Bombay High Court
Nandkumar Shivmurti Munde ... vs The State Of Maharashtra on 27 March, 2017
Bench: S.S. Shinde
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1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO.1500 OF 2016
Nandkumar s/o. Shivmurti Mundhe,
Age Major, convict undergoing the
Life sentence - Prisoner No.6205,
Presently in Harsool Jail,
Aurangabad. PETITIONER
VERSUS
1. The State of Maharashtra
Through, the Home Department,
Maharashtra State, Mantralaya,
Mumbai
2. The Superintendent,
Central Prison Harsool Jail,
Aurangabad. RESPONDENTS
...
Mr. Chaitanya C.Deshpande, [Appointed]
Advocate for the Petitioner
Mr.S.Y.Mahajan, Addl.P.P. for the Respondent
/ State
...
CORAM: S.S.SHINDE &
K.K.SONAWANE,JJ.
Reserved on : 20.03.2017
Pronounced on : 27.03.2017
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. By way of filing this Writ Petition
under Article 226 of the Constitution of
India, the petitioner seeks directions to the
respondent nos.1 and 2 to grant the State
remission of 2 years to the petitioner in
view of the Government Circular dated 6th
August, 1997.
4. It is the case of the petitioner
that the petitioner is undergoing sentence
for life imprisonment as per the order dated
22nd December, 1999, passed by the Sessions
Court at Beed in Sessions Case. The
petitioner has sent letter to the Hon'ble
Senior most Judge of the High Court of
Bombay, Bench at Aurangabad, received on 9th
November, 2016, wherein the petitioner has
contended that, he was arrested in connection
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with a crime for the offence punishable under
Section 302 of the Indian Penal Code. After
full-fledged trial, the Sessions Court at
Beed has held him guilty for the offence
punishable under Section 302 of the Indian
Penal Code, and he has been sentenced to
suffer R.I. for life. It is submitted that,
from the application of the petitioner it is
evident that the accused / petitioner has
been arrested on 9th September, 1996 and was
released on bail in the month of January,
1997. Thereafter, he has been convicted on
22nd December, 1999 and sentenced to suffer
R.I. for life and was taken in custody. Thus,
it appears that the petitioner was in jail
from 9th September, 1996 to January 1997 and
22nd December, 1999 onwards. Thus, the
petitioner has undergone the sentence for
more than 16 years. However, the details of
sentence as to fine amount etc. are not
available.
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5. It is submitted that the matters of
remission of sentence are governed by the
provisions of Sections 432, 433-A and 435 of
the Code of Criminal Procedure and by the
Maharashtra Prison [Remission System] Rules,
1962. As per the said Rules, the Rule 4
provides for 4 types of remission viz. 1)
ordinary remission, 2) annual good conduct
remission, 3) special remission, and 4) State
remission. The State Government may on such
occasion of National importance or public
rejoining as the State Government may
determine grant remission to such prisoners
for such number of days as the State
Government may by order specify on this
behalf. The said Rules provide for forfeiture
of remission by way of punishment as well as
provide for maintenance of record of
remission. Thus, the Jailor of concerned Jail
has to maintain the record of every prisoner
in Form No.3. In exercise of powers under
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Section 432 (1) of the Code of Criminal
Procedure, the Government of Maharashtra,
Home Department, Mantralaya, Mumbai issued
one Circular dated 6th August, 1997, granting
the State remission to the prisoners on the
occasion of Golden Jubilee Independence day.
The said remission is to take effect from 15th
August, 1997. In para 2 of the said
Government Circular, there are some
exceptions wherein the benefit of remission
should not be given. In para 3 of the said
Circular, it is made clear that in case of
life sentence, the prisoner has to undergo at
least 14 years sentence and earlier to that,
the prisoners cannot be released. Further it
is made clear that, the prisoner referred in
para 3 of the said Circular will also be
entitled for this remission, but after they
complete the 14 years of the sentence. Para 4
of the said Circular states that on 15th
August, 1997, the prisoners, who were
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unauthorizedly, were out of prison should not
be given the benefit of the said Circular but
the prisoners who were on authorization such
as parole and furlough and earned leave etc.
they be given the benefit of the State
remission.
