Vijay Atmaram Girhe v. State of Maharashtra

Judgment

1. This petition by a convict questions the authority of the Government to issue revised guidelines for premature release of prisoners sentenced to life imprisonment, as also the order passed on 30-9-2008 by the Government pursuant to those guidelines issued on 11-4-2008 categorizing the petitioner in Category 7(b) of the guidelines, viz. as “escapee”.

2. The petitioner had been convicted for offence punishable under Section 302 of the Penal Code and sentenced to suffer imprisonment for life on 30-11-1990 and had been lodged in Central Prison, Amravati. According to the petitioner, he was falsely alleged to have escaped from the Jail on 15-1-1991. This Court granted furlough to him and he came to be released on 9-6-1999 on furlough, rejecting the respondents' claim that the petitioner was not entitled to furlough as an escapee. He was released from District Prison, Akola without furnishing bail in the alleged offence of escaping from the Jail 3 custody. According to the petitioner, the policy decision dated 11-4-2008 regarding premature release of prisoners is without any statutory basis and is violative of fundamental rights of citizens, as it was taken arbitrarily. He has, therefore, sought quashing and setting aside of the guidelines dated 11-4-2008 and the order categorizing him in category 7(b) passed on 30-9-2008 pursuant to those guidelines. He claimed that he should be set at liberty, since he has completed 18 years in the Prison.

3. Upon notice issued to the respondents, the respondents have filed affidavits of respondent No.3. These affidavits show that the petitioner has not made out any justification for quashing Government Resolution dated 11-4-2008. It was pointed out that since after the amendment to the Code of Criminal Procedure whereby Section 433-A was inserted on 18-12-1978, which stipulated that a person, who has been sentenced to life imprisonment, shall not be released from prison unless he had served at least 14 years of imprisonment, it became necessary to issue revised guidelines so as to provide some basis for release of prisoners undergoing life 4 imprisonment on completion of certain years of imprisonment. Also, since there were no guidelines for premature release of convicts not covered by Section 433- A of the Code of Criminal Procedure, the Government issued the revised guidelines. It was further stated that the petitioner had in fact escaped from the lawful custody while working in the garden in the year 1991, was caught by Police Station Malegaon, District Washim, and was admitted to District Prison, Akola, from where he was brought to Central Prison, Amravati, 3-12-1993. An enquiry was also held against the security guards and officers of the Prison in respect of petitioner's escape and they were duly punished at the departmental enquiry. When the petitioner was released on furlough in the year 1999 and was to report back in the Prison on 24- 6-1999, he did not return on the stipulated date. He was apprehended by Police Station Thane on 7-9-1999 and prosecuted for offence punishable under Section 124 of the Bombay Police Act before the learned Judicial

Magistrate First Class, Thane, who had convicted and sentenced the petitioner to imprisonment for six months and fine of Rs.100/-. It was also stated that the conduct of 5 the petitioner was not good and punishments were imposed upon the petitioner for such delinquencies. By further affidavit dated 24-2-2010, it was clarified that offence bearing Crime No.15/91 under Section 224 of the Penal Code for escaping from the Prison had been registered against the petitioner. It was, therefore, claimed that the petitioner was rightly categorized in Category 7(b) of the guidelines issued on 11-4-2008.

4. We have heard the learned counsel for the petitioner, and the learned Additional Public Prosecutor for the respondents.

5. The contention of the petitioner that the guidelines issued vide Government Resolution dated 11-4-2008 are without any statutory basis or authority, has to be rejected, since the Government could not have left the question of premature release of life convicts to be determined on a case-to-case basis arbitrarily. In fact, such guidelines were already in force with effect from 18-12-1978. Guideline No.6 of the said guidelines corresponds to Guideline No.7 in respect of the escapees 6 in the guidelines of 2008 and there is no change as far as the escapees are concerned. Even if the contention of the learned counsel for the petitioner that the guidelines of 2008 were not applicable to the petitioner, since he had been lodged in Prison in 1990 is accepted for the sake of argument, it would not make any material difference, since Category 6 in the guidelines of 1978 and Category 7 in the guidelines of 2008 pertaining to escapees provides for same term of imprisonment. In the absence of any foundation for challenge to the guidelines issued by the Government Resolution dated 11-4-2008, the petitioner's prayer to quash and set aside those guidelines has to be rejected.

