Sadashiv Seena Salian v. The State of Maharashtra

Judgment

(PER P.D.KODE, J.)

1. The petitioner presently lodged at Kolhapur Central Prison is convicted by learned Sessions Judge, Greater Bombay on 27th November, 2002 in Sessions Case Nos.501 and 752 of 1996 for commission of offences under section 120-B read with 302 of Indian Penal Code and is sentenced to suffer imprisonment for life and to pay a fine of Rs.1,00,000/- (Rupees One Lakh only) and in default to undergo further sentence of imprisonment for two years.

2. By the present petition sent through jail the petitioner has prayed for giving direction to concerned authority not to take the fine imposed upon him for prematurely releasing him in pursuant to 2 wp3814.11 Government Resolution No.MIS/4505/5/529/PRS-3/Mantralaya/ Bombay dated 10th January, 2006.

3. It is submitted that the respondent by exercising power under section 432(1) of the Code of Criminal Procedure issued said Resolution for premature release of prisoners having ill health and above the age of 65 years. It is further submitted that for entitling benefit of premature release as per clause (1) of the said resolution such a prisoner sentenced to undergo life imprisonment is required to undergo 14 years of actual imprisonment, while as per clause (2) such a prisoner sentenced to suffer sentence other than for life (excluding the prisoners for offences under MPDA, TADA, NDPS and Central laws pertaining to illegal detention) is required to undergo actual imprisonment of the half sentence imposed by the court or minimum imprisonment of three years, whichever is higher. It is submitted that as per clause (3) of said resolution, the said concession given by the said resolution is not applicable to the prisoners; (a) undergoing life sentence but having not undergone 14 years of imprisonment; (b) the convicted for the offence under MPDA, TADA, NDPS and so also undergoing preventive detention as per the Central laws; (c) sentenced to suffer imprisonment uptill three years. It is submitted that the rest of the matters in the said resolution pertains to issuing certificates of ill health to such a prisoners by the committee to be constituted of the prescribed persons and functioning of the said committee. 3 wp3814.11

4. It is submitted that bare glance at the said resolution reveals that while considering the question of premature release of such prisoners no reference has been at all made to the sentence of fine, if any, imposed upon such a prisoner and as such the same indicates that the respondent has no intention of whatsoever nature to recover the fine, if any, imposed. It is contended that such an inference is obvious as otherwise the said resolution would have contained some stipulation regarding fine imposed upon such prisoner. It is contended that thus the said resolution impliedly suspends/remits fine amount, if any, imposed upon such a prisoners.

5. It is submitted that as the petitioner is above the age of 65 years and is of ill health and had already completed 14 years of actual imprisonment, he is entitled for benefit given by said Government Resolution. However, the prison authorities are arbitrarily depriving him the benefit under the said resolution by unnecessarily laying finger upon sentence of fine imposed upon him. It is submitted that such attitude of authorities is defeating the purpose behind taking such decision by the Government. It is contended that any person reaching age of 65 years being practically incapacitate to work for gain even his blood relations or members of society at large are disinterested to accept him due to the apprehension that such a person would be unnecessary burden upon them. Having due regard to the said aspect Government had not made any stipulation for 4 wp3814.11 recovery of fine amount while issuing the resolution for premature release of such a prisoner. Hence considering all the said aspects, the direction deserves to be given to the authorities as prayed by the petitioner with extension of the same for the co-prisoners who alike petitioner are deprived the benefit under the said resolution for similar reason.

6. After carefully considering following provisions of section 429 of Code of Criminal Procedure pointed by learned A.P.P. : "429 Saving -- (1) Nothing in section 426 or section 427 shall be held to excuse any person from any part of the punishment to which he is liable upon his former or subsequent conviction. (2) When an award of imprisonment in default of payment of a fine to annexed to a substantive sentence of imprisonment and the person undergoing the sentence is after its execution to undergo a further substantive sentence or further substantive sentences of imprisonment, effect shall not be given to the award of imprisonment in default of payment of the fine until the person has undergone the further sentence or sentences. we find much force in his submission that particularly due to provisions of sub-section (2) of section 429 the petitioner is not entitled for the benefit of the said resolution. The learned A.P.P. by inviting our attention to the letter dated 17.12.2011 send by D.I.G. 5 wp3814.11 prison to the Superintendent, Kolhapur Prison stating that while considering the aspect of fine imposed upon such a prisoner seeking premature release, the decision should be taken in accordance with the provisions of section 429 (2) of the Code of Criminal Procedure, further rightly urged that said letter nullifies the submission that the prison authorities are laying finger upon fine imposed for arbitrarily depriving benefit to the petitioner. Similarly, we also find merit in the submission of learned A.P.P. that in view of the provisions of section 429 (2) the petitioner is not entitled for benefit of said resolution to get himself released prematurely without payment of fine or without undergoing the further sentence imposed in default of payment of fine.

7. The provisions of section 432 (1) of the Code of Criminal Procedure under which the resolution in question was issued by Government runs as under: "432. Power to suspend or remit sentences -- (1) When any person has been sentenced to punishment for an offence, the appropriate Government may, at any time, without conditions or upon any conditions which the person sentenced accepts, suspend the execution of his sentence or remit the whole or any part of the punishment to which he has been sentenced. The said provisions in no uncertain terms reveals that the power has been conferred upon the appropriate Government to suspend or remit 6 wp3814.11 a sentence either without conditions or with conditions and the said power can be exercised either for part or for the whole of punishment for which the convict is sentenced. On said backdrop carefully considering the resolution issued, it is clear that said resolution is issued only for remitting remaining part of a sentence of imprisonment of the prisoners having ill health and completed the age of 65 years and falling within the parameters prescribed under the said resolution. Needless to add that upon plain reading of the said resolution it is clear that by the same no remission is intended to be given to such a prisoners regarding sentence of fine or sentence of imprisonment in default of the fine imposed. Having regard to the same we do not find any merit in the submission that non reference of fine amount imposed upon such a prisoner in the said resolution is indicative of implied intent of the appropriate authority/Government to grant remission regarding the sentence of fine imposed upon such prisoners. Thus, resolution issued being confined to granting remission in substantive sentence of imprisonment imposed, issuing the direction as prayed would also amount embarking upon the province of the Government to grant the remission and as such it will be wholly improper to issue the direction as prayed.

8. In the aforesaid premises we do not find any merit in the petition and hence dismiss the same. (P. D. KODE, J.) (V. M. KANADE, J.)