Research › Search › Judgment

Bombay High Court · body

2007 DIGILAW 138 (BOM)

HAMID s/o RAHIM KHATIK v. State of Maharashtra

2007-02-02

S.B.DESHMUKH, S.P.KUKDAY

body2007
ORAL ORDER S. B. DESHMUKH, J. :- Heard learned counsel Mrs. A N. Ansari for the petitioner and learned AP.P. Mr. K. B. Chaudhari for the respondents. 2. Rule. By consent of the parties, rule is taken up for hearing forthwith. 3. The petitioner seeks to quash and set aside the order passed by the respondent No.2, dated 28th September, 2006, in relation to premature release of the present petitioner. It is undisputed fact that the petitioner was accused No. 1 in Sessions Case No. 1 of 1993 along with three other co-accused persons. Sessions Case No. 1 of 1993 ended in conviction and sentence of life imprisonment and to pay a fine of Rs. 100/-, each, in default R.I. for two years in relation to present petitioner/accused No.1 and three other accused persons, by the learned Additional Sessions Judge, Amalner, District Jalgaon. The present petitioner, along with other three co-accused persons, had filed Criminal Appeal No. 114 of 1994 in this High Court. This Court, after hearing the parties, allowed the appeal. However, the conviction of the present petitioner, who was accused No.1 and original accused No.2 was maintained for the offence under section 302 read with section 34 of Indian Penal Code and their appeal was dismissed by this Court, by the judgment dated 30th September, 1998 in Criminal Appeal No. 114 of 1994. The petitioner/convict is undergoing the conviction and sentence inflicted upon him. At present, the petitioner is in Central Prison, Nashik Road, Nashik. The learned counsel for the petitioner submits that the case of the petitioner cannot be said to have been governed by guideline No. -1 (c) i.e. "murder resulting from trade union activities and business rivalry". According to the learned counsel for the petitioner, the case of the present petitioner is being governed by category No.3 (a) which reads thus: "3 (a) Whether a murder is committed in the course of quarrel without premeditation in an individual capacity and where the person has no previous criminal history." 4. Learned AP.P. Mr. Chaudhari has invited our attention to the affidavit in reply, sworn in by one Mr. Bhaskar s/o Bhaurao Autade, Senior Jailor, Central Prison, Nashik Road, Nashik. Learned AP.P. Mr. Chaudhari has invited our attention to the affidavit in reply, sworn in by one Mr. Bhaskar s/o Bhaurao Autade, Senior Jailor, Central Prison, Nashik Road, Nashik. In this reply affidavit, filed on behalf of the respondents, it is stated that the Inspector General of Prisons, Pune, by his communication dated 28th July, 2005 recommended for premature release of the petitioner/convict after 26 years of imprisonment in accordance with category 3 (c) of the guidelines dated 11th May, 1992. This guideline, according to the Inspector General of Prisons reads as "murder resulting from trade union activities and business rivalry". 5. Considering the material on record, ultimately, the government came to the conclusion that the case of the present petitioner/prisoner falls under category 3 (c) of the guidelines. Accordingly, order came to be passed, which is impugned in this Criminal Writ Petition. 6. Mr. Chaudhari, learned A.P.P. also relies on a judgment of the Apex Court in the matter of State of Punjab vs. Kesar Singh reported in AIR 1996 SC 2512 . 7. Criminal Appeal No. 114 of 1994 is decided by this Court. We have been at benefit of reading the judgment of this Court in Criminal Appeal No. 114 of 1994, which is tagged with this writ petition. It appears that the occurrence in the case had taken place on 29th September, 1993 at about 03.00 p.m. in mutton market area at Chopda, Taluka Chopda, District Jalgaon. According to the prosecution allegations, there are good number of mutton shops at Chopda. One of the accused Salim brought one customer. The customer disliked the mutton which was kept for sale in the shop belonging to the accused persons, in the Sessions Case, including the present petitioner. The customer then went to the shop of another shop keeper - deceased Isak. One of the accused Salim disliked visit of the said customer to another shop of deceased Isak. Accused Salim asked deceased Isak not to sell mutton to said customer on the ground that he had brought the customer to mutton market. Thereafter, verbal altercations ensued between Isak and one of the co-accused Salim. Co-accused Salim abused deceased Isak by calling him a mad person. The bickering culminated into ghastly murder of Isak. Regarding this occurrence, the learned A.P.P. Mr. Thereafter, verbal altercations ensued between Isak and one of the co-accused Salim. Co-accused Salim abused deceased Isak by calling him a mad person. The bickering culminated into ghastly murder of Isak. Regarding this occurrence, the learned A.P.P. Mr. Chaudhari supports the conclusion of the State Government that the murder of Isak took place on account of business rivalry of the present petitioner/co-accused and deceased Isak. 8. We have perused the judgment of this Court in Criminal Appeal No. 114 of 1994. The relevant finding recorded by this Court in para No. 28, reads, thus: "It is a fact that there was no premeditation and there was no prior meeting of the minds. It is also a fact