Bombay High Court
Shaikh Razzak Shaikh Salim ... vs The State Of Maharashtra on 4 May, 2017
Bench: S.S. Shinde
371.2017 Cri.WP.odt
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO.371 OF 2017
Shaikh Razzak Shaikh Salim
(C-8125) (Convict)
Central Prison, Aurangabad PETITIONER
VERSUS
1. The State of Maharashtra
Through its Secretary,
Home Department (Prison),
Mantralaya, Mumbai.
2. The State of Maharashtra
Through D.I.G. (Prisons),
Aurangabad.
3. The Superintendent,
Central Jail, Aurangabad (Harsool),
Tq. & Dist. Aurangabad.
RESPONDENTS
...
Mr.V.N.Shelke [Appointed] Advocate for the
Petitioner
Ms.P.V.Diggikar, APP for the Respondent Nos.1
to 3 / State
...
CORAM: S.S.SHINDE &
K.K.SONAWANE,JJ.
Reserved on : 28.04.2017.
Pronounced on : 04.05.2017
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 with prayer
to quash and set aside the impugned order
dated 15th July, 2011, passed by respondent
no.1 and also seeking directions to
respondent no.1 to place the petitioner in
category no.2-b of the Guidelines for
Premature Release Under the '14 year Rule of
Prisoners serving life sentence [for short
'the Guidelines of 2010'].
4. It is the case of the petitioner
that, in the year 1997, the petitioner has
been convicted under Section 302 r/w.34 of
the Indian Penal Code and he is directed to
undergo imprisonment for life. Thereafter,
the petitioner preferred Criminal Appeal No.
04/1998 before the High Court, and the same
came to be dismissed, confirming the
371.2017 Cri.WP.odt
conviction of life imprisonment. At present,
petitioner is undergoing sentence.
5. It is submitted that, on 15th July,
2011, respondent no.1 passed the order
placing the petitioner under category no.1
(d) of the Guidelines for premature release
of prisoners sentenced to life imprisonment
or to death penalty commuted to life
imprisonment after 18th December, 1973, [for
short 'the Guidelines of 1992'] and under
category no. 2 (c) of the Guidelines of 2010.
It is further submitted that, the offence
committed by the petitioner would fall under
the category no.2-b of the Guidelines of
2010, as the offence committed by the
petitioner is not with exceptional violence
or with brutality.
6. The learned counsel appearing for
the petitioner submits that, the petitioner
could not have been placed in category no.1
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(d) of the Guidelines of 1992 and category
no. 2 (c) of the Guidelines of 2010, because
it provides punishment for murder committed
relating to sexual matters or arising out of
the relations with women, dowry, deaths or
other form of bride killing etc. and the
offences relating to crime by women. Further
more, the petitioner could also not be placed
under category no.2 (c) of the Guidelines of
2010. It is submitted that, in the case of
State of Haryana and others Vs. Jagdish1, the
Hon'ble Apex Court has laid down that if the
guidelines are prepared by the State
Government in aforesaid regard and they are
changed after date of conviction, the
guidelines which are favourable to the
convict must be used. The offence committed
by the petitioner was not with exceptional
violence or with perversity. The case of the
petitioner would fall within the category
no.2-b of the Guidelines of 2010 and the
1 AIR 2010 SC 1690
371.2017 Cri.WP.odt
appropriate sentence would be of 22 years.
Therefore, the impugned order dated 15th July,
2011, is illegal, arbitrary and is liable to
be quashed and set aside, and the petitioner
may be placed under the category no.2-b of
the Guidelines of 2010. It is submitted that,
the petitioner is having mother, who is old
aged and suffering from ailments of kidney.
Both kidneys of the mother are damaged, and
therefore, she was required to take medical
treatment regularly. The father of the
petitioner is died, and therefore, there is
no male member in the family to look after
them. The petitioner is also having small
children. The petitioner has actually
undergone imprisonment of 15 years and
including remissions, he has completed more
than 23 years imprisonment. Therefore, the
learned counsel appearing for the petitioner
submits that, keeping in view the ailment of
mother of the petitioner and the fact that,
371.2017 Cri.WP.odt
small children are dependent upon him,
Petition deserves to be allowed.
