Bombay High Court
Shrikant S/O Paragonda Basargi vs State Of Maharashtra And Anr on 9 October, 2023
Bench: A.S. Gadkari, Sharmila U. Deshmukh
2023:BHC-AS:29713-DB
samandawgad 11-criwp2355-23.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
WRIT PETITION NO. 2355 OF 2023
Shrikant s/o Paragonda Basargi (C-10007),
Age : 48 years, Occ: Convict,
R/o Asangi Turk, Tal.Jath, Dist.Sangli.
(Undergoing his sentence at Nasik Road Central Jail) ...Petitioner.
V/s.
1. State of Maharashtra,
Through Superintendent of Jail,
Nasik Road Central Jail.
2. Secretary,
Home Department (Prison),
Mantralaya, Mumbai-400005. ...Respondents.
Mr. Rupesh A. Jaiswal for the Petitioner.
Mr. S.S. Hulke, APP for the Respondent-State.
CORAM : A.S. GADKARI &
SHARMILA U. DESHMUKH, JJ.
Reserved on : 29th September, 2023.
Pronounced on : 9th October, 2023.
JUDGMENT : ( Per : SHARMILA U. DESHMUKH, J.):
1. Heard.
2. Rule. Rule made returnable forthwith with the consent of
the learned counsel for the parties is taken up for final disposal.
Learned APP waives notice on behalf of the Respondent-State.
3. By this Petition, the Petitioner seeks quashing of the Order
dated 14th July, 2020 passed by the Respondent No.2-Secretary, Home
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Department (Prison), placing the Petitioner in category 3(d) of
Guidelines dated 11th May, 1992 and category 4(e) of the Guidelines
dated 15th March, 2010 issued by the State Government for premature
release under the "14 Year Rule" of prisoners serving life sentence.
4. Mr. Jaiswal, learned Advocate appearing for the Petitioner
submits that, the incident in-question had taken place on account of
the land dispute between the accused and the deceased. He would
submit that, the Petitioner has been erroneously placed in category
3(d) of the Guidelines of the year 1992 and 4(e) of the Guidelines of
the year 2010. He submits that, as the incident arose out of land
dispute, the Petitioner ought to be placed in category 3(b). Placing
reliance on the decision of the Apex Court in the case of State of
Haryana vs. Jagdish, reported in (2010) 4 SCC 216, he submits that,
the provision which is beneficial to the Petitioner is required to be
applied.
5. On behalf of the Respondent, State Mr. Umaji T. Pawar, the
Deputy Inspector General of Prison, Central Region, Aurangabad has
filed an Affidavit dated 8th August, 2023. It is stated that, the proposal
of premature release of the Petitioner was submitted by
Superintendent, Nashik Road Central Prison, Nashik opining that the
case of the Petitioner falls under the category 2(c) of the Guidelines of
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2010. It is further stated that, an adverse police report has been
received from Superintendent of Police, Sangli and District Magistrate,
Sangli. It is stated that, in the opinion of the Sessions Court, Sangli, the
Petitioner cannot be 'prematurely released' since the offence has been
committed due to land dispute and the victim's were murdered after
confining them in their house. It is further stated that, the Advisory
Committee has recommended category 2(c) of the Guidelines of 15 th
March, 2010 viz. imprisonment of 26 years. It is further stated that, the
proposal was submitted before the State Government and considering
the case of the Petitioner, he had been placed in category 3(d) of
Guidelines dated 11th May, 1992 and category 4(e) of Guidelines dated
15th March, 2010 and as such, the Petitioner has to undergo
imprisonment of 26 years.
6. Drawing the attention of this Court to the judgment of the
Sessions Court in Sessions Case No.107 of 2004 and 176 of 2004,
Mr.Hulke, learned APP submitted that, the incident had taken place, as
on the day of the incident, the accused No.38 brought her cattle to the
disputed land and therefore, quarrel took place between accused
No.38 and one of the deceased, in which the deceased has assaulted
the accused No.38. He would submit that, in the incident five persons
were assaulted and were pushed in the house and the house was set
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ablaze by the accused. He submits that, considering the incident in-
question the case is one of the exceptional violence and as such, the
Petitioner has rightly been categorized as 4(e) of the Guidelines of the
year 2010.
7. We have perused the judgment dated 9 th May, 2005 passed
in Sessions Case No.107 of 2004 and Sessions Case No.176 of 2004 as
also the judgment dated 7th October, 2016 passed in Criminal Appeal
by this Court arising out of the Judgment of the Sessions Court. Vide
the judgment dated 9th May, 2005 passed by the Sessions Court, the
Petitioner has been convicted and sentenced to suffer rigorous
imprisonment for life.
8. The case of the prosecution as set out in the judgment of
Sessions Court is that in the year 1972, the first-informant and the
deceased had purchased the agricultural land and the accused No.8
was claiming right over the land purchased by the deceased. As such,
there was dispute between the Accused No.8 on one hand and the
deceased on the other. The Sessions Court has considered the evidence
of PW-17-Jagannath Chavan, the son of the deceased that there was a
dispute on account of 'bandh' situated in between two lands. That his
father tried to get the land measured, however, accused No.8 and his
family members restrained his father from taking survey of the lands.
