Bombay High Court
Pralhad K. Patil vs State Of Goa, Thr. Chief Secretary And 2 ... on 19 August, 2024
Author: M. S. Karnik
Bench: M. S. Karnik
2024:BHC-GOA:1356-DB 3-WPCR-610-24 (F).DOC
2024:BHC-GOA:1356-DB
Suchitra
IN THE HIGH COURT OF BOMBAY AT GOA
CRIMINAL WRIT PETITION NO.610/2024 (F)
PRALHAD K. PATIL,
aged about 62 years, resident of
House No. 240, Patil Nivas,
New Vaddem, Vasco da Gama, Goa.
... PETITIONER
Versus
1) THE STATE OF GOA,
hrough Chief Secretary,
Government of Goa, Secretariat,
Alto Porvorim, Bardez, Goa.
2) INSPECTOR GENERAL OF
PRISONS, Inspectorate General
of Prisons, Old Education Building,
18th June Road, Panaji, Goa.
3) STATE SENTENCE REVIEW
BOARD, Government of Goa,
Secretariat, Porvorim, Goa. ... RESPONDENTS
Mr Ryan Menezes, Advocate for the Petitioner.
Mr Somnath Karpe, Additional Public Prosecutor for Respondents
No.1 and 2.
CORAM: M. S. KARNIK &
VALMIKI MENEZES, JJ.
DATE: 19th AUGUST 2024
ORAL JUDGMENT: (Per M. S. Karnik)
1. Heard Mr Ryan Menezes for the petitioner and Mr Somnath Karpe,
learned Additional Public Prosecutor for respondents no.1 and 2.
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2. Rule. he Rule is made returnable immediately at the request of and
with the consent of the learned counsel for the parties.
3. By this petition iled under Articles 226 and 227 of the Constitution
of India, the petitioner prays that by any appropriate writ, order or
direction, this Court may call all records of the respondents, that relate to
the premature release of the petitioner, and on consideration thereof, quash
and set aside the Report dated 16.06.2023 of the District Judge-3 and
Additional Sessions Judge, South Goa, Margao and the decision of
respondent no.1 to reject the proposal for premature release of the
petitioner from prison contained in Letter dated 16.08.2024, with all legal
efects and/or consequences, and to direct that the petitioner be released
prematurely from prison and to direct respondent no.1 to issue necessary
order to prematurely release him from prison, expeditiously.
4. he facts in brief are that the petitioner and his brothers were
arrested for suspected involvement in an alleged ofence under Section 302
r/w. Section 34 of the Indian Penal Code. he Criminal Appeal preferred
by the petitioner in this court was dismissed on 05.03.2002. he petitioner
was released on parole for thirty days w.e.f 21.02.2003 to 22.03.2003.
5. In 2013 the respondent no.1 granted the petitioner's brothers
premature release from jail on recommendation of respondent no.3.
hereafter the petitioner was released on parole from time to time.
6. On 06.09.2022, the petitioner's case for premature release from
prison was taken up by respondent no.3 but did not recommend grant
thereof to him. On 17.04.2023, respondent no.3 took up the petitioner's
case for premature release from prison. he Superintendent of the Central
Jail, Colvale, respondent no.2 and the Probation Oicer recommended in
their respective reports that the Petitioner be released prematurely from
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prison. he District Magistrate, South Goa, and Superintendent of Police,
South Goa, did not release the petitioner prematurely without considering
his overall good conduct. Considering the overall good conduct of the
petitioner while in jail, willingness of his family to accept him and his age,
respondent no.3 unanimously recommended that he be granted premature
release from prison.
7. he recommendation of respondent no.3 to grant premature release
to the petitioner was forwarded to respondent no.1 for decision. he
respondents no.1 on 24.05.2023 called for the report of the Sessions Judge,
South Goa. he Additional Sessions Judge, South Goa recommended
against the petitioner's release. On 16.08.2024, the respondent no.1
rejected the proposal for premature release of the petitioner.
8. he Additional Sessions Judge at paragraph 22 recorded that a
perusal of the minutes of the Sentence Review Board meeting indicates
that while unanimously recommending the premature release of the
prisoner, it was noted that the petitioner had substantially undergone a
total sentence of twenty-three years and three months including remission.
