Chintaman Sitaram Kedari vs The State Of Maharashtra
2011 Latest Caselaw 21 Bom

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           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                CRIMINAL APPELLATE JURISDICTION




                                                 
             CRIMINAL WRIT PETITION NO. 2083 OF 2011




                                                
     Chintaman Sitaram Kedari,
     Aged 62 years, Occu. Nil,
     residing at Village Pargaon,Taluka Panvel,
     Dist. Raigad
     (confined at Yerwada Central Prison, Yerwada,




                                     
     Pune 411 006)                                                   ...Petitioner

                  V/s.
                         
     1. The State of Maharashtra
                        
     (through Principal Secretary, Home & Prison,
     Government of Maharashtra, Mantralaya,
     Mumbai 400 032                                              ...Respondents

Mr. N.N. Gavankar with Mr. Arfan Sait for the Petitioner

Mr. P.S. Hingorani, A.P.P., for the State

CORAM: A.M. KHANWILKAR AND P.D. KODE, JJ DATE: NOVEMBER 9, 2011.

JUDGMENT (PER A.M. KHANWILKAR, J.):-

This petition under Article 226 of the Constitution of India

has been filed by the convict, who is in jail in connection with offence

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punishable under Sections 452, 302 read with 149 of the Indian Penal

Code, undergoing term of life imprisonment. The petitioner was

arrested in connection with the said offence on 18th November, 1995.

He was convicted by the Sessions Court, Raigad, and sentenced to

undergo life imprisonment. According to the petitioner, he has

completed actual 14 years of sentence on 1st June, 2010. His request

for premature release should have been granted by the Authorities,

more so because the co-accused in the same case, Shankar Ram

Mhatre, was ordered to be released on completion of 14 years of actual

imprisonment vide order passed by the Home Department, Government

of Maharashtra, dated 4th January, 2011.

2. Considering the limited controversy brought before us, it

is not necessary to advert to other factual matrix leading to the filing of

this petition. The petition, filed on 19th July, 2011, was primarily based

on the ground that the petitioner should also have been released

prematurely as ordered in the case of co-accused, Shankar Ram

Mhatre, following the dictum of this Court in the case of Mahendra

Tarachnd Varsale v. State of Maharashtra & Anr. in Criminal Writ

Petition No. 996 of 1977 decided on December 15, 1997, which was

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followed in the case of Laxman Shavaru Kale v. State of

Maharahstra & Anr. in Criminal Writ Petition No. 1712 of 2010.

3. According to the petitioner, the principle stated in the

above-stated decisions applies on all fours to the case of the petitioner.

However, it is noticed that, on the date on which this petition was filed

praying for declaration that the continued detention of the petitioner is

illegal and unlawful on and from 5th January, 2011 and for which

reason, the respondents should be ordered to release the petitioner

from prison forthwith, the Competent Authority, i..e, Additional

Secretary, Home Department, Government of Maharashtra, vide order

dated 19th July, 2011, re-considered the proposal of the petitioner and

opined that, as regards the case of co-accused, Shankar Ram Mhatre, he

had already completed 23 years and 8 months of sentence, including

remission, whereas the petitioner has undergone only 17 years, 11

months and 21 days of sentence, including remission. Further, the

petitioner can be considered for premature release on completion of 22

years of sentence, including remission, as per clause 4(b) of the

Guidelines dated 15th March, 2010. In other words, the co-accused was

ordered to be released, as he had already completed 22 years of

sentence period, including remission, in connection with the said

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offence. As a result of this order, the petitioner has amended the

petition, and has now prayed for quashing and setting aside the said

order dated 19th July, 2011 on the further grounds incorporated in the

Writ Petition.

