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2006 DIGILAW 1318 (BOM)

Anup Pratapsingh Varma v. State of Maharashtra

2006-08-24

P.S.BRAHME, S.P.KUKDAY

body2006
Judgment 1. Heard. Rule, returnable forthwith. Heard finally by consent of parties. 2. Heard Mrs. Pratibha Wankhede, Advocate (appointed) for the petitioner, convict, she was assisted by Advocate Shri. Ghanekar; Also heard Shri. S. D. Kaldate, learned A.P.P. for State-respondent. 3. A letter dated 6.4.2006, sent by the petitioner to this court, is treated as present Writ Petition as it questions decision of the State in respect of grant of his premature release. The petitioner has approached this Court for issuance of a writ under Article 226 of the Constitution of India for quashing order dated 25.01.2006 whereunder its earlier order dated 23.2.2005 of premature release of petitioner on completion of 26 years has been cancelled. 4. Admittedly, while petitioner was on the verge of completion of 14 years of imprisonment on recommendation by concerned executive and jail authorities, a proposal for his premature release was considered by State Government and order dated 23.02.2005 issued whereunder his term of imprisonment was decided as 26 years including permissible remissions and accordingly the petitioner was expected to be released in the year 2007. 5. But, while reconsidering the proposal for premature release of co-accused Ashok Punju Wagh, the State Government, having realized the offence committed was of serious nature, the proposal for premature release of co-accused was rejected and on the same ground, order of premature release of the petitioner dated 23.2.2005 came to be cancelled. 6. The stand taken by the respondent State, as reflected in affidavit-in-reply, is that the Inspector General of Prisons, vide letter dated 13.09.2004 forwarded a proposal for premature release in respect of the petitioner under category I(d) of guidelines dt.ll.05.1992 and recommended to release him after 26 years of imprisonment. But, under the impression that the order of co-accused Ashok Punju Wagh has been passed under category I (d) of the guidelines to release him after undergoing imprisonment of 26 years, the Government has decided to release the petitioner under the said category, i.e. I(d) and so order dated 23.2.2005 came to be issued. 7. However, the Inspector General of Prisons, M. S., Pune once again by his letter dated 26.5.2005 resubmitted the proposal for premature release of co-accused Ashok Punju Wagh. 7. However, the Inspector General of Prisons, M. S., Pune once again by his letter dated 26.5.2005 resubmitted the proposal for premature release of co-accused Ashok Punju Wagh. While deciding the same it was noticed that the order in respect of petitioner dated 23.2.2005 was issued under the impression that the order of his co-accused Ashok Wagh has been issued under category (l)(d) though in fact it was rejected. Therefore, after realising this discrepancy and having regard to serious nature of offence, the State took decision and consequently impugned order dated 25.01.2006 came to be issued. 8. It is submitted that in view of petitioner's having committed offences while undergoing sentence, his conduct being not good and that the offence being of serious nature, the State Government was justified to recall its earlier order of premature release of the petitioner. 9. The learned Counsel placed reliance on the decision of the Apex Court in AIR 2000 SC 2762 (Life Convict - Laxman Naskar Vs. State of West Bengal and Anr. In that case, Apex Court, while considering the scope of premature release under Section 432 of Criminal Procedure Code, 1974, laid down guidelines as to basis on which a convict can be released prematurely. They are as under: "(1) Whether the offence is an individual act of crime without affecting the society at large. (2) Whether there is any fruitful purpose of confining of this convict anymore. (3) Whether there is any chance of future reoccurrence of committing crime. (4) Whether the convict has lost his potentiality in committing crime. (5) Socio-Economic condition of the convict's family." 10. Then the learned Counsel relied on decision of Delhi High Court in 1986 Cri.L.J. 566 (Rakesh Kaushik and etc. Vs. Delhi Administration and Anr.). In that case, application made by prisoners for premature release had been rejected by the Sentence Revising Board on objection that there was a party faction and premature release of prisoner may cause mishap. The Court held that though the Board is not required to give detailed reasons for granting premature release, even the administrative orders are subject to judicial review. That it must appeal that the order is neither arbitrary nor capricious and has been passed after complete application of mind and after considering valid reasons. The Court held that though the Board is not required to give detailed reasons for granting premature release, even the administrative orders are subject to judicial review. That it must appeal that the order is neither arbitrary nor capricious and has been passed after complete application of mind and after considering valid reasons. On facts, it was found that grounds raised, viz., objection that there was party faction and premature release may cause mishap, are not valid consideration for refusal to premature release. 