7. On the other hand, the learned APP
appearing for respondent - State relying upon
the averments in the affidavit-in-reply filed
on behalf of respondent nos.1 to 3 made
following submissions:
8. The petitioner is not entitled for
the relief claimed in the present Writ
Petition for the reason that, when the
petitioner was released on furlough leave on
10th April, 2009, vide order dated 27th March,
2008 issued by the Deputy Inspector General
of Prison, Central Region, Aurangabad. At
that time, the petitioner was supposed to
surrender on 25th April, 2009, however, the
petitioner did not surrender on the due date.
Therefore, the police authorities had
arrested the petitioner on 20th December,
2012. Accordingly, the petitioner overstayed
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for 1355 days illegally. As per the
Government Resolution dated 2nd October, 2011,
if the prisoner released on furlough / parole
leave, and if does not surrender even after
the completion of leave period, then the Jail
Authority is legally obliged to deduct the
remission of concerned prisoner depending on
number of days of unauthorized stay outside
jail by him. It is also one of the relevant
considerations whether the prisoner has
surrendered on his own or required to be
arrested and brought in jail by the police
authorities. In the present case, the police
authorities arrested the petitioner, and as
such, the name of the petitioner is
permanently removed from the remission
register as per Rule 8 of the Government
Resolution dated 2nd October, 2011.
9. It is submitted that, the petitioner
filed Criminal Writ Petition No.309/2017, for
granting all the jail facilities and to
371.2017 Cri.WP.odt
restore the name of the petitioner in
remission register. In the said Criminal Writ
Petition, the Government has filed the
affidavit-in-reply pointing out the legal and
factual aspects so also the act on the part
of the petitioner. The said Writ Petition is
pending for adjudication. During pendency of
the said Writ Petition, the petitioner filed
present Criminal Writ Petition, praying for
inclusion of his name under category No.(2-b)
of the Guidelines of 2010. The petitioner
further challenged the order dated 15th July,
2011, issued by the respondent - State. By
way of impugned order, the petitioner is
placed under category No.1 (d) of the
Guidelines for premature release of
prisoner's sentenced to life imprisonment or
to death penalty commuted to life
imprisonment after 18th December, 1973. So
also the petitioner is placed under Category
2 (c) of the Guidelines of 2010 with regard
371.2017 Cri.WP.odt
to the remission of sentences. The petitioner
placed under these categories, considering
the nature of offences committed by the
petitioner and the observations made by the
Sessions Judge in the judgment and order of
conviction. It is pertinent to note that, the
Additional Sessions Judge, Aurangabad in the
judgment and order of conviction dated 19th
September, 1997, has observed in para 23
that, 'the fact that accused was standing
nearby when his wife was burning clearly goes
to show that, he intended to see that Barkat
Begum dies". The Additional Sessions Judge
further observed in para 12 that, "..... much
quantity of kerosene must have been used and
that injuries are 100% sufficient to deep
degree burns". In para 25 of the judgment of
conviction, the Additional Sessions Judge has
held that, ".....taking into consideration
that, the accused has caused homicidal death
with intention of young bride wherein,
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marriage has taken place just 6 months ago".
10. It is submitted that, it is clear
from perusal of findings recorded by the
trial Court that the offence committed by the
petitioner is in a brutal manner and thus
instead of placing him under the category 2
(b) of the Government Resolution dated 15th
March, 2010, the Government has rightly
placed the petitioner under Special Category
for burn cases i.e., 2 (c) of the Government
Resolution dated 15th March, 2010 and under
category 1 (d) of the Government guidelines
dated 11th May, 1992. The category 2 (c) of
the Government Resolution dated 15th March,
2010, reads as under:
2 (c) : Offences relating to crime
against women and minors : Where the
crime is committed with exceptional
violence and or with brutality or
death of victim due to burn.
