Bombay High Court

Laxman S/O Shetiba Lokhande ... vs The State Of Maharashtr And ... on 20 July, 2017

Bench: S.S. Shinde

                                                          Cri.WP.No.788.17
                                        1


                            
            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                               
                       BENCH AT AURANGABAD

                 CRIMINAL WRIT PETITION NO. 788 OF 2017

          Laxman S/o Shetiba Lokhande.
          (C-4750) Open Prison Paithan.
                                            PETITIONER

                   VERSUS

          1.       The State of Maharashtra 
                   Through Secretary Home Department,
                   Mantralaya - Mumbai-32.

          2.   The State of Maharashtra
               Through Superintendent Open Prison,
               Paithan.
                                             RESPONDENTS
                                ...

Mr. R.A Jaiswal, Adv. for Petitioner. Mr. M.M. Nerlikar, APP for Respondent nos. 1 & 2 / State.

...

CORAM : S.S. SHINDE & S.M. GAVHANE JJ.

                           Reserved on    :   17.07.2017
                           Pronounced on  :   20.07.2017
                                 ...

JUDGMENT : (Per S.S. Shinde, J.)

1. Heard.

2. Rule. Rule made returnable

Cri.WP.No.788.17

forthwith, and heard finally with the consent

of the parties.

3. This petition is filed under Article

226 of the Constitution of India, seeking

direction to the respondent no.1 to give

benefit of State Remission of two years to

the petitioner on eve of Indian Independence,

in view of Government Resolution dated

06.08.1997.

4. Background facts for filing the writ

petition are as under :-

(a) The petitioner has been convicted on

19.07.2003, he is directed to undergo

imprisonment for life for the offence

punishable under Section 302 of the Indian

Penal Code by Judgment and order passed by

the Additional Session Judge, Billoli. He

was under-trial prisoner since 19.01.1992.

Cri.WP.No.788.17

He was released on bail by the Session Court

after period of 2 months and 17 days from

his arrest.

(b) It is further the case of the

petitioner that, as per Government Resolution

dated 06.08.1997, a convict who has been

directed to suffer life imprisonment, should

be given a State Remission of two years on

account of Golden Jubilee of Indian

Independence.

petitioner that, the petitioner was an under

-trial prisoner since 19.01.1992. He was

released on bail by the Sessions Court after

period of 2 years 17 days from the date of

his arrest. That, the petitioner has been

convicted on 19.07.2003; he was directed to

undergo imprisonment for life for the offence

punishable under Section 302 of the Indian

Cri.WP.No.788.17

Penal Code by Judgment passed by the

Additional Session Judge, Billoli. Thus, he

was under-trial prisoner on the day of

Government Resolution dated 06.08.1997, and

hence entitled for State Remission of two

years on eve of Golden Jubilee of Indian

Independence, but the Respondent No.1 has not

given the benefit of the said Government

Resolution.

5. Learned counsel appearing for the

petitioner submits that, in the case Rajubhau

Gaddalwar V/s State of Maharashtra in

Cri.W.P. No. 244 of 2008 and also in the case

of Chotu Punekar V/s State of Maharashtra, in

Cri.W.P. No. 163 of 2008 the High Court has

held that even the prisoner, who is not

convict, who is under-trial on relevant date

i.e. 06.08.1997, would be entitled to State

Remission on eve of Golden Jubilee of India's

Independence, and hence petitioner is also

Cri.WP.No.788.17

entitled for State Remission of two years on

eve of Golden Jubilee of India's

Independence. The State Government also filed

the Special leave to Appeal (Cri.) No.1798 of

2009 (State of Maharashtra V/s Chottu

Ratanlal Punekar) before the Hon'ble Supreme

Court of India against the decision of High

Court of Bombay, Bench at Nagpur, which came

to be dismissed by Hon'ble Supreme Court of

India by order dated 09.03.2016.

It is further submitted that, the

petitioner has completed 20 years and 2

months imprisonment including remission, and

actual imprisonment of 14 years. If benefit

of aforesaid Government Resolution is given

to him, he would get the Remissions of two

years and he can be released immediately,

since he is placed in 22 years category.

Therefore, he submits that petition deserves

to be allowed.

Cri.WP.No.788.17

6. Pursuant to notices issued to the

respondents, respondent no.2 had filed

affidavit in reply on behalf of both the

respondents. It is stated in the said

affidavit in reply that, as per the State

Government Letter (GR/Notification) dated

06.08.1997, the Government has directed to

give state remission only to those prisoners

who were convict (and are sentenced for Life

Imprisonment) as on or before 15.08.1997.

. The petitioner was under-trial from

21.01.1992. So, when Government Resolution

dated 06.08.1997, is issued at that time the

petitioner was under-trial and not convict.

He is held guilty and convicted for the

offence punishable under Section 302 of the

Indian Penal Code on 19.07.2003 by the Addl.

Session Judge, Billoli. When the State

Government letter (GR/Notification) dated

Cri.WP.No.788.17

06.08.1997 was issued, at that time the

Petitioner was not prisoner and he was an

under-trial prisoner (MCR Custody) and was on

bail. On said ground also he is not eligible

to get the benefit of said Government

Resolution providing for remission.

. Therefore, learned APP appearing for

the State relying upon the Judgment of the

Bombay High Court at Principal Seat in the

case of Saikee Mazar and others V/s B.N.Patel

and others, reported in 1989 CRI.L.J.1257

submits that petition may be dismissed.