6. It is submitted that, as stated in
the application of the petitioner his
grievance appears to be that he has been
arrested on 9th September, 1996, in connection
with an offence under Section 302 of the
Indian Penal Code. He was released on bail in
January, 1997. The Government of Maharashtra
has issued one Circular dated 6th August,
1997, on the occasion of the Golden Jubilee
year of Independent India and for the said
occasion, the State remission was granted to
the prisoners. As contended in the
application as the petitioner was on bail on
15th August, 1997 and looking at the date of
arrest on 9th September, 1996, according to
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the petitioner, he would be entitled to State
remission though on the date of notification
i.e. on 6th August, 1997. The petitioner was
on bail in view of the fact that, from his
date of arrest i.e. 9th September, 1996 till
January, 1997, he was under-trial prisoner
and subsequently he is undergoing the
sentence, thus, the petitioner claimed the
benefit of State Remission of two years be
granted to him. The petitioner has relied
upon the judgment of the Division Bench of
the Bombay High Court, Bench at Nagpur
[Coram: K.J.Rohee & B.P.Dharmadhikari, JJ.]
in Criminal Writ Petition No.244/2008 decided
on 30th June, 2008, [Rajubhau Gaddalwar Vs.
The State of Maharashtra & another].
7. It is further the case of the
petitioner that in the case of Rajabhau
Gaddalwar Vs. State of Maharashtra [cited
supra], the Division Bench of the Bombay High
Court, Bench at Nagpur, has been pleased to
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grant State remission to the petitioner
Rajabhau Gaddalwar, who was an undertrial
prisoner from 02.02.1996 and was convicted on
30th August, 1997, while allowing the said
petition of Rajabhau Gaddalwar, their
Lordship have referred the law laid down in
Criminal Writ Petition No.163/2008 [Chottu
Ratanlal Punekar Vs. State of Maharashtra]
decided on 20th June, 2008. It is submitted
that in the case of Chottu Ratanlal Punekar
Vs. State of Maharashtra reported in Laws
(Bom) 2008-6-34, their lordship have been
pleased to observe that the grievance of the
petitioner Chottu Punekar was that he was
arrested on 8th February, 1997, for the
offence punishable under Section 302 r/w. 34
of the Indian Penal Code and continued to be
under-trial prisoner till his conviction on
20th August, 1999. He was denied the state
remission of two years. It was urged on
behalf of the State Government that the State
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remission can be extended only to those
persons, who were convicts on 15th August,
1997. According to the State Government,
those who were not convicts on 15th August,
1997, cannot be given the said benefit of
State remission. Though the Circular of the
Government about grant of State remission is
dated 6th August, 1997, it was made operative
from 15th August, 1997. While deciding the
case of the Chottu Punekar, their Lordship
held that for all practical purposes after
the accused is found guilty and sentenced, he
becomes convict and as such is covered by the
policy decision dated 6th August, 1997,
mentioned above. Their Lordships further
observed that 'the effort to contend that the
period spent in jail as under trial prisoner
is wholly irrelevant for the purposes of the
said Circular, is without any basis and in
fact it violates the spirit of the said
decision" and thus, their Lordships in the
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matter of Chottu Punekar has been pleased to
accord the benefit of the state remission to
the accused and it was ordered accordingly.
8. The petitioner seeks direction to
respondent nos. 1 and 2 to grant benefit of
state remission to the petitioner in view of
his arrest on 9th September, 1996 and his
being in jail from 11th December, 1999, uptill
now.
9. The learned counsel appearing for
the petitioner submits that in view of the
Government Circular dated 6th August, 1997,
the petitioner is entitled for the State
remission of 2 years as per the item no.15
given in the said Circular. As per para 3 of
the said Circular, life convicts are entitled
to get the actual benefit of State remission
of two years only after the convict has
undergone the sentence of 14 years. He
submits that it is true that on issuance of
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the Government Circular dated 6th August,
1997, the petitioner was not convict, but in
view of the judgment in the case of Chottu
Punekar [cited supra], the petitioner is
entitled to get benefit of remission for the
period for which he was under trial-prisoner.
The petitioner has already undergone sentence
of 16 years, and therefore, he is entitled
for state remission of 2 years. The actual
sentence takes effect from 9th September, 1996
i.e. the date from which the petitioner is
under trial prisoner and intervening period
from January 1997 to 22nd December, 1999,
would be the period for which the petitioner
was on bail under the orders of the Court and
not an unauthorized escape from prison and
after 22nd December, 1999, his further
detention has been continued for a period of
16 years from 22nd December, 1999. Thus
excluding the period for which the petitioner
was on bail, he would be entitled for the
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state remission of two years. It is submitted
that in the case of Chottu Punekar [cited
supra], the High Court has taken a view that
the period spent in jail as under-trial
prisoner is irrelevant for the purposes of
afore-mentioned Circular dated 6th August,
1997. Therefore he submits that the
petitioner is entitled for set off from 9th
September, 1996 and resultantly would be
entitled for the state remission of two
years. Therefore, he submits that the
petition may be allowed.
