Bombay High Court
Shaikh Razzak Shaikh Salim ... vs The State Of Maharashtra on 18 March, 2021
Bench: R.V. Ghuge, B. U. Debadwar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO.540 OF 2020
SHAIKH RAZZAK SHAIKH SALIM (C-8125)
VERSUS
THE STATE OF MAHARASHTRA
...
Advocate for the Petitioner : Shri Rupesh A. Jaiswal.
APP for the Respondent: Shri K.S. Patil
...
CORAM : RAVINDRA V. GHUGE
&
B. U. DEBADWAR, JJ.
DATE :- 18th March, 2021
Per Court :-
1. By this petition, the petitioner has put forth the prayer for
seeking direction to the Jail Authorities to grant him special remission as
prayed for.
2. On 24.07.2020, we had briefly heard the learned advocate for
the petitioner and had passed the following order:-
"1. We have briefly heard the learned Advocate for the
petitioner and the learned APP. The issue before us is
with regard to the Government Resolution dated
03/06/2017 introduced by the Government of
Maharashtra aimed at granting special remission to the
convicts undergoing jail sentence on the occasion of
125th Birth Anniversary of Bharatratna Dr.Babasaheb
Ambedkar.
2. It is not in dispute that the petitioner falls in one of the
categories mentioned on page No.2 of the said GR which
would, per se, disentitle him for any remission. However,
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this Court (Coram : T.V.Nalawade and Mangesh S.Patil,
JJ.) have passed an order on 12/03/2019 in Criminal
Writ Petition Nos. 273/2019 to 276/2019 (Yovchel s/o
Vijaykumar and others Vs. The State of Maharashtra and
others), vide which, 4 points were formulated under
paragraph no.6 for reference to a Larger Bench. The
learned APP submits that a Full Bench was constituted
and the matter was reserved for judgment in December
2019. The judgment is awaited.
3. In view of the above, this matter is adjourned with
liberty to the petitioner to circulate the same after the
Learned Full Bench decides the points under reference."
3. On 08.12.2020, this Court had passed the following order:-
"1. Learned Counsel Shri Nagargoje for the petitioner
submitted that some other Counsel may be appointed.
Due to his submission, learned Counsel Shri Rupesh
Jaiswal is appointed to represent the prisoner/petitioner.
Learned Counsel Shri Jaiswal submits that he has gone
through the Full Bench decision on the point involved in
the present matter. He submits that there are some Apex
Court decisions, like, AIR 1961 Supreme Court page
No.600 - Gopal Godse Vs. State of Maharashtra and
others and (2016) 7 SCC page No.1- Union of India Vs.
V. Shriharan, in which it is laid down that it is a power of
the Government, it is to be exercised under statute in
respect of remission and the Court has no power in the
matters of remission. He submits that he wants to apply
for reconsideration of the decision given by the Full
Bench and for that, he seeks time. Keep the matter on
25th January, 2021.
2. Copy of the Full Bench decision in Writ Petition
No.273/2019 - Yovehel Vijaykumar Gouri Vs. The State
of Maharashtra and others, is taken on record."
4. We have gone through the judgment delivered by the learned
Full Bench dated 09.10.2020 in Criminal Writ Petition No.273/2019 filed
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by Yovehel s/o Vijaykumar Gouri vs. The State of Maharashtra and others
and a group of petitions. In paragraph 42 of the judgment, the learned
Full Bench has quoted the questions and their answers, which read as
under :-
"42. In view of the discussion made herein above and the
ratio laid down by the Supreme Court in various
authorities as cited above, as referred in the foregoing
paragraphs, we answer the question Nos.(i) to (iv) as
follows:-
Question No. (i): Whether it is necessary to obtain
the opinion of the Presiding Officer mentioned in Section
432(2) of the Code of Criminal Procedure in respect of
convicts mentioned in Government Resolution dated 3 rd
June, 2017 to whom the benefit of remission is to be
given.
Answer: In view of the ratio laid down by the
Constitution Bench of Supreme Court, in the case of
Union of India vs. V. Sriharan @ Murugan & Others
(supra) this question is no more res-integra. The
Constitution Bench of the Supreme court in the said case
has recorded the answer to the question formulated in
para 52.6 by the Referral Bench and recorded that suo
motu exercise of power of remission under Section
432(1) is not permissible and exercise of power under
Section 432(1) must be in accordance with the
procedure under Section 432(2) of Cr.P.C.
Question No. (ii): Whether the application given
by the convicts, who fall under the excepted categories,
can be rejected straightway by the authority.
Answer: In view of the discussion above, we
record our answer to question No.(ii) in the affirmative.
Question No.(iii): Whether the opinion given by
the Presiding Officer mentioned in Section 432(2) of the
Code of Criminal Procedure and also the record of trial,
need to be considered by the authority created for grant
or refusal of remission as relevant circumstances or
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whether the opinion is binding on the authority.
Answer: The opinion given by the Presiding Judge
of the court in terms of provisions of Section 432(2) of
the Cr.P.C. is binding on the authority.
Question No. (iv): Whether under such policy
without any scrutiny as provided in the Code of Criminal
Procedure, the benefit, remission must be given.
Answer: In view of the discussion above, we
record our answer to question No.(iv) in negative."
5. The case of the petitioner is covered by question No.(iii)
reproduced above and the answer delivered by the learned Full Bench.
There is no dispute on this count. In the light of the same, we have gone
through the report of the learned District Judge-2 and Additional Sessions
Judge, Aurangabad, which is sought by the Jail Superintendent in view of
the request of the petitioner for seeking benefit of remission of sentence
on account of the 125th Birth Anniversary of Bharatratna Dr.Babasaheb
Ambedkar. The said report is taken on record and marked as "X" for
identification. The conclusions set out in the report dated 22.03.2018 read
as under :-
"Subject :- Report regarding under trial Shaikh
Rajjak Sayed Saleem (C-8125) for getting benefit at the
eve of 125 Birth Anniversary of Dr.Babasaheb Ambedkar.
Sir,
Apropos the subject noted above, I have to
state that on receiving your letter I have gone through
judgment and order in Sessions Case No.136/1996
wherein above named under trial is convicted for the
offence under section 302 of the Indian Penal Code. On
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going through the same it reveals that above named
under trial inhumanly killed his wife by pouring
kerosene over her person. As such considering cruelty on
is part he is not entitled for any benefit. Hence,
submitted for your information."
6. In view of the above, since the learned Full Bench has
concluded that the information given by the Presiding Judge of the Court
in terms of the provisions of Section 432(2) of the Code of Criminal
Procedure, 1973, would be binding on the authority, that this Criminal
Writ Petition is dismissed.
7. Shri Jaiswal, learned advocate, who has been appointed by
this Court as an amicus curiae, submits that he would not be claiming fees
from the High Court Legal Services Sub-Committee, Aurangabad.
kps (B. U. DEBADWAR, J.) (RAVINDRA V. GHUGE, J.)
