Bombay High Court
Kamal Sundardas Bathija vs Gabriel @ Baba Hana Moben And ... on 23 July, 2021
Bench: V.K. Jadhav, S. G. Dige
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 134 OF 2021
Gabriel @ Baba Hana Moben
Age 58 years, Occ. Nil, Convict No. 7737,
R/o 7/153, Sayyad Chal, Shanti Nagar, MIDC
12th Road, Andheri East, Mumbai-93.
At present in Central Prison, Aurangabad,
District Aurangabad. ... Petitioner.
Versus
1. The State of Maharashtra,
Through Under Secretary Home Department,
Mantralaya, Mumbai.
2. The Inspector General of Prisons,
Maharashtra State, Pune.
3. The Superintendent of Central Prison,
Aurangabad, District Aurangabad. ... Respondents.
WITH
CRIMINAL APPLICATION NO. 541 OF 2021
IN CRIMINAL WRIT PETITION NO. 134 OF 2021
Kamal s/o Sundardas Bathija
Age 60 years, Occ. Business,
R/o. 5th Floor, Bage Laxmi Kutir,
O.T. Section, Ulhas Nagar-3,
District Thane. ... Applicant
Versus
1. Gabriel @ Baba Hana Moben,
Age 58 years, Occ. Nil, Convict No. 7737,
R/o 7/153, Sayyad Chal, Shanti Nagar, MIDC
12th Road, Andheri East, Mumbai-93.
At present in Central Prison, Aurangabad,
District Aurangabad.
2. The State of Maharashtra,
Through Under Secretary Home Department,
Mantralaya, Mumbai.
3. The Inspector General of Prisons,
Maharashtra State, Pune.
4. The Superintendent of Central Prison,
Aurangabad, District Aurangabad. ... Respondents.
::: Uploaded on - 26/07/2021 ::: Downloaded on - 22/09/2021 22:14:30 :::
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WITH
CRIMINAL WRIT PETITION NO. 327 OF 2021
Kamal s/o Sundardas Bathija
Age 60 years, Occ. Business,
R/o. 5th Floor, Bage Laxmi Kutir,
O.T. Section, Ulhas Nagar-3,
District Thane. ... Petitioner
Versus
1. The State of Maharashtra,
Through Under Secretary Home Department,
Mantralaya, Mumbai.
2. The Inspector General of Prisons,
Maharashtra State, Pune.
3. The Superintendent of Central Prison,
Aurangabad, District Aurangabad.
4. Gabriel @ Baba Hana Moben,
Age 58 years, Occ. Nil, Convict No. 7737,
R/o 7/153, Sayyad Chal, Shanti Nagar, MIDC
12th Road, Andheri East, Mumbai-93.
At present in Central Prison, Aurangabad,
District Aurangabad. ... Respondents.
.....
Mrs. Bharati B. Gunjal, Advocate for the Petitioner in Cri.W.P. 134/2021.
Mr. D. P. Palodkar, Advocate h/f Mr. Shubham S. Khose, Advocate for the
Petitioner in Cri.W.P. 327/2021 and the Applicant in Cri. Application
541/2021.
Mr. A. S. Shinde, A.P.P. for Respondent - State.
.....
CORAM : V. K. JADHAV AND
S. G. DIGE, JJ.
Date of Reserving
the Judgment : 12.07.2021
Date of pronouncing
the Judgment : 23.07.2021
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JUDGMENT (PER V.K. JADHAV, J.) :-
1. Rule. Rule made returnable forthwith. By consent, heard
finally at admission stage.
2. The petitioner is a life convict in connection with Sessions
Case No. 218 of 1999. He was convicted for the offences punishable
under Sections 302, 120-B, 450 of I.P.C. and sentenced to suffer
imprisonment for life on 3.12.2013. The said judgment and order of
conviction passed by the Additional Sessions Judge, Kalyan in
Sessions Case No. 218 of 1999 dated 3.12.2013 has attained finality
as the apex court has dismissed the criminal M.P. No. 4975 of 2015
on 5.5.2015.
