Bombay High Court
Mahesh Dhanaji Shinde vs The State Of Maharashtra And Another on 23 October, 2024
Author: Vibha Kankanwadi
Bench: Vibha Kankanwadi
2024:BHC-AUG:26123-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 1346 OF 2024
Mahesh S/o Dhanaji Shinde (Convict),
Age-44 years, Occu:Convict,
R/o-At present Confined in Open Prison,
Paithan, District-Aurangabad.
...PETITIONER
VERSUS
1) State of Maharashtra,
Through Secretary,
Home Department (Prison),
Mumbai-400005,
2) Superintendent of Jail,
Open Prison, Paithan,
District-Aurangabad.
...RESPONDENTS
...
Mr. Rupesh A. Jaiswal Advocate for Petitioner.
Ms. P.R. Bharaswadkar, A.P.P. for Respondents.
...
CORAM: SMT. VIBHA KANKANWADI AND
S.G. CHAPALGAONKAR, JJ.
DATE OF RESERVING JUDGMENT : 26th SEPTEMBER 2024
DATE OF PRONOUNCING JUDGMENT : 23rd OCTOBER 2024
JUDGMENT [PER SMT. VIBHA KANKANWADI, J.] :
1. Rule. Rule made returnable forthwith. Heard learned
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counsel appearing for the respective parties finally, by consent.
2. By invoking constitutional powers under Article 226 and
227 of the Constitution of India, the petitioner convict challenges
the order passed by respondent No.1 on 28 th February 2022
thereby refusing to grant premature release of the petitioner
under Section 432 of the Code of Criminal Procedure.
3. Heard learned Advocate Mr. Jaiswal appearing for the
petitioner and learned APP Ms. Bharaswadkar appearing for the
respondents.
4. The petitioner came to be arrested on 26th December 2003
and was prosecuted in Session Case Nos. 3 of 2005 and 5 of
2005 before the learned Sessions Judge, Sindhudurg for the
offence punishable under Section 302, 394 of the Indian Penal
Code. It was the prosecution story that the petitioner, with co-
accused persons, had caused murders of eight persons in three
different incidences. Three separate charge-sheets were filed in
respect of those murders, separate charge were framed, but
evidence was led in respect of all the cases, in Sessions Case
No.3 of 2005. The petitioner and three co-accused persons were
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sentenced to death by the learned Sessions Judge, Sindhudurg
and the said conviction was confirmed by this Court. The
petitioner has preferred criminal appeal and the co-accused
persons have also preferred appeals before the Hon'ble Supreme
Court of India bearing Criminal Appeal Nos.1210-1213 of 2012.
The Hon'ble Supreme Court commuted the death sentence to life
imprisonment, by Judgment and order dated 27 th February 2014.
Thus, the imprisonment undergone on the date of the petition by
the petitioner was 20 years and 2 months actual imprisonment
and including remission, it is 27 years. By the impugned order
dated 28th February 2022 respondent No.1 has refused to grant
any benefit of premature release under Section 432 of the Code
of Criminal Procedure to the petitioner, which is under challenge
in this Petition.
5. Learned Advocate appearing for the petitioner submits that
the Hon'ble Supreme Court while commuting the sentence has
also observed that:-
"30. Balancing the two sets of circumstances i.e. one
favouring commutation and the other favouring upholding
the death penalty, we are of the view that in the present
case the option of life sentence is not "unquestionably
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foreclosed". Therefore, the sentence of death awarded to the
accused should be commuted to life imprisonment. We order,
accordingly, and direct that each of the accused-appellants,
namely Santosh Manohar Chavan, Amit Ashok Shinde,
Yogesh Madhukar Chavan and Mahesh Dhanaji Shinde shall
undergo imprisonment for life for commission of the offence
under Section 302/120B IPC. The sentences awarded to the
accused-appellants by the High Court for commission of all
other offences under the IPC and the Arms Act are affirmed
to run concurrently. We also make it clear that the custody of
the appellants for the rest of their lives will be subject to
remissions if any, which will be strictly subject to the
provisions of the Sections 432 and 433-A of the Cr.P.C."
6. Learned Advocate for the petitioner submits that
respondent No.1 was duty bound to consider all the aspects
which normally should have been considered in respect of the
proposal under Section 432 of the Code of Criminal Procedure.
