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2009 DIGILAW 963 (BOM)

Ravindra Shantaram Sawant v. State of Maharashtra

2009-08-03

A.R.JOSHI, BILAL NAZKI

body2009
Judgment :- Bilal Nazki, J. Rule. 2. Learned Advocate General appears and waives service of Rule on behalf of the respondents. 3. Considering the issue involved, by consent, the Rule made returnable forthwith and disposed of finally. 4. The petitioner was convicted under Section 307 of the Indian Penal Code and under various provisions of the Terrorists and Disruptive Activities (Prevention) Act, 1987, for short "TADA Act". He was sentenced to undergo imprisonment for life. His case was that he had undergone the actual imprisonment of 14 years and with remission 19 years and was entitled to be released in view of the guidelines framed by the Government on 11th April, 2008 in terms of Section 434A of the Criminal Procedure Code. 5. Learned Counsel for the petitioner submits that since he was not released, he filed a writ petition being Criminal Writ Petition No. 1356 of 2008. This writ petition came to be decided on 21st August, 2008 by this Court. The plea was taken by the respondents in that writ petition that the petitioner's case fell under the residuary class and he had been sentenced to life imprisonment for a crime which was not covered by any other guidelines. The Government having taken into consideration the nature of the offence he had committed and therefore his case was considered under guideline No.20. This court found that the Government had not passed an order justifying the application of guideline 20 instead of Category I of Annexure II. Therefore, it directed the respondents to reconsider the matter and pass appropriate orders. Thereafter, the Government reconsidered the issue and passed a fresh order and on 23rd October, 2008 this court allowed the petitioner to withdraw the earlier writ petition being Criminal Writ Petition No. 1356 of 2008 with liberty to file fresh petition. 6. Accordingly, the present writ petition has been filed on 3rd November, 2008. The case of the petitioner is that his case is covered by Category-I of Guidelines dated 11th April, 2008 and therefore it is contended that the impugned order rejecting the representation of the petitioner was bad. The respondents in their counter have stated that the Guideline 20 of Annexure -II would apply to the petitioner. Therefore, he has to undergo an imprisonment of 30 years. The respondents in their counter have stated that the Guideline 20 of Annexure -II would apply to the petitioner. Therefore, he has to undergo an imprisonment of 30 years. In the light of this submission, it is apparent that the Court has to examine as to which of the guidelines would apply to the petitioner's case. 7. The petitioner claims that his case is to be dealt with under the guideline in Category - I. Category – I of Annexure – II reads as under: TABLE The case of the petitioner is that he has been sentenced for attempt to murder and therefore he was entitled to be released after serving sentence of 14 years. Although he has served about 19 years, he has not been still released. Entry 20 of the same Annexure reads as under: TABLE Learned Advocate General submits that the present case has to be treated under Entry 20 because the crime committed by the petitioner was not a crime covered by the above mentioned guideline. In this connection he referred to the findings of the court against the petitioner, which were recoded by the trial court during the trial and also the observations of the Supreme Court while disposing of the Appeal filed by the petitioner. The petitioner was convicted under Section 3(2)(ii) of the Terrorists and Disruptive Activities (Prevention) Act, 1987 and was sentenced to suffer imprisonment for life and was also fined. He was also given sentence of imprisonment for life under Sections 5 and 6 of the TADA Act. He was also given life sentence under Section 307 of the Indian Penal Code. In the light of the findings of the trial Court and the observations of the Supreme Court, it is contended by the learned Advocate General that this was not a case simplicitor of an attempt to murder. Besides charges under Section 307 of the Indian Penal Code, the petitioner had also been convicted under the various provisions of the TADA Act. He submits that the observations of the Supreme Court are sufficient to treat the petitioner differently than the prisoner who was sentenced to life imprisonment in an offence under Section 307 of the Indian Penal Code. 8. Various judgments have been relied by the respective sides. He submits that the observations of the Supreme Court are sufficient to treat the petitioner differently than the prisoner who was sentenced to life imprisonment in an offence under Section 307 of the Indian Penal Code. 8. Various judgments have been relied by the respective sides. Law is