Santosh Tulshiram Shitole ... vs The State Of Maharashtra
2017 Latest Caselaw 1045 Bom

                                                  1494.2016 Cri.WP.odt
                                     1


               IN THE HIGH COURT OF JUDICATURE AT BOMBAY 
                          BENCH AT AURANGABAD

                CRIMINAL WRIT PETITION NO.1494 OF 2016 

          Santosh Tulsiram Shitole,  
          [Convict No.C-8016] 
          Age: Major, Occu: Nil,  
          R/o. Central Prison, 
          Aurangabad.                                PETITIONER 

                    VERSUS 

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

          2.       The Police Superintendent,  
                   Central Prison,  
                   Aurangabad.                  RESPONDENTS

                                 ...
          Mr.G.D.Jain, 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 direction to the

State Government for grant of State remission

on account of 'Golden Jubilee of Indian

Independence', as granted in favour of

similarly situated convicts.

4. It is the case of the petitioner

that on 11th August, 1995, Crime No.186/1995

was registered with Ambajogai Police Station,

District Beed, for the offence punishable

under Section 302, 34 of the Indian Penal

Code, 1860, against the petitioner. The

petitioner has been arrested on the same day.

On 28th March, 1996, the petitioner has been

released on bail by this Court. The

petitioner was under-trial prisoner for the

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period from 11th August, 1995 to 28th March,

1996. On 31st March, 2000, the Additional

Sessions Judge, Ambajogai in Sessions Case

No.64/1995 has convicted the petitioner for

the offence punishable under Section 304 Part

II of the Indian Penal Code, 1860 and

sentenced to suffer rigorous imprisonment of

five years and to pay a fine of Rs.500/-, in

default to pay the fine he has to undergo

three months more rigorous imprisonment.

5. It is further the case of the

petitioner that on 25th April, 2000, the

petitioner has been released on bail by this

Court. This Court [Coram: T.V.Nalawade,J.]

dismissed the Criminal Appeal No.146 of 2000,

by the judgment and order dated 9th February,

2015. On 6th August, 1997, the State issued a

letter in respect of grant of State remission

on account of Golden Jubilee of Indian

Independence to the convicts. At serial no.9,

it is mentioned that if conviction is of five

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years or more than five years but less than

six years, State remission of ten months

provided. It is submitted that 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

[Rajubhau Gaddalwar Vs. The State of

Maharashtra & another] made observation that

the State remission would be applicable to

the convict from the date he is under-trial

prisoner. It is submitted that on 31st March,

2000 in Sessions Case No. 64/1995, the

Additional Sessions Judge, Ambajogai, issued

a letter to the Jailor, Beed, in respect of

surrender warrant. It is mentioned in the

said warrant that the petitioner was in the

custody of police and the Magistrate for the

period from 11th August, 1995 to 28th March,

1996. He invites our attention to the copy of

the letter dated 31st March, 2000, issued by

the learned Additional Sessions Judge,

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Ambajogai to the Jailor, Beed in Sessions

Case No.64/1995. It is submitted that on 6th

August, 1997, the State Government issued a

letter in respect of grant of State remission

on account of Golden Jubilee of Indian

Independence to the convicts. It is mentioned

in the said letter that if conviction of 5

years or more than 5 years but less than 6

years, the State remission is of ten months

provided. He submits that the petitioner is

entitled for such benefit in view of the

observations of the Division Bench of the

Bombay High Court, Bench at Nagpur, in its

judgment delivered on 30th June, 2008 in

Criminal Writ Petition No.244/2008 [Rajubhau

Gaddalwar Vs. The State of Maharashtra and

another]. It is submitted that by the said

judgment, it is made clear by the High Court

that the State remission would be applicable

to the convicts from the date he is under-

trial prisoner, though policy came into force

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from 15th August, 1997. Therefore, he prays

that the Petition may be allowed.

6. Pursuant to the notices issued to

the respondents, respondent no.2 had filed

affidavit-in-reply. Relying upon the

averments in the said affidavit in reply, the

learned APP made following submissions:

7. The petitioner is convicted for the

offence punishable under Section 304 [II] of

the Indian Penal Code by the Additional

Sessions Judge, Ambajogai, District Beed, on

31st March, 2000 and sentenced to suffer 5

years imprisonment. As per the State

Government letter [GR/Notification] dated 6th

August, 1997, the Government had directed to

give State remission only to the convicted

prisoners and the effect of the same was to

be given from 15th August, 1997. As per the

Government letter dated 6th August, 1997, all

convicted prisoners [and are sentenced for 5

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to 6 years] as on or before 15th August, 1997,

should be given remission of 10 months. The

learned APP invites our attention to the

contents of the said letter. The petitioner

was under-trial from 11th August, 1995 to 28th

March, 1996 and was on bail from 29th March,

1996 to 29th March, 2000. Thus, it is clear

that the petitioner was on bail when the

Government Resolution dated 6th August, 1997,

was issued and was in respect of under trial

accused. When the State Government issued

Government Resolution / Notification dated 6th

August, 1997, the applicant was not convicted

by the Sessions Court, he was under-trial

[MCR custody] and he was released on bail

during the period 29th March, 1996 to 29th

March, 2000. Thus, the petitioner is not

entitled for the benefit of the State

remission. The learned APP invites our

attention to the judgment of the Supreme

Court in the case of Government of Andhra

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Pradesh Vs. Anne Venkatesware in Criminal

Appeal Nos.418-419 and 484-485 of 1976

decided on 17th February, 1977, 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.

8. 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

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

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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

since the petitioner was on bail during

period from 29th March, 1996 to 29th March,

2000, he is not entitled to receive the

benefit of Golden Jubilee of Indian

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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

said policy.

9. We have heard the learned counsel

appearing for the petitioner, and the learned

1 2010 [4] SCC 216

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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

August, 1997, and on 6th August, 1997, the

petitioner was not convicted. It is true that

on 6th August, 1997, the petitioner was not

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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.

10. 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

Indian Independence with effect from 15th

August, 1997. The Division Bench recorded the

grievance of the petitioner in para 4. After

2 2009 [1] Mh.L.J. [Cri.] 209

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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 learned APP is difficult to accept. The fortuitous circumstance of one Court deciding a comparatively new

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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 against the period of sentence ultimately imposed. Thus for all practical purposes after he is found

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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.

11. Therefore, the grievance/

controversy raised in the present Petition is

the same like raised by the petitioner

therein in the case of Chottu Ratanlal

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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.

12. 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

case of Chottu Ratanlal Punekar [cited supra]

and also the observations made hereinbefore,

and the office record in relation to the case

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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.

13. 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