Shri Ranjit Singh S/O Pretima ... vs The State Of Maharashtra And Ors.
2002 Latest Caselaw 243 Bom

JUDGMENT

S.S. Parkar, J.

1. Rule.

By consent Rule is made returnable forthwith, Shri Jadhav, learned A.P.P. waives service on behalf of the Respondents.

Heard both sides at length.

2. This is an instance of citizen suffering longer period of imprisonment due to the wrong interpretation of the provisions of law or ignoring or being in ignorance of the law laid down by the Supreme Court which is binding on all Courts under Article 141 of the Constitution and is enforceable through out the territory of India under Article 142 of the Constiution.

3. The Petitioner has filed this petition for his release from imprisonment, which he is undergoing for his conviction under Section 302 of Indian Penal Code, as he had long back undergone that sentence in accordance with law. The petitioner was acquitted by the Sessions Court in a murder trial in November, 1977. The order of acquittal was challenged in Criminal Appeal No. 490 of 1978 by the State. The High Court allowed the said appeal against the order of acquittal by the judgment and order dated 16.10.1981 and convicted the petitioner under Section 302 of Indian Penal Code and sentenced him to undergo life imprisonment. The said conviction order was challenged by the Petitioner in Supreme Court by filing Appeal No. 4 of 1982 which came to be dismissed at the final hearing stage on 4.2.1993. During the pendency of the appeal in the Supreme Court, the Petitioner was released on bail on 21.1.1982 and again was taken into custody on 5.2.1993 after the confirmation of the conviction by the Supreme Court.

4. The petitioner had filed writ petition in this Court being Criminal Writ Petition No. 209 of 2000 for his release on the ground that he had undergone the sentence in accordance with Section 433 of Criminal Procedure Code and the Government Circular dated 16.11.1978, addressed to the Inspector General of Prisons, State of Maharashtra. Under the said Circular, the life imprisonment was considered to be of 14 years including remissions. It was contended on behalf of the Petitioner in that petition that the case of the Petitioner was not governed by the amended provision of Section 433-A of Criminal Procedure Code, under which the life convict has to undergo actual imprisonment of 14 years exclusive of remissions. The learned Additional Public Prosecutor made a statement that the State Government will consider the case of the petitioner within time bound frame and, therefore, this Court by the order dated 11.8.2000 disposed of the petition by directing the respondent-State to consider and decide the petitioner's case at the earliest where he had undergone the sentence as per law and in case he had completed imprisonment he will be released forthwith. Pursuant to the said order, the case of the petitioner was considered and communication was addressed to the petitioner on 1.11.2000 informing him that his case was governed by amended Section 433-A of Criminal Procedure Code, under which he had to undergo actual imprisonment of 14 years. Copy of the said communication is annexed at Exh. 'C' to this petition. Dissatisfied with the said decision of the State, the petitioner has filed this present petition in this Court, contending that his case would be governed by provision of Section 433 of Criminal Procedure Code, which as per the Government Circular, referred to above, would mean that the convict has to undergo 14 years of imprisonment inclusive of remissions which he earns.

5. Reply affidavit dated 25.2.2002 is filed by Shivdas Motiram Deore, Jailor, Grade II, Aurangabad Central Jail. In the said affidavit, Government has reiterated its stand that provision of amended Section 433-A of Criminal Procedure Code is applicable. However, Exh. R-1 annexed to the said petition gives the particulars of period actually undergone by the petitioner convict and the period of remissions earned by him during his imprisonment. As per the said Annexure by 31.1.2001, the Petitioner had actually undergone a period of 9 years 2 months 28 days and with remissions he is deemed to have undergone imprisonment of 17 years 9 months 12 days.

6. The question, therefore, which arises in this petition is whether the provisions of amended Section 433-A of Criminal Procedure Code would govern the case of the Petitioner.

7. The learned advocate Mrs. Gaikwad appearing for the Petitioner relying on the judgment of the Constitutional Bench of the Apex Court in the case of Maru Ram v. Union of India contended that the petitioner's case is governed by Section 433 of Criminal Procedure Code and not by the amended provision of Section 433-A of Criminal Procedure Code. The amended provision of Section 433-A of Criminal Procedure Code came into force on 18.12.1978. Stand of respondent State is that since the petitioner was convicted by order of the High Court dated 16.10.1981 Section 433-A would be applicable.

8. In the abovesaid judgment, the Supreme Court has in clear terms held that the amended provision of Section 433-A is applicable prospectively and not retrospectively. It is further held that the amended provision would not be applicable to a case where the convict was acquitted by the Trial Court before the amended provision came into force but convicted in appeal against acquittal by the High Court after the amendment came into effect. The observations of the Supreme Court in para 56 of the above judgment deserve to be quoted.

56 We are mindful of one anomaly and must provide for its elimination. If the Trial Court acquits and the Higher Court convicts and it so happens that the acquittal is before Section 433-A came into force and the conviction after it, could it be that the convicted person would be denied the benefit of prospectively and consequential non-application of Section 433-A merely because he had the bad luck to be initially acquitted? We think not. When a person is convicted in appeal, it follows that the Appellate Court has exercised its power in the place of the original Court and the guilt, conviction and sentence must be substituted for and shall have retroactive effect from the date of the judgment of the Trial Court. The appellate conviction must relate back to the date of the Trial Court's verdict, and substitute it. In this view, even if the Appellate Court reverses an earlier acquitted rendered before Section 433-A came into force but allows the appeal and convicts the accused, after Section 433-A came into force, such persons will also be entitled to the benefit of remission system prevailing prior to Section 433-A on the basis we have explained. Boucher Pierre Andre v. Supdt., Central Jail, Tihar . An appeal is a continuation of an Appellate Judgment as a replacement of the original judgment.

The above dictum of the Supreme Court does not leave any doubt that amended provision of Section 433-A of Criminal Procedure Code is not applicable to the case of the petitioner who was acquitted by the Trial Court in November, 1977 before the amended provision of Section 433-A of Criminal Procedure Code came into force and, therefore, the subsequent conviction by the High Court in appeal against acquittal on 16.10.1981 related back to the date of order of the Trial Court acquitting the petitioner convict in November, 1977. If the case of the petitioner is governed by Section 433 of Criminal Procedure Code and is covered by the Government Circular dated 16.11.1978, going by the reply affidavit filed on behalf of the respondent-State, the petitioner has undergone his life imprisonment long ago and, therefore, is entitled to be released forthwith.

9. The petitioner has been in custody for a period of 17 years 9 months 12 days including remissions as against the period of 14 years of imprisonment, he was liable to undergo under law. The petitioner has suffered this imprisonment for longer period than he was liable to be in custody due to the obvious error on the part of the State. The petitioner had to knock the doors of this Court in writ jurisdiction twice for the same reason. Smt. Gaikwad, learned Counsel for the petitioner submits that compensation should be paid to the petitioner for keeping him in custody for long period than due under law. The opportunity has to be afforded to the other side for being heard on that point as in the petition no express claim was made in that behalf. The petitioner may claim the compensation by adopting separate proceedings in that respect if it is open to him. The petitioner is, under law, however, entitled to be awarded costs, for this laxity on the part of the State, as there was clear violation of the right of the prisoner and was illegally kept under detention for longer period than permitted by law inspite of his previous petition.

10. In the result, this petition is allowed and the respondents are directed to release the petitioner forthwith from the custody and set him at liberty if not required in any other crime. The State is directed to pay costs of Rs. 10000/- to the petitioner. Rule is made absolute accordingly.