Learned Sessions Judge was of the view that such a inding is contrary to
the General Guidelines for the State Sentence Review Board framed in
view of Sub-Rule (8) of Rule 1245 of Goa Prison Rules, 2021. In
paragraphs 24 to 30, the Additional Sessions Judge recorded thus:-
"24) While considering the period of sentence undergone by the
convict prisoner, the I. G. Prisons has calculated the period of
sentence undergone from the date of his arrest and has added the
remission of 2 years 10 months and 2 days as on 28.02.2023 and
further remission of 1 year 1 month and 15 days under Rule 335 of
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the Goa Prison Rules, 2006 to arrive at the period of 23 years and 3
months of total imprisonment undergone including remission.
25) However, as noted by the Superintendent of Police, South Goa,
in his report and as also observed by the Sentence Review Board,
when the Convict Prisoner was released on Parole for 10 days in
2005, he jumped parole, did not surrender and remained absconding
for 5 years till he was apprehended by the Kalgadgi Police Station,
Bagalkot, Karnataka and lodged back into judicial custody.
26) herefore, if one deducts the 5 years and 25 days which the
Board, on page 16 of its minutes, had noted, the actual
imprisonment undergone by the Convict Prisoner would be 18 years
and a little over 2 months.
27) When read with Schedule - I of the Guidelines, in case of
murder, committed individually or by more than one person due to
family feuds, the total imprisonment to be undergone including
remission subject to minimum of 14 years of actual imprisonment,
including set of period, shall be 22 years. In case of murders for
other reasons, committed by more than one person/group of persons,
this period increases to 24 years.
28) hat apart, I ind that in his report, the S.P. South Goa, while
justifying his rejection of the recommendation for the premature
release of the Convict Prisoner, had duly noted the manner in which
the ofence was committed and the motive of previous enmity. He
also submitted that the family members of the deceased namely
Datta Dhargalkar is presently residing at Shirfod, Curchorem and if
the prisoner is released prematurely, he may take revenge against
them. Similarly, I ind that the District Magistrate has also not
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recommended the release because the complainant Rupesh Narvekar
and the brothers of the deceased had objected to the same.
29) he Probation Oicer in her report recommending the
premature release of the Convict Prisoner had noted that all his
family members are presently residing at Vasco and having their own
taxi business and are inancially independent and self suicient. It
was also noted that the wife and son of the Convict Prisoner were
residing at Belgaum after the incident and his wife is a LIC agent and
inancially stable and that his son who is a graduate helps his mother
in the agency of LIC. She has enclosed the undertakings given by the
brothers of the Convict Prisoner who are ready to accept the Convict
Prisoner in their family, to support him inancially and to take his
responsibility.
30) However, considering the nature of the crime, the manner in
which it was committed and the Guidelines of the State Government
on premature release of convict prisoners, since the Convict Prisoner
Pralhad Patil has not undergone the prescribed period of
imprisonment to be undergone including remission subject to
minimum 14 years of actual imprisonment including set of period,
in my opinion this is not a it case for premature release of the
Convict Prisoner."
9. he petitioner was convicted by the Additional Sessions Judge, South
Goa on 26.09.2000. Learned Additional Public Prosecutor Mr Somnath
Karpe made his submissions in support of the impugned order and the
report of the learned Additional Sessions Judge. In support of the
petitioner's case, Mr Ryan Menezes relied upon a decision of the Hon'ble
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Supreme Court in Sharafat Ali v/s. State of Uttar Pradesh And Another -
(2022) 13 SCC 186. Paragraphs 6 and 7 thereof read thus:-
"6. he irst principle which must be noted, while adjudicating upon
the petition is that the application for premature release has to be
considered on the basis of the policy as it stood on the date when the
petitioner was convicted of the ofence. his principle inds
reiteration in several judgments of this Court such as State of
Haryana v. Jagdish ((2010) 4 SCC 216). he most recent of them is
the decision in State of Haryana v. Raj Kumar ((2021) 9 SCC 292).
7. he order which has been passed by the State Government in the
present case is bereft of an application of mind to relevant
circumstances bearing on whether the petitioner should be released
prematurely. he order contains general observations to the efect
that the release may result in resentment on the side of the victim,
but this is a general consideration which would govern virtually all
criminal ofences where a person stands convicted of a serious
ofence, as in the present case under Section 302 read with Section
34 IPC. he order does not contain any reference whatsoever to
whether the petitioner possesses any prior criminal history, save and
except for the present case. Similarly, the order is completely silent
on the conduct and behaviour of the petitioner in jail and after he
was convicted of the ofence. he relevant considerations bearing
upon whether the release of the petitioner would pose a danger to
society have not been adverted to. here has to be a considered
application of mind to the facts of each case."