10. Pursuant to the notices issued to
the respondents, one Mr. Bapurao Ramrao More,
serving as Superintendent, Central Prison,
Aurangabad, has filed affidavit-in-reply.
Relying upon the averments in the said
affidavit-in-reply, the learned APP submits
that the petitioner is convicted by the
Sessions Court, Beed in Crime No.122/1996 and
Sessions Case No.75/1997 dated 22nd December,
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1999, for the offence under Section 302 of
the IPC and ordered to undergo Life
imprisonment. The petitioner's under-trial
period is from 9th September, 1996 to 27th
December, 1997 i.e. 00 Years, 3 months and 19
days. It is submitted that as per the State
Government letter [Government Resolution /
Notification] dated 6th August, 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 th
August, 1997. As per the Government letter
dated 6th August, 1997, all prisoners, who
were convict for life imprisonment as on or
before 15th August, 1997, should be given
remission of 2 years. When the State
Government letter [Government / Notification]
dated 6th August, 1997 is issued, at that time
the petitioner was not convict prisoner and
he was an under-trial prisoner [MCR Custody]
and was on bail since 27th December, 1996.
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11. The learned APP invites our
attention to the judgment of the Supreme
Court in the case of Government of Andhra
Pradesh Vs. Anne Venkatesware, in Criminal
Appeal Nos.418-419 and 484-485 of 1976
decided on 17th February, 1977, and submits
that the Supreme Court in that case
considered, whether the period of detention
undergone by the writ petitioners in
connection with the sessions cases before
their conviction could be treated as a part
of the period of imprisonment on conviction
so as to entitle them to remission of their
sentences under the Prisons Act.
12. He submits that the Supreme Court
had occasioned to interpret the provisions of
Section 428 of the Criminal Procedure Code,
1973 and it is held that Section 428 provides
that the period of detention of an accused as
an undertrial prisoner shall be set off
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against the term of imprisonment imposed on
him on conviction. The section only provides
for a "set off", it does not equate an
"undertrial detention or remand detention
with imprisonment on conviction." The
provision as to set off expresses a
legislative policy; this does not mean that
it does away with the difference in the two
kinds of detention and puts them on the same
footing for all purposes. The basis of the
High Court's decision does not, therefore,
seem to be right. Relying upon the
observations of the Supreme Court, the
learned APP submits that the section 428 only
provides for a "set off", it does not equate
an "undertrial detention or remand detention
with imprisonment on conviction". Therefore,
he submits that in the present case also, the
period as under-trial prisoner by the
petitioner, cannot be equated with
imprisonment on conviction. He submits that
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since the petitioner was on bail from 27th
December, 1996, he is not entitled to receive
the benefit of Golden Jubilee of Indian
Independence. He further invites our
attention to the judgment of the Supreme
Court in the case of Rakesh Kaushik Bhagirath
Vs. Delhi Administration in Criminal Appeal
No.754 of 1983 and Writ Petition [Criminal]
No.1266 of 1982, decided on 16th April, 1985.
He also invites our attention to the ratio
laid down by the Supreme Court in the case of
State of Haryana & others Vs. Jagdish 1 and in
particular para 43 thereof and submits that
the Supreme Court has made it clear that the
convict is entitled for the provisions in the
policy that was existing on the date of his
conviction. He submits that the policy to
grant remission on account of Golden Jubilee
of Indian Independence would necessarily
apply from the date of coming into force the
1 2010 [4] SCC 216
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said policy.
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 be given from 15 th
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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
Maharashtra2 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
2 2009 [1] Mh.L.J. [Cri.] 209
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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
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.
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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 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
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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 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.
15. Therefore, the grievance/
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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 March, 2016, and for the
reason stated in the order, the said Petition
was dismissed.
16. In the light of the discussion in
the foregoing paragraphs, though we are not
inclined to issue any mandatory directions to
the respondents to accept the prayer of the
petitioner, however, we are inclined to give
directions to the respondents to consider the
case of the petitioner afresh, in the light
of the judgment of the Division Bench in the
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case of Chottu Ratanlal Punekar [cited supra]
and also the observations made hereinbefore,
and the office record in relation to the case
of the petitioner maintained by the
respondents, and to take decision afresh. We
make it clear that the earlier order, if any,
passed by the respondents, refusing benefit
to the petitioner of the Circular dated 6th
August, 1997, stands quashed and set aside.
We direct respondents to consider the case of
the petitioner afresh, and take the decision
as expeditiously as possible, however, within
10 weeks from today and communicate the same
to the petitioner.
17. The petition is partly allowed.
Rule is made absolute partly on above terms
and the Writ Petition stands disposed of
accordingly.
[K.K.SONAWANE] [S.S.SHINDE]
JUDGE JUDGE
DDC
