Bombay High Court

Sayed Jalaluddin S/O. Syed ... vs The State Of Maharashtra And Anr on 20 July, 2017

Bench: S.S. Shinde

                                                          Cri.WP.No.737.17
                                       1


                            
            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                               
                       BENCH AT AURANGABAD

                 CRIMINAL WRIT PETITION NO. 737 OF 2017

          Sayed Jalaluddin S/o Syed Allahuddin.
          C-34) Central Prison Aurangabad.
                                            PETITIONER

                   VERSUS

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

          2.       The State of Maharashtra
                   Through Superintendent Central Prison,
                   Aurangabad.
                                                 RESPONDENTS
                                    ...

Mr. R.A Jaiswal, Adv. for Petitioner. Mr. K.D. Munde, 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.

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2. Rule. Rule made returnable

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 respondent no.1 to give benefit

of State Remission of two years to

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

30.08.2003 in Session Case No.135 of 1998; he

is directed to undergo imprisonment for Seven

years for the offence punishable under

Section 304 II of the Indian Penal Code by

Judgment and order passed by the Additional

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Session Judge, Aurangabad. He was under-trial

prisoner since 15.07.1996. He was released

on bail by the High Court on 04.11.1996.

That the State Government as well as

informant had filed an appeal for enhancement

of Sentence before the High Court and the

appeal filed by the State was allowed by the

High Court by judgment and order dated

17.12.2004 and petitioner was convicted for

offence U/sec. 302 of I.P.C instead of

Sec.304 II and was directed to suffer life

imprisonment.

(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.

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petitioner that, the petitioner was an

under-trial since 15.07.1996. He was released

on bail by this Court on 04.11.1996. That,

the petitioner has been convicted on

30.08.2003; he was directed to undergo

imprisonment for seven years for the offence

punishable under Section 304 II of the Indian

Penal Code by Judgment and order passed by

the Additional Session Judge, Aurangabad.

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 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

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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 Bombay High

Court Bench at Nagpur, 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 entitled for State

remission of two years on eve of Golden

Jubilee of Independence of India. 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 order dated 09.03.2016.

It is further submitted that, the

petitioner has completed 20 years and 2

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months imprisonment including remission, and

he had already undergone actual imprisonment

of 13 years 11 months. On 23.06.2017, the

State Government, through Department of Home,

communicated its decision to the

Superintendent, Central Jail Aurangabad that

the petitioner be released from jail on

completion of 22 years imprisonment.

Therefore, he submits that petition deserves

to be allowed.

6. Pursuant to notices issued to the

respondents, the 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 convicted

prisoner and the effect of the same is to be

given from 15.08.1997. As per the Government

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Letter dated 06.08.1997, all prisoners who

were convict (and are sentenced for Life

Imprisonment) as on or before 15.08.1997

should be given remission of 02 years.

. The petitioner was under-trial from

15.07.1996 to 04.11.1996. So, when Government

Resolution dated 06.08.1997, is issued at

that time the petitioner was under-trial and

not convicted. He is held guilty and

convicted on 30.08.2003 by the Adhoc Addl.

Session Judge-1, Aurangabad. Thus, when the

State Government letter (GR/Notification)

dated 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. Hence also he is not eligible to avail

the said state remission.

. Therefore, learned APP appearing for

the State relying upon the Judgment of the

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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 by the respondents. The point /

issue raised in this petition is no longer

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

issue / question of law which was raised in

the petition has been answered by the

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Division Bench of the High Court. 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 from paragraph nos. 10 to 12. There

is a discussion on merits from paragraph nos.

13 and 14 and thereafter, recording the

reasons, directions are issued to the

respondents in paragraph no. 16 of the said

Judgment. It would be apt to reproduce

herein below to paragraph nos. 13 and 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

Cri.WP.No.737.17

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 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

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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 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

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

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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 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

Cri.WP.No.737.17

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 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

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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 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 Supreme Court on 9th

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