11. The learned Counsel urged that impugned order came to be passed without giving an opportunity of hearing to the petitioner. That, there was no adverse report against the petitioner. That the State has not proceeded properly in the matter by considering the cases of all the convicts together. The reason is that each case has to be considered on its own merits. So this indicates that there has not been proper application of mind by the State. 12. We have given our thoughtful consideration to the submissions of the learned Counsel for the parties and also the decisions relied upon. The facts, as disclosed in reply filed by State, reveal that earlier order of premature release of petitioner came to be made under the impression and belief that co-accused Ashok Punju Wagh was already granted premature release. In fact, his claim for release was rejected. There is much substance in this contention as there was admittedly second proposal for premature release of co-accused Ashok Wagh and in fact the proposal for premature release of co-accused Ashok Wagh was rejected by order dated 21.07.2004 which was much prior to order in respect of petitioner dated 23.2.2005. Therefore, there was justification for the State even to reconsider the case in respect of the petitioner. 13. But, then it is not reflected in the impugned order. The earlier order dated 23.2.2005 was recalled on the ground that the offence committed was of serious nature. It appears that the State was much influenced by the fact the claim of co-accused Ashok Wagh for premature release was rejected and then as offence was of serious nature, petitioner's request for premature release was rejected and consequently, impugned order was made, cancelling earlier order dated 23.2.2005. This order cannot sustain for many reasons. First of all it is in violation of principles of natural justice. This order cannot sustain for many reasons. First of all it is in violation of principles of natural justice. Respondent-State has nowhere stated and shown that before the said decision of recalling earlier order was taken, petitioner was heard. As pointed out from the text of impugned order, nothing has been averred much less whispered even that earlier order of grant of premature release was made under belief and impression that co-accused Ashok Punju Wagh was granted premature release, which was not so. 14. Secondly, as laid down by the Apex Court and Delhi High Court in the decisions referred above, case of individual convict for release has to be decided on its merits. Therefore, it has to be said that the State has not proceeded properly in the matter by considering the case of petitioner with the case of co-accused Ashok Wagh. This, in our minds, clearly indicates that there has not been proper application of mind by the State. This appears so much more when earlier order of premature release of petitioner was on the footing that· concerned authorities have recommended favourably for his release. 15. Even accepting from what has been stated in the reply by Respondent, petitioner's involvement in offences while undergoing sentence had weighed with the State for reca11ing impugned order, then in that situation, it was incumbent on State while revising the order, to give him opportunity and hear him. Lastly, the State has not fo11owed the guidelines laid down by the Apex Court reproduced in earlier part of judgment. 16. Therefore, for a11 these reasons, we are of considered opinion that the matter requires reconsideration by the State. Consequently, we quash and set aside impugned order dated 25.1.2006. We direct the Respondent-State to consider the case of petitioner afresh for grant of premature release or not, having regard to the guidelines issued by the Apex Court and taking into consideration facts of the case relating to petitioner individua11y, so also favourable report recommending premature release and fact of commission of offences by petitioner in jail and his conduct as stated in the reply filed by the State in this petition. 17. Rule is made absolute in the aforesaid terms. We quantify remuneration for Mrs. Pratibha Wankhede, Advocate, appointed to Rs.2,000/-. Petition allowed.