Kamal Sundardas Bathija vs The Cheif Secretary And Ors
2017 Latest Caselaw 8635 Bom

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              IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                             CRIMINAL APPELLATE JURISDICTION

                   CRIMINAL WRIT PETITION NO. 4613 OF 2017


Kamal Sundardas Bathija                                                    .. Petitioner

                    Vs.

The Chief Secretary, State of Mah.
Mantralaya, Mumbai and Ors.                                                .. Respondents


                            ....
Mr. Subhash Jha Advocate along with Ms. Sanjana Pardeshi, Mr.
Siddhant Jha and Ms. Ankita Pawar i/b Law Global for Petitioner

Mr. Deepak Thakare Public Prosecutor along with Mr. Arfan Sait
A.P.P. for Respondent Nos. 1 to 5 and 7.

Mr. N.N. Gawankar along with Mr. Manas N. Gawankar i/b Mr.
V.H. Narvekar Advocate for Respondent No.6
                            ....



                                        CORAM : SMT.V.K.TAHILRAMANI AND
                                                M.S.KARNIK, JJ.

DATED : NOVEMBER 13, 2017

ORAL JUDGMENT [PER SMT. V.K.TAHILRAMANI, J.] :

1 Heard the learned counsel for the petitioner, learned

Chief Public Prosecutor for Respondent Nos. 1 to 5 and 7 and

Mr. Gawankar, the learned counsel for respondent no.6.

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2                   Rule. By consent, Rule is made returnable forthwith

and by consent, the matter is heard finally.

3 The petitioner has challenged the order whereby

parole was granted to respondent no.6 for a period of 17 days

to attend the marriage of daughter of respondent no.6. The

said order is dated 9.11.2017.

4 Mr. Jha, the learned counsel for the petitioner has

placed reliance on the Notification dated 26.8.2016 and

contended that parole could not at all have been granted to the

respondent no.6. He placed reliance on clause 3 (a) of the

Notification whereby Rule 4 of the Prisons (Bombay Furlough

and Parole) Rules, 1959 was amended. He pointed out clause

3(a) of the Notification dated 26.8.2016. The said clause reads

as under:

"3. In Rule 4 of the Principal Rules-

(a) for the words "The following categories of

prisoners shall not be considered for release on

furlough" the words, " All Indian prisoners except from

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following categories whose annual conduct reports are

good shall be eligible for furlough" shall be

substituted."

Thereafter Mr. Jha placed reliance on Sub-clause (2) of Clause 5

of the said Notification which reads as under:

"5. For the Rule 19 of the Principal Rule, following

rules shall be substituted, namely:-

19. When a prisoner may be released on parole -

(1) ...................................

(a)....................................

(b) ...................................

(c).....................................

(B)(a) ................................

(b) ....................................

(2) Regular parole - All prisoners eligible for furlough

shall be eligible for regular parole.

In view of the above, Mr. Jha submitted that all those

who cannot be released on furlough cannot also be released on

parole.

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5                   Mr. Jha then placed reliance on clause 3(14) of the

Notification dated 26.8.2016. Sub-clause (14) states that those

who are sentenced for life imprisonment "till death", cannot be

granted furlough. Mr. Jha contended that in the present case,

respondent no. 6 has been convicted and sentenced for life

imprisonment "till death", therefore, he could not have been

granted furlough, in which case, respondent no. 6 also cannot

be granted parole.

6 In order to examine the correctness of the contention

of Mr. Jha that respondent no. 6 was sentenced to life

imprisonment "till death", we have perused the judgment and

order whereby respondent no. 6 has been convicted and

sentenced by the Sessions Court. By judgment and order dated

3.12.2013, the learned Adhoc Additional Sessions Judge, Kalyan

convicted and sentenced the respondent no.6 under Section

120-B read with Section 302 of IPC in Sessions Case No. 218 of

1999. The said judgment has been annexed by the petitioner

to the present petition at Exh. A. The operative part of the said

judgment whereby respondent no.6 has been convicted and

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sentenced by the Sessions Court, reads as under:

" 1) Accused no.1 Suresh @ Pappu Budharmal

Kalani is hereby convicted for having committed an

offence punishable under Section 120-B read with

Section 302 of IPC and is sentenced to undergo life

imprisonment and to pay fine of Rs.5000/- (Rupees

Five Thousand only) i/d to suffer R.I. for six months".

7 The judgment in the Sessions case does not state that

the respondent no. 6 has been sentenced for life imprisonment

"till death". Thereafter Mr. Jha placed reliance on the judgment

of this Court whereby the appeal of respondent no. 6 came to

be dismissed. The said judgment has been annexed as Exh.

to this petition. Respondent no. 6 had preferred Criminal

Appeal No. 1309 of 2013 against the judgment and order of the

Sessions Court dated 3.12.2013. The said appeal came to be

dismissed. Paragraph 115 of the said judgment reads as

under:

"115. As a result of the above discussion, this criminal

appeal fails and it is dismissed."

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8                   Mr. Jha then placed reliance on paragraph 116 of the

said decision, the relevant portion of which reads that "the life

convict has to undergo custody for his entire life span and has

no right to get released after 14 or 20 years of imprisonment.

