Bombay High Court
Amit S/O. Gajanan Gandhi (In Jail) vs State Of Maharashtra Thr. Its ... on 28 February, 2020
Author: Madhav J. Jamdar
Bench: Sunil B. Shukre, Madhav J. Jamdar
Judgment 1 CWP 131.19.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL WRIT PETITION NO.131 OF 2019
Amit s/o Gajanan Gandhi,
(In Jail), Convict No.C-5876,
Central Prison, Nagpur.
(Presently on furlough leave) .. Petitioner
.. Versus ..
1] State of Maharashtra,
through its Secretary,
Home Department, Mantralaya,
Mumbai-32.
2] Inspector General of Prisons,
Pune, Maharashtra.
3] Superintendent of Prison,
Central Prison, Nagpur. .. Respondents
..........
Shri N.H. Samundre, Advocate for the petitioner,
Shri T.A. Mirza, APP for the respondents-State.
...........
CORAM : SUNIL B. SHUKRE AND
MADHAV J. JAMDAR, JJ.
RESERVED ON : 17th FEBRUARY, 2020.
PRONOUNCED ON : 28th FEBRUARY, 2020.
JUDGMENT :(Per : Madhav J. Jamdar, J.) 1] Rule. Heard finally forthwith by consent of the learned counsel for the parties.
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Judgment 2 CWP 131.19.odt 2] The petitioner, who is undergoing life imprisonment in
Central Prison, Nagpur, by the present petition filed under Article 226 of the Constitution of India, has challenged order dated 21.4.2018 passed by the Home Department of the State of Maharashtra, by which it has been directed that the petitioner will be released from jail after completion of 30 years of imprisonment including remission. By the said order dated 21.4.2018, the petitioner's case has been categorized in clause 7 (a) of Guidelines dated 11.5.1992 issued by the State Government bearing no.RLP-1092/13/252 (Prison-3) (hereinafter referred to as "1992 Guidelines") providing for 30 years of imprisonment including remission subject to minimum of 14 years of actual imprisonment including set off period and also in category 6 (d) of Annexure-I of Guidelines dated 15.3.2010, bearing No. RLP-1006/C.R.621/ (Prison-3) (hereinafter referred to as "2010 Guidelines") which also provides for 30 years of imprisonment including remission subject to 14 years of actual imprisonment including set off period. It is further stated in the order dated 21.4.2018 that as the provisions of both the guidelines are same and, therefore, it has been directed that the petitioner be released after completion of 30 years of imprisonment including remission on the ::: Uploaded on - 28/02/2020 ::: Downloaded on - 29/02/2020 11:38:36 ::: Judgment 3 CWP 131.19.odt condition that the petitioner's behaviour is good till the release from the prison.
3] We have heard Shri N.H. Samundre, learned counsel for the petitioner and Shri T.A. Mirza, learned APP for the respondents- State.
4] It is the contention of the learned counsel for the petitioner that his case falls under category 1 (a) of the "1992 Guidelines" and, therefore, he be released after completion of 22 years. It is his further submission that although he was convicted u/s 376 and 302 of IPC and as he has already undergone punishment for offence u/s 376 of IPC, which is 10 years and, therefore, he be released forthwith. He relied on the judgment of this court passed in Criminal Writ Petition No.435 of 2018. He also relied on the judgment of the Hon'ble Supreme Court in the case between State of Haryana and others .vs. Jagdish, reported in AIR 2010 SC 1690, by which it is held that State has to exercise its power of remission on the basis of policy which is more beneficial to the convict.
5] The learned APP appearing for the respondents-State, on the other hand, stated that in this case the petitioner was convicted by ::: Uploaded on - 28/02/2020 ::: Downloaded on - 29/02/2020 11:38:36 ::: Judgment 4 CWP 131.19.odt the trial court for the offence u/s 302 of IPC and awarded death penalty and for offence u/s 376 of IPC, Rigorous Imprisonment for 10 years was awarded and compensation of Rs.25,000/- was awarded. The High Court has confirmed the award of death penalty and also other sentence and compensation awarded. The Hon'ble Supreme Court although maintained the order of conviction for offence u/s 302 and 376 of IPC, reduced the sentence to imprisonment for life for offence u/s 302 of IPC. According to him, the petitioner's case will fall under clause 7 (a) of "1992 Guidelines" and in clause 6 (d) of Annexure-I of "2010 Guidelines". Thus, according to him, there is no merit in the above writ petition.