6. The contentions of the learned counsel for the petitioner that the petitioner could not have been categorized as an escapee are possibly based on mixing up of two different prosecutions, which the petitioner faced while suffering his life imprisonment. The petitioner was alleged to have escaped from the Jail on 15-1-1991. He had been arrested not for the offence punishable under Section 124 of the Bombay Police Act, but had been 7 caught by Police Station Malegaon, District Washim, presumably as an escapee and he had been lodged in District Prison, Akola. The contention of the petitioner that he had been released without furnishing any bail for the said offence is, to say the least, misleading. Since the petitioner was a life convict, he was bound to be transferred to Amravati Jail and it has been stated by respondent no.3 in his affidavit that after the petitioner was caught, he was admitted to District Prison, Akola, and thereafter he was brought to Central Prison, Amravati, on 3-12-1993. It has been clarified in the affidavit dated 24- 2-2010 filed by respondent No.3 that Crime No.15/91 under Section 224 of the Penal Code had been registered against the petitioner for escaping from the Prison.

7. This crime need not be confused with the crime for which he was arrested and prosecuted at Thane. The petitioner was arrested on 7-9-1999 while he was on furlough, by Thane Police presumably under Section 41 of the Code of Criminal Procedure and was prosecuted for offence punishable under Section 124 of the Bombay Police Act. Respondent No.3 has clarified that the 8 petitioner had been produced before the learned Judicial Magistrate First Class, Thane, where the petitioner was convicted and sentenced to suffer imprisonment for six months. Merely because the figure '24' is common in Section 124 of the Bombay Police Act and Section 224 of the Penal Code, the petitioner need not attempt to create an impression that the authorities are wrongly branding him as an escapee for the offence punishable under Section 124 of the Bombay Police Act. This offence was committed in the year 1999 in a different jurisdiction for which the petitioner had been tried and also convicted. This has nothing to do with the escape in 1991 for which Crime No.15/91 for offence punishable under Section 224 of the Penal Code had been registered. Since, as a life confict, he was bound to be in the Jail and, therefore, it would not be claimed by the petitioner that he was released by the authorities for the said offence without bail. The petitioner's not having been punished for this crime is not significant. Whether the petitioner has been tried for the said offence or not is a different issue and if the trial has not commenced, the respondents would certainly look into the matter and find out as to why the 9 trial has not commenced. Reference to the petitioner's conviction under Section 124 of the Bombay Police Act in the order dated 30-9-2008 seems to be a mix up. But the order also clearly mentions that the petitioner had escaped from Prison on 15-1-1991 and had been arrested on 24-11-1993. The petitioner cannot take advantage of reference to his arrest under Section 124 of the Bombay Police Act and to the sentence of imprisonment of six months imposed upon him for the said offence, which is an altogether different event. It would been ideal had the Desk Officer, who passed the order dated 30-9-2008, had taken care to ensure that such inaccuracy did not enter the order which he was passing and which gave a cause to the petitioner to approach this Court. But this does not alter the fact that the petitioner is an escapee, and the resultant categorization in Category 7(b).

8. The learned counsel for the petitioner referred to a judgment of this Court reported in the form of Note No.26 in Kailash Papadas Kuril v. State of Maharashtra [2006 ALL MR (Cri) N.O.C.]. The observations therein are inapplicable to the present case, since the petitioner is an 10 escapee and not merely a person, who had overstayed while on furlough.

9. It is thus clear that though not yet convicted as an escapee for offence under Section 224 of the Penal Code, according to the Jail record, the petitioner had escaped on 15-1-1991 and had been arrested by Police Station Malegaon, District Washim, sent to District Prison, Akola, and thereafter brought to Central Prison, Amravati, on 3-12-1993. Therefore, the petitioner cannot question is categorization as an escapee. In view of this, the order dated 30-9-2008 cannot be assailed.

10. The petition is, therefore, dismissed. Judge Judge Pdl.