Bombay High Court
Balu Dattu Pavde vs The State Of Maharashtra And Others on 7 April, 2025
Author: Vibha Kankanwadi
Bench: Vibha Kankanwadi
2025:BHC-AUG:12652-DB
crwp286.25
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 286 OF 2025
Balu Dattu Pavde
Age 52 years, Occ. Nil,
R/o. Darodi, Pavde Vasti
Tq. Parner, District Ahmednagar
Now in Yerwada Central Prison
Pune, Prisoner No.14154 ...Petitioner
Versus
1. The State of Maharashtra
Through Secretary, Home
Department, Mantralaya
Mumbi
2. Inspector General of Prison
Maharashtra State, Pune
3. The Jail Superintendent
Yerwada Centra Prison,
Pune ...Respondents
.....
Mr. Anil M. Gaikwad, advocate for the petitioner
Mr. A. M. Phule, A.P.P. for the respondents
.....
CORAM : SMT. VIBHA KANKANWADI AND
SANJAY A. DESHMUKH, JJ.
DATED : 07th APRIL, 2025
JUDGMENT (PER SANJAY A. DESHMUKH, J.) :
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1. Rule. Rule made returnable forthwith. By consent of the
parties, heard finally at admission stage.
2. This writ petition is directed against the order dated
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12.3.2021 passed by respondent No.1 refusing to grant benefit of
premature release to the petitioner as per the category 2(c) of the
Guidelines of 2010 issued by the State of Maharashtra, as
contemplated by Section 432. The petitioner has prayed for direction
to the respondents to process and grant remission immediately and
release him from the prison as he has completed 24 years of
imprisonment with remission.
3. The petitioner contended that in sessions case No. 137 of
2003, he has been convicted by the judgment and order dated
29.11.2004 delivered by the learned Additional Sessions Judge,
Ahmednagar. He was sentenced to suffer rigorous imprisonment for
life for the offences punishable under sections 302 and 201 of Indian
Penal Code, 1960 (for short "I.P.C.").
4. Learned advocate for the petitioner pointed out the grounds
of objection raised in the petition particularly the guidelines issued by
the state Government in the year 2010 vide Circular dated 15.3.2010
are not properly construed and followed by respondent No.1. The
procedure was not followed as laid down in section 432 of the Cr.P.C.
The impugned order is passed mechanically, without application of
mind and without considering the scheme of remission for granting
premature benefits to the petitioner. The respondents directed to
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complete 26 years of imprisonment by passing the impugned order.
5. Learned advocate for the petitioner further submitted that
the respondents failed to consider the category 2(b) of the Guidelines
of State Government of 2010, which are applicable and wrongly held
that the petitioner's case comes within the purview of category 2(c) of
the Guidelines of 2010. Learned advocate for the petitioner also
places reliance on the order of this Court in the case of Uday Dhaku
Sutar vs. State of Maharashtra and another (writ petition No. 4544
of 2021) decided on 8.9.2022), in which it is held as under:-
"54. The State authority is under an obligation to at least
exercise its discretion in relation to an honest expectation
perceived by the convict, at the time of his conviction that his
case for premature release would be considered after
serving the sentence, prescribed in the short-sentencing
policy existing on that date. The State has to exercise its
power of remission also keeping in view any such benefit to
be construed liberally in favour of a convict which may
depend upon case to case and for that purpose, in our
opinion, it should relate to a policy which, in the instant case,
was in favour of the respondent. In case a liberal policy
prevails on the date of consideration of the case of a "lifer"
for premature release, he should be given benefit thereof."
(Emphasis added)
6. Learned A.P.P. for the respondents strongly opposed the
writ petition and submitted that a reasoned order is passed
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considering the serious nature of the crime committed by the
petitioner. The opinion of the Additional Sessions Judge,
Ahmednagar is considered in para 3 of the impugned order. The
reasons and findings in the impugned order are legal and correct and
no interference is warranted. Therefore, there is no substance in the
grounds of objections raised in the writ petition by the petitioner. It is
lastly prayed to dismiss the writ petition.
7. Perused the contents of the writ petition and the affidavit in
reply filed by the learned A.P.P. on behalf of the respondents.
8. It would be relevant to refer to the para 43 of the judgment
of Hon'ble Supreme Court in the case of State of Haryana vs.