3. According to the petitioner, till filing of the petition he has
undergone 24 years, 7 months and 15 days of imprisonment
including remission and the actual imprisonment of 21 years and 2
months. Thus, the jail authorities by exercising its powers conferred
by sub-section (1) of Section 432 of Cr.P.C., remitted the petitioner's
sentence of imprisonment for life which is in excess of 24 years of
the total imprisonment by placing him initially in category 4(d) as per
the Government guidelines dated 15.3.2010 and thereafter, in
category 6(a) of the Government guidelines dated 15.3.2010 and
forwarded his proposal dated 23.5.2017 to the Home department,
Mantralaya, Mumbai i.e. respondent No.1 herein. By order dated
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9.7.2019, initially the said proposal was rejected on the question of
breach of peace, possibilities of threatening the complainant and
witnesses etc. Being aggrieved by the same, the petitioner had
approached this Court by filing criminal writ petition No. 1520 of
2019. By order dated 9.1.2020, this Court has allowed the said
criminal writ petition and directed the respondent authorities to
reconsider the proposal of the convict.
4. By order dated 04.01.2021 the respondent No.1 has placed
the petitioner in the category of 5(b) of the Government guidelines
dated 15.3.2010 as "murderes arising out of political rivalry and
political interest with premeditation". By way of this petition, the
petitioner has challenged the said order dated 4.1.2021.
5. Learned counsel for the petitioner submits that respondent
No.1 has not gone through the judgment and order of conviction
dated 3.12.2013 passed by the learned Additional Sessions Judge,
Kalyan in Sessions Case No. 218 of 1999. It has been specifically
observed by the learned Sessions Judge in para 88 and 94 that it is
not the case that the petitioner had any axe to grind with the
deceased. He had no relations inter se with the deceased. As such
there is no personal enmity between them or motive to murder him
brought on record. Learned counsel submits that thus, the petitioner
had no concerned with political rivalry as it is limited to the extent of
accused No.1 and the deceased. Therefore, the act committed by the
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petitioner is for other reasons and therefore, the categorization made
by respondent No.1 is illegal and against the facts on record and
category No. 4(d) would be appropriate.
6. Learned A.P.P. submits that the petitioner was convicted for
the offences punishable under Section 302 r.w. Section 120-B of
I.P.C, Section 450 r.w. 34 of I.P.C., section 506 (2) r.w. 34 of I.P.C.,
under Section 353 r.w. 34 of I.P.C and Section 27(2) of the Indian
Arms Act and sentenced to suffer life imprisonment with fine of
Rs.5000/- i/d to suffer R.I. for six months under section 302 r.w. 120-
B of IPC, ten years RI with fine of Rs. 5000/-, i/d to suffer RI for six
months under section 450 r.w. 34 of IPC, seven years RI with fine of
Rs.3000/- i/d to suffer RI for three months under Section 506 (2) r/w
34 of IPC, two years RI with fine of Rs.1000/-, i/d to suffer RI for one
month under section 353 r/w 34 of IPC and one year RI with fine of
Rs.1000/- i/d to suffer RI for one month under section 27(2) of the
Indian Arms Act. Learned A.P.P., by referring the para 105 of the
judgment in Sessions Case No. 218 of 1999, submits that it was a
murder for political reasons and murder arising out of political interest
with premeditation.
7. Learned A.P.P. submits that in exercise of the powers in
terms of Section 432 of Cr.P.C. and Section 59(5) of the Prisons Act,
1894, the State of Maharashtra being the appropriate government,
has formed guidelines for premature release of convict prisoners and
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those guidelines came to be revised from time to time by the State of
Maharashtra. The Supreme Court, in the case of State of Haryana
vs. Jagdish reported in AIR 2010 SC 1690, has held that in case a
liberal policy prevails on the date of consideration of the case of a
"lifer" for premature release, he should be given benefit thereof.
Learned A.P.P. submits that since the petitioner was convicted by the
Adhoc Additional Session Judge Kalyan on 3.12.2013, as such the
guidelines dated 15.3.2010 for premature release of convict prisoner
would be appropriate Government guidelines. Thus, the proposal of
the petitioner for premature release was submitted to the
Government. The state of Maharashtra, respondent No.1 herein, by
order dated 4.1.2021 has appropriately placed the convict under
clause 5(b) of the Guidelines dated 15.3.2010, wherein the petitioner
is to be released prematurely on completion of 26 years of
imprisonment including remission. Learned A.P.P. submits that the
petitioner has completed 24 years, 1 month and 29 days of
imprisonment with remission as on 11.5.2020. Thus, the petitioner
may be released after undergoing 26 years of imprisonment with
remission.
