Raju @ Ahmed Ismail Sayyed ... vs The State Of Maharashtra
2017 Latest Caselaw 6729 Bom

                                                             851.2017 Cri.WP.odt
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               IN THE HIGH COURT OF JUDICATURE AT BOMBAY 
                          BENCH AT AURANGABAD

                  CRIMINAL WRIT PETITION NO.851 OF 2017

          Raju @ Ahmed Ismail Sayyed 
          [C-4739]                        PETITIONER 

                     VERSUS

          1.       The State of Maharashtra 
                   Through Secretary, Home Department 
                   Mantralay, Mumbai-400 032.  

          2.       The State of Maharashtra 
                   Through Additional Director General 
                   of Police [Prisons].  

          3.   The State of Maharashtra 
               Through Superintendent of Open 
               Prison, Paithan, 
               Tq. Paithan, Dist. Aurangabad. 
                                             RESPONDENTS 
                                   ...
          Ms.Neha B.Kamble [Appointed] Advocate for the 
          Petitioner 
          Ms.S.S.Raut, APP for the Respondent/State
                                 ...
                           CORAM:  S.S.SHINDE & 
                                    S.M.GAVHANE,JJ. 

Reserved on : 01.08.2017 Pronounced on : 04.09.2017

JUDGMENT: (Per S.S.Shinde, J.):

1. Rule. Rule made returnable

forthwith, and heard finally with the consent

of the parties.

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2. It is the case of the petitioner

that the petitioner is undergoing life

imprisonment for the offence punishable under

Section 302 of the Indian Penal Code, and he

has completed actual imprisonment of 14 years

on 22.05.2015, and completed 20 years 5

months and 24 days of imprisonment with

remission on 31st January, 2017. The

petitioner has been confined in Open Prison,

Paithan, since last three years. On 18th

March, 2017, the respondents have placed the

petitioner in category 3 [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 'Guidelines of

1992'] and category 6 [c] of the Guidelines

for Premature Release Under the '14 year Rule

of Prisoners serving life sentence [for short

'Guidelines of 2010'], and directed premature

release after completion of 26 years

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imprisonment. The main grievance of the

petitioner is that he is wrongly placed in

the category 3 [d] of the Guidelines of 1992,

as the murder committed is not with extreme

violence or perversity, and that the

Guidelines of 2010 are not applicable to the

petitioner. Similarly placed prisoners are

released on premature basis merely after

serving of 14 years, and thus the case of the

petitioner is being treated arbitrarily and

in violation of Article 14 of the

Constitution of India.

3. The learned counsel appearing for

the petitioner submits that the petitioner

suffers discrimination, when similarly

situated prisoners are released on '14 years

pre-mature release Rule' merely after 14

years imprisonment. The respondents failed to

apply the norms laid down by the Hon'ble

Supreme Court while considering the case for

premature release. The respondents have

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failed to consider that the petitioner is

under reform and serving in Open Prison, thus

the strict Guidelines of 1992, which failed

to consider the reformed prisoner and merely

places them in categories, is illegal and

arbitrary. The authorities should have

considered that non-release of a convict is

worse sanction than the death sentence,

resultant encroachment upon the life and

personal liberty by the executive. In view of

the above submissions, the order dated

18.03.2017 is subject to judicial review and

is arbitrary, whimsical and against the

provisions of Article 21 of the Constitution

of India, thus liable to be quashed and set

aside and the petitioner deserves to be

released forthwith.

4. The prison systems are based on the

theory of Reformation, which promotes

humanistic principle that even if an offender

commits a crime, he does not cease to be a

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human being. The reformative theory is also

known as rehabilitative sentencing. The

purpose of punishment is to 'reform the

offender as a person, so that he may become a

normal law-abiding member of the community

once again. The spirit of correctional

philosophy in criminology is rightly

described by Justice Krishna Iyer, 'Every

saint has a past and every sinner a future,

never write off the man wearing the criminal

attire but remove the dangerous degeneracy in

him, restore his retarded human potential by

holistic healing of his fevered, fatigued or

frustrated inside and by repairing the

repressive, though hidden, injustice of the

social order which is vicariously guilty of

the criminal behaviour of many innocent

convicts. Law must rise with life and

jurisprudence responds to humanism.

5. It is further submitted that the

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open prisons are established under the

Refomative Theory with the object to save the

long-term prisoners from the ill effects of

confining continuously in closed prisons and

to inculcate in the prisoners a sense of

self-discipline and social-responsibility.

The prisoners who responds to the programme,

based on trust and responsibility are

selected for being sent to Open Prison. The

petitioner is presently confined in the Open

Prison as he is found to be in good behaviour

and is willing to do hard work and abide by

the Rules and Regulations of the Open Prison.

The petitioner has served his sentence in

Nashik Road Central Prison till 21.03.2014

and has then been transferred to the Paithan

Open Prison, Taluka Paithan, District

Aurangabad on 22nd March, 2014. The petitioner

has completed actual imprisonment of 14 years

on 22.05.2015 and 20 years 5 months and 24

days of imprisonment with remission on

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31.01.2017, thus is entitled for premature

release on completion of 14 years

imprisonment.

