Bombay High Court
Salim Gulab Pathan vs The State Of Maharashtra on 12 October, 2023
Bench: A.S. Gadkari, Sharmila U. Deshmukh
2023:BHC-AS:30391-DB
samandawgad 37criwp1641-22.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
WRIT PETITION NO. 1641 OF 2022
Salim Gulab Pathan ...Petitioner
V/s.
The State of Maharashtra ...Respondents
Mr. Amit A. Gharte, Petitioner.
Mr. Ajay Patil, APP for the Respondent-State.
CORAM : A.S. GADKARI &
SHARMILA U. DESHMUKH, JJ.
Reserved on : 4th October, 2023.
Pronounced on : 12th October, 2023.
JUDGMENT : (Per Sharmila U. Deshmukh, J.)
1. 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.
2. Heard Mr. Gharte, learned counsel for the Petitioner and
Mr. Patil, learned APP for Respondent-State.
3. By this Petition, the Petitioner seeks quashing of the Order
dated 29th June, 2020 passed by the Respondent placing the Petitioner in
category 6(a) of the Guidelines dated 11th May, 1992 and category 2(c)
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.
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4. Mr. Gharte, learned counsel for the Petitioner has taken this
Court through the Judgment of the Sessions Court dated 21st June, 2002
and would submit that, the incident had occurred pursuant to the
quarrel between the Petitioner and his wife. He would submit that, in
the dying declaration the deceased has stated that her husband had set
her on fire after quarreling by suspecting her character. Placing reliance
on the decision in the case of State of Haryana vs. Jagdish, reported in
(2010) 4 SCC 216, he would submit that the guidelines of 1992 are
beneficial and the same is required to be applied. Drawing attention of
this Court to the guidelines of 1992, he would submit that, the Petitioner
should be placed in category 3(a) of the guidelines of the year 1992.
5. On behalf of Respondent-State, Mr. Pandurang S. Bhusare,
Superintendent, Kolhapur Central Prison, Kolhapur has filed an Affidavit
dated 27th January, 2023. It is stated that the Sessions Court vide
communication dated 6th September, 2014 has opined that, the benefit
of guidelines under category 2(c) provided by Government of
Maharashtra in the year 2010 can be extended to the Petitioner. It is
stated that the concerned police authority and the Advisory Committee
has not recommended premature release of the accused as the case falls
under category 2(b) of the Guidelines of 2010, and the Additional
Director General and Inspector General of Prisons and Correctional
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Services have opined that the Petitioner should be placed in category
6(a) of 1992 guidelines.
6. Learned APP submits that the State Government has classified
the case of the Petitioner under 2(c) of the Guidelines dated 15 th March,
2010, which provides for the period of imprisonment of 26 years. He
would submit that the conviction is of the year 2002 and as such, the
guidelines of the year 1992 and 2010 would apply. Pointing out to the
Affidavit filed by the Respondent-State, learned APP would submit that
the classification under category 2(c) of the 2010 Guidelines is correct
classification.
7. We have perused the decision of the Sessions Court dated 21 st
June, 2002. The Petitioner has been convicted for life for the offence
punishable under Section 302 of IPC. The Petitioner has not preferred
any appeal against the said decision. The learned Sessions Judge has
recorded in Paragraph No.2 that, the case of the prosecution is that on
the date of the incident, there was a quarrel between the Petitioner and
the deceased and subsequently, the deceased was seen coming out of the
house in burning condition.
7.1. Learned Sessions Judge has considered the evidence of PW-2-
Dr. Ugane, who has deposed that, while giving the history, the deceased
told that her husband set her on fire after quarreling with her. The
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findings indicate that the incident in-question has taken place
subsequent to the quarrel between the Petitioner and the deceased in
which the Petitioner had set the deceased on fire.
8. The Judgment of the Sessions Court is dated 21st June, 2002
and the guidelines for premature release under "14 Year Rule" of prison
serving life sentence, which would apply are the guidelines of 11 th May,
1992 and 15th March, 2010. As held by the Apex Court in the case of
State of Haryana vs. Jagdish (supra), the guidelines beneficial to the
convict are required to be applied. The Respondent-State has applied
guidelines of 15th March, 2010 and has placed the Petitioner in category
2(c). The Respondent-State has considered that, the case of the
Petitioner falls in category 6(a) of the guidelines of the year 1992, as he
had escaped from prison on 22nd May, 2011, however, as the guidelines
of 2010 were more beneficial, the same were applied.
9. Perusal of the guidelines of 11 th May, 1992 indicate that the
case of the Petitioner would fall either in category 3(a) or 6(a). For
brevity the relevant categorization under the guidelines dated 11 th May,
1992 along with relevant guidelines of 2010 are reproduced
hereinbelow:
Category 3(a) and 6(a) of the 1992 Guidelines
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Category Categorization of Crime Period of imprisonment to be
No. undergone including remissions
subject to a minimum of 14 years
of actual imprisonment including
set-off period.
3 MURDERS FOR OTHER
REASONS
a) Where a murder is 22 years.
committed in the course of a
quarrel without
premeditation in an
individual capacity where the
person has no previous
criminal history.
6 Escapees
a) Prisoners who have escaped 28 years.
from lawful custody while
undergoing imprisonment or
who absconded while on
parole or furlough.
Category 2(c) of 2010 Guidelines
Category Categorization of Crime Period of imprisonment to be
No. undergone including remission
subject to a minimum of 14 years
of actual imprisonment including
set off period.
2 OFFENCES RELATING TO
CRIME AGAINST WOMEN
AND MINORS.
committed with exceptional
violence and or with brutality
or death of victim due to
burns.
10. As regards category 3(a) or 6(a) of the Guidelines of 1992 are
concerned, category 3(a) applies, where the murder is committed in the
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course of quarrel without premeditation in an individual capacity and
where the prisoner has no previous criminal history and provides for
period of imprisonment of 22 years, where category 6 (a) is applicable
to escapees and provides imprisonment for 28 years. As discussed above,
the findings of the Sessions Court is that, prior to the occurrence of the
incident a quarrel took place between the Petitioner and the deceased
and thereafter, the deceased was found in burnt condition. The dying
declaration to that effect is also given by the deceased. As held by the
Co-ordinate Bench of this Court in the 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. In the instant case, category 3(a)
of the guidelines of 1992 is more beneficial than category 6(a) of the
guidelines of 1992. A similar comparison between category 2(c) of the
Guidelines of 2010 and the categorization under 3(a) of the guidelines
of 1992 discloses that categorization under 3(a) of the Guidelines of
1992 are beneficial to the convict.
11. Having regard to the above discussion, the impugned Order
dated 29th June, 2020 is hereby quashed and set aside.
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12. We direct that the case of the Petitioner be placed under
category 3(a) of the Guidelines dated 11th May, 1992.
13. Petition is allowed. Rule is made absolute in the above terms.
14. All the concerned to act on an 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: 12/10/2023 18:40:20
