High Court
Legal Reasoning
cwp-2005.24+1 IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL WRIT PETITION NO.2005 OF 2024Deepak S/o Dattatraya Jawale,Age-42 years, Occu:Nil, Convict No.8153,R/o-At present in Chh. SambhajinagarCentral Prison, Dist-Chh. Sambhajinagar. ...PETITIONER VERSUS 1) The State of Maharashtra, Through Under Secretary, Home Department, Mantralaya, Mumbai,2) The Inspector General of Prisons, Maharashtra State, Pune,3) The Superintendent of Chh. Sambhajinagar Central Prison, Chh. Sambhajinagar. ...RESPONDENTS WITH CRIMINAL WRIT PETITION NO.2006 OF 2024Abhay @ Abhi @ Abhya Bhaskar Pore,Age-45 years, Occu:Nil, Convict No.8154,R/o-At present in Chh. SambhajinagarCentral Prison, Dist-Chh. Sambhajinagar. ...PETITIONER VERSUS 1) The State of Maharashtra, Through Under Secretary, Home Department, Mantralaya, Mumbai,
Legal Reasoning
cwp-2005.24+22) The Inspector General of Prisons, Maharashtra State, Pune,3) The Superintendent of Chh. Sambhajinagar Central Prison, Chh. Sambhajinagar. ...RESPONDENTS ... Ms. Bharati Gunjal Advocate for Petitioner in both the Petitions. Ms. P.R. Bharaswadkar, A.P.P. for Respondents in both the Petitions. ... CORAM: SMT. VIBHA KANKANWADI AND SANJAY A. DESHMUKH, JJ. DATE : 28th JANUARY, 2025 ORDER [PER SMT. VIBHA KANKANWADI, J.] :1.Both the petitioners are the co-accused, who faced the trialin Special Case No.2 of 2010 for the offence punishable underSections 392, 376(2)(g), 394, 366, 341, 354, 509, 216(a) readwith Section 34 of the Indian Penal Code and under Sections3(1) (ii), 3(2) and 3(3) of the Maharashtra Control of OrganizedCrime Act, 1999 (for short "MCOC Act"), before the learnedSpecial Court (MCOC Act), Aurangabad. They were convicted byJudgment and order dated 22nd August 2016. The conviction ofboth the petitioners is for the offence punishable under Sections cwp-2005.24+3392, 394, 366, 341, 376(2)(g) of the Indian Penal Code, andSections 3(1)(ii), 3(2) of the MCOC Act. 2.The petitioners had preferred Criminal Appeals i.e. CriminalAppeal Nos.542 of 2016 and No.576 of 2016, respectively,before this Court. The said appeals came to be partly allowed byJudgment and order dated 4th December 2023. The conviction ofthe petitioners under Sections 392, 394, 366, 341, 376(2)(g) ofthe Indian Penal Code and Sections 3(1)(ii) and 3(2) of theMCOC Act was maintained, however, only the fine amount wasreduced.3.There was a proposal for premature release of both thepetitioners with respondent No.1 and after undertaking theentire procedure, respondent No.1, by order dated 29th August2024, in respect of both the petitioners, had put them under theCategory - 21 of Annexure - II of the Government Guidelinesdated 15th March 2010. However, both the petitioners claim thatthey should be placed in Category - 8(a) of Annexure - II of theGovernment Guidelines dated 15th March 2010. 4.Heard learned Advocate Ms. Gunjal appearing forthe petitioners and learned APP Ms. Bharaswadkar for the cwp-2005.24+4respondents, in both the Petitions.5.Leaned Advocate for the petitioners submit that thepetitioners have been convicted for the offence under MCOC Actwhich was for the period of seven years and for the offenceunder Section 394 and Section 376(2)(g) of the Indian PenalCode, they have been sentenced to suffer rigorous imprisonmentfor life. As all the sentences were to run concurrently, thepetitioners have already undergone their sentence under MCOCAct and now they are serving the sentence i.e. the maximumsentence which was imposed upon them under Sections 394 and376(2)(g) of the Indian Penal Code and therefore, they ought tohave been put under Category - 8(a) of Annexure - II of theGovernment Guidelines dated 15th March 2010, which prescribesthe years of imprisonment to be undergone including remissionsubject to the minimum of 10 years of actual imprisonmentincluding set off period, for 18 years. But in view of theimpugned orders the petitioners have been directed to bereleased only after undergoing 30 years of imprisonment in viewof Category - 21 of Annexure - II of the Government Guidelinesdated 15th March 2010, which stipulates that, the State
Decision
cwp-2005.24+5Government will decide individual cases on merits. Therefore,the impugned order is illegal and deserves to be quashed and setaside and the directions are required to be given to place thepetitioners under Category - 8(a) of Annexure - II of theGovernment Guidelines dated 15th March 2010. 6.Per contra, the learned APP is relying on the affidavit of Dr.Jalinder Supekar, Special Inspector General of Police (Prisons),Central Region, Chhatrapati Sambhajinagar, wherein he hasstated that Category - 8(a) would be applicable to the accusedwho are guilty in rape cases only. But here the petitioners havebeen convicted for all the offences. Learned APP submits that thepetitioners cannot segregate punishment for each offence andinterpret the rules as per their convenience. The State has notviolated any direction given in State of Haryana vs. Jagdish,2010 AIR SC 1690. 7.We fully agree with the submissions on behalf of the State.The conviction of the accused is required to be considered whileputting him in specific category. How much period ofimprisonment he has already undergone, cannot be taken intoconsideration while categorizing him. The categorization in the cwp-2005.24+6Government Guidelines dated 15th March 2010 is based on crimeand not on sentence. Here, if we consider the GovernmentGuidelines of 2010, then Category - 7 of Annexure - I is forpunishment under the special Acts such as TADA, MCOCA, POTAfor murder. But here the petitioners have not been convicted formurder, but for the offence punishable under Sections 392, 394,366, 341, 376(2)(g) of the Indian Penal Code, and Sections 3(1)(ii), 3(2) of the MCOC Act. In appeals before this Court, only thefine amount has been reduced but the conviction has beenmaintained. Category - 21 of Annexure - II of the Guidelines of2010 is for ‘any other such offences which are not specificallycovered in above categories’. Here, the combination of theoffences in which the petitioners have been held guilty, is notcovered in any other category and therefore, Category - 21would be applicable and the period of imprisonment to beundergone including remission subject to the minimum of 10years of actual imprisonment including set off period that isprescribed is, ‘the State Government will decide individual caseson merit’. Therefore, taking into consideration the manner inwhich the offence has been committed, the State Governmenthas decided that the petitioners cannot be released prior to cwp-2005.24+7actual imprisonment of 14 years and including remission 30years.8.We do not find that there is any legal defect left in thesematters which can be interfered under the constitutional powersof this Court and therefore, both the Writ Petitions deserve to berejected.9.Accordingly, both the Writ Petitions stand rejected. [SANJAY A. DESHMUKH] [SMT. VIBHA KANKANWADI] JUDGE JUDGE asb/FEB25