6. It is further submitted that the

premature release has been recognized as one

of the facets of the human rights of

prisoners. The National Human Rights

Commission had taken up this issue in a

couple of instances. The Commission

formulated guidelines for release because

various representations were made to the

Commission on the non-uniformity of standards

applied by State Governments when using the

power of remission. The Hon'ble Supreme Court

in the case of Laxman Naskar Vs. Union of

India1 has laid down parameters to be

considered by the Authority before taking a

final decision on the proposal of remission

as follows:

                   i.      Whether   the   offence   was   an 

          1 [2000] 2 SCC 595





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individual act of crime without affecting the society at large.

ii. Whether there was any chance of future recurrence of committing a crime;

iii. Whether the convict had lost his potentiality in committing the crime;

iv. Whether there was any fruitful purpose of confining the convict any more;

v. The socio-economic condition of the convict's family and other similar circumstances.

The petitioner has always returned

on time whenever he was released on parole or

furlough, and has been a law abiding citizen.

The authorities should have considered that

the socio-economic conditions of his family

in regard to the death of his father and his

ailing mother, thus the order sans merit, and

deserves to be quashed and set aside.

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7. It is further submitted that the

petitioner is being treated differently in

comparison to similarly placed prisoners for

premature release, in a arbitrary manner,

thus discriminating two equally placed

prisoners and violating the sacred principle

of 'Equality before law and equal Protection

by Law' under Article 14 of the Constitution

of India. The case of the following

prisoners, who are similarly situated to the

petitioner are treated for pre-mature release

merely after completion of 14 years of actual

imprisonment:

i] Bhagwan Singh Ramsingh - Prisoner No.4246 - The said prisoner was placed in the category 4 [e] for murder of 4 people and attempt to murder of 2 under Section 302, 120-B and 34, and thus serve a sentence of 26 years, however the Government vide order dated 13th January, 2015, granted him premature release only after serving 14 years imprisonment.

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ii] Annasaheb @ Maruti Suryabhan Mhase Prisoner No.4579 : He was punished with life imprisonment and placed in category 3 [d] for 26 years and 4 [e] for 26 years under the Guidelines of 16.11.1978, 1992 and 2010. The said prisoner had even arrived late 3 times while on leave from prison, however yet the respondent authorities have released him after completion of 14 years of imprisonment.

iii] Bajurao Kurde, Prisoner No.4280, who even falls in the category of 26 years imprisonment, has been released by the Government after completion of 14 years.

This Court vide order dated 21st January, 2009

in Criminal Writ Petition No.2391 of 2008

[Vishwajit Shankar Khaavanekar Vs. The State

of Maharashtra & others] directed that the

persons who had completed 14 years of

imprisonment and who in terms of Guidelines

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are entitled to be released on completion of

14 years. The case of the petitioner needs to

adjudge considering that he is confined in

Open Prison since last 3 years and has shown

impeccable determination for work and good

behaviour and character, and to neglect the

same and detain the petitioner in the prison

even after fulfillment of the object of

rehabilitation, is illegal detention of the

petitioner. In support of her afore-stated

contentions, the learned counsel placed

reliance upon the ratio laid down by the

Supreme Court in the cases of Laxman Naskar

Vs. Union of India and others [supra], and

State of Haryana and others Vs. Jagdish2.

Therefore, learned counsel submits that the

order dated 18th March, 2017, deserves to be

quashed and set aside.

8. On the other hand, learned APP

appearing for the respondent - State relying

2 [2010] 4 SCC 216

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upon the affidavit-in-reply submits that the

proposal of 14 years premature release of the

petitioner-prisoner was decided taking into

consideration the information provided by the

Superintendent, Open District Prison, Paithan

through Additional Director General of Police

and the Inspector General of Prison and

Correctional Services, Maharashtra State,

Pune as well as the punishment imposed by the

Additional Sessions Judge, Osmanabad, vide

judgment dated 01.03.2001. Considering the

nature of crime committed by the petitioner,

punishment imposed by Additional Sessions

Judge, Osmanabad to suffer imprisonment of

life under Section 302 r/w. 34 of the IPC and

imprisonment of life under Section 120 (B)

r/w. 302 of the IPC as well as

recommendations by Additional Director

General of Police and Inspector General of

Prison and Correctional Services, Maharashtra

State, Pune, petitioner's case was

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recommended for release on completion of 26

years of imprisonment with remission under

the provisions of category-3 [d] of the

Government letter No.RLP 1092/13/252/PRS-3,

dated 11.05.1992 and category 6 (c) of the

Government Resolution No.RLP-1006/C.R.

621/PRS-3 dated 15.03.2010 subject to

completion of actual imprisonment of 14

years. The petitioner has undergone actual

imprisonment of 14 years on 22.05.2015

whereas he has completed 20 years and 5

months and 24 days of imprisonment with

remission on 31.01.2017. The petitioner-

prisoner will be released after completion of

26 years of imprisonment with remission.