8. The real brother of deceased Inder viz. Kamal Sundardas
Bathija has filed criminal application No. 541 of 2021 seeking
permission to intervene in criminal writ petition No. 134 of 2021. The
intervener however, has also filed criminal writ petition No. 327 of
2021 to quash and set aside the order dated 4.1.2021 passed by
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respondent No.1 which is subject matter of the criminal writ petition
No. 134 of 2021. According to the intervener, the case of the convict
does not fall in clause 5(b) of the Government Resolution dated
15.3.2010 and the same would fall in clause 6(a) i.e. murders for
serious offences committed by gangsters, contractor killers,
racketeers etc. for which the period of imprisonment to be undergone
with remission is 28 years.
9. Mr. Palodkar, learned counsel submits that deceased Inder
was real younger brother of the applicant and the applicant is
prosecuting the case throughout against the accused persons in
connection with Sessions Case No. 218 of 1999 since last 21 years.
The applicant has submitted various protest petitions before the
State Government opposing the proposal for seeking remission of
sentence but none of his proposals was considered by the State
Government before passing the impugned order dated 4.1.2021.
The photocopies of the said protest petitions are annexed at Exhibit
"C-1" to the application. Learned counsel submits that from the
chequered history of the antecedents of the petitioner, there is
possibility of threat to the applicant if the convict (petitioner) is
released by granting remission. The antecedents of the convict
(petitioner) in criminal writ petition No. 134 of 2021 are annexed to
the application and marked Exhibit "C-2".
10. Learned counsel for the applicant (intervener), in order to
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substantiate his contentions, placed reliance on the judgment in the
case of Epuru Sudhakar and another v. Govt. of A.P. and others
reported in (2006) 8 SCC 161. Learned counsel submits that the
Hon'ble Supreme Court in the above cited case has observed that
judicial review of the order is available on certain grounds i.e. (a) that
the order has been passed without application of mind; (b) that the
order is mala fide; (c) that the order has been passed on extraneous
or wholly irrelevant considerations; (d) that relevant materials have
been kept out of consideration and (e) that the order suffers from
arbitrariness.
11. We have carefully gone through the judgment and order
passed by the Adhoc Additional Sessions Judge, Kalyan dated
3.12.2013 in session Case No. 218 of 1999. The present petitioner
is accused No.7 in the said Sessions case. In para 105 of the
judgment in Sessions case No. 218 of 1999, the learned Judge of the
trial court has made the following observations:-
"105. In the present case, as already discussed in the
main body of the Judgement, there is a history of bitter
political rivalry between the factions to which accused
no.1 belongs and the faction to which victim belonged.
Admittedly, the victim, his uncles, father and other close
relatives as well as the accused no.1 and his uncle and
other close relatives are all politicians and had at some
point or the other occupied official posts like Municipal
Councillor, President of Ulhasnagar Municipal Council,
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MLA etc. There was bitter rivalry between the two
factions which led to a spurt of murders of victims
belonging to both factions including the present case.
From this, it is clear that this is a political murder and
does not fall within the category of rarest of rare cases
justifying death penalty."
12. Learned Judge of the trial court in unequivocal words has
observed that there was bitter rivalry between the two factions which
led to a spurt of murders of victims belonging to both factions
including the present case and it is clear that this is a political murder
and does not fall within the category of rarest of rare cases justifying
death penalty.
13. Learned counsel for the petitioner-convict has drawn our
attention to the observations of the learned Judge of the trial court in
para 94 of the judgment, which is as follows:-
"94. To sum up, the circumstantial evidence in the form
of FIR in SC no. 219/99, the letters and telegrams
addressed by PW12 Sunderlal as well as application of
deceased Inder for police protection as already discussed
in the foregoing paragraphs are a clear indication of the
strong rivalry and enmity between the deceased and the
accused no.1. Coupled with the statements of PW9 &
PW11 Ex. 406 & 408, prosecution has established a
nexus between the accused Nos. 3, 6 & 7, who were
frequent guests of accused no.1. Apparently, they were
close associates. This would amount to a reasonable
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ground to believe that the accused nos. 1, 3, 6 & 7 have
conspired to commit the alleged offences. Especially so,
when the accused nos. 3, 6 & 7 have no personal enmity
with the deceased. There is also no explanation
forthcoming on the close association of these accused
with accused no.1. In this scenario, I am inclined to hold
that the prosecution has successfully established the
conspiracy hatched by them and that the murder was
committed as a result of the same. It follows therefore,
that point no.2 is answered in the affirmative as against
accused nos. 1, 3, 6 & 7 only."