4. The principal question that needs to be addressed in this

case is: Whether the petitioner has been rightly categorised as covered

by clause 4(b) of the Guidelines of 2010. As regards that question, we

find that there is no challenge, that the petitioner has been convicted in

connection with the offence punishable under Sections 452 and 302

read with 149 of the I.P.C. for having caused death. Considering the

circumstances in which the offence was committed by the accused

named in the said case in which the petitioner was named as accused

No. 18, no fault can be found with the decision of the Authorities to

place him under clause 4(b) of the Guidelines of 2010. As per the said

Guidelines, the convict is required to undergo total 22 years of sentence

period, including remission, with at least 14 years of actual

imprisonment. From the decision of the Appropriate Authority dated

19th July, 2011, it is amply clear that, as regards co-accused Shankar

Ram Mhatre, he had already completed more than 22 years of sentence

period, including remission, as required by clause 4(b) of the

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said Guidelines, i.e., more than 23 years and 8 months of sentence. It

is for that reason he was ordered to be released by the Competent

Authority vide order dated 4th January, 2011. As regards the petitioner,

it has been found that, till 25th May, 2011, the petitioner has undergone

only 17 years, 11 months and 21 days of imprisonment, including

remission. Since that was less than 22 years of imprisonment,

including remission, as specified by clause 4(b) of the Guidelines of

2010, the Appropriate Authority was justified in concluding that the

case of the petitioner can be considered for premature release only

upon completion of 22 years of imprisonment, including remission

period, subject to fulfilment of other requirements under the

Guidelines. No fault can be found with the said opinion recorded by

the Appropriate Authority. In that view of the matter, it is not a case of

discrimination as was pleaded by the petitioner.

5. According to the petitioner, several important points have

been overlooked, such as (1) the applicability of clause 4(b) of the 2010

Guidelines, (2) the respective roles of co-accused Shankar Ram

Mhatre, on the one hand, and that of the petitioner, on the other hand,

(3) the role of Shankar Ram Mhatre was prominent, whereas the role of

the petitioner was only that of exhorting, (iv) Shankar Ram Mhatre had

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shot down the deceased with his own gun, whereas the petitioner was

exhorting, (v) the principle of common intention cannot be extended

while applying Guidelines for premature release, (vi) the period of

actual imprisonment undergone by Shankar Ram Mhatre and the

petitioner is equal, (vii) the remissions earned by Shankar Ram Mhatre

are more because he was physically fit to travel to open prison, where

they earn 390 days of remission per annum, whereas the petitioner was

unfit for travel, being diabetic, having numbness in left hand, lost one

finger and having lost sight of one eye.

6. The counsel for the petitioner, after closure of the

arguments, had filed a praecipe praying for permission to amend the

Writ Petition or to allow the petitioner to withdraw the petition and file

fresh petition. As regards the request for permitting the petitioner to

amend the petition to urge further grounds, ordinarily, we would not

have declined that request. But, in this case, even if we were to allow

the petitioner to urge the abovenoted points, which have not been

specifically taken in the Writ Petition, the question is: Whether that

can be the basis to grant any relief to the petitioner in the context of

the exercise of power by the Appropriate Authority under Section

432 (1) of the Code of Criminal Procedure and other enabling powers

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thereunder? It is well-established position that the convict does not

have right of premature release. His only right is to be considered for

premature release as and when he becomes eligible in that behalf as per

the extant Regulations. The proposal of premature release of convicts

is required to be examined, keeping in mind the parameters specified in

Sections 432, 433 and 433-A of the Code read with the Guidelines

issued by the State Government from time to time. A convict can be

released prematurely only upon fulfilment of all stipulations contained

in the aforesaid provisions and the relevant Guidelines. As per the

mandate of the provisions of the Code, no convict can be prematurely

released until completion of actual 14 years of imprisonment. Besides,

the prisoner has to fulfil all other parameters specified in the Guidelines

issued by the State Government as may be applicable to his case.

No doubt, the petitioner in this case has completed 14 years of actual

imprisonment, but that, by itself, is not sufficient to release him

prematurely. He is required to fulfil other criteria specified in the

applicable Guidelines, inter alia, the Guidelines of 2010. His case has

been categorised as covered by clause 4(b) thereof. As already held by

us, we do not find any infirmity in the said categorisation, considering

the background and circumstances in which the offence in question

was committed by the accused persons.

