjust and improper and is in violation of petitioner’s fundamental right under Article 21 of the Constitution of India as no enquiry was conducted by the Jail Superintendent as contemplated in Rule 734 of Chhattisgarh Prisons Rules, 1968 nor the petitioner was afforded an opportunity of hearing in that enquiry, as such, the impugned order passed by the Jail Superintendent deserves to be set aside.

Counsel for the respondents submitted that the impugned order and submit that the instant petition deserves to be dismissed.

Amicus curiae relied on judgment Anand Rao v. Inspector General of Prisons, 1982 MPLJ 73 (DB) and submitted that without following the due procedure as prescribed in Rule 734 of Chhattisgarh Prisons Rules, 1968, petitioner’s earned remission could not have been forfeited.

The Court relied on judgment Sunil Batra v. Delhi Admn., (1978) 4 SCC 494 and observed, it is quite vivid that in the instant case, the enquiry has only been made by the Octagon Officer and the report has been submitted to the Jailor, who has then recommended forfeiture of petitioner’s 10 days of earned remission to the Jail Superintendent, but without giving an opportunity to the petitioner to explain his conduct, penalty of forfeiture of earned remission has been imposed upon him by the Jail Superintendent as he agreed to the recommendation made by the Jailor for forfeiting 10 days of remission earned by the petitioner.

The Court thus held that no such opportunity has been granted to the petitioner to explain his conduct and even otherwise, no enquiry was conducted by the Jail Superintendent while forfeiting petitioner’s earned remission as pursuant to the recommendation made by the Jailor, petitioner’s 10 days’ earned remission has been forfeited, which is violative of petitioner’s fundamental right guaranteed under Article 21 of the Constitution of India.

In view of the above, petition was allowed.[Suraj Gupta v. State of Chhattisgarh, 2021 SCC OnLine Chh 448, decided on 26-02-2021]


Arunima Bose, Editorial Assistant has put this story together.

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