High Court
Legal Reasoning
cwp-466.246approach would come when the case falls in two categories andone of it is in favour of the convict. Everywhere liberal approachis not required to be taken. The State Government has exclusivejurisdiction for premature release, otherwise when the sentenceis for imprisonment for life then certainly it has been interpretedby the Hon’ble Supreme Court that it is for the remainder of aconvict’s natural life. When the exercise of power vested in Stateunder Section 432 of the Code of Criminal Procedure comes,then the State is guided by the guidelines. Those guidelines havebeen modified periodically. For petitioner who was convicted on15th October 2009 and whose Appeal came to be decided on 4thMay 2011, the guidelines those were applicable, were dated 15thMarch 2010 and to that effect there is no dispute. Only whichcategory is to be applied, is a question.6.The decisions by the Co-ordinate Benches of this Courtwere depending on the facts in each of its case and therefore,per se not binding. In Dagdu Janardhan Shinde vs. State ofMaharashtra and another (supra), though the death was due toburns, why he was put under Category No.2(b) is explained inParagraph No.9 of the Judgment. It is stated that “It was not thecase of prosecution that the alleged act has been committed by cwp-466.247the petitioner with pre-meditation. There is no previous criminalhistory of the petitioner”. Further the beneficial provision underthe guidelines issued on 11th May 1992 were then madeapplicable and the period of imprisonment was prescribed as 22years. The guidelines of 15th March 2010 were considered inParagraph No.6, but as aforesaid, it was held that for convictiondated 15th July 2003, the guidelines of 11th May 1992 would beapplicable. Therefore, the reliance on this decision by thepetitioner is misconceived. 7.As regards the decision in Mangesh S/o Rajaram Sawantvs. the State of Maharashtra and others, (supra) is concerned,the death was due to throttling and it is stated that there used tobe frequent quarrels between deceased and the petitionertherein. It appears that it was held that the offence wascommitted without any pre-meditation. Further, in RavikiranHanumant Shelke vs. State of Maharashtra and another (supra),doubt has been raised as to whether a single kick would haveproved fatal or the petitioner therein was required to give morethan one kick to commit murder of his wife. The deceased hadnot suffered any external injury and therefore, it was held that itis difficult to observe that the petitioner has committed murder cwp-466.248of his wife with exceptional violence and brutality. Therefore, onthe facts of that case, those observations have been made. 8.At the cost of repetition, we would say that within a periodof five months of marriage the murder has been committed bysubjecting the wife to cruelty. In all six injuries were on theperson of the deceased. The sixth injury is fracture of rightsuperior horn of thyroid cartilage. Injury No.1 to 3 are on thelateral region of the neck and injury nos. 4 and 5 are on thearms. Death was asphyxia due to throttling. Further theconviction is also under Section 201 of the Indian Penal Code,which presupposes that it was with pre-meditation. Certainlythose acts would then show the brutality or exceptional violence.The learned convicting Judge in fact in the first paragraph, hasstated that the offence has been committed in violence and withpre-meditation, still he went to put the petitioner in the CategoryNo.2(b) of the Guidelines dated 15th March 2010, which itself iswrong. Only the offence committed with pre-meditation will notbe attracted here taking into consideration the injuries sufferedand also the throttling. We are also taking into consideration thefact that the murder is within five months of the marriage, thattoo for the purpose of dowry or illegal demand and therefore, cwp-466.249the State has rightly put the petitioner in Category No.2(c) ofthe Guidelines of 2010. We find no illegality or error requiringsetting it aside. There is no merit in the present Petition and nocase to exercise our constitutional powers. 9.The Writ Petition stands dismissed.[SANJAY A. DESHMUKH] [SMT. VIBHA KANKANWADI] JUDGE JUDGE asb/MAR25
Arguments
