Vikas @ Sadhu Gendev Hagare v. The State of Maharashtra

1 Cri.WP 88-26 IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL WRIT PETITION NO.88 OF 2026 Vikas @ Sadhu Gendev Hagare (Mali)Age : 50 years, Occu.: Nil Convict No.C-5255,R/o.: At present in Open Dist. PrisonClass-1, Paithan, Tq. Paithan, District : Chhatrapati Sambhajinagar….PETITIONERVERSUS1.The State of Maharashtra, Through Under Secretary, Home Department, Mantralaya, Mumbai2.The Inspector General of Prisons, Maharashtra State, Pune3.The Deputy Inspector General, Central Prison, Chh. Sambhajinagar,4.The Superintendent, Open District Prison, Paithan, Class-1, Tq. Paithan, District : Chhatrapati Sambhajinagar…RESPONDENTS….Ms. Vanita H. Sangole Jaitmal, Advocate for the PetitionerMr. Govind A. Kulkarni, APP for Respondent - State ….CORAM :SANDIPKUMAR C. MORE ANDABASAHEB D. SHINDE, JJ.DATED : 13/03/2026. 2 Cri.WP 88-26 JUDGMENT : ( PER : SANDIPKUMAR C. MORE, J.) :1.Rule. Rule made returnable forthwith. Heard finally at theadmission stage with the consent of the learned counsel for thepetitioner as well as the learned APP for the respondent–State.2.By way of this writ petition, the petitioner seeks a direction tothe Additional Sessions Judge, Osmanabad, to correct or modifythe judgment and order dated 15/02/2012 passed in SessionsCase No. 8 of 2012, to the extent of granting him set-off underSection 428 of the Cr.P.C. for the period of imprisonment alreadyundergone by him from the date of his arrest till the decision of theaforesaid case.3.The learned counsel for the petitioner submits that thelearned Additional Sessions Judge, Osmanabad, convicted thepetitioner, who is the original accused No. 1 in Sessions Case No. 8of 2011, for offences punishable under Sections 302 and 323 of theIPC. However, while awarding the sentence, though the learnedAdditional Sessions Judge directed that the sentences imposedunder the aforesaid sections of the IPC shall run concurrently, noorder granting set-off under Section 428 of the Cr.P.C. was passed. The learned counsel for the petitioner further submits that the 3 Cri.WP 88-26 petitioner was arrested in the aforesaid crime on 05/10/2010 andremained in custody until his conviction on 15/02/2012 andtherefore entitled to set-off for the said period under Section 428 ofthe Cr.P.C. In support of her submissions, she has relied on thefollowing judgments:A) Rajaram Kashinath Charoskar vs. State ofMaharashtra, 2008 ALL MR (Cri) 3407;B) Judgment of the Delhi High Court in WritPetition (Cri) No. 1828/2013 (Zile Singh vs. State GNCT of Delhi), delivered on12/12/2013; andC) Judgment of this Court in Criminal AppealNo. 172 of 2012 (Vikas @ Sadhu GendevHagare (Mali) vs. The State of Maharashtra),delivered on 29/07/2015.4.On the contrary, the learned APP strongly opposed thesubmissions made on behalf of the petitioner and raised apreliminary objection regarding the maintainability of the presentpetition by relying upon the judgment of the Hon’ble Apex Court inPradnya Pranjal Kulkarni vs. State of Maharashtra andanother, 2025 SCC OnLine SC 1948. According to him, the writpetition under Article 226 of the Constitution of India is notmaintainable, as the order passed by a judicial officer is under 4 Cri.WP 88-26 challenge in the present matter. In the alternative, he submits thatwhen the learned Additional Sessions Judge, Osmanabad, hasspecifically refrained himself from granting set-off under Section428 of the Cr.P.C. to the present petitioner despite granting suchbenefit to another accused, i.e., accused No. 3, Ganpat BhivaHagare, the petitioner cannot claim the same as a matter of right. Accordingly, he prayed for dismissal of the petition.5.Admittedly, the learned Additional Sessions Judge, Osmanabad, convicted the present petitioner for offencespunishable under Sections 302 and 323 of the IPC. For the offenceunder Section 302 of the IPC, the petitioner has been sentenced tosuffer life imprisonment and to pay a fine of Rs. 500/-, with adefault clause; and for the offence under Section 323 of the IPC, hehas been sentenced to suffer simple imprisonment for threemonths and to pay a fine of Rs. 300/-, with a default clause. It isequally important to note that another accused, i.e., accused No. 3,Ganpat, was convicted for the offence under Section 323 read withSection 34 of the IPC and sentenced to suffer simple imprisonmentfor three months along with fine in the same crime. Further, theoperative part of the judgment indicates that the said accused No.3 was granted set-off under Section 428 of the Cr.P.C. by the 5 Cri.WP 88-26 learned Additional Sessions Judge, Osmanabad, for the periodfrom 05/10/2010 till 02/04/2011; however, no such set-off hasbeen granted to the present petitioner.6 .Learned APP by placing reliance on the observation of theHon’ble Apex Court in the case of Pradnya Pranjal Kulkarni(supra) raised serious objection about the maintainability of thispetition. On going through the said observation, the Hon’ble ApexCourt has held by relying on its earlier judgment in the case ofNeeta Singh vs. The State of Uttar Pradesh, Special Leave toAppeal (Cri.) No.13578 of 2024 dated 15/10/2024, that ajudicial order not being amenable to challenge before a high courtunder Article 226 of the Constitution and there being no prayereither under Article 227 thereof or Section 482, Cr.P.C., theAllahabad High Court was right in holding the writ petition underArticle 226 to have been rendered infructuous. Apparently fromthe aforesaid observation it appears that writ petition under Article226 of Constitution of India against a judicial order is notmaintainable, but the facts and circumstances in which theaforesaid observation of the Hon’ble Apex Court has come onrecord, were totally different than the facts of this case. Moreover, while observing like this, the Hon’ble Apex Court had clearly opined 6 Cri.WP 88-26 that Division Bench of the High Court was certainly having powerto examine the grievance of the petitioner in that case. It was onlyasked to the said petitioner to mould the relief suitably to invokethe jurisdiction of High Court under Section 528 of BNS (OldSection 482 of Cr.P.C.). Therefore, the aforesaid observation is nothelpful for the prosecution for raising the objection regardingmaintainability of the petition.7.Now the question before us is whether by invoking Article 226of the Constitution of India, can this court grant set off to thepetitioner under Section 428 of Cr.P.C. when it is not given by thelearned Additional Sessions Judge, Osmanabad to the presentpetitioner specially when it has been given to another convictaccused. The learned counsel for the petitioner heavily relied onthe judgment of Delhi High Court in the case of Zile Singh vs. State of GNCT of Delhi (supra), wherein it is observed as follows:“6.Learned counsel for the petitioner further submitsthat it is the case of the petitioner that in view ofclear statutory mandate of Section 428 Cr.P.C. thepetitioner cannot be denied of this benefit. Counsel further submits that it is settled law by acatena of judgments of the Supreme Court of Indiaand the High Courts wherein it has been held that 7 Cri.WP 88-26 all accused persons are entitled to the benefit ofSection 428 of Cr.P.C. as a mandate and not as adiscretion even when a person is undergoingsentence of imprisonment in another case.” In this judgment a reference of judgment of ConstitutionBench of the Hon’ble Apex Court in the case of Bhagirath vs. Delhi Administration, 1985(2) SCC 580, has come, wherein it isobserved as follows: “We have considered with great care the reasoningupon which the decision in Kartar Singh (1982 3SCC 1) proceeds. With respect, we are unable toagree with the decision. We have already discussedwhy imprisonment for life is imprisonment for a term, within the meaning of section 428. We would like toadd that we find it difficult to agree that theexpressions ‘imprisonment for life’ and‘imprisonment for a term’ are used either in the PenalCode or in the Criminal Procedure Code incontradistinction with each other. Sections 304, 305,307 and 394 of the Penal Code undoubtedly providethat persons guilty of the respective offences, shallbe punished with imprisonment for life or withimprisonment for a term not exceeding a certainnumber of years. But, that is the only manner inwhich the Legislature could have expressed itsintention that persons who are guilty of those 8 Cri.WP 88-26 offences shall be punished with either of thesentences mentioned in the respective sections. Thecircumstances on which the learned Judges haveplaced reliance in Kartar Singh, do not afford anyevidence intrinsic or otherwise, of the use of the twoexpressions in contradistinction with each other. Twoor more expressions are often used in the samesection in order to exhaust the alternatives which areavailable to the Legislature. That does not mean thatthere is, necessarily, an antithesis between thoseexpressions.” 