14. Learned counsel for the petitioner-convict submits that as
observed by the trial court there was political rivalry and enmity
between the deceased and accused No. 1. Accused nos. 3, 6 and 7
(accused No.7 is the petitioner-convict) were frequent guests of
accused No.1 and apparently they were close associates. Thus, they
have conspired to commit the alleged offence. Especially so, when
the accused Nos. 3, 6 and 7 have no personal enmity with the
deceased. Learned counsel for the petitioner-convict submitted that
in view of this further observation by the trial court, the petitioner's
case does not fall in the category of murder arising of the political
interest vide clause 5(b). Learned counsel submitted that as far as
the guidelines dated 15.3.2010 are concerned, the petitioner's case
falls under category No.4 for categorization of crime of murder for
other reasons and clause (d) is appropriately attracted which
determines the period of imprisonment to be undergone including
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remission as 24 years.
15. We need to repeat here again that the petitioner-convict has
been convicted by the trial court for the offences punishable under
Sections 302 r.w. 120-B of I.P.C. and sentenced to suffer
imprisonment for life. In the facts of the instant case, though the
learned Judge of the trial court in para 94 has observed that the
present petitioner-convict has no personal enmity with the deceased,
however, accused Nos.1, 3, 6 and 7 have conspired to commit the
alleged offence. The accused Nos. 3, 6 and 7 were frequent guests
of accused No.1. The gist of offence of conspiracy is bare agreement
and association to break the law. Thus, the meeting of mind is
essential aspect. In case of criminal conspiracy necessary
ingredients are (1) that there must be an agreement between the
persons who are alleged to have conspired (2) that agreement
should relate to doing or causing to be done either (i) an illegal act or
(ii) an act which is not illegal in itself but is done by illegal means.
16. The Hon'ble Apex Court explained the same in the case of
Ram Narayan Poply vs. Central Bureau of Investigation,
reported in (2003) 3 SCC 641 and observed that the elements of a
criminal conspiracy are (a) an object to be accomplished, (b) a plan
or scheme embodying means to accomplish that object, (c) an
agreement or understanding between two or more of the accused
persons whereby, they become definitely committed to cooperate for
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the accomplishment of the object by the means embodied in the
agreement, or by any effectual means.
17. We are thus of the considered opinion that by application of
Section 120-B of I.P.C. and recording conviction as against the
petitioner- convict with the aid of Section 120-B of I.P.C. by the trial
court, the petitioner cannot escape from his criminal liability. We find
no substance in the submissions made on behalf of the petitioner-
convict that there was political rivalry between original accused No.1
and deceased Inder and as such, the case of the petitioner does not
fall in the category of murder arising out of the political interest. In
view of the same, in terms of the provisions of section 120-B (1) of
I.P.C., since the petitioner-convict is a party to the criminal
conspiracy committing the offence of murder punishable with
imprisonment for life or rigorous imprisonment for a term of two years
or upwards, is liable for the punishment in the same manner as if he
had abetted the said offence.
18. So far as criminal writ petition No. 327 of 2021 and criminal
application No. 541 of 2021 filed by the intervener, we would refer
the observations of the Hon'ble Supreme Court in the case of Epuru
Sudhakar (supra). In the said judgment, the Supreme court in para
65 and 66 has made the following observations.
"65. Exercise of executive clemency is a matter of
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discretion and yet subject to certain standards. It is not
a matter of privilege. It is a matter of performance of
official duty. It is vested in the President or the
Governor, as the case may be, not for the benefit of the
convict only, but for the welfare of the people who may
insist on the performance of the duty. This discretion,
therefore, has to be exercised on public considerations
alone. The President and the Governor are the sole
judges of the sufficiency of facts and of the
appropriateness of granting the pardons and reprieves.
