Bombay High Court

Mohd. Ali S/O. Mohd. Habib Shaikh ... vs The State Of Maharashtra And Anr on 12 October, 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.1213 OF 2017


 Mohd. Ali s/o Mohd. Habib Shaikh
 (C-4654), Open Prison, Paithan.
                                 ...PETITIONER 

        VERSUS             

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

 2) The State of Maharashtra,
    Through Superintendent,
    Open Prison, Paithan.   
                                 ...RESPONDENTS

                      ...
    Mr. Rupesh A. Jaiswal Advocate for Petitioner.
    Ms. P.V. Diggikar, A.P.P. for Respondent 
    Nos. 1 & 2.       
                      ...


               CORAM:   S.S. SHINDE AND
                        MANGESH S. PATIL, JJ.

DATE OF RESERVING JUDGMENT : 9TH OCTOBER, 2017

DATE OF PRONOUNCING JUDGMENT: 12TH OCTOBER, 2017

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JUDGMENT [PER S.S. SHINDE, J.]:

1. Rule. Rule made returnable forthwith and

heard finally with the consent of the learned

counsel appearing for the parties.

2. By way of filing this Writ Petition under

Article 226 of the Constitution of India, the

Petitioner seeks directions to Respondent Nos.1

and 2 to grant the State remission of two years to

the Petitioner in view of the Government Circular

dated 6th August, 1997.

3. It is the case of the Petitioner that he

is undergoing sentence for life imprisonment as

per order dated 28th July, 2003, passed by the

Additional Sessions Judge, Mumbai in Sessions

Case. The Petitioner has contended that he was

arrested in connection with a crime for the

offence punishable under Section 302 of the Indian

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Penal Code. After full-fledged trial, the Sessions

Court at Mumbai has held him guilty for the

offence punishable under Section 302 of the Indian

Penal Code and he has been sentenced to undergo

imprisonment for life. It is submitted that the

Petitioner was arrested on 2nd January, 1990 and

he was released on bail after three months and

twenty two days from the date of his arrest.

Thereafter he has been convicted on 28th July,

2003, and sentenced to suffer life imprisonment

and was taken in custody. Thus, it appears that

the Petitioner was in jail from 2nd January 1990

till April, 1990 and from 28th July, 2003 onwards

he is in jail. Thus, the Petitioner has undergone

the sentence for more than 14 years.

4. It is submitted that in exercise of

powers under 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

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remission to the prisoners on the occasion of

Golden Jubilee Independence day. The said

remission is to take effect from 15 th 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 14 years of the

sentence. Para 4 of the said Circular states that

on 15th August, 1997, the prisoners, who were

unauthorizedly, out of prison should not be given

the benefit of the said Circular but the prisoners

who were out of prison authorizedly, such as on

parole and furlough etc., they be given the

benefit of the State remission.

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5. Learned counsel appearing for the

Petitioner submits that, in the case of Rajubhau

Gaddalwar vs. State of Maharashtra in Criminal

Writ Petition No.244 of 2008 and also in the case

of Chotu Punekar vs. State of Maharashtra, in

Criminal Writ Petition No.163 of 2008 the High

Court has held that even the prisoner, who is not

convict, who is under-trial on relevant date i.e.

6th August, 1997, would be entitled to State

Remission on the eve of Golden Jubilee of India's

Independence, and hence the Petitioner is also

entitled for State Remission of two years on eve

of Golden Jubilee of India's Independence.

6. Learned counsel appearing for the

Petitioner has further relied upon the Government

Circular dated 28th April, 1999 wherein it is

stated that every convict who is on bail at the

time of grant of State Remission, would be

entitled for such State Remission. Learned counsel

submits that at the time of grant of State

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Remission, the Petitioner was on bail which was

granted by Sessions Court, Mumbai and therefore,

as per the provisions of Government Circular dated

28th April, 1999, the Petitioner is entitled for

State Remission of two years. Therefore, he

submits that the Petition may be allowed.

7. Learned A.P.P. appearing for the State

submits that the Petitioner is convicted by

Sessions Court Mumbai by order dated 28th July,

2003, for the offence punishable under Section 302

of the Indian Penal Code and he is sentenced to

undergo life imprisonment. The Petitioner's under-

trial period from 2nd January 1990 is three months

and twenty two days. It is submitted that as per

the Government Circular/letter dated 6th August,

1997, the Government has directed to give State

remission only to convicted prisoners and the

effect of the same is to be given from 15th August,

1997. As per the Government letter dated 6th

August, 1997, all prisoners, who were convict for

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life imprisonment as on or before 15th August,

1997, should be given remission of two years. When

the State Government letter dated 6th August, 1997

was issued, at that time the petitioner was not

convict prisoner and since April, 1990, he was

enlarged on bail. Learned A.P.P., relying upon the

exposition of law by the Supreme Court in the case

of State of Haryana and others vs. Jagdish 1 and in

particular Para 43 thereof, 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. She

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.

8. We have heard learned counsel appearing

for the Petitioner, and the learned APP appearing

for the Respondent - State at length. With their

1 2010(4) S.C.C. 216

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able assistance, we have perused the pleadings in

the Petition, annexures thereto, 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 6 th August, 1997, the

Petitioner was not convicted, however, it is

admitted position that the Petitioner was under-

trial prisoner and 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

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under-trial prisoner.

9. The Division Bench of the Bombay High

Court, Bench at Nagpur, in the case of Chottu

Ratanlal Punekar Vs. State of Maharashtra2 had

occasion 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

and 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

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

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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 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

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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 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."

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10. 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

March, 2016, and for the reason stated in the

order, the said Petition was dismissed.

11. Learned counsel appearing for the

Petitioner also relied upon Government Circular

dated 28th April, 1999, wherein it is stated as

under:

"mijksDr izdj.kkP;k vuq"kaxkus 'kklukus vkrk vlk

fu.kZ; ?ksryk vkgs dh] 'kklukus ;kiwohZ izLrqr dsysY;k

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loZ jkT;ekQhpk Qk;nk lacaf/kr vkns'k T;k dkyko/khe/;s

dk<.;kr vkys R;k dkyko/khe/;s ts dSnh U;k;ky;kus

eatwj dsysY;k tkehu (Bail) jtsoj vlrhy v'kk loZ

dSn;kauk R;k R;k dkyko/khrhy jkT;ekQhpk Qk;nk ns.;kr

;kok-"

. Thus it is provided in the said

Government Circular that benefit of all State

Remissions should be given to the convicts who

were enlarged on bail by the competent Court on

the relevant date.

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

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Chottu Ratanlal Punekar [cited supra] and also the

observations made herein above, and the office

record in relation to the case of the Petitioner