High Court · 2025

Legal Reasoning

cwp-692.251 IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL WRIT PETITION NO.692 OF 2025Mohammad Hasan Salim Shaikh C/No.8220,Age-40 years, Occu:Nil, R/o-At Present:Visapur Open Prison, District-Ahmednagar. ...PETITIONER VERSUS 1) The Under Secretary, Home Department, State Government of Maharashtra,2) The Superintendent, Visapur Open Prison, District-Ahmednagar. ...RESPONDENTS ... Ms. Sharda P. Chate Advocate for Petitioner. Mr. A.D. Wange, A.P.P. for Respondents. ... CORAM: SMT. VIBHA KANKANWADI AND SANJAY A. DESHMUKH, JJ. DATE : 13th AUGUST 2025 ORDER [PER SMT. VIBHA KANKANWADI, J.] :1.Present petitioner challenges the order dated 28th April2023 passed by respondent No.1, whereby the petitioner hasbeen placed in Category No. 6(a) as per the “Guidelines forPremature Release Under the ‘14 year Rule of Prisoners serving cwp-692.252life sentence”, dated 15th March 2010 ( Guidelines of 15th March2010), issued by the Home Department, Government ofMaharashtra, prescribing the petitioner to undergo theimprisonment for 28 years including remissions subject tominimum of 14 years of actual imprisonment including set offperiod. The petitioner prays that he be put under the CategoryNo. 4(d) as per the Guidelines of 15th March 2010 and 11th April2008. 2.Heard Ms. Sharda P. Chate Advocate for the petitioner andlearned APP Mr. A.D. Wange for Respondents. In order to cutshort, it can be stated that the learned Advocates for respectiveparties have argued in support of their contentions.3.The petitioner came to be convicted by the learnedAdditional Sessions Judge for Greater Bombay at Sewree inSessions Case No.670 of 2007, by Judgment and order dated30th July 2009, whereby the petitioner was convicted for theoffence punishable under Section 302 read with Section 34 ofthe Indian Penal Code and sentenced to undergo imprisonmentfor life and to pay fine. Set off was granted taking intoconsideration the custody of the petitioner since 3rd February cwp-692.2532007 till the pronouncement of Judgment. The present petitionerhad challenged his conviction by filing Criminal Appeal No.863 of2009, before the Principal Seat at Bombay, which was heardalong with the appeals filed by the co-accused and by orderdated 20th November 2015, all the appeals came to bedismissed. After the petitioner had undergone the actualimprisonment of 14 years, his proposal was taken up for thepremature release and after getting the opinion from theconvicting Court and from other authorities as per theprocedure, the petitioner has been placed under CategoryNo. 6(a) of the Guidelines of 15th March 2010, in view of theimpugned order dated 28th April 2023. 4.Learned Advocate appearing for the petitioner is relying onthe decision in Criminal Writ Petition No.827 of 2023 dated 13thFebruary 2024, which is in respect of the co-accused Irfan babuShaikh, wherein the co-accused was also placed under CategoryNo. 6(a), however, taking into consideration all the aspects, thePetition came to be partly allowed. The matter was remittedback to the convicting Court for submission of fresh report andthen respondent was directed to take fresh decision. 5.The State is relying on the affidavit by Mr. Vaibhav cwp-692.254Sudhakarrao Agey, Deputy Inspector General of Prisons, NashikRegion, Nashik, wherein he has tried to support the impugnedorder by saying that the petitioner was under-trial prisoner inanother case when he committed murder, for which he was thentried in Sessions Case No.670 of 2007. The murder wascommitted in Arthur Road Jail, Mumbai and it was theprosecution case that it was a contract killing and therefore,Category No. 6(a) of the Guidelines of 15th March 2010, hasbeen applied.6.The first and foremost fact is that similar order which waspassed against co-accused Irfan Babu Shaikh, in Criminal WritPetition No.827 of 2023, by order dated 13th February 2024, thesame was set aside by this Court. Of course, the matter wasthen relegated for seeking fresh opinion by the convicting Courtand fresh order, which has been passed as against co-accusedIrfan, has not been placed by the respondents. In the affidavit,therefore, we were expecting that clarification ought to havebeen given in view of the observations by this Court in thematter of Irfan. We are also considering the major difference inthe fact in Criminal Writ Petition filed by co-accused Irfan andthe present petitioner, which is that, in that case the report cwp-692.255appears to have been given on 28th March 2018, by theconvicting Court, whereas in the present matter the opinion hasbeen given on 24th July 2018 and it is different. The convictingCourt has clearly stated that the petitioner’s case would fallunder Category No. 4(d) of the Guidelines of 2008 and 2010,which prescribes the period of 24 years imprisonment.7.If we consider the impugned order dated 28th April 2023,then it refers to the opinion of the convicting Court in Para No.3i.e. the observations which are not forming part of the opiniongiven in respect of the present petitioner on 24th July 2018.Common order in respect of the present petitioner, co-accusedIrfan and one more co-accused Rajesh @ Faijan has beenpassed. But it appears that respondent No.1 has considered theopinion given in respect of co-accused Irfan only. Therefore,there is absolutely no application of mind while passing theimpugned order dated 28th April 2023, in respect of the presentpetitioner. In the impugned order, only references have beentaken as to what was the conviction awarded, however,respondent No.1 failed to consider that the trial Court as well asthis Court in Appeal had not considered that it was the contractkilling or there was no finding that the accused persons acted as cwp-692.256a gang. If we consider the Judgment in Sessions Case No.670 of2007, only the first point i.e., “Whether prosecution has proved thatthe deceased Ali Ajgar Bakar Mehandi met with a homicidal death”,has been answered in the affirmative. Rest all the points havebeen answered in the negative. When the prosecution had failedto prove that the murder was committed by thegangsters/contract killers, racketeers, then the case will not fallunder Category No. 6(a) of the Guidelines of 2010. At the cost ofrepetition we would say that in the impugned order, there isabsolutely no reference to the opinion dated 24th July 2018,given by the convicting Court and therefore, obviously there areno reasons as to why the State is not considering the opinion ofthe convicting Court in respect of the petitioner. Obtaining theopinion of the convicting Court is not an empty formality. It isthe outcome of the decision given in Union of India vs. Sriharan@ Murugan and others, [(2014) 11 SCC 1], and the Full Benchdecision of this Court in Yovehel Vijaykumar Gouri vs. State ofMaharashtra and others, [2020 (6) Mh.L.J. 571]. TheGovernment should not brush aside the opinion of the convictingCourt for its own reasons.8.Category No. 4(d) of the Guidelines dated 15th March 2010 cwp-692.257or even 11th April 2008, would prescribe the murder committedby more than one person or group of persons, which would beapplicable here. Therefore, the case is made out for exercise ofpowers of this Court under Article 226 of the Constitution ofIndia.9.The Writ Petition stands allowed in terms of prayer Clause“b)” and “c)”. Respondent Nos. 1 and 2 are directed to modifythe order and place the petitioner in Category No. 4(d) of theGuidelines of 15th March 2010, and such order be passed within aperiod of fifteen days from today. [SANJAY A. DESHMUKH] [SMT. VIBHA KANKANWADI] JUDGE JUDGE asb/AUG25