that quarrel occurred on the spur of moment.” In this para No. 28, this Court dealt with submissions on behalf of the present petitioner and other co-accused persons that there was no prior meeting of the minds and premeditation and the incident occurred at the spur of the moment. This Court, in para No. 28 of its judgment, ultimately recorded a finding that the offence committed by original accused Nos. 1 and 2 (i.e. the present petitioner, who was accused No.1) is under section 302 of Indian Penal Code and not under section 304 Part-I or II. If para 28 of the judgment of this Court, as a whole, is read, the finding recorded by this Court is in respect of no premeditation, no prior meeting of the mind regarding accused Nos. 1 and 2 and fact that the quarrel occurred on the spur of the moment is clear. It is also not the case of either of the parties that this finding is turned down and/or set aside by the Apex Court. This finding seems to have attributed finality. 9. The State Government has prepared guidelines for premature release under section 432 of the Criminal Procedure Code. There is no dispute regarding the copy of the guideline which is placed on record, on behalf of the petitioner. Thus the State Government has exercised the powers under section 432 of Criminal Procedure Code and framed guidelines. 9. The State Government has prepared guidelines for premature release under section 432 of the Criminal Procedure Code. There is no dispute regarding the copy of the guideline which is placed on record, on behalf of the petitioner. Thus the State Government has exercised the powers under section 432 of Criminal Procedure Code and framed guidelines. In the present case, though from the prosecution allegation it appears that the genesis of the occurrence is out of business rivalry in between the present petitioner and other accused persons on one hand and deceased Isak on the other hand, ultimate finding recorded by this Court in Criminal Appeal No. 114 of 1994, is a murder of deceased Isak in the course of quarrel without premeditation and in an individual capacity. In our view, the prosecution allegation is one aspect of every criminal case. While applying the guidelines, the finding recorded by the Court regarding the occurrence and offence is important. If the Court comes to the conclusion that the occurrence or the murder has been committed in course of quarrel or without premeditation and in individual capacity, as well as where the person has no previous criminal history, in that circumstances, the guideline framed by the State Government under category 3(a) needs to be applied. In other words, finding recorded by the Court, regarding the offence of murder is material and has to be taken into consideration while considering the individual case of prisoner under these guidelines. In the present case, in our view, finding recorded by the High Court is nowhere referred to in the counter or in the order passed by the Government, which is annexed as R-l to the Petition. In this view of the matter, the order passed by the State Government dated 28th September, 2006, needs to be quashed and set aside. Instead of, in our view, the case of the present petitioner falls under category 3 (a) of the guidelines. 10. We have also noted a fact that, in the counter, no reference is made regarding the previous criminal history of the present petitioner. Instead of, in our view, the case of the present petitioner falls under category 3 (a) of the guidelines. 10. We have also noted a fact that, in the counter, no reference is made regarding the previous criminal history of the present petitioner. We have noted that, in the matter of State of Punjab (supra), it appears that the prisoner in that case had undergone a little more than eight years of sentence, filed a petition under section 482 of the Criminal Procedure Code in the High Court of Punjab and Haryana at Chandigarh, seeking premature release, which was accepted by the High Court by allowing writ petition, directing release of the prisoner, forthwith. That order was under challenge. The Apex Court referred to section 433 and held that the mandate of section 433 enables the Government in an appropriate case to commute the sentence of a convict and to prematurely order his release before expiry of the sentence as imposed by the courts. Here, in the State of Maharashtra, the State Government has already framed the guidelines, a copy of which is on record. There is no dispute, here, in this case, that the case of the present petitioner was considered by the Inspector General of Prisons, Pune and order impugned in this petition, came to be passed. This order is under challenge in this Criminal Writ Petition. Facts, therefore, are distinct and ratio of the judgment in the matter of State of Punjab, in our view, is not applicable to the facts of the case on hand. In this view of the matter, in our view, the order impugned in this writ petition needs to be quashed and set aside holding that the petitioner's case falls in category 3 (a) of the guidelines. 11. In the result, writ petition is partly allowed in terms of prayer clause 19(B) with further direction that the respondents shall pass appropriate order of release of the petitioner, in accordance with the provisions of law. Rule is made absolute in above terms. Writ petition partly allowed.