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7. The fact that the petitioner was denied opportunity of

being sent to open prison which would have enabled him to earn higher

remission period or that there are other compassionate circumstances

such as he has already become senior citizen, having attained the age of

62 years, or has lost complete vision of his right eye and only has 40%

vision in his left eye, and that he has lost middle finger of the right

hand and was suffering from numbness of his left-hand because of

being highly diabetic or that his wife has suffered paralytic stroke and

is completely bed-ridden - these circumstances cannot be the basis to

overlook the stipulation of minimum sentence period specified in the

Code and the Guidelines applicable to the case of the petitioner. As

aforesaid, as per the said Guidelines, the petitioner will have to undergo

minimum sentence period of 22 years, including remission. That

cannot be dispensed with or overlooked by the Authorities while

deciding the proposal in exercise of powers under Section 432 of the

Code. It is only after the petitioner completes the required sentence

period of 22 years, including remission, he would be entitled for

consideration of his proposal for premature release, and not earlier to

that. Even after completion of 22 years of imprisonment, including

remission, the petitioner will have to fulfil other requirements specified

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by the extant Regulations and the Appropriate Authority will have to

take into account all those matters before exercising discretion in

favour of the petitioner. As observed by the three Judges Bench of the

Apex Court in its decision rendered in the case of State of Haryana &

Ors. v. Jagdish - (2010) 4 SCC 216, in particular paragraphs 46 to 48,

the Authority will have to weigh all matters before taking a final

decision on the proposal. The said paragraphs read thus:-

"46. At the time of considering the case of pre-mature release of a life convict, the authorities may require to consider his case mainly taking into consideration whether

the offence was an individual act of crime without affecting the society at large; whether there was any chance of future recurrence of committing a crime; whether the convict had lost his potentiality in committing the crime; whether there was any fruitful purpose of confining the convict any more; the socio-economic condition of the convict's family and

other similar circumstances.

47. Considerations of public policy and humanitarian impulses - supports the concept of executive power of clemency. If clemency power exercised and sentence is remitted, it does not erase the fact that an individual was

convicted of a crime. It merely gives an opportunity to the convict to reintegrate into the society. The modern penology with its correctional and rehabilitative basis emphasis that exercise of such power be made as a means of infusing mercy into the justice system. Power of clemency is required to be pressed in service in an appropriate case. Exceptional

circumstances, e.g. suffering of a convict from an incurable disease at last stage, may warrant his release even at much early stage. `Vana Est Illa Potentia Quae Nunquam Venit In Actum' means-vain is that power which never comes into play.

48. Pardon is an act of grace, proceedings from the power entrusted with the execution of the laws, which exempts the individual on whom it is bestowed from the punishment which law inflicts for a crime he has committed. Every

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civilised society recognises and has therefore provided for

the pardoning power to be exercised as an act of grace and humanity in appropriate cases. This power has been exercised in most of the States from time immemorial, and

has always been regarded as a necessary attribute of sovereignty. It is also an act of justice, supported by a wise public policy. It cannot, however, be treated as a privilege. It is as much an official duty as any other act. It is vested in the Authority not for the benefit of the convict only, but for the

welfare of the people; who may properly insist upon the performance of that duty by him if a pardon or parole is to be granted."

8. Suffice it to observe that the petitioner is not right in

contending that his case is similar to that of the case of the co-accused,

who has already been released by the Authorities in terms of order

dated 4th January, 2011 on completion of 14 years, as is contended. It

is, therefore, not a case of having caused any discrimination to the

petitioner while considering his proposal. In that view of the matter,

the dictum in the case of Mahendra Tarachnd Varsale (supra) and

Laxman Shavaru Kale (supra) will have no application to the fact

situation of the present case. We may place on record the argument of

the learned A.P.P. that the petitioner should not be permitted to place

reliance on the aforesaid two unreported orders, as the State

Government has already challenged the decision of this Court in the

case of Laxman Shavaru Kale before the Apex Court, inter alia, on

the ground that the principle of parity cannot be invoked, if it is noticed

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that the order in favour of the co-accused is not legal and proper. To

put it differently, the argument of the learned A.P.P. is that the concept

of equality enshrined in Article 14 of the Constitution is a positive

concept. Article 14 cannot be invoked for perpetuating irregularities or

illegalities. The Court can command the State to give equal treatment

to similarly situated persons; but cannot issue a mandate that the State

should commit illegality or pass wrong order, because, in another case,

such an illegality has been committed or wrong order has been passed.

