Bombay High Court
Jagannath Raghunath Shelke vs The State Of Maharashtra on 24 December, 2013
Author: A.S. Oka
Bench: A.S. Oka, S.C. Gupte
ash 1 wp-1485.13
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
WRIT PETITION NO.1485 OF 2013
Jagannath Raghunath Shelke, )
Age : 55 years, At Post-Adai, )
Taluka - Panvel, District Raigad, )
Prisoner No.-C-470, Old No.C-8882. ).. Petitioner
Versus
1. The State of Maharashtra, )
through Principal Secretary,
ig )
Home Department, Mantralaya, )
Mumbai - 400 032. )
2. Inspector General of Prisons, )
Maharashtra State, Pune. )
3. The Superintendent, )
Yerawada Central Prison, )
Pune - 411 006. ).. Respondents
-
Shri Madhav J. Jamdar for the Petitioner.
Shri J.P. Yagnik, APP for Respondent Nos.1 to 3.
--
CORAM : A.S. OKA & S.C. GUPTE, JJ
DATE ON WHICH SUBMISSIONS WERE HEARD : 4TH DECEMBER 2013
DATE ON WHICH JUDGMENT IS PRONOUNCED: 24TH DECEMBER 2013
JUDGMENT ( PER A.S. OKA, J )
1. On 15th April 1996, the Petitioner was convicted for committing an offence punishable under Section 302 of the Indian ::: Downloaded on - 06/01/2014 04:09:53 ::: ash 2 wp-1485.13 Penal Code and was sentenced to suffer imprisonment for life. On 10 th September 1997, the Petitioner was released on parole. Initial period of 30 days of parole was extended by a further period of 30 days upto 9th November 1997.
2. The Petitioner did not surrender and was arrested and brought to jail on 28th June 1999. On 2nd February 2000, the jail authorities penalized the Petitioner by directing that his name should be removed from the remission system for a period of 10 years. We must note here that though the said order has been challenged in this Petition, in terms of prayer clause (a) of the petition, in view of filing of a separate Petition earlier for the same relief which was dismissed for non-prosecution, in light of the order dated 18 th November 2013 passed by this Court, the said prayer cannot be considered in this Petition.
3. The case made out in the Petition is that the Petitioner was released on furlough leave on six different occasions. On five such occasions, the furlough leave was extended by a period of 14 days.
Only in case of the furlough leave granted from 18 th September 2012 to 17th October 2012, the extended period of 14 days furlough leave was counted as a remission of sentence on the basis of amended Rule 16 of the Prisons (Bombay Furlough and Parole ) Rules, 1959 ( for short "the said Rules") which was brought on the Rule book from 23 rd April 2012.
::: Downloaded on - 06/01/2014 04:09:53 :::ash 3 wp-1485.13 The only prayer which survives for consideration is the prayer clause
(b) which seeks a direction that in case of earlier furlough granted to the Petitioner, the extended period of 14 days should be counted as a remission of sentence.
4. Learned counsel appearing for the Petitioner relies upon a decision of the Apex Court in the case of State of Haryana and Others v.
Jagdish1. In support of his submissions, he urged that since the Petitioner has been convicted to undergo life sentence, when his case is considered for premature release after undergoing actual sentence of 14 years, the remission available as per Rule 16 of the said Rules prevailing at that time will have to be considered. He, therefore, submitted that amended Rule 16 of the said Rules will have to be applied even in case of furlough granted to the Petitioner prior to the date on which the amended Rule came into force. The learned APP submitted that the amended Rule 16 of the said Rules will apply prospectively and, therefore, it will apply only in relation to the extension of furlough granted after the amended Rules came into force.
5. We have carefully considered the submissions. It will be necessary to make a reference to the provisions of the said Rules. Rule 16 as amended with effect from 23rd April 2012 reads thus: -
1 (2010)4 SCC 216 ::: Downloaded on - 06/01/2014 04:09:53 ::: ash 4 wp-1485.13 "16. Furlough to be counted as remission of sentence:- The furlough period of two weeks and extended furlough of 14 days shall be counted as a remission of sentence."
6. The Rule which existed prior to the amendment reads thus:
"16. Furlough to be counted as remission of sentence:- The furlough period shall be counted as a remission of sentence:
Provided that where any furlough period has been extended under Note 4 below rule 3 or under rule 13, the period of extensions shall not be counted as a remission of sentence."
7. The State Government formulated a policy on 11 th May 1992 for premature release of the life convicts. The prisoners were categorized on the basis of nature and gravity of offences committed by them. The modified policy was formulated on 15 th March 2010. As per the both policies, the case of premature release is considered after the prisoner actually undergoes sentence for 14 years. The policies provide for release of prisoners after undergoing sentence for requisite periods specified therein including remissions.
8. As per the Prisons (Bombay Furlough and Parole ) Rules, 1959, Rule 16 prior to 23rd April 2012 provided that the furlough period shall be counted as a remission of sentence but the extended furlough period shall not be counted as a remission of sentence. Now the amended Rule 16 provides that the furlough period of two weeks and ::: Downloaded on - 06/01/2014 04:09:53 ::: ash 5 wp-1485.13 extended furlough of 14 days shall be counted as a remission.
9. Thus, it appears that in case of furlough which is granted after 23rd April 2012 when the amended Rule was brought on the Rule Book, the extended period of furlough will be counted as a remission of sentence. The question is whether the extended period of furlough granted prior to 23rd April 2012 can be counted as a remission.
10. In case of a prisoner who has been convicted to suffer life sentence, the question of considering remissions arises only when the State considers his case for premature release as per the policies referred to above. As the sentence is not for a limited duration, otherwise the remission has no relevance at all. Thus, in case of a life convict, the remission becomes relevant only for consideration of his case for premature release in terms of the policies. As we have noted earlier, there are two policies. The first is of 11 th May 1992 and the second is of 15th March 2010. In the case of State of Haryana and Others v. Jagdish, the question which arose was whether the policy which was applicable when the convict was sentenced will be applicable or the policy which was prevailing on the date on which the case of the convict is considered will apply. Paragraph 54 of the said decision reads thus:-
::: Downloaded on - 06/01/2014 04:09:53 :::ash 6 wp-1485.13 "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."
ig (underline added)
11. Thus, what is held by the Apex Court is that the State has to exercise its policy of remissions by construing it liberally in favour of a convict. If a liberal policy prevails on the date of consideration of the case of a life convict for premature release, he should be given benefit thereof.
12. As we have held earlier, in case of a life convict, the remission becomes relevant only when his case is considered for premature release. If the Rules as regards remission which prevail on the date of consideration of the case of a life convict for premature release are more liberal than the Rules prevailing earlier in point of time, the more liberal of the two will have to be applied.
::: Downloaded on - 06/01/2014 04:09:53 :::ash 7 wp-1485.13
13. Therefore, when a case of life convict is considered for premature release on or after 23rd April 2012, the benefit of amended Rule 16 of the said Rules will have to be given even in case of the extended period of furlough of 14 days granted prior to 23 rd April 2012.
The Petition accordingly succeeds and the Rule is made absolute to that extent.
14. As and when the case of the Petitioner is considered for grant of premature release, the remission will have to be granted in terms of this judgment and order.
( S.C. GUPTE, J ) ( A.S. OKA, J )
::: Downloaded on - 06/01/2014 04:09:53 :::