Bombay High Court
Mohd. Istaq @ Bablu Yaqub Patel ... vs The State Of Maharashtra on 8 March, 2022
Bench: V.K. Jadhav, Sandipkumar Chandrabhan More
(1)
criwp-339.2022.odt
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO.339 OF 2022
Mohd. Istaq @ Bablu Yaqub Patel
Age : 30 years, occ : education
R/o Aurangabad Central Prison,
District Aurangabad
(Convict No. 8536). Petitioner
Versus
The State of Maharashtra
Through Superintendent of Prison
of Central Prison, Aurangabad. Respondent
...
Petition is submitted through Jail.
Mr. S.S. Dande, A.P.P. for respondent - State.
...
CORAM : V.K. JADHAV AND
SANDIPKUMAR C. MORE, JJ.
DATE : 08-03-2022.
ORDER (Per Sandipkumar C. More ) :
1. We have received one communication from the
petitioner convict through jail and it is treated as criminal
writ petition suo-moto.
2. Under this petition, the petitioner convict is
seeking for quashing and setting aside the order dated
21.08.2020 passed by the Additional Sessions Judge, Biloli
and also for seeking beneft of Government Resolution No.
criwp-339.2022.odt
Sankirn-0916/pra.kra.250/16/turung-3 for releasing him on
the eve of 125th Birth Anniversary of Dr. Babasaheb
Ambedkar.
3. On going through the contents of the petition, it
appears that the petitioner convict had preferred an
application dated 06.01.2021 to the Superintendent of Open
Prison, Paithan, District Aurangabad for giving him benefts
of aforesaid Government Resolution. Accordingly, the
Superintendent of the said Prison sought opinion in respect
of releasing the petitioner on the eve of 125 th Birth
Anniversary of Bharatratna Dr. Babasaheb Ambedkar.
However, the learned Additional Sessions Judge, Biloli under
letter dated 21.08.2020 forwarded his opinion contrary to the
prayer of petitioner and thereby refused to give any beneft
under the aforesaid Government Resolution to the petitioner
convict.
4. Learned A.P.P. has heavily relied upon the order of
this Court (Coram : Ravindra V. Ghuge and B.U. Debadwar,
JJ.) dated 18th March 2021 passed in Criminal Writ Petition
No. 540 of 2020, wherein reference of the judgment delivered
by Full Bench in Criminal Writ Petition No. 273/2019 dated
09.10.2020 in the case of Yovehel s/o Viaykumar Gouri vs.
criwp-339.2022.odt
The State of Maharashtra and others, is made. In the present
petition, the petitioner convict has questioned the legality of
the opinion dated 21.08.2020 given by the learned Additional
Sessions Judge, Biloli which we would like to reproduce
herein below :
"It appears that, applicant/accused Mohd. Istaq
alias Bablu Yakub Patel was tried in Sessions Case
No.40/2014 and was convicted u/sec.235(2) of
Cr.P.C. for the offence punishable u/secs. 5 and 6 of
Protection of Children from Sexual Offences Act,
2012 and sentenced to suffer Rigorous
Imprisonment for ten (10) years and also to pay fne
of Rs. 10,000/-. Further it appears that, present
applicant / accused committed aggravated
penetrative sexual assault on a child below 12 years.
Therefore, he committed a serious and heinous
offence against the minor victim girl who was 07
years old. In view of circular of the Government of
Maharashtra bearing No. [email protected]@iz-dz-
@[email protected]@rq:ax&3] ea=ky;] eqacbZ&32] fnukad 03-06-2017-
There is ban to give beneft to the accused who
convicted under the provisions of Central Act. So,
the present accused is convicted under the Central
Act i.e. POCSO as well as applicant / accused
committed a heinous offence against the minor
victim girl. On these grounds he is not entitled to
get beneft under the said Scheme of the
Government of Maharashtra on the eve of 125 th
Birth Anniversary of Dr. Babasaheb Ambedkar".
5. It is most important to note here that the learned
Full Bench of this Court in the aforesaid judgment have
already discussed the four important questions alongwith
answers in para 42 of the said judgment, which we would like
to reproduce herein below :
criwp-339.2022.odt
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 Offcer
mentioned in Section 432(2) of the Code of
Criminal Procedure in respect of convicts
mentioned in Government Resolution dated 3rd
June, 2017 to whom the beneft 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
affrmative.
Question No.(iii) : Whether the opinion given by
the Presiding Offcer 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 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 beneft, remission must
be given.
criwp-339.2022.odt
Answer : In view of the discussion above, we
record our answer to question No.(iv) in negative".
6. So far as this petition is concerned, question No.
(iii) of the aforesaid discussion is relevant. The learned Full
Bench of this Court has already observed that the opinion
given by the Presiding Offcer for grant or refusal of remission
as a relevant circumstances, is binding on the authority.
Moreover, under question No.(iv) as aforesaid, there cannot be
any beneft, remission if the opinion of the Presiding Judge is
negative.
7. The case of present petitioner convict is covered by
the aforesaid question No. (iii) and the answer given to it by
the learned Full Bench. As such, we do not fnd any
substance in the prayers made by the present petitioner who
is seeking the beneft of remission of sentence on account of
125th Birth Anniversary of Bharatratna Dr. Babasaheb
Ambedkar, by setting aside the aforesaid opinion of the
concerned Presiding Offcer. Therefore, considering the
disputed issue in this petition, which has already been
resolved by the learned Full Bench as aforesaid, we fnd that
the opinion dated 21.08.2020 given by the learned Additional
Sessions Judge, Biloli in the present matter, would be binding
on the authority, and therefore, the present petition is liable
criwp-339.2022.odt
to be dismissed.
8. It is made clear that since the issue in respect of
the prayers made by the petitioner convict in this petition is
already resolved by the learned Full Bench of this Court as
mentioned above, we did not feel it necessary to appoint any
person for the petitioner for giving him legal assistance. Even
otherwise also, the crime against the petitioner convict for
which he has been convicted, falls under Sections 5 and 6 of
the Protection of Children from Sexual Offences Act, 2012
which is most serious and heinous offence against the minor
victim girl who was only 7 years old as per the opinion dated
21.08.2020. Further, appeal against the conviction of the
petitioner bearing Criminal Appeal No. 638 of 2015 is already
dismissed by the learned Single Judge of this Court (Coram :
Smt. Sadhana S. Jadhav, J.) vide judgment dated 18.08.2019.
9. Thus, we fnd no merit in the petition and the
same is accordingly dismissed.
(SANDIPKUMAR C. MORE, J.) (V.K. JADHAV, J.)
VD_Dhirde