6] The factual position on record shows that the petitioner was charged and found guilty of offence u/s 302 of IPC for the murder of the deceased, as also committing rape on her u/s 376 of IPC. The learned Sessions Court for offence u/s 302 of IPC awarded death penalty and for offence u/s 376 of IPC awarded Rigorous Imprisonment for 10 years and also granted compensation of Rs.25,000/-. The High Court has confirmed the conviction and also confirmed the award of death penalty, as also other sentences and also maintained the compensation awarded. The Hon'ble Supreme Court although upheld the conviction of the petitioner u/s 302 and u/s 376 of ::: Uploaded on - 28/02/2020 ::: Downloaded on - 29/02/2020 11:38:36 ::: Judgment 5 CWP 131.19.odt IPC awarded by the courts below, however, modified the sentence of death penalty and awarded life imprisonment for offence u/s 302 of IPC and in all other aspects, the judgment of the High Court is maintained and allowed the appeal to this limited extent. 7] As the petitioner has been categorized under category 7 (a) of "1992 Guidelines" and category 6 (d) of Annexure-1 of "2010 Guidelines" by the respondent No.1, the relevant portion of said guidelines are reproduced herein below :
"1992 Guidelines :-
CATEGORISATION OF CRIME PERIOD OF IMPRISONMENT TO BE UNDERGONE INCLUDING REMISSION SUBJECT TO A MINIMUM OF 14 YEARS OF ACTUAL IMRISONMENT INCLUDING SET OFF PERIOD.1 2
7 DEATH SENTENCE COMMUTTED TO LIFE IMPRISONMENT
a) Prisoners in whose cases death sentence has 30 years been commuted to life imprisonment "2010 Guidelines"
Category Sub Categorization of crime Period of imprisonment to No. Category be undergone including remission subject to a minimum of 14 years of actual imprisonment including set off period.
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Judgment 6 CWP 131.19.odt
6 MURDER FOR SERIOUS OFFENCES
(d) Prisoners whose death sentence has 30 years
been commuted to life imprisonment
8] A bare perusal of clause 7 (a) of "1992 Guidelines" and
clause 6 (d) of Annexure-1 of "2010 Guidelines" show that the said categories are applicable to the prisoners whose death sentence has been commuted to life imprisonment. Therefore, it is clear that the said guidelines are applicable when the appropriate government by exercising power u/s 433 r/w 433-A of Cr.P.C., 1973 commutes a sentence of death for any other punishment provided by IPC. Section 433-A of Cr.P.C. provides restriction on powers of remission or commutation of the appropriate government to the effect that where a sentence of imprisonment for life is imposed on conviction of a person for an offence for which death is one of the punishment provided by law, or where a sentence of death imposed on a person has been commuted under section 433 into one of imprisonment for life, such person shall not be released from prison unless he had served at least fourteen years of imprisonment.
9] It is clear that u/s 433 of Cr.P.C., the appropriate government can commute a sentence of death for any other punishment provided by the Indian Penal Code. Thus, what is contemplated under clause 7 (a) of "1992 Guidelines" and clause 6 ::: Uploaded on - 28/02/2020 ::: Downloaded on - 29/02/2020 11:38:36 ::: Judgment 7 CWP 131.19.odt
(d) of Annexure-I of "2010 Guidelines" is that the accused falling under the said guidelines has been awarded death sentence by the court and, thereafter, his death sentence has been commuted by the appropriate government by exercising power u/s 433 of Cr.P.C. In this particular case, the Hon'ble Supreme Court set aside the death sentence awarded to the petitioner by the learned trial court and confirmed by the High Court and awarded him life imprisonment.
10] The petitioner had challenged in the Hon'ble Supreme Court by filing Special Leave to Appeal under Article 136 of the Constitution of India, the order of the courts below convicting and sentencing him for offence under Sections 302 and 376 of the Indian Penal Code by which he has been inter alia awarded death sentence. The leave to appeal is granted and, therefore, Special Leave Petition is converted into an appeal. In the said appeal, as set out herein-above, although order of conviction is maintained instead of death penalty, life imprisonment was awarded. It is legal position that once leave to appeal has been granted and appellate jurisdiction of Supreme Court has been invoked, the order passed in appeal would attract the applicability of doctrine of merger and the order may be of reversal, modification or of dismissal affirming the order appealed against, as held in the judgment reported in (2000) 6 SCC 359 (Kunhayammed ::: Uploaded on - 28/02/2020 ::: Downloaded on - 29/02/2020 11:38:36 ::: Judgment 8 CWP 131.19.odt and others .vs. State of Kerala and another). Thus, it is clear that the death sentence awarded by the trial court, as confirmed by the High Court stands set aside and merged into the order of the Supreme Court of awarding imprisonment of life.