The impugned order does not show that achievements of the
petitioner during incarceration in jail, his good conduct in jail,
reporting back to the jail in time in nine incidences when parole
or furlough leave was granted to him, were considered. When
petitioner has undergone substantial sentence, then respondent
No.1 ought to have considered the decision of the Hon'ble Apex
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Court in Shor vs. State of Uttar Pradesh and another, 2020 SCC
OnLine SC 626, wherein after taking note of Section 2 of the
United Provinces Prisoners Release on Probation Act, 1938, it
was observed that, the State Government has to see (i)
antecedents (ii) conduct in the prison and (iii) the person, if
released, is likely to abstain from crime and lead a peaceable
life. Learned Advocate for the petitioner further submits that the
proposal for premature release cannot be rejected on the ground
that the State Government will decide individual cases on merits
as per the guidelines of Government Resolution dated 15 th March
2010. It cannot be also rejected on flimsy grounds that too
without any basis that the release of the petitioner would
endanger people at large. He also relies on the decision in Life
Convict Laxman Naskar vs. State of West Bengal and another,
2000 ALL MR (Cri) 1526, wherein it has been observed by the
Hon'ble Supreme Court that :-
" The reasons given by the Government are
palpably irrelevant or devoid of substance. Firstly,
the views of the witnesses who had been examined
in the case or the persons in the locality cannot
determine whether the petitioner would be a danger
if prematurely released because the persons in the
locality and the witnesses may still live in the past
and their memories are being relied upon without
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reference to the present and the report of the jail
authorities to the effect that the petitioner has
reformed himself to a large extent. Secondly, by
reason of one's age one cannot say whether the
convict has still potentiality of committing the crime
or not, but it depends on his attitude to matters,
which is not being taken note of by the
Government. Lastly, the suggestion on that the
incident is not an individual act of crime but a
sequel of the political feud affecting society at large,
whether his political views have been changed or
still carries the same so as to commit crime has not
been examined by the Government. On the basis of
the grounds stated above the Government could not
have rejected the claim made by the petitioner"
7. Leaned Advocate for the petitioner also relies on the recent
decision of this Court in Criminal Writ Petition No.950 of 2022
(Bharat s/o Fakira Dhivar vs the State of Maharashtra and
another) with companion matter, decided on 22 nd November
2022, to which one of the Member of this Division Bench (SMT.
VIBHA KANKANWADI, J.) was party, wherein the decisions of this
Court as well as the Hon'ble Supreme Court were considered.
8. Learned Advocate for the petitioner submits that the
petitioner would fall in category 3(b) of the Guidelines of 1992
as it was the guideline that is required to be mainly considered
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as was in operation when the learned Sessions Judge,
Sindhudurg had convicted the petitioner and therefore,
respondent No.1 needs to be directed to release the petitioner
forthwith.
9. Learned APP has relied on the affidavit filed by Yogesh
Dattatray Desi, the Deputy Inspector General of Prison, Central
Region, Chhatrapati Sambhajinagar. He has given in detail as to
what order was exactly passed by the learned Additional
Sessions Judge, Sindhudurg in Sessions Trial No.5 of 2005 on
26th May 2009. It appears that the death sentence was given in
respect of murder of each of the deceased which were four in
numbers. Then separate sentence for the offence under Section
394, 397 read with Section 120-B of the Indian Penal Code,
Section 404 read with Section 120-B of the Indian Penal Code,
201 read with 120-B of the Indian Penal Code and Sections 3,
5, 6 read with Section 25 of the Arms Act was given. Then all the
sentences were directed to run concurrently excluding the death
sentence. There was separate sentence in respect of Sessions
Trial No.3 of 2005 decided on the same day and in that matter
death sentence for committing murder and kidnapping/abduction
for ransom with conspiracy was awarded separately in respect of
four other deceased persons. Further, separate sentences have
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been awarded for the similar Sections and all the sentences were
directed to run concurrently excluding death sentence.