Therefore, she submits that the petition may

be dismissed.

9. We have given careful consideration

to the submissions of the petitioner, and

learned APP appearing for the respondent-

State. With their able assistance, we have

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perused the pleadings in the Petition,

annexures thereto, and the reply filed by the

respondents, and also other documents placed

on record. Upon careful perusal of the order

passed by the Department of Home, Government

of Maharashtra, it is abundantly clear that

keeping in view the exposition of law by the

Supreme Court in the case of State of Haryana

Vs. Jagdish [cited supra], the impugned order

is passed. Therefore, there is proper

application of mind by the authority to the

facts of the case except categorization of

the petitioner in the guidelines issued on

15th March, 2010. However, since the

Guidelines of 1992 are beneficial to the

petitioner, he is placed in category 3 [d] of

the Guidelines of 1992. Upon perusal of the

orders passed by the respondents, it is

crystal clear that, keeping in view all the

factors including that the petitioner is

undergoing imprisonment in the Open Prison

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from last three years, the petitioner is

placed in category 3 [d] of the Guidelines of

1992.

10. The submission of the learned

counsel appearing for the petitioner that the

petitioner's case would fall in category 3

[b] of the Guidelines of 1992 has to be

appreciated keeping in view the following

facts and circumstances mentioned by the High

Court while dismissing the appeal filed by

the petitioner. The relevant facts mentioned

in the judgment dated 24th August, 2004,

passed by this Court in Criminal Appeal No.

190 of 2001, reads thus:

....There was no hope of receiving the money and, therefore, the deceased asked the rickshaw driver to return to Omerga. On the way, the accused No.2 spread chilly powder in the eyes of Shivshankar and accused No.1 took out a rope.

Shivshankar Swami started

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shouting and, therefore, the rickshaw driver looked back on the rear side where all the three were sitting. He noticed that both the accused were strangulating the deceased with a nylon rope and when they noticed that the driver had seen them, part of the rope was thrown around his neck as well and he was told that if he looked back or stopped the rickshaw or made any noise, he would be dealt with in the same manner. After some time, the moments of the deceased stopped and the rickshaw continued. The accused asked the rickshaw driver to stop the rickshaw near the land of Champabai Mahadeo Shelke (PW 12) in the territory of village Bhusni. The accused took out the dead body of Shivshankar and carried it about 50 to 60 ft. inside in the standing crop and dropped there. They asked the rickshaw driver to proceed to Murum and from

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there, they procured some kerosene, came back to the site and went to the place where the dead body was dumped. They poured kerosene on the dead body and set it on fire. The rickshaw driver was under threats and, therefore, he had no alternative but to wait as a mute spectator. They got into the rickshaw and asked the driver to proceed towards Omerga and in a chowk, they stopped near Nagu's hotel. They offered dinner to the rickshaw driver as well but he did not have dinner and after their dinner was over, they came back with the rickshaw driver to Omerga town by about 9.30 p.m. While getting down from the rickshaw, they again threatened the driver not to mention about the incident to anyone else not only he but all his family members would be eliminated in the same way as Shivshankar Swami was killed.

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11. Upon careful perusal of the afore-

mentioned facts from the judgment of the High

Court, and the evidence brought on record by

the prosecution, the prosecution has been

successful in proving that the accused No.2

spread chilly powder in the eyes of

Shivshankar and accused No.1 took out a rope,

and they strangulated the deceased with a

nylon rope and when they noticed that, the

Rickshaw puller / driver had seen them; they

threatened him not to interfere or disclose

the said incident to anybody else.

Thereafter, they went to village Murum and

procured some kerosene, and they came back to

the spot where dead body was thrown by them,

and poured kerosene on the dead body of

Shivshankar and set it on fire. There cannot

be slightest doubt that murder of Shivshankar

was committed in a brutal and ghasty manner

by the petitioner and another co-accused.

12. In that view of the matter, it

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cannot be said that the categorization of the

petitioner in category 3 [d] of the

Guidelines of 1992 is not proper. Category 3

[b] cannot be made applicable, since murder

of Shivshankar was not committed during the

course of quarrel, but it was preplanned, and

pursuant to the premeditation. The fact that

the petitioner was possessing chilly powder

and another co-accused was possessing nylon

rope clearly indicated that the murder of

Shivshankar was intended. It is not necessary

for us to elaborate further reasons, suffice

it to say that no case is made out to issue

directions as sought by the petitioner to the

respondents. Hence Writ Petition stands

rejected. Rule stands discharged.

13. We appreciate the sincere efforts

taken by Advocate Ms.Neha B. Kamble,

[Appointed] to represent the cause of the

petitioner by rendering able assistance

during the course of hearing. We quantify her

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fees at Rs.5,000/- [Rupees Five Thousand

only].

              [S.M.GAVHANE]             [S.S.SHINDE]
                  JUDGE                     JUDGE  
          DDC