7. We have given careful consideration

to the submissions of the counsel appearing

for the petitioner and also the learned APP

appearing for the Respondent - State. We

have carefully perused the pleadings in the

petition annexures thereto and also reply

filed by the respondents. The point / issue

raised in this petition is no longer

Cri.WP.No.788.17

res-integra and covered by the reported

Judgment of the Bombay High Court Bench at

Aurangabad in the case of Nandkumar s/o.

Shivmurti Mundhe V/s The State of Maharashtra

and another pronounced on 27.03.2017. In the

said case similar facts were involved and

same issue / question of law was raised and

same the petition has been answered by the

Division Bench of the High Court. In the

said case The Division Bench in paragraph

nos. 4 to 9 has extensively referred to the

facts of the said case and arguments advanced

by the counsel appearing for the petitioner

therein. The contentions and arguments

advanced on behalf of respondents therein

have been extensively referred in paragraph

nos. 10 to 12. There is a discussion on

merits from paragraph nos. 13 to 14 and

thereafter, after recording the reasons,

directions are issued to the respondents in

paragraph 16 of the said Judgment. It would

Cri.WP.No.788.17

be apt to reproduced herein below those

paragraph nos. 13 to 14 from the said

judgment, which reads as under :-

"13. We have heard the learned counsel appearing for the petitioner, and the learned APP appearing for the respondent - State at length. With their able assistance, we have perused the pleadings in the Petition, annexures thereto, reply filed by the respondents, and also the judgments cited across the Bar by the learned counsel appearing for the petitioners, and the learned APP appearing for the respondent - State. In the present case, it is not in dispute that on 6th August, 1997, the State of Maharashtra issued a Notification, thereby making provision to grant State remission to the prisoners on the occasion of 'Golden Jubilee of Indian Independence'. However, according to the learned APP appearing for the respondent - State, the benefit is extended only to the convicted prisoner and effect of the same is to

Cri.WP.No.788.17

be given from 15th August, 1997, and on 6th August, 1997, the petitioner was not convicted. It is true that on 6th August, 1997, the petitioner was not convicted, however, it is admitted position that the petitioner was under-trial prisoner. However, he was released on bail after his arrest. It is also true that on 15th August, 1997, the petitioner was on bail, however, he was under-trial prisoner.

14. The Division Bench of the Bombay High Court, Bench at Nagpur, in the case of Chottu Ratanlal Punekar Vs. State of Maharashtra1 had occasioned to consider the communication dated 6th August, 1997, issued by the Desk Officer, Home Department, Government of Maharashtra, informing the Inspector General of Prisons, Pune under the orders of the Governor of Maharashtra that State remission is to be given to the convicts on the eve of Golden Jubilee of Indian Independence with

1 2009 [1] Mh.L.J. [Cri.] 209

Cri.WP.No.788.17

effect from 15th August, 1997. The Division Bench recorded the grievance of the petitioner in para 4. After assigning the reasons in para 5 and 6, allowed the said Petition. Para 4 to 6 of the said Judgment, reads thus:

4. The grievance of the petitioner is that benefit of the said State remission is not extended to him though he is entitled for it. It was urged on behalf of the respondent / State that State remission can be extended only to those persons who were convicts on 15-8-1997 and it cannot be extended to those who were not convicts on that date. Since the petitioner was not a convict on 15- 8-1997 and was merely an undertrial, he is not entitled to get benefit of the State remission. The logic, according to the learned APP is that had the petitioner been acquitted, there was no question of giving him benefit of the State remission.

5. The logic in the submissions of

Cri.WP.No.788.17

learned APP is difficult to accept. The fortuitous circumstance of one Court deciding a comparatively new matter before 15-8-1997 and the another Court deciding a very old matter thereafter cannot be permitted to be utilized to distinguish between convicts / prisoners for the purposes of extension of said benefit. Section 432 of Criminal Procedure Code empowers the State Government to pass appropriate orders and to remit sentences. In view of Golden Jubilee of Indian Independence, the decision dated 6-8-1997 has been taken. The decision is made operative from 15- 8-1997. Thus the above referred fortuitous circumstance is totally relevant and if any classification is permitted on the basis of such circumstance, it would be wholly arbitrary. For an undertrial prisoner languishing in jail, after he is found guilty and is sentenced, section 428 of Criminal Procedure Code permits set off of the period spent by him as undertrial prisoner

Cri.WP.No.788.17

against the period of sentence ultimately imposed. Thus for all practical purposes after he is found guilty and sentence, he becomes convict and as such is covered by the policy decision dated 6-8-1997 mentioned above. The effort to contend that the period spent in jail as undertrial prisoner is wholly irrelevant for the purposes of the said circular, is without any basis and in fact it violates the spirit of said decision. An undertrial prisoner who is ultimately acquitted is not a convict at all and hence he is not entitled to benefit of remission.

6. We, therefore, hold that the present petitioner is entitled to benefit of the said State remission and accordingly direct respondent / State Government to extend its benefit to him. Rule is made absolute in the above terms."

8. Therefore, the grievance/

controversy raised in the present Petition is

Cri.WP.No.788.17

the same like raised by the petitioner

therein in the case of Chottu Ratanlal

Punekar [cited supra]. The State Government,

being aggrieved by the judgment of the

Division Bench in the case of Chottu Ratanlal

Punekar, filed Petition for Special Leave to

Appeal [Cri.] No.1798/2009 [State of

Maharashtra Vs. Chottu Ratanlal Punekar]. The

said Petition was heard by the Hon'ble