cwp-466.241 IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL WRIT PETITION NO.466 OF 2024Satish Kondiba Gawali [C/ 275]Age-44 years, OccU: Nill, R/o- at present Visapur Open Prison,District-Aurangabad ...PETITIONER VERSUS 1) The State of Maharashtra, Through its Secretary, Home Department, Mantralaya, Mumbai-4000322) The Superintendent, Visapur District Open Prison, ViII Visapur, Dist-Aurangabad. ...RESPONDENTS ... Ms. Sharda P. Chate Advocate for Petitioner. Ms. R.P. Gour, A.P.P. for Respondents. ... CORAM: SMT. VIBHA KANKANWADI AND SANJAY A. DESHMUKH, JJ. DATE : 11th MARCH, 2025 ORDER [PER SMT. VIBHA KANKANWADI, J.] :1.Present Petition has been filed invoking the constitutionalpowers of this Court to challenge the order dated 1st November cwp-466.2422023 passed by respondent No.1 placing the petitioner inCategory No.2(c) of the Guidelines dated 15th March 2010, whichprescribes sentence to be undergone for 26 years. The petitionerprays for modification of the said order and to place him inCategory 2(b) of the said Guidelines of 2010. 2.Heard learned Advocate Ms. Sharda Chate appearing forthe petitioner and learned APP Ms. R.P. Gour for therespondents.3.Learned Advocate for the petitioner has taken us throughthe Judgment passed by the learned Additional Sessions Judge,Ahmednagar in Sessions Case No.11 of 2007 decided on 15thOctober 2009, whereby the petitioner was held guilty ofcommitting murder of his wife and thereby sentenced to sufferimprisonment for life under Section 302 of the Indian PenalCode. Further punishment has been awarded to suffer rigorousimprisonment for three years for the offence punishable underSection 498-A of the Indian Penal Code. Further sentence hasalso been awarded for the offence punishable under Section 201of the Indian Penal Code and he has been directed to sufferrigorous imprisonment for three years. All the substantive cwp-466.243sentences are directed to run concurrently. When the proposalfor premature release of the petitioner was moved after thecompletion of twelve years of actual imprisonment, then theopinion from the convicting Court was sought. By opinion dated24th November 2020 the learned District Judge-3 and AdditionalSessions Judge, Ahmednagar had placed the petitioner inCategory No.2(b) as per the Guidelines of 15th March 2010.However, while passing the order, respondent No.1 on 1stNovember 2023, has placed the petitioner in Category No.2(c) ofthe said Guidelines of 2010. Therefore, the learned Advocate forthe petitioner submits that respondent No.1 has not taken intoconsideration the opinion of the convicting Court and has notadhered to the decision in State of Haryana vs. Jagdish, AIR2010 AIR (SC) 1690, wherein it is observed that the State has toexercise its powers to remission keeping in views any suchbenefit to be construed liberally in favour of the convict. Shealso relies on the decision of the Co-ordinate Bench of this Courtin Dagdu Janardhan Shinde vs. State of Maharashtra andanother (Criminal Writ Petition No.979 of 2018, decided on 4thOctober 2018), whereby even where the death was due toburns, this Court had considered the case under CategoryNo.2(b) of the Guidelines and it was considered that there was cwp-466.244no criminal history of the petitioner therein. Herein this case alsothere is no criminal history of the present petitioner. She furtherrelies on Mangesh S/o Rajaram Sawant vs. the State ofMaharashtra and others (Criminal Writ Petition No.432 of 2019,decided by this Court on 24th April 2019) wherein also theconcerned petitioner was put under Category No.2(a) of theGuidelines and the order of putting him in Category No.3 wasquashed and set aside. Further learned Advocate relies onRavikiran Hanumant Shelke vs. State of Maharashtra andanother (Criminal Writ Petition No.1583 of 2022, decided on 15thJune 2023), to which one of the Member of this Division Bench,i.e. SANJAY A. DESHMUKH, J. was party, whereby the order ofputting the petitioner therein in Category No. 2 (c) was quashedand set aside and the petitioner was put in Category No. 2 (b) ofthe Guidelines.4.Learned APP strongly opposed the application and relies onthe affidavit of Dr. Jalindar Supekar, Special Inspector General ofPolice (Prisons), Nashik Region, Nashik, whereby the reasonshave been given as to how the State had come to the conclusionthat Category No.2(c) of the Guidelines of 2010 would beapplicable. Along with the affidavit, copy of the decision in the cwp-466.245criminal appeal filed by the present petitioner has been annexedi.e. Criminal Appeal No.14 of 2010, which was decided by thisCourt on 4th May 2011, wherein taking into consideration theentire evidence, this Court had dismissed the Appeal. From theJudgments passed by the trial Court as well as the AppellateCourt, it is certain that the deceased wife of the petitioner hadsustained in all six injuries and the cause of death is “asphyxiadue to throttling”. Taking into consideration the situs chosenwherein contusions were found, it was on the lateral region ofthe neck, it can be said that it is a brutal murder. The motive forcommitting the offence was that the wife was subjected tocruelty by unlawful demand of Rs.1,00,000/- for construction ofhouse. Further the marriage between the present petitioner andhis wife was on 20th May 2006 and the murder has taken placeon 8th October 2006. That means within a period of five monthsthe murder has been committed by the present petitioner andtherefore, the petitioner has been rightly put in the CategoryNo.2(c) of the Guidelines of 2010.5.At the outset, it is to be noted that the ratio laid down inState of Haryana vs. Jagdish, (supra) will have to be followed byeverybody. The question of discretion or having a liberal