His custody is for indefinite period" and contended that this

shows that respondent no. 6 has been sentenced for life

imprisonment "till death". However, in the very same

paragraph just above the quoted portion, it is observed by this

Court that powers of remission or commutation of sentence are

distinctly conferred in the State by Code of Criminal Procedure

and their applicability is not necessarily dependent upon what

has been stated or held in judgments in a Sessions case. This is

the power of the appropriate Government and which can be

exercised by it. Thereafter in paragraph 116, what was held by

the Supreme Court in Sangeet Vs. State of Haryana, AIR 2013

SC 447, has been culled out by this Court, which reads as

under:

"an order giving a sentence in a capital offence of 20

years or 30 years imprisonment without remission, is

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in effect an injunction against the appropriate

Government from exercising its power of remission for

the specific period. This is not permissible. The

appropriate Government cannot be told that it is

prohibited from granting remission of sentence.

Similarly a convict cannot be told that he cannot apply

for a remission in his sentence, whatever be the

reason".

9 However, in regard to the above observations relied

upon by Mr. Jha in paragraph 116, this Court has further

observed that remission meant is notional and therefore, for his

early release specific order under the relevant provisions of

Code of Criminal Procedure need to be passed. This is just a

general observation made by this Court in paragraph 116 and it

in no way, has altered the sentence imposed on respondent

no.6 by the Sessions Court. This is very clear from paragraph

117 of the judgment of this Court whereby the appeal of the

respondent no.6 came to be dismissed. In paragraph 116 it is

stated as under:

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"Hence, we do not see how the conviction and

sentence as handed down can be said to be vitiated

when the guilt of the accused has been brought

home."

10 There are cases where the judgment itself shows that

the accused is sentenced to life imprisonment till death, or it

states that the accused is sentenced to imprisonment for the

remainder of his life but the present case is not such a case. In

cases where sentence is of life imprisonment, when the convict

completes about 12 years of actual imprisonment, his case is

referred to the Government for premature release under

Section 433 of the Code of Criminal Procedure. The State then

takes all factors into consideration and categorizes the case of

the accused and decides when he is to be prematurely released

as per the guidelines formulated by the Government. Thus,

when the sentence states life imprisonment, it does not mean

that the accused will remain in prison till his death.

11                  As observed earlier, the Sessions Court only stated

that          respondent                    no.6           is        sentenced           to       undergo               life









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imprisonment. The judgment nowhere states that respondent

no.6 is sentenced for life imprisonment till death. In the appeal

this Court has not altered the sentence from life imprisonment

to life imprisonment till death. This Court in para 17 of the

judgment whereby the appeal of Respondent no.6 came to be

dismissed has, infact confirmed the conviction and sentence as

awarded by the trial Court. Therefore, clause 3(14) of the

Notification dated 26.8.2016 cannot be made applicable to the

present case.

12 Thereafter Mr. Jha submitted that in view of the

Notification dated 26.8.2016 parole could not have been

granted to the petitioner. Firstly, he placed reliance on clause 5

of the said Notification whereby Rule 19 of The Prisons (Bombay

Furlough and Parole) Rules 1959 was amended. He pointed out

that no doubt parole can be granted for the marriage of son,

daughter, brother or sister of the prisoner, however, the said

parole can only be granted for seven days and in the present

case, parole has been granted for 17 days. The amendment

which is relied upon by Mr. Jha is in relation to emergency

parole. It sets out the grounds when emergency parole can be

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granted and one of the grounds is marriage of son, daughter,

brother or sister. No doubt it stipulates that emergency parole

can be granted only for seven days and no extension can be

granted in case of emergency parole, however, Mr. Thakare,

the learned Chief Public Prosecutor pointed out that respondent

no.6 had not applied for emergency parole and in fact, he had

applied for regular parole and respondent no.6 has been

granted regular parole.

13 Mr. Thakare submitted that no doubt the original

Rule for parole i.e. Rule 19 did not contemplate grant of parole

for marriage of son, daughter, brother or sister, however, by

Notification dated 23.2.2012, Rule 19 was amended and it also

provided for parole on the ground of marriage of brother, sister

and children of the prisoner. Thus, it is seen that under Rule

19 regular parole can also be granted on account of marriage of

the child of the prisoner. Thus, the respondent no.6 was well

within his rights to apply for regular parole on the ground of

marriage of his daughter which was to take place on

12.11.2017. Thus, this is not a case of emergency parole but a

case of regular parole, hence, parole could have been granted

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for 45 days on account of marriage of the daughter of

respondent no.6 which can be extended once in three years by

15 days. However, in the present case, the respondent no.6

had himself applied for parole only for 17 days, hence, parole

was granted only for 17 days instead of regular parole for 45

days.

14 We have gone through the police report which was

relied upon by the authorities while granting parole. The police

report infact shows that the marriage of the daughter of

respondent no.6 has been fixed and it is to take place on

12.11.2017 at Powai, Mumbai. Police report clearly states that

the reason given by respondent no.6 for seeking parole, is true.

The authorities while granting parole have imposed many

conditions on respondent no.6 during the period he is on parole.

It is also seen that the sureties have undertaken to see that the

respondent no. 6 will report back to the prison on the due date.

In the present case, the prison record shows that the conduct of

respondent no.6 in prison is good. Thus, none of the grounds

raised by Mr. Jha are such so as to set aside the order granting

parole to respondent no.6, hence, we are not inclined to

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interfere in the order granting parole to the respondent no.6.

Hence, Rule is discharged. Petition is dismissed.

[ M.S.KARNIK, J.] [ SMT.V.K.TAHILRAMANI, J.]

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