Thereafter the petitioner had filed two separate appeals
challenging the conviction in two cases. There were two separate
confirmation cases before this Court. All those were decided
together by this Court on 17 th October 2021. The sentences
awarded by the learned Additional Sessions Judge, Sindhudurg
were upheld in respect of murders except the sentence for
offence under Section 364-A read with Section 120-B of the
Indian Penal Code, which was then quashed and set aside. The
petitioner had then filed in all four appeals before the Hon'ble
Apex Court challenging the dismissal of his two appeals and
challenging two confirmation cases. Thereupon the Hon'ble
Supreme Court, by the said order, passed the above sentence,
as aforesaid. The affiant further informs that the petitioner's 14
years premature release proposal was submitted to the State
Government through the Additional Director General of Police
and Inspector General of Prisons, State of Maharashtra by letter
dated 28th December 2021 along with the opinion of the of the
learned District Judge-2 and Additional Sessions Judge,
sindhudurg at Oros, dated 6 th April 2015. Thereafter based on
the said opinion as well as the observations of the Hon'ble
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Supreme Court while deciding the appeals filed by the petitioner
and also taking into consideration the guidelines in State of
Haryana and others vs. Jagdish, AIR 2010 SC 1690 and other
cases, the decision has been taken by the State Government.
The learned convicting Court has categorized the petitioner
under Category 8 of the Government Resolution dated 11 th April
2008 i.e. release after 30 years as well as under Category 6 D of
the Government Resolution dated 15th March 2010 i.e. release
after 30 years. The offence that has been committed by the
petitioner is of very exceptional and heinous in nature. The facts
also depict that it was in the other form of organized crime and
the motive for the murders is then required to be considered.
The serial killings have been committed in a beastly, extremely
brutal and barbaric manner. It has resulted in intense and
extreme indignation of the community and shocked the collective
conscience of the society. Therefore, the State Government has
decided independently, taking into consideration all the aspects,
that the petitioner cannot be released by giving benefit under
Section 432 of the Code of Criminal Procedure.
10. The learned APP, by repeating those contents in the
affidavit, has also placed reliance on the report of the local police
and he relies on the decision in Sunil B. Pingale vs. State of
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Maharashtra (Criminal Writ Petition No.4428 of 2017, decided on
5th April 2018), wherein this Court had taken the note of the
murder committed with extreme brutality and refused to
consider the premature release of the petitioner therein.
11. Here, we must take note of the facts and circumstances in
which the offence was committed because those facts would lead
us to consider whether to categorize the petitioner in a particular
category. Further, we should take into consideration the various
decisions of this Court as well as the Hon'ble Apex Court which
gives guidelines as to which Government Resolution should be
followed and whether the case is worth giving benefit of
remission. In the present case what has been proved by the
prosecution is that the present petitioner was held guilty of
committing murder of in all eight persons. The conviction has
been separately awarded. The prosecution story was that an
anonymous letter was received by the Superintendent of Police,
Sindhudurg on 20th December 2003 as well as he received phone
call to the effect that some unidentified dead bodies were lying
dumped on hillocks of village Nandos, Taluka-Malwan, District-
Sindhudurg. A search operation was organized on the very day
and in that course seven dead bodies were recovered. Two more
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dead bodies were recovered on next day and one more dead
body was recovered after about eight days. Along with the dead
bodies, articles like clothes, trouser, broken brief case etc. were
recovered. The dead bodies were highly decomposed. The dead
bodies were sent for medical examination at Medical college,
Miraj and the team of doctors was constituted who performed
forensic chemical tests. Some of the organs from the dead
bodies were sent to the Center for DNA Fingerprinting and
Diagnostics, Hyderabad for DNA Test. Skulls were sent to the
Forensic Laboratory, Kalina, Mumbai for super-imposition tests.
The identity of the dead persons appears to have been
established and ultimately the investigating officer had come to
the conclusion that all the murders have been committed by the
accused persons. All the accused used to spread and circulate
amongst innocent and unsuspecting persons that there is
magical power with accused No.1 to multiply money by creating
"money showers". The victims were asked to come to Malwan
with currency notes of higher denominations along with empty
gunny sacks. Those victims were put in lodges and hotels in
Malvan and they used to be taken to Nandos plateau by auto
rickshaw and by taking their money, it has been proved that
those victims were murdered.
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12. Certainly, when all these facts have been proved by the
prosecution, we can consider the brutality and that all the
accused persons had committed the said offence in an organized
manner. This is in fact one fact that is required to be considered.