10. We ind that the learned Additional Sessions Judge has erred in
giving an adverse report against the petitioner on the basis of the 2021
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Rules. he petitioner's premature release has to be considered on the basis
of the policy as it stood on the date when the petitioner was convicted.
hus the Rules of 2021 could not have been the basis for submitting an
adverse report against the petitioner.
11. In this view we could have sent the matter back to the respondent
no.1 for re-consideration. he seriousness of the ofence from the manner
in which the same was committed, is certainly one of the consideration
that it is required to be taken into account. However, that cannot be the
sole consideration in such matters. here are several other considerations
like the reformative aspects of sentencing; conduct of the convict during
the period of incarceration; the conduct of the convict when released on
parole or furlough; the opinion of the Superintendent of Police and the
District Magistrate; the objections, if any, from the victim or the relatives
of the victim, the opinion of the family members of the petitioner, the
opinion of the probation oicer and so on. As observed by heir Lordships
in Ravi patil v/s. State of Goa & Ors. - 2020 SCC OnLine Bom 3082, this
list is not intended to be exhaustive but only illustrative.
12. Having regard to the report of the Additional Sessions Judge, the
respondent no.1 exercised its powers under Section 432 of the Criminal
Procedure Code. As observed, ordinarily in a matter of this nature, upon
setting aside the opinion of the Presiding Oicer, we would have requested
the Presiding Oicer to reconsider the matter. However, the minutes of
the Sentence Review Board indicated that the two brothers of the convict
prisoner namely Venkatesh Patil and Ramdas @ Ram Patil were
prematurely released by the Government on 22.07.2013. As per the jail
records, as on 10.03.2023, the petitioner had undergone nineteen years,
three months and thirteen days of actual imprisonment and earned
remission of two years, ten months and two days as on 28.02.2023
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whereas, he has one year, one month and ifteen days remission under Rule
335 of Goa Prisons Rules, 2006, to his credit. He is having three years,
eleven months and seventeen days total remission to his credit and by now,
the petitioner has completed twenty-three years and three months of total
imprisonment including remission.
13. It is further considered by the Sentence Review Board that during
the entire coninement of the petitioner, he has been released on
parole/furlough on eleven occasions. he Sentence Review Board has taken
into consideration that on 07.11.2005 the prisoner was released on ten
days of parole and directed to surrender back to jail on 16.11.2005.
However, he failed to return back to Jail and was at large upto 11.12.2010
i.e. ive years twenty-ive days. Later on he was apprehended by Kalgadgi
Police Station, Bagalkot, Karnataka and lodged back in the then Central
Jail at Aguada.
14. he Inspector General of Prisons had recommended the case of the
prisoner for premature release after considering the Institute of Psychiatry
and Human Behaviour (IPHB) report dated 19.04.2023 and his conduct
in the prison, inding that his work assessment and behaviour in jail was
good and that there was no complaint against him. he Probation Oicer's
report dated 15.02.2023 was also considered for premature release based
on the enquiries conducted with his family members and also undertaking
was given by his brothers that his family was ready to accept him if released
prematurely.
15. he District Magistrate and the Superintendent of Police, South Goa
did not recommend the case of the prisoner for premature release. he
learned Additional Sessions Judge rejected petitioner's case of premature
release only on the ground that it has to be considered on the basis of the
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Rules of 2021 which we have already held to be not applicable in the
present case. In view of the recommendations of the State Sentence
Review Board which is in conformity with the then existing Rules/policy
applicable at the time of his conviction, to which there is no serious
challenge, we therefore are inclined to allow the petition.
16. For all the aforesaid reasons we allow this petition in terms of prayer
clause (a) and set aside the reports/opinions made by the Additional
Sessions Judge as well as the State Government refusing to prematurely
release the petitioner. We direct the State Government to issue necessary
orders, for prematurely releasing the petitioner as expeditiously as possible
and, in any case, within a period of seven days from today. he State
Government, will be at liberty to impose the usual conditions in the matter
of such premature release.
17. he Rule in this petition is made absolute in the aforesaid terms.
18. All concerned to act on the basis of an authenticated copy of this
Order.
VALMIKI MENEZES, J. M. S. KARNIK, J.
19th August, 2024
