Jagannath Raghunath Shelke vs The State Of Maharashtra
2013 Latest Caselaw 428 Bom

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                IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                              
                      CRIMINAL APPELLATE JURISDICTION
                       WRIT PETITION NO.1485 OF 2013




                                                     
     Jagannath Raghunath Shelke,                      )
     Age : 55 years, At Post-Adai,                    )
     Taluka - Panvel, District Raigad,                )




                                                    
     Prisoner No.-C-470, Old No.C-8882.               )..               Petitioner

            Versus




                                        
     1.     The State of Maharashtra,                 )
            through Principal Secretary,
                         ig                           )
            Home Department, Mantralaya,              )
            Mumbai - 400 032.                         )
                       
     2.     Inspector General of Prisons,             )
            Maharashtra State, Pune.                  )

     3.     The Superintendent,                  )
      

            Yerawada Central Prison,             )
            Pune - 411 006.                      )..                    Respondents
   



            -
     Shri Madhav J. Jamdar for the Petitioner.
     Shri J.P. Yagnik, APP for Respondent Nos.1 to 3.
            --





                                        CORAM  : A.S. OKA & S.C. GUPTE, JJ 


     DATE ON WHICH SUBMISSIONS WERE HEARD :                    4TH DECEMBER 2013





     DATE ON WHICH JUDGMENT IS PRONOUNCED:                     24TH DECEMBER 2013



     JUDGMENT ( PER A.S. OKA, J )

1. On 15th April 1996, the Petitioner was convicted for

committing an offence punishable under Section 302 of the Indian

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Penal Code and was sentenced to suffer imprisonment for life. On 10 th

September 1997, the Petitioner was released on parole. Initial period

of 30 days of parole was extended by a further period of 30 days upto

9th November 1997.

2. The Petitioner did not surrender and was arrested and

brought to jail on 28th June 1999. On 2nd February 2000, the jail

authorities penalized the Petitioner by directing that his name should be

removed from the remission system for a period of 10 years. We must

note here that though the said order has been challenged in this

Petition, in terms of prayer clause (a) of the petition, in view of filing of

a separate Petition earlier for the same relief which was dismissed for

non-prosecution, in light of the order dated 18 th November 2013 passed

by this Court, the said prayer cannot be considered in this Petition.

3. The case made out in the Petition is that the Petitioner was

released on furlough leave on six different occasions. On five such

occasions, the furlough leave was extended by a period of 14 days.

Only in case of the furlough leave granted from 18 th September 2012 to

17th October 2012, the extended period of 14 days furlough leave was

counted as a remission of sentence on the basis of amended Rule 16 of

the Prisons (Bombay Furlough and Parole ) Rules, 1959 ( for short "the

said Rules") which was brought on the Rule book from 23 rd April 2012.

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The only prayer which survives for consideration is the prayer clause

(b) which seeks a direction that in case of earlier furlough granted to

the Petitioner, the extended period of 14 days should be counted as a

remission of sentence.

4. Learned counsel appearing for the Petitioner relies upon a

decision of the Apex Court in the case of State of Haryana and Others v.

Jagdish1. In support of his submissions, he urged that since the

Petitioner has been convicted to undergo life sentence, when his case is

considered for premature release after undergoing actual sentence of 14

years, the remission available as per Rule 16 of the said Rules prevailing

at that time will have to be considered. He, therefore, submitted that

amended Rule 16 of the said Rules will have to be applied even in case

of furlough granted to the Petitioner prior to the date on which the

amended Rule came into force. The learned APP submitted that the

amended Rule 16 of the said Rules will apply prospectively and,

therefore, it will apply only in relation to the extension of furlough

granted after the amended Rules came into force.

5. We have carefully considered the submissions. It will be

necessary to make a reference to the provisions of the said Rules. Rule

16 as amended with effect from 23rd April 2012 reads thus: -

     1 (2010)4 SCC 216



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                 "16. Furlough   to   be   counted   as   remission   of 

sentence:- The furlough period of two weeks and extended furlough of 14 days shall be counted as a

remission of sentence."

6. The Rule which existed prior to the amendment reads thus:

"16. Furlough to be counted as remission of sentence:- The furlough period shall be

counted as a remission of sentence:

Provided that where any furlough period has been extended under Note 4

below rule 3 or under rule 13, the period of extensions shall not be counted as a

remission of sentence."

7. The State Government formulated a policy on 11 th May

1992 for premature release of the life convicts. The prisoners were

categorized on the basis of nature and gravity of offences committed by

them. The modified policy was formulated on 15 th March 2010. As

per the both policies, the case of premature release is considered after

the prisoner actually undergoes sentence for 14 years. The policies

provide for release of prisoners after undergoing sentence for requisite

periods specified therein including remissions.

8. As per the Prisons (Bombay Furlough and Parole ) Rules,

1959, Rule 16 prior to 23rd April 2012 provided that the furlough period

shall be counted as a remission of sentence but the extended furlough

period shall not be counted as a remission of sentence. Now the

amended Rule 16 provides that the furlough period of two weeks and

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extended furlough of 14 days shall be counted as a remission.

9. Thus, it appears that in case of furlough which is granted

after 23rd April 2012 when the amended Rule was brought on the Rule

Book, the extended period of furlough will be counted as a remission of

sentence. The question is whether the extended period of furlough

granted prior to 23rd April 2012 can be counted as a remission.

10.

In case of a prisoner who has been convicted to suffer life

sentence, the question of considering remissions arises only when the

State considers his case for premature release as per the policies

referred to above. As the sentence is not for a limited duration,

otherwise the remission has no relevance at all. Thus, in case of a life

convict, the remission becomes relevant only for consideration of his

case for premature release in terms of the policies. As we have noted

earlier, there are two policies. The first is of 11 th May 1992 and the

second is of 15th March 2010. In the case of State of Haryana and

Others v. Jagdish, the question which arose was whether the policy

which was applicable when the convict was sentenced will be applicable

or the policy which was prevailing on the date on which the case of the

convict is considered will apply. Paragraph 54 of the said decision

reads thus:-

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"54. The State authority is under an obligation to at least exercise its discretion in relation to an honest expectation perceived by the convict, at the

time of his conviction that his case for premature release would be considered after serving the

sentence, prescribed in the short-sentencing policy existing on that date. The State has to exercise its power of remission also keeping in view any such benefit to be construed liberally in favour of a convict which may depend upon case to case and

for that purpose, in our opinion, it should relate to a policy which, in the instant case, was in favour of the respondent. In case a liberal policy prevails on the date of consideration of the case of a "lifer" for

premature release, he should be given benefit thereof."

ig (underline added)

11. Thus, what is held by the Apex Court is that the State has

to exercise its policy of remissions by construing it liberally in favour of

a convict. If a liberal policy prevails on the date of consideration of the

case of a life convict for premature release, he should be given benefit

thereof.

12. As we have held earlier, in case of a life convict, the

remission becomes relevant only when his case is considered for

premature release. If the Rules as regards remission which prevail on

the date of consideration of the case of a life convict for premature

release are more liberal than the Rules prevailing earlier in point of

time, the more liberal of the two will have to be applied.

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13. Therefore, when a case of life convict is considered for

premature release on or after 23rd April 2012, the benefit of amended

Rule 16 of the said Rules will have to be given even in case of the

extended period of furlough of 14 days granted prior to 23 rd April 2012.

The Petition accordingly succeeds and the Rule is made absolute to that

extent.

14. As and when the case of the Petitioner is considered for

grant of premature release, the remission will have to be granted in

terms of this judgment and order.

      ( S.C. GUPTE, J )                                            ( A.S. OKA, J )