We are also required to consider the decision in Life Convict
Laxman Naskar vs. State of West Bengal and another, 2000 ALL
MR (Cri) 1526 . Further in Ram Chander vs. The State of
Chattisgarh and Another, [2022 LiveLaw (SC) 401], which
factors are required to be considered while considering remission
under Section 432(2) of the Code of Criminal Procedure have
been enumerated. It has been observed in that case that, it
cannot be said that the opinion of the presiding Judge is only a
relevant factor, which does not have any determinative effect on
the application for remission. The decision in Shor vs. State of
Uttar Pradesh and another, (supra) is also then required to be
considered and the other factors which have been given in Ram
Chander vs. The State of Chattisgarh and Another, (supra). In
the said decision, the Hon'ble Supreme Court had reiterated the
decision in Union of India vs. Sriharan @ Murgan, [(2014) 4
SCC 242]. Further, in Sharafat Ali Vs. State of Uttar Pradesh and
Another, [2022 LiveLaw (SC) 179], which is the Full Bench
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decision of the Hon'ble Supreme Court, it reiterates that prior
criminal history, conduct and behaviour in jail, possible danger to
society etc. are relevant considerations for premature release of
a convict.
13. Here in the present case, it appears, as per the affidavit
filed on behalf of respondent No.1, that the opinion of the
convicting Court was taken on 6 th April 2015 and the impugned
order has been passed on 28 th February 2022 i.e. after about
seven years after collecting the said opinion. Respondent No.1
had not even taken care to see that fresh opinion would then be
obtained if they had kept the said proposal pending for years
together.
14. The impugned order does not comply with the
requirements laid down in Shor vs. State of Uttar Pradesh and
another, (supra) and in Ram Chander vs. The State of
Chattisgarh and Another, (supra). In Ram Chander vs. The
State of Chattisgarh and Another, (supra) the Hon'ble Supreme
Court had observed the relevant factors to be considered to
include while assessing the point of remission (i) whether the
offence affects the society at large; (ii) the probability of the
crime being repeated; (iii) the potential of the convict to commit
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crimes in future; (iv) if any fruitful purpose is being served by
keeping the convict in prison; and (v) the socio-economic
condition of the convict's family. It was held that all these
factors should be considered by the presiding Judge also. Then
it has been opined that if the opinion of the presiding officer
does not comply with the requirements of Section 432(2) of the
Code of Criminal Procedure or if the Judge does not consider the
relevant factors for grant of remission that have been laid down
in Life Convict Laxman Naskar (Supra), the government may
request the presiding Judge to consider the matter afresh.
Therefore, when in this case the State had taken the opinion of
the Presiding Judge / convicting Court way back in the year 2015
and the State had taken the decision after seven years then the
behaviour of the petitioner for those seven years in jail was not
before the convicting Court when it gave the opinion. It can be
seen from the details those have been given about the
achievements of the petitioner during incarceration of jail that
he had secured good marks in B.A. and also passed M.A.
Petitioner returned to the jail in time whenever he was released
on furlough or parole leave. The State Government has also
given him special remission on account of his good conduct. All
the said data ought to have been before the convicting Court and
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then it ought to have also been considered by respondent No.1.
Under the said circumstance, we are of the opinion that the
matter needs to be remanded for fresh decision by respondent
No.1 by completing all the requirements as aforesaid.
15. Hence, we pass following order:-
ORDER
(I) The Writ Petition is partly allowed.
(II) The order passed by respondent No.1 dated 28 th February 2022 is hereby quashed and set aside.
(III) The respondents are directed to get fresh opinion from the Convicting Court in view of the guidelines in Life Convict Laxman Naskar vs. State of West Bengal (supra) and Ram Chander vs. The State of Chattisgarh and Another, (supra) within a period of one month. While making communication with the Convicting Court, respondents should forward the details regarding the various achievements of the petitioner during incarceration in jail, report in respect of his good conduct together with special remissions those have been awarded to the petitioner and also the chart regarding leave granted to the petitioner and his reporting back to the jail whether in time or not, any offence committed when he was granted parole or furlough leave.
cwp-1346.24 16 (IV) Respondents to collect the information in respect of the points laid down in Ram Chander vs. The State of Chattisgarh and Another, (supra).
(V) After these reports are received, which should be collected preferably within a period of two months from today, respondent No.1 should proceed to decide the proposal for remission under Section 432 of the Code of Criminal Procedure on the basis of those reports, on its merits, as well as taking into consideration all the decisions of the Hon'ble Apex Court as well as this Court.
(VI) This entire exercise should be done within a period of FOUR MONTHS from today.
(VII) Rule is made absolute in above terms.
[S.G. CHAPALGAONKAR] [SMT. VIBHA KANKANWADI]
JUDGE JUDGE
asb/OCT24