Ravindra v. Ghuge and B.U. Debadwar, JJ.) dated
Case Details
(1) criwp-339.2022.odt IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO.339 OF 2022 Mohd. Istaq @ Bablu Yaqub Patel Age : 30 years, occ : education R/o Aurangabad Central Prison, District Aurangabad (Convict No. 8536). Versus The State of Maharashtra Through Superintendent of Prison of Central Prison, Aurangabad. ... Petition is submitted through Jail. Mr. S.S. Dande, A.P.P. for respondent – State. ... Petitioner Respondent CORAM : V.K. JADHAV AND SANDIPKUMAR C. MORE, JJ. DATE : 08-03-2022. ORDER (Per Sandipkumar C. More ) : 1. We have received one communication from the petitioner convict through jail and it is treated as criminal writ petition suo-moto. 2. Under this petition, the petitioner convict is seeking for quashing and setting aside the order dated 21.08.2020 passed by the Additional Sessions Judge, Biloli and also for seeking beneft of Government Resolution No. (2) criwp-339.2022.odt Sankirn-0916/pra.kra.250/16/turung-3 for releasing him on the eve of 125th Birth Anniversary of Dr. Babasaheb Ambedkar. 3. On going through the contents of the petition, it appears that the petitioner convict had preferred an application dated 06.01.2021 to the Superintendent of Open Prison, Paithan, District Aurangabad for giving him benefts of aforesaid Government Resolution. Accordingly, the Superintendent of the said Prison sought opinion in respect of releasing the petitioner on the eve of 125th Birth Anniversary of Bharatratna Dr. Babasaheb Ambedkar. However, the learned Additional Sessions Judge, Biloli under letter dated 21.08.2020 forwarded his opinion contrary to the prayer of petitioner and thereby refused to give any beneft under the aforesaid Government Resolution to the petitioner convict. 4. Learned A.P.P. has heavily relied upon the order of this Court (Coram : Ravindra V. Ghuge and B.U. Debadwar, JJ.) dated 18th March 2021 passed in Criminal Writ Petition No. 540 of 2020, wherein reference of the judgment delivered by Full Bench in Criminal Writ Petition No. 273/2019 dated 09.10.2020 in the case of Yovehel s/o Viaykumar Gouri vs. (3) criwp-339.2022.odt The State of Maharashtra and others, is made. In the present petition, the petitioner convict has questioned the legality of the opinion dated 21.08.2020 given by the learned Additional Sessions Judge, Biloli which we would like to reproduce herein below : “It appears that, applicant/accused Mohd. Istaq alias Bablu Yakub Patel was tried in Sessions Case No.40/2014 and was convicted u/sec.235(2) of Cr.P.C. for the offence punishable u/secs. 5 and 6 of Protection of Children from Sexual Offences Act, 2012 and sentenced to suffer Rigorous Imprisonment for ten (10) years and also to pay fne of Rs. 10,000/-. Further it appears that, present applicant / accused committed aggravated penetrative sexual assault on a child below 12 years. Therefore, he committed a serious and heinous offence against the minor victim girl who was 07 years old. In view of circular of the Government of lafd.kZ@0916@iz-dz- Maharashtra bearing No. @250@161@rq:ax&3] ea=ky;] eqacbZ&32] fnukad 03-06-2017- There is ban to give beneft to the accused who convicted under the provisions of Central Act. So, the present accused is convicted under the Central Act i.e. POCSO as well as applicant / accused committed a heinous offence against the minor victim girl. On these grounds he is not entitled to get beneft under the said Scheme of the Government of Maharashtra on the eve of 125th Birth Anniversary of Dr. Babasaheb Ambedkar”. 5. It is most important to note here that the learned Full Bench of this Court in the aforesaid judgment have already discussed the four important questions alongwith answers in para 42 of the said judgment, which we would like to reproduce herein below : (4) criwp-339.2022.odt 42. In view of the discussion made herein above and the ratio laid down by the Supreme Court in various authorities as cited above, as referred in the foregoing paragraphs, we answer the question Nos.(i) to (iv) as follows:-
Legal Reasoning
Question No. (I) : Whether it is necessary to obtain the opinion of the Presiding Offcer mentioned in Section 432(2) of the Code of Criminal Procedure in respect of convicts mentioned in Government Resolution dated 3rd June, 2017 to whom the beneft of remission is to be given. Answer : In view of the ratio laid down by the Constitution Bench of Supreme Court, in the case of Union of India vs. V. Sriharan @ Murugan & Others (supra) this question is no more res- integra. The Constitution Bench of the Supreme court in the said case has recorded the answer to the question formulated in para 52.6 by the Referral Bench and recorded that suo motu exercise of power of remission under Section 432(1) is not permissible and exercise of power under Section 432(1) must be in accordance with the procedure under Section 432(2) of Cr.P.C. Question No. (ii) : Whether the application given by the convicts, who fall under the excepted categories, can be rejected straightway by the authority. Answer : In view of the discussion above, we record our answer to question No.(ii) in the affrmative. Question No.(iii) : Whether the opinion given by the Presiding Offcer mentioned in Section 432(2) of the Code of Criminal Procedure and also the record of trial, need to be considered by the authority created for grant or refusal of remission as relevant circumstances or whether the opinion is binding on the authority. Answer : The opinion given by the Presiding Judge of the court in terms of provisions of Section 432(2) of the Cr.P.C. is binding on the authority. Question No. (iv) : Whether under such policy without any scrutiny as provided in the Code of Criminal Procedure, the beneft, remission must be given. (5) criwp-339.2022.odt Answer : In view of the discussion above, we record our answer to question No.(iv) in negative”. 6. So far as this petition is concerned, question No. (iii) of the aforesaid discussion is relevant. The learned Full Bench of this Court has already observed that the opinion given by the Presiding Offcer for grant or refusal of remission as a relevant circumstances, is binding on the authority. Moreover, under question No.(iv) as aforesaid, there cannot be any beneft, remission if the opinion of the Presiding Judge is negative. 7. The case of present petitioner convict is covered by the aforesaid question No. (iii) and the answer given to it by the learned Full Bench. As such, we do not fnd any substance in the prayers made by the present petitioner who is seeking the beneft of remission of sentence on account of 125th Birth Anniversary of Bharatratna Dr. Babasaheb Ambedkar, by setting aside the aforesaid opinion of the concerned Presiding Offcer. Therefore, considering the disputed issue in this petition, which has already been resolved by the learned Full Bench as aforesaid, we fnd that the opinion dated 21.08.2020 given by the learned Additional Sessions Judge, Biloli in the present matter, would be binding on the authority, and therefore, the present petition is liable (6) criwp-339.2022.odt to be dismissed. 8. It is made clear that since the issue in respect of the prayers made by the petitioner convict in this petition is already resolved by the learned Full Bench of this Court as mentioned above, we did not feel it necessary to appoint any person for the petitioner for giving him legal assistance. Even otherwise also, the crime against the petitioner convict for which he has been convicted, falls under Sections 5 and 6 of the Protection of Children from Sexual Offences Act, 2012 which is most serious and heinous offence against the minor victim girl who was only 7 years old as per the opinion dated 21.08.2020. Further, appeal against the conviction of the petitioner bearing Criminal Appeal No. 638 of 2015 is already dismissed by the learned Single Judge of this Court (Coram : Smt. Sadhana S. Jadhav, J.) vide judgment dated 18.08.2019. 9. Thus, we fnd no merit in the petition and the same is accordingly dismissed. (SANDIPKUMAR C. MORE, J.) (V.K. JADHAV, J.) VD_Dhirde