371.2017 Cri.WP.odt
The category 1 (d) of the Government
guidelines dated 11th May, 1992, is as under:
1 (d) Murders relating to sexual
matters or arising out of relations
with women, dowry deaths or other
form of bride killing etc. : Where
the crime is committed against the
aggrieved person with premeditation.
In the present case, the nature of
offence committed by the petitioner falls
under category 2 (c) of the Government
Resolution dated 15th March, 2010 and category
1 (d) of the Government Guidelines dated 11th
May, 1992. As per these categories of the
Government Guidelines, the petitioner has to
undergo 26 years of imprisonment including
the remission.
11. It is submitted that, as per the
nominal roll provided by the Superintendent,
Aurangabad Central Prison, Aurangabad, the
petitioner - prisoner has undergone 15 years,
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9 months and 29 days of actual imprisonment.
Accordingly, the petitioner has undergone 17
years, 2 months and 24 days of imprisonment
with remission as on 30th June, 2016. As such,
in view of placing the petitioner in the
aforesaid categories, the petitioner is
required to undergo the actual imprisonment
of 26 years with remission. Upon completion
of 26 years of imprisonment with remission,
the petitioner would be released.
12. It is submitted that, in view of
these facts and circumstances, the category
for death victim due to burns, applied in the
case of the petitioner is correct and thus
the prayer of the petitioner is required to
be rejected. So also the petitioner is not
entitled for remission of sentences for the
reason that, his name is removed from the
remission register on account of violation of
the relevant Rules.
371.2017 Cri.WP.odt
13. We have given anxious consideration
to the submissions of the learned counsel
appearing for the petitioner and the learned
APP appearing for the respondent - State.
With their able assistance, we have carefully
perused the findings recorded by the
Additional Sessions Judge, Aurangabad in
Sessions Case No.136/1996 [The State of
Maharashtra Vs. Shaikh Rajjak s/o. Sayed
Saleem], the trial Court, after appreciating
the entire evidence in para 23 observed that,
as accused has caused death of Barkatbegum
by setting her on fire, his conduct clearly
goes to show that death was caused
intentionally. Had the accused not intended
to kill his wife, he would have at least
opened the door when the prosecution
witnesses were shouting from outside. The
fact that accused was standing nearby when
his wife was burning clearly goes to show
that he intended to see that Barkatbegum
371.2017 Cri.WP.odt
dies. If the said findings are considered,
there is no manner of doubt that, the
appellant not only intended death of
Barkatbegum but the said death was committed
with exceptional violence so as to ensure
death of Barkatbegum.
14. Upon careful perusal of the category
no.1-d of the Government Guidelines of 1992
where the crime is committed by the
aggrieved person but with premeditation, in
that case, period of imprisonment is to be
undergone including remissions subject to a
minimum of 14 years of actual imprisonment
including set off period is of 26 years.
Under the new guidelines of 2010 in category
2-c, where the crime is committed by the
aggrieved person with exceptional violence
and / or with brutality or death of victim
due to burns, in that case, period of
imprisonment is to be undergone including
remissions subject to a minimum of 14 years
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of actual imprisonment including set off
period is of 26 years. Therefore, if the
findings recorded by the trial Court are
considered, in that case, in our considered
view the petitioner is rightly placed in
category no.1-d of the Guidelines for
premature release of prisoners sentenced to
life imprisonment or to death penalty
commuted to life imprisonment and category
no.2-c of the Guidelines for premature
release under the 14 years Rule of Prisoners
serving life sentence.
15. In that view of the matter, we do
not find any substance in the Writ Petition,
and the same is devoid of any merits. Hence,
the Writ Petition stands rejected. Rule
stands discharged.
[K.K.SONAWANE] [S.S.SHINDE]
JUDGE JUDGE
DDC