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As result of which, his father had lodged the FIR against the accused
No.8 and his sons. The Sessions Court has arrived at a finding that
because of land dispute, there was strained relations between the
complainant and the Mahadeo Chavan and his family on one hand and
the accused on the other.
9. In Appeal, this Court has upheld the findings of Sessions
Court and considered the evidence of PW-3 that the dispute was in
respect of strip of land between the property purchased by him and the
deceased. This Court has observed in Paragraph No.66 that, the
incident in-question was preceded by an assault on accused No.38 by
one of the deceased and that the previsions enmity coupled with the
incident of assault on accused No.38 was the motive behind the
incident in-question.
10. As such, it can be inferred that, the incident has occurred
due to land dispute. The finding of the Sessions Court which has been
upheld by this Court clearly shows the incident in-question has
occurred on account of dispute arising out of landed property.
11. The Superintendent of Police, Sangli has given an adverse
police report, on the ground that, the complainant and the witnesses
are under an apprehension that if the Petitioner is released
prematurely, there would be danger to their life. It needs to be noted
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that, the Superintendent of Police, Sangli has observed that, the
Petitioner had been released on parole/furlough leave while
undergoing the sentence and that there is no untoward incident which
has been recorded. The Sessions Court by its opinion dated 16 th March,
2017 has not recommended the premature release for the reason that
out of the land dispute the Petitioner has committed the murder of the
deceased. The Advisory Committee has recommended the case of the
Petitioner as category 2(c) of the Guidelines of 15 th March, 2010 and
by the impugned Order, the State Government has categorized the
Petitioner under 3(d) of the Guidelines of 11 th May, 1992 and category
4(e) of the Guideline dated 15th March, 2010. The sum and substance
of the case of the State as indicated above is that, the Petitioner is
required to undergo the sentence of 26 years.
12. In exercise of the powers under Section 432 of the Code of
Criminal Procedure, 1973, guidelines have been issued by the Central
Government for 'premature release' of the prisoners undergoing life
sentences. The Petitioner has been convicted by the Sessions Court vide
Judgment dated 9th May, 2005 and as such, the guidelines of the year
1992 and 2010 are applicable to the present case.
13. Considering the decision of the Apex Court in the case of
State of Haryana vs. Jagdish (supra), the guidelines of 2010 are
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beneficial to the Petitioner and as such, the same are considered. For
brevity the relevant categorization under 2010 guidelines are
reproduced herein below:
"Category Sub Categorization of Crime Period of imprisonment
No. Category to be undergone
including remission
subject to minimum of
14 years of actual
imprisonment
including set off
period.
'3. MURDERS ARISING OUT OF
LAND DISPUTE, FAMILY
FEUDS, FAMILY PRESTIGE
AND SUPERSTITION.
individual capacity and
without premeditation.
with premeditation, either
individually or by a gang.
'4. MURDERS FOR OTHER
REASONS.
without premeditation in an
individual capacity and the
person has no previous
criminal history.
premeditation, or a person
having criminal history.
union activities and business
rivalry.
than one person/group of
persons.
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"Category Sub Categorization of Crime Period of imprisonment
No. Category to be undergone
including remission
subject to minimum of
14 years of actual
imprisonment
including set off
period.
exceptional
violence/brutality/kidnapping.
Murder committed by dacoits
and robbers in the act of
committing dacoities and
robberies.
Murder committed by
bootleggers, gamblers, flesh
traders etc."
14. The category 4(e) is under the heading "murder for the
other reasons". It is true that the murders in the present case have
been committed with exceptional violence. However, murders arising
out of land dispute are categorized under Guideline 3. As held by the
Co-ordinate Bench of this Court in case of Uday s/o Dhaku Sutar V/s.
The State of Maharashtra & Anr. passed in Criminal Writ Petition
No.4544 of 2021, the principle of giving benefit to the convict of
beneficial policy certainly applies to two different policies/guidelines
but the same will also apply to the categories in the
same/policy/guidelines, if case falls under both the categories. As such
even if it is assumed that category 3 and 4 of 2010 guidelines applies,
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category 3(b) being beneficial to the convict will apply.
15. In our opinion, considering the Judgment of the Sessions
Court as well as the Judgment of this Court as the incident in-question
has occurred due to a longstanding land dispute, the present case is
covered by the category 3(b) of the Guidelines of the year 2010.
16. In view of the above discussion, the impugned Order
dated 14th July, 2020 is hereby quashed and set aside. We direct that
the case of the Petitioner be placed under category 3(b) of the
Guidelines dated 15th March, 2010.
17. Petition is allowed and Rule is made absolute in the above
terms.
18. All concerned to act on the authenticated copy of this Order.
(SHARMILA U. DESHMUKH, J.) (A.S. GADKARI, J.)
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Signed by: Sanjay A. Mandawgad
Designation: PA To Honourable Judge
Date: 09/10/2023 16:58:01