However, this power is an enumerated power in the
Constitution and its limitations, if any, must be found in
the Constitution itself. Therefore, the principle of
exclusive cognizance would not apply when and if the
decision impugned is in derogation of a constitutional
provision. This is the basic working test to be applied
while granting pardons, reprieves, remissions and
commutations.
66. Granting of pardon is in no sense an
overturning of a judgment of conviction, but rather it is
an executive action that mitigates or sets aside the
punishment for a crime. It eliminates the effect of
conviction without addressing the defendant's guilt or
innocence. The controlling factor in determining
whether the exercise of prerogative power is subject to
judicial review is not its source but its subject-matter. It
can no longer be said that prerogative power is ipso
facto immune from judicial review. An undue exercise
of this power is to be deplored. Considerations of
religion, caste or exercising such a power the President
or the Governor, as the case may be, has to keep in
mind the effect of his decision on the family of the
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victims, the society as a whole and the precedent it
sets for the future."
19. The Hon'ble Apex Court has explained the scope and the
ambit of executive clemency as a matter of discretion and yet subject
to certain standards. We are aware that the power of executive
clemency is not only for the benefit of the convict, but the same
would also have effect on the family of the victims, the society as a
whole and the precedent it sets for the future. We have however,
serious doubts to entertain the application seeking intervention. The
learned counsel for the intervener has not shown us any direct case
on the point as to whether the relative of the deceased can be
permitted to intervene in the matter of premature release of the
convict. Further, we do not find any substance in the prayers made
in the criminal writ petition No. 327 of 2021 that the petitioner's case
would fall in category No.6 (a) of the Government guidelines dated
15.3.2010. The category No.6 (a) of the Government Guidelines
dated 15.3.2010 is for the categorization "murders of serious
offences" and in terms of the category of murders committed by
gangsters, contract killers, racketeers etc. the period of imprisonment
to be undergone with remission is 28 years. In Sessions case No.
218 of 1999 the trial court has not observed that the murder of the
deceased was committed by the gangsters. The trial court has also
not observed that the petitioner-convict is a contract killer. In para
No.94 of the judgment in Sessions case No. 218 of 1999, it is
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observed by the trial court that accused Nos. 3, 6 and 7 were
frequent guests of accused No.1 and they were close associates. We
find no substance in the submissions made on behalf of the
intervener that category No.6 (a) of Government Resolution dated
15.3.2010 stands attracted in the present case. Though the
intervener has submitted a list of antecedents in detail of the
petitioner convict, however, the petitioner convict has also filed his
affidavit-in-reply wherein it is submitted that the real sister of the
petitioner-convict had collected information about pending cases right
from 1.1.1982 to 4.7.2014 against the petitioner-convict. The
petitioner convict is having no concern with any gang. It is contended
by the petitioner-convict that during this period he has been released
on parole/furlough leave on 11 times and surrendered within time
before the jail authority. He has also given regular attendance to the
concerned police station while on leave and during that period itself
no complaint was filed against him. Therefore, the Superintendent of
Central Prison Aurangabad has also issued good conduct certificate
to him.
20. Respondent No.1, in the impugned order has given reference
to good behaviour of the petitioner-convict in prison. There is nothing
in the impugned order to indicate that the State Government has
exercised the powers with some malafides and suffers from utter non
application of mind.
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21. In view of the above, we find no substance in criminal writ
petition no. 134 of 2021, so also in the criminal application No. 541 of
2021 seeking intervention and in criminal writ petition No. 327 of
2021. Hence, we proceed to pass the following order:-
ORDER
I) Criminal writ petition No. 134 of 2021 (Gabriel @ Baba Hana
Moben vs. State of Maharashtra and others) is hereby
dismissed.
II) Criminal application No. 541 of 2021 (Kamal s/o Sundardas
Bathija vs. Gabriel @ Baba Hana Moben and others) seeking
intervention and criminal writ petition No. 327 of 2021 (Kamal
s/o Sundardas Bathija vs. The State of Maharashtra) are also
dismissed.
III) Criminal writ petition No. 134 of 2021, criminal application No.
541 of 2021 and criminal writ petition No. 327 of 2021 are
accordingly disposed of. Rule discharged.
(S. G. DIGE, J.) (V. K. JADHAV, J.)
rlj/