Jagdish, reported in (2010) 4 SCC 216, in which it is observed as
under:
"43. The right of the respondent prisoner, therefore, to get
his case considered at par with such of his inmates, who
were entitled to the benefit of the said policy, cannot be
taken away by the policy dated 13.08.2008. This is evident
from a bare perusal of the recitals contained in the policies
prior to the year 2008, which are referable to Article 161 of
the Constitution. The High Court, therefore, in our opinion,
was absolutely justified in arriving at the conclusion that
the case of the respondent was to be considered on the
strength of the policy that was existing on the date of his
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conviction. State authority is under an obligation to at least
exercise its discretion in relation to an honest expectation
perceived by the convict, at the time of his conviction that
his case for pre-mature release would be considered after
serving the sentence, prescribed in the short sentencing
policy existing on that date. The State has to exercise its
power of remission also keeping in view any such benefit
to be construed liberally in favour of a convict which may
depend upon case to case and for that purpose, in our
opinion, it should relate to a policy which, in the instant
case, was in favour of the respondent. In case a liberal
policy prevails on the date of consideration of the case of a
"lifer" for pre-mature release, he should be given benefit
thereof."
9. Category 2 of the Guidelines 2010, reads as under:-
"Category Sub Categorization of Crime Period of
No. category imprisonment to be
undergone
including remission
subject to minimum
of 14 years of
actual
imprisonment
including set off
period.
2 OFFENCES RELATING TO
CRIME AGAINST WOMEN
AND MINOR
a Where the convict has no 20 years
previous criminal history and
has committed the murder in an
individual capacity in moment of
anger and without
premeditation.
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b Where the crime as mentioned 22 years
above committed with
premeditation
c Where the crime is committed 26 years
with Exceptional violence and or
with brutality or death victim due
to burns.
d Murder with Rape 28 years
10. We have perused the contents of writ petition, impugned
order, the opinion of the learned Additional Sessions Judge,
Ahmednagar and the Guidelines of State Government of 2010. It is
not in dispute that the petitioner has completed 24 years of
imprisonment. It is not in dispute that the delay of 166 days was
caused to him to surrender in the jail when he went on leave in the
year 2010, as he was absent to undergo the imprisonment.
11. The facts of the case are that the petitioner herein has
committed murder of his paramour, the sister of his wife, who was
pregnant from him. The petitioner took the victim in the farm and due
to the fear of his defamation in the society he throttled her and
committed her murder. He took away her clothes and concealed the
same. Thereafter, he tied her dead body with a stone and then
thrown it in a well.
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12. The learned Additional Sessions Judge, Ahmednagar
opined that it is brutal murder. The respondent relied upon the said
opinion. The said murder is committed with premeditation. But it is
not an exceptional violence or committed with brutality to apply
category 2(c) of the Guidelines of 2010. We have considered all the
facts and circumstances of the case and law applicable to the case
with the Guidelines of 2010. The opinion of the Additional Sessions
Judge, Ahmednagar is not acceptable. We are of the view that the
case of the petitioner does not fall under the category 2(c) i.e. where
the crime is committed with exceptional violence and or with brutality
or death of the victim due to burns. However, the case of the
petitioner falls under the category of 2(b) i.e. where the convict has
no previous criminal history and has committed the murder in an
individual capacity with premeditation, for which 22 years of
imprisonment is to be undergone. The reasons and decision given
by respondent No.1 while passing the impugned order, particularly
para 5 are not legal and correct and it is certainly not coming under
the category of 2(c) of the Guidelines of 2010. The respondent No.1
has erred in passing the impugned order and failed to apply category
2(b) of the Guidelines of 2010. However, it is clarified that
respondent No.1 shall verify the details of the actual imprisonment
and exclude 166 days which the petitioner delayed when he went on
leave and caused delay to surrender in the jail for undergoing the
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imprisonment.
13. In view of above, we hold that the impugned order deserves
to be quashed and set aside. It is necessary to give directions to the
respondent No.1 to decide the application of the petitioner afresh.
The writ petition deserves to be allowed. Hence, the following order:-
ORDER
I. Criminal writ petition stands allowed and impugned order is
quashed and set aside.
II. The respondents are directed to comply the process of
premature release of the petitioner as early as possible and
in any case within two weeks from the date of receipt of
copy of this judgment.
III. Rule is made absolute in the above terms.
(SANJAY A. DESHMUKH, J.) (SMT. VIBHA KANKANWADI, J.)
rlj/