11] Thus, it is very clear that this is not a case where a convict has been granted death sentence by the court and same has been commuted to life imprisonment by exercising power u/s 433 of Cr.P.C. Thus, the impugned order by which the petitioner's case is categorized under category 7 (a) of "1992 Guidelines" and under category 6 (d) of Annexure-I of "2010 Guidelines", is totally illegal and cannot be sustained.
12] In view of this, we have examined the petitioner's case in the light of various guidelines issued u/s 433 r/w Sec. 433-A of Cr.P.C. which are framed by exercising the power of appropriate government to grant remission or commutation in the punishment. It has been brought to our notice that there are various guidelines issued from time to time under Section 433 r/w 433-A of Cr.P.C. The said guidelines are dated 16.11.1978, 11.05.1992, 11.04.2008 and 15.03.2010. The Hon'ble Supreme Court, in the judgment reported in AIR 2010 SC 1690 in the matter between State of Haryana and others .vs. Jagdish (supra), ::: Uploaded on - 28/02/2020 ::: Downloaded on - 29/02/2020 11:38:36 ::: Judgment 9 CWP 131.19.odt has held that while considering the case of convict, the policy that will be applied to such convict of premature release would be the policy existing on the date of his conviction. It has been further held that 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 a liberal policy prevailing on the date of consideration of the case of the convict for premature release be considered and life convict be given benefit of the same. Thus the policy dated 16.11.1978 will not apply to the present case, as the petitioner was convicted by the judgment and order dated 30.10.2002. The clause 1 of "1992 Guidelines' for premature release deals with murders relating to sexual matters or arising out of relations with women, dowry deaths and other form of bride killing etc. The clause (1) further sub-categorizes various types of offences of that category. For ready reference the said clause (1) is reproduced herein below :
Categorization of crime Period of imprisonment to be undergone including remission subject to a minimum of 14 years of actual imprisonment including set off period.1 2
1 MURDERS RELATING TO SEXUAL MATTERS OR ARISING OUT OF RELATIONS WITH WOMEN, DOWRY DEATHS AND OTHER FORM OF BRIDE KILLING ETC.
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Judgment 10 CWP 131.19.odt
a) Where the convict is the aggrieved person and has no 22 years
previsous criminal history and committed the murder in an individual capacity in a moment of anger and without premeditation.
b) Where the crime as above is committed by the 24 years aggrieved person with premeditation.
c) Where the Crime is committed against the aggrieved 24 years person without premeditation.
d) Where the crime is committed against the aggrieved 26 years person with premeditation.
e) Where the crime is committed with exceptional 28 years violance or with perversity.
