High Court
Legal Reasoning
IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABAD4 CRIMINAL WRIT PETITION NO.523 OF 2025Rajesh @ Faijan Vijaykumar Gupta @ Samaydin Chaudhari (C-6774),Age 40 yrs., Occ. Nil,R/o at present Paithan Open Prison,Dist. Chhatrapati Sambhajinagar. … Petitioner… Versus …1The Under Secretary,Home Department,State Government of Maharashtra. 2The Superintendent,Open Prison, Paithan,Dist. Chhatrapati Sambhajinagar. … Respondents...Mrs. Sharda P. Chate, Advocate for petitionerMrs. Priya R. Bharaswadkar, APP for respondent Nos.1 and 2...CORAM :SMT. VIBHA KANKANWADI & SUSHIL M. GHODESWAR, JJ.DATE :20th AUGUST, 2025
Legal Reasoning
24_Cri.WP_523_2025ORDER : ( PER : SMT. VIBHA KANKANWADI, J. )1Present petitioner challenges the order dated 28th April 2023passed by respondent No.1, whereby the petitioner has been placed inCategory No.6(a) as per the “Guidelines for Premature Release Under the ‘14year Rule of Prisoners serving life sentence”, dated 15th March, 2010(Guidelines of 15th March, 2010), issued by the Home Department,Government of Maharashtra, prescribing the petitioner to undergo theimprisonment for 28 years including remissions subject to minimum of 14years of actual imprisonment including set off period. The petitioner praysthat he be put under the Category No.4(d) as per the Guidelines of 15thMarch, 2010 and 11th April, 2008. 2Heard learned Advocate Mrs. Sharda P. Chate for petitioner andlearned APP Mrs. Priya R. Bharaswadkar for respondent Nos.1 and 2. Inorder to cut short, it can be said that they have argued in support of theirrespective contentions. 3The petitioner came to be convicted by learned AdditionalSessions Judge for Greater Bombay at Sewree in Sessions Case No.670/2007,by Judgment and order dated 30th July, 2009, whereby the petitioner wasconvicted for the offence punishable under Section 302 read with Section 34 34_Cri.WP_523_2025of the Indian Penal Code and sentenced to undergo imprisonment for life andto pay fine. Set off was granted taking into consideration the custody ofpetitioner since 3rd February, 2007 till the pronouncement of Judgment. Thepresent petitioner had challenged his conviction by filing Criminal AppealNo.997 of 2009, before the Principal Seat at Bombay, which was heard alongwith the appeals filed by the co-accused and by order dated 20th November,2015, all the appeals came to be dismissed. After the petitioner hadundergone the actual imprisonment of 14 years, his proposal was taken upfor the premature release and after getting the opinion from the convictingCourt and from other authorities as per the procedure, the petitioner hasbeen placed under Category No.6(a) of the Guidelines of 15th March, 2010, inview of the impugned order dated 28th April, 2023. 4Learned Advocate appearing for petitioner is relying on thedecision in Criminal Writ Petition No.827 of 2023 dated 13th February, 2024,which is in respect of the co-accused Irfan babu Shaikh, wherein the co-accused was also placed under Category No.6(a), however, taking intoconsideration all the aspects, the petition came to be partly allowed. Thematter was remitted back to the convicting Court for submission of freshreport and then respondent No.1 was directed to take fresh decision. 5The State is relying on the affidavit by Mr. Vaibhav 44_Cri.WP_523_2025Sudhakarrao Agey, Deputy Inspector General of Prisons, Nashik Region,Nashik, wherein he has tried to support the impugned order by saying thatthe petitioner was under-trial prisoner in another case when he committedmurder, for which he was then tried in Sessions Case No.670 of 2007. Themurder was committed in Arthur Road Jail, Mumbai and it was theprosecution case that it was a contract killing and therefore, CategoryNo.6(a) of the Guidelines of 15th March, 2010, has been applied. 6The first and foremost fact is that similar order which was passedagainst co-accused Irfan Babu Shaikh, in Criminal Writ Petition No.827 of2023, by order dated 13th February, 2024, the same was set aside by thisCourt. Of course, the matter was then relegated for seeking fresh opinion bythe convicting Court and fresh order, which has been passed as against co-accused Irfan, has not been placed by the respondents. In the affidavit,therefore, we were expecting that clarification ought to have been given inview of the observations by this Court in the matter of Irfan. We are alsoconsidering the major difference in the fact in Criminal Writ Petition filed byco-accused Irfan and the present petitioner, which is that, in that case thereport appears to have been given on 12.10.2021, by the convicting Court,whereas in the present matter the opinion has been given on 24th July 2018and it is different. The convicting Court has clearly stated that the 54_Cri.WP_523_2025petitioner’s case would fall under Category No.4(d) of the Guidelines of 2008and 2010, which prescribes the period of 24 years imprisonment.7If we consider the impugned order dated 28th April 2023, then itrefers to the opinion of the convicting Court in Para No.3 i.e. the observationswhich are not forming part of the opinion given in respect of the presentpetitioner on 12th October, 2021. Common order in respect of presentpetitioner, co-accused Irfan and one more co-accused Mohammad HasanSalim Shaikh has been passed. But it appears that respondent No.1 hasconsidered the opinion given in respect of co-accused Irfan only. Therefore,there is absolutely no application of mind while passing the impugned orderdated 28th April 2023, in respect of the present petitioner. In the impugnedorder, only references have been taken as to what was the convictionawarded, however, respondent No.1 failed to consider that the trial Court aswell as this Court in Appeal had not considered that it was the contractkilling or there was no finding that the accused persons acted as a gang. Ifwe consider the Judgment in Sessions Case No.670 of 2007, only the firstpoint i.e., “Whether prosecution has proved that the deceased Ali Ajgar BakarMehandi met with a homicidal death ?”, has been answered ‘in theaffirmative’. Rest all the points have been answered ‘in the negative’. Whenthe prosecution had failed to prove that the murder was committed by the 64_Cri.WP_523_2025gangsters/contract killers, racketeers, then the case will not fall underCategory No.6(a) of the Guidelines of 2010. At the cost of repetition, wewould say that in the impugned order, there is absolutely no reference to theopinion dated 12th October, 2021, given by the convicting Court andtherefore, obviously there are no reasons as to why the State is notconsidering the opinion of the convicting Court in respect of the petitioner.Obtaining the opinion of the convicting Court is not an empty formality. It isthe outcome of the decision given in Union of India vs. Sriharan @ Muruganand others [(2014) 11 SCC 1], and the Full Bench decision of this Court inYovehel Vijaykumar Gouri vs. State of Maharashtra and others [2020 (6)Mh.L.J. 571]. The Government should not brush aside the opinion of theconvicting Court for its own reasons. 8Category No.4(d) of the Guidelines dated 15th March 2010 oreven 11th April, 2008, would prescribe the murder committed by more thanone person or group of persons, which would be applicable here. Therefore,the case is made out for exercise of powers of this Court under Article 226 ofthe Constitution of India. Hence, following order. ORDERi)The Writ Petition stands allowed in terms of prayer Clause “b” 74_Cri.WP_523_2025and “c”.ii)Respondent Nos.1 and 2 are directed to modify the order andplace the petitioner in Category No.4(d) of the Guidelines of 15th March,2010, and such order be passed within a period of one month from today. ( SUSHIL M. GHODESWAR, J. ) ( SMT. VIBHA KANKANWADI, J. ) agd