8. Even this court in case of Rajaram Kashinath Charoskar(supra) has considered the scheme of Section 428 of Cr.P.C. byconsidering various earlier judgments on this aspect. The followingimportant issue which is also involved in this case was underconsideration before this court in the aforesaid judgment. Whether in spite of specific order of the SessionsJudge, directing that no set off be granted underSection 428 of the Code to the petitioner, whichdirection has not been interfered with in appealby the High Court, the petitioner is entitled toclaim set off under Section 428 r/w 433-A of theCode of Criminal Procedure?On going through the said judgment it is clearly evident thatthis court had an occasion to go through various earlier judgments 9 Cri.WP 88-26 passed by Hon’ble Apex Court including the case of Bhagirath(supra). We would like to quote certain observations of this courtin the said judgment, which are as follows :“21.The aforesaid discussion of the relevant legalaspects of the matter thus shows that neither thejudgment delivered by the Sessions Judge nor theone delivered by this Court in the appeal, can beread to mean that the petitioner cannot be grantedset off to which he may otherwise be entitled tounder the said Code. It was not for the judiciaryto direct grant or otherwise of such a set off to thepetitioner at that stage. It is exclusively within thedomain of the Executive Government to take sucha decision. Obviously, therefore, it is open for theExecutive Government in terms of the aforesaidprovisions of law and in the light of its policydecisions reflected by relevant GovernmentResolutions and / or Circulars to decide the issueas to whether the petitioner is entitled to set off ornot. In taking such a decision the aforesaidobservations and / or order of the Sessions Judgeor for that matter of this Court cannot operate asan hurdle much less prohibition.22.We, therefore, answer the aforesaid issue byholding that the petitioner is entitled to claimcommutation of his sentence as also set off, ifotherwise found entitled in law, in spite of specificorders of the Sessions Judge, which is confirmed 10 Cri.WP 88-26 in appeal by this Court, directing to the contrary.” 9.Moreover, the extract from Bhagirath (supra) was alsoconsidered which is as follows.“11.…….The question of setting off the period ofdetention undergone by an accused as an undertrial prisoner against the sentence of lifeimprisonment can arise only if an order is passedby the appropriate authority under Section 432 orSection 433 of the Code. In the absence of suchorder passed generally or specially and apart fromthe provisions, if any, of the relevant Jail Manual, imprisonment for life would mean, according to therule in Gopal Vinayak Godse, imprisonment for theremainder of life.” Further, this court has also observed in para 26 & 27 asfollows:“26.In the light of the aforesaid discussion, we arealso of the view that the petitioner is entitled tothis benovalent provision, contained in section428 of the Code and the petitioner cannot bedeprived of such a statutory compulsory benefitto be awarded to a convict, without an exceptionand / or discretion of the Court under section428 r/w section 433-A of the Code. 11 Cri.WP 88-26 27.In view of the aforesaid factual and legal aspectof the matter, we allow this writ petition andhereby direct that the petitioner be granted thebenefit of set off, to which he is entitled undersection 428 r/w section 433-A of the Code ofCriminal Procedure.”10.Thus, on going through the observations of the Hon’ble ApexCourt as well as this court in the aforesaid cases it is ultimatelyheld that grant of set off to the life convict is exclusively in thedomain of Executive Government and not for judiciary to grant ordeny set off. In the instant case, the learned Additional SessionsJudge, Osmanabad admittedly has not granted set off to thepresent petitioner despite granting it to another accused, but as perthe observation of this court in the case of Rajaram (supra) thepetitioner is entitled to claim commutation of his sentence as alsoset off despite its rejection by the concerned Sessions Judge whichwas confirmed by this court. Therefore, considering all theseaspects on the issue involved in this case, we are of the opinionthat though the learned Additional Sessions Judge, Osmanabaddid not pass any order regarding set off under Section 428 ofCr.P.C. to the present petitioner, but the petitioner is entitled forthe same under Article 226 of the Constitution of India before this 12 Cri.WP 88-26 court. Admittedly, at present the petitioner is undergoing thesentence of life imprisonment in Open District Prison, Class-1,Paithan, Tq. Paithan, District : Chhatrapati Sambhajinagar. Accordingly, the petition is hereby allowed and respondent No.4 –the Superintendent, Open District Prion, Paithan, Class-1, Tq.Paithan, District Chhatrapati Sambhajinagar is hereby directed toissue appropriate order for giving set off to the petitioner for theperiod from 05/10/2010 to 15/02/2012 as per Section 428 r/wSection 433-A of Cr.P.C. within three months from the date of thisorder. Rule is made absolute in above terms and the petition isdisposed of accordingly. ( ABASAHEB D. SHINDE J. ) ( SANDIPKUMAR C. MORE , J. ) VS Maind/-