13] It is the contention of the advocate of the petitioner that the petitioner's case falls under clause (a) of "1992 Guidelines". A bare reading of clause (a), as set out above, shows that the same is applicable when the convict is the aggrieved person. In the present case, the petitioner was not the aggrieved person and he has been punished for offence under sections 302 and 376 of I.P.C. Thus the victim was the aggrieved person and, therefore, sub-clause (a) is not at all applicable to the petitioner's case. Sub-clause (b) is also applicable when the offence is committed by the aggrieved person and, therefore, the same will also not also apply to the petitioner's case. In this case, as can be seen from the factual position as set out in the judgment of the Hon'ble Supreme Court in order dated 6.8.2003 passed in Criminal Appeal No.376/2003, the deceased was a young child of 11 to 12 years and the student of 6th standard. The father of the deceased and the petitioner were working in the same office and, therefore, the ::: Uploaded on - 28/02/2020 ::: Downloaded on - 29/02/2020 11:38:36 ::: Judgment 11 CWP 131.19.odt petitioner and deceased were knowing each other. On 28.3.2001 at about 7.30 am, the father of the deceased as usual had dropped her daughter at the school and she used to return home from school at about 12.00 noon. The petitioner at about 11.30 am on 28.3.2001 had gone to the house of the deceased and had enquired about the deceased and he was told that the deceased had not come back from the school. Since 28.3.2001, the deceased did not return, mother of deceased informed her husband on telephone. He rushed back home from the office and after searching their daughter and not finding her, a missing report was lodged by the father. During investigation, it transpired that on 28.3.2001 the petitioner first raped the deceased and then committed her murder. Thus, the factual position on record clearly demonstrate that the crime has been committed by the petitioner with premeditation. Not only this, we find that the crime has been committed against the deceased, who was a young child of 11 to 12 years and student of 6th Standard. It has been found that the petitioner has committed rape on the deceased and, thereafter, killed her. Thus, in this case, the crime is committed with perversity and, therefore, the petitioner's case falls under category 1 (e) of "1992 guidelines", which provides for 28 years of imprisonment including remissions. The clause (2) of "2010 Guidelines" pertains to offences ::: Uploaded on - 28/02/2020 ::: Downloaded on - 29/02/2020 11:38:36 ::: Judgment 12 CWP 131.19.odt relating to crime against women and minors. The said clause (2)of 2010 guidelines is reproduced herein below for ready reference :
......................................
Category Sub- Categorization of crime Period of imprisonment
no. category to be undergone
no. including remission
subject to a minimum of
14 years of actual
imprisonment including
set off period.
1 2
2 OFFENCES RELATING TO CRIME
AGAINST WOMEN AND MINORS.
(a) Where the convict has no previous 20 years
criminal history and committed the
murder in an individual capacity in a
moment of anger and without
premeditation.
(b) Where the crime as mentioned above 22 years
committed with premeditation.
(c) Where the crime is committed with 26 years
exceptional violence and or with
brutality or death of victim due to burns.
(d) Murder with rape 28 years
14] The said "2010 Guidelines" in sub-clause (d) provides 28
years of period of imprisonment including remissions for offence of murder with rape. As the guideline, which is to be applied to the convict, is the guideline which was applicable on the date of the conviction of the convict or any subsequent guideline which is more liberal, however, in the present case, both the guidelines provide for 28 years of imprisonment and therefore there is no question of applicability of liberal guideline. ::: Uploaded on - 28/02/2020 ::: Downloaded on - 29/02/2020 11:38:36 :::
Judgment 13 CWP 131.19.odt 15] The Advocate of the petitioner has relied on the judgment
of this court in Criminal Writ Petition No.435/2018, dated 20.03.2019.
In that case, the request of the petitioner to appoint him as night watchman while in prison was refused on the ground that the said petitioner was convicted of an offence of rape. Rule 5 of Chapter XL of the Maharashtra Prison Manual, 1979, lays down that a convict of an offence of rape, unnatural act or kidnapping for the purpose of prostitution, is not eligible to be appointed as Convict Officer or Night Watchman. This Court has held that the petitioner has already undergone his sentence for the offence of rape and, therefore, while considering his case for appointment of as night watchman, the same cannot be taken into consideration. In the present case, we are dealing with the categorization of the convict under guidelines issued by the State Government by exercising power under Section 433 r/w 433-A of Cr.P.C. and, therefore, the said judgment is not applicable to the present case.
16] As discussed herein above, the petitioner's case either falls in category 1 (e) of "1992 Guidelines" or category 2 (d) of "2010 Guidelines" and both the said categories provide for 28 years of imprisonment including remission.
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Judgment 14 CWP 131.19.odt 17] In view of above, we set aside the impugned order of the
respondent no.1, dated 21.4.2018, by which the petitioner was categorized under clause 7 (a) of "1992 Guidelines" or clause 6 (d) of Annexure-I of "2010 Guidelines" and we hold that the category which is applicable to the petitioner's case is 1 (e) of "1992 Guidelines"
and/or clause 2 (d) of "2010 Guidelines" which provides for 28 years of imprisonment including remission, subject to the minimum of 14 years of actual imprisonment. We, therefore, direct that the petitioner be released after the completion of 28 years of imprisonment including remission, subject to the petitioner undergoing actual imprisonment of 14 years and subject to other applicable provisions. In the result, the petition is allowed partly in above terms.
(MADHAV J. JAMDAR, J.) (SUNIL B. SHUKRE, J.)
Gulande
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