Thus, even if the petitioner, who has approached the Court, can be said

to be similarly placed, cannot invoke the jurisdiction of the High Court

and seek a direction that the same irregularity or illegality be

committed in his favour by the State or his agencies / instrumentalities.

To buttress this submission, reliance is placed on recent decision of the

Apex Court in the case of Agenda Sports v. Union of India - (2009)

15 SCC 705. We may notice the submission of the learned A.P.P. that

the exposition in the case of Mahendra Tarachnd Varsale is not

correct statement of law. Inasmuch as, in that case, even though the

Court found that, ordinarily, a prisoner is liable to be released from

prison only after completion of the period of sentence, as provided

under the Guidelines framed by the State Government under Section

433 of the Cr.P.C., ordered release of the petitioner on the ground that

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the co-accused in the same case was already released even though he

had not completed the required 24 years of imprisonment, including

remission. In view of the finding already recorded earlier that the

petitioner's case is not similar to that of the case of the co-accused

Shankar Ram Mhatre, it is not necessary to dilate further on this aspect.

9. The next question is: Whether the petitioner should be

permitted to withdraw this petition to enable him to pursue fresh

petition. We have no difficulty in acceding to the request of the

petitioner to permit him to withdraw this petition, but we may make it

clear that the withdrawal of this petition will not entitle the petitioner to

re-agitate the grounds which are relevant and material for examining

the correctness of the decision of the Appropriate Authority dated 19th

July, 2011 passed in exercise of powers under Section 432 of the Code.

However, at the same time, we may notice that it will not preclude the

petitioner to pursue remedy of invoking clemency power of the

President or the Governor under Article 72 or Article 161 of the

Constitution, as the case may be, even before he completes the

incarceration period provided in the Guidelines framed by the State

Government under Sections 432, 433 and 433-A of the Code. The

Apex Court in the case of State of Haryana (supra), has noticed that

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Articles 72 and 161 of the Constitution provide for residuary sovereign

power. Thus, there can be nothing to debar the Authority concerned to

exercise such power, even after rejection of one clemency petition. In

paragraph 38 of the said decision, the Apex Court has observed thus:-

"38. In view of the above, it is evident that the clemency power of the Executive is absolute and remains unfettered for the reason that the provisions contained under Article 72 or 161 of the Constitution cannot be restricted by the

provisions of Sections 432, 433 and 433A Cr. P.C. though the Authority has to meet the requirements referred to hereinabove while exercising the clemency power. To say

that clemency power under Articles 72/161 of the Constitution cannot be exercised by the President or the Governor, as the case may be, before a convict completes

the incarceration period provided in the short- sentencing policy, even in an exceptional case, would be mutually inconsistent with the theory that clemency power is unfettered."

10. In view of the above, the petitioner may be free to take

recourse to the other remedy as may be permissible in law. Whether

the petitioner's case would fall in the exceptional category for exercise

of such power is a matter to be considered in the said proceedings. We

may not be understood to have expressed any opinion, one way or the

other, on the said issue merely because we have permitted the

petitioner to withdraw this petition.

11. In view of the above, the petition is allowed to be

withdrawn with the aforesaid observations.

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12. While parting, we deem it appropriate to call upon the State

Government to disclose as to the outcome of the inquiry held against

the concerned Officers into the premature release of co-accused Francis

Albert Rocha and about the missing file regarding premature release of

the said prisoner as noted in the concluding paragraph of the Judgment

in Mahendra Tarachand Varsale (supra). Further, to disclose

whether any similar action/inquiry has been initiated against the

Officer(s) with regard to premature release of co-accused Ambadas

Shavaru Kale and Shivaji Dhonduram Kale before completion of the

period specified in the applicable guidelines as noted in the order dated

30th August, 2010 in Criminal Writ Petition No.1712 of 2010. That be

disclosed on affidavit to be filed by the Secretary, Home Department.

The proposed affidavit be filed on or before 25th November, 2011. The

matter be notified on 28th November, 2011 before the appropriate

Bench under caption `directions' for reporting compliance.

     P.D. KODE, J.                               A.M. KHANWILKAR, J.