well settled that once a court convicts a person and sentences him to life imprisonment, he is expected to die in jail, which means that life imprisonment is till his life lasts and court can not reduce the sentence of life imprisonment, in any circumstance, if a person is sentenced to life imprisonment. But the Government having power to remit the sentence may do so and the discretion with the Government has to be exercised within four corners of the policy framed by the Government. The Supreme Court in Commissioner of Municipal Corporation, Shimla v/s Pem Lata Sood & Ors., reported in 2007(3) RCR (Civil) 249 and also in State of Haryana v/s Mahender Singh & Ors., reported in 2007(4) RCR (Criminal) 909, laid down that when a policy decision is made the person must be treated equally in terms thereof. If a policy is laid down and similarly placed persons are treated differently, Article 14 of the Constitution of India would quickly come into play. In the case of State of Haryana & Ors. v/s Balwan reported in AIR 1999 SC 3333 . While reiterating the principles laid down in Gopal Vinayak Godse v/s State of Maharashtra, reported in AIR 1961 SC 600 , that by earning remissions a life convict does not acquire a right to be released prematurely, the Supreme Court noted that the release would follow only upon an order made under the Criminal Procedure Code by the Appropriate Government or on a clemency order in exercise of power under Article 72 or Article 161 of the Constitution of India. The Supreme Court further noted, "Thus, this Court in clear term has laid down that by earning remissions a life convict does not acquire a right to be released prematurely. The Supreme Court further noted, "Thus, this Court in clear term has laid down that by earning remissions a life convict does not acquire a right to be released prematurely. But if the Government has framed any rule or made a scheme for early release of such convicts then those rules or schemes will have to be treated as guidelines for exercising its power under Article 161 of the Constitution." While allowing the appeal pending before the Supreme Court, the Supreme Court ordered the State Government to reconsider the application of the convict in accordance with the correct legal position pointed out in the judgment. 9. Coming to the observations of the Supreme Court in the case in hand, it may be pointed out that those observations were made by the Supreme Court on the basis of the facts proved against the petitioner in the trial and those observations were based on the actual conduct of the petitioner when the offence was committed and may not be relevant for the purpose of examining whether he is entitled to be released prematurely in terms of the policy framed by the Government. These observations are being made by us in the light of the observations of the Supreme Court in the case of Laxman Naskar v/s State of West Bengal & Anr., reported in AIR 2000 SC 2762 , where the application of premature release of a prisoner had been rejected by the State for following reasons: 1) That the police report has revealed that the two witnesses who had deposed before the trial Court and the people of the locality are all apprehensive of acute breach of peace in the locality in case of premature release of the petitioner. 2) That the petitioner is a person of about 43 years and hence he has the potential of committing crime; and 3) That the incident in relation to which the crime had occurred was the sequel of the political feud affecting the society at large. These reasons were repelled by the Supreme Court in para 8 of the Judgment in the case of Laxman Naskar's case (supra). Para 8 reads as under: "8. If we look at the reasons given by the Government, we are afraid that the same are palpably irrelevant or devoid of substance. These reasons were repelled by the Supreme Court in para 8 of the Judgment in the case of Laxman Naskar's case (supra). Para 8 reads as under: "8. If we look at the reasons given by the Government, we are afraid that the same are palpably irrelevant or devoid of substance. Firstly, the views of the witnesses who had been examined in the case or the persons in the locality cannot determine whether the petitioner would be a danger if prematurely released because the persons in the locality and the witnesses may still lie in the past and their memories are being relied upon without reference to the present and the report of the jail authorities to the effect that the petitioner has reformed himself to a large extent. Secondly, by reason of one's age one cannot say whether the convict has still potentiality of committing the crime or not, but it depends on his attitude to matters, which is not being taken note of by the Government. Lastly, the suggestion that the incident is not an individual act of crime but a sequel of the political feud affecting society at large, whether his political views have been changed or still carries the same so as to commit crime has not been examined by the Government." 10. The net result as per Annexure - I and the guidelines at present is that the person convicted of murder committed without premeditation can come out of jail after 20 years if he was sentenced to life imprisonment. In case of premeditated murder, the prisoner can come out of jail after 22 years. Category 2(c) is a curious category. A person can come out of the jail after 28 years if he had committed murder with exceptional violence or with brutality due to burn or he has committed murder with rape. A murder along with rape where life or death sentence is given, a person can come out of the jail after 28 years. But a person who had committed a offence of attempt to murder has to remain in jail for 30 years because the State wants so. Annexure – I applies to murder. Whereas Annexure – II applies to person guilty of murder not sentenced to death but sentenced to life imprisonment. But a person who had committed a offence of attempt to murder has to remain in jail for 30 years because the State wants so. Annexure – I applies to murder. Whereas Annexure – II applies to person guilty of murder not sentenced to death but sentenced to life imprisonment. Even in this case person causing death for dowry can come out of jail after 20 years, a person guilty of rape can come out of jail after 18 years, person guilty of extortion, robbery, dacoity, etc. can come out of jail after 14 years. If a person, who commits murder and rape can come out of jail after 28 years and all persons who are involved in an offence and convicted under Sections 304, 304(a) and 307 can come out of jail after 14 years why cannot the petitioner. 11. The petitioner had been convicted under Section 307 of the Indian Penal Code and Sections 3(2)(ii), 5 and 6 of the Terrorist and Disruptive Activities (Prevention) Act, 1987. Section 307 of the Indian Penal Code caries maximum punishment of life imprisonment and the minimum sentence of 10 years, in addition to fine. It is only in case of an attempt to murder made by a life convict that he may be punished with that sentence, which does not apply to the petitioner. Similarly, Section 3(2)(ii) of the Terrorist and Disruptive Activities (Prevention) Act, 1987 carries a maximum punishment of imprisonment for life and minimum sentence for 5 years. So also Sections 5 and 6 of the Terrorist and Disruptive Activities (Prevention) Act, 1987 carry maximum sentence of imprisonment for life and minimum sentence for 5 years. None of the offences, for which the petitioner has been convicted, carries a death sentence. But the guide lines which are before us would entitle even a person to a release before 28 years even if the person had been convicted of an offence which carries life imprisonment as an alternative punishment to the death sentence. Therefore, making an offence which caries life imprisonment as the maximum sentence more heinous than the offence which carries death sentence is absurd, unfair and arbitrary. For these reasons, the petitioner could not have been treated under clause "residuary" being serial No.12(2) of Annexure - II. So if the guidelines were to apply to the petitioner the Entry I would apply and not Entry 20. 12. For these reasons, the petitioner could not have been treated under clause "residuary" being serial No.12(2) of Annexure - II. So if the guidelines were to apply to the petitioner the Entry I would apply and not Entry 20. 12. However, whether these guidelines are at all applicable to the petitioner or not would be examined now. This question came directly before the Supreme Court in the case of Balwan (supra) in which a reference has been made in different context. We need to mention the fact of that case to appreciate the law laid down by the Supreme Court. The life convict filed a writ petition before the Punjab and Haryana High Court seeking their release as they had served sentence of required term. The High Court held for deciding their entitlement for premature release what was relevant to consider was a Government policy / instruction that wee in force at the time of their conviction by the trial Court and the State Government was not right in applying subsequent policy decision and instructions that were in force at the time when their cases were taken up for consideration. The High Court, therefore, held that the relevant date for applying the Government Policy / instructions for premature release was the date of conviction. The Supreme Court did not agree with this and in paragraph 5 the Supreme Court held that the date which is relevant for the purpose of granting remission is the date on which the authority is called upon to exercise its power. But later judgment of the Supreme Court in the case of State of Haryana v/s Bhup Singh & Ors., reported in 2009 ALL MR (Cri.) 524 (SC) and also a judgment in the case of Mahender Singh (supra), held otherwise. In Bhup Singh (supra) while relying on the Mahender Singh's case the Supreme Court directed the case of the prisoner to be considered having regard to the policy decision as were applicable on the date on which he was convicted and not on the basis of a subsequent policy decision. In Mahender Singh's case, in para 33, the Supreme Court held as under: "Whenever, thus, a policy decision is made, persons must be treated equally in terms thereof. A' fortiori the policy decision application in such cases would be which was prevailing at the time of his conviction". In Mahender Singh's case, in para 33, the Supreme Court held as under: "Whenever, thus, a policy decision is made, persons must be treated equally in terms thereof. A' fortiori the policy decision application in such cases would be which was prevailing at the time of his conviction". In this case the Supreme Court also relied on the judgment in the case of Commissioner of Municipal Corporation, Shimla v/s Prem Lata Sood and Ors., reported in 2007 (7) SCALE 737. 13. The question remains whether this Court should follow Balwan's case or Bhup Singh's case. Both the Judgments are by the Bench comprising of two Honourable Judges of the Supreme Court. But we have found support in following the judgment in Bhup Singh's case from the case of Maru Ram v/s Union of India & Ors., reported in (1981) 1 SCC 107 . This judgment is by the Constitution Bench of the Supreme Court. The leading judgment was by Honourable Shri Justice V. R. Krishna Iyer, who wrote it for himself and also for Honourable Shri Justice Y. V. Chandrachud, the then Chief Justice and Honourable Shri Justice P. N. Bhagwati. The controversy before the Supreme Court was whether the convict who had been convicted for life imprisonment before enactment of Section 433A of the Code of Criminal Procedure could be covered for the purpose of premature release under Section 433A or Section 433. Briefly stated under Section 433 a convict sentenced for life imprisonment could be released prematurely even after a day of being convicted. However, under Section 433A restriction was imposed that a person sentenced to life imprisonment cannot be released even prematurely unless he had served a minimum sentence of 14 years. So the power under Section 433 was circumscribed with a condition that a person who had been imposed a sentence of life imprisonment for an offene for which death was one of the punishment provided by law and it was commuted under Section 433 into life imprisonment, such person could not be released from the prison unless he had served at least 14 years in the prison. Discussion was made in the judgment about history of Sections 432 and 433 of the Code of Criminal Procedure and also necessity of enacting Section 433A of the Code of Criminal Procedure by the Honourable Shri Justice Krishna Iyer in his judgment. Discussion was made in the judgment about history of Sections 432 and 433 of the Code of Criminal Procedure and also necessity of enacting Section 433A of the Code of Criminal Procedure by the Honourable Shri Justice Krishna Iyer in his judgment. The person who could be released from jail even before serving sentence of 14 years could have been released from the jail by the Government. But Section 433A restricted this power of the Government. Therefore, all the persons, who were before the Supreme Court, contended that a law which was in their favour on the date of their conviction could not have been changed to their detriment. The Supreme Court repulsed this contention. In para 55 of the said judgment, the Constitution Bench held as under: "55. Now to the first point. It is trite law that civilised criminal jurisprudence interdicts retroactive impost of heavier suffering by a later law. Ordinarily, a criminal legislation must be so interpreted as to speak futuristically. We do not mean to enter the area of Article 20(1) which has already been dealt with. What we mean to do is so to read the predicate used in Section 433A as to yield a natural result, a humane consequence, a just infliction. While there is no vested right for any convict who has received a judicial sentence to contend that the penalty should be softened and that the law which compels the penalty to be carried out in full cannot apply to him, it is the function of the court to adopt a liberal construction when dealing with a criminal statute in the ordinary course of things. This humanely inspired canon, not applicable to certain terribly antisocial categories may legitimately be applied to Section 433A. (The should rationale is that expectations of convicted citizens of regaining freedom on existing legal practices should not be frustrated by subsequent legislation or practice unless the language is beyond doubt.) Liberality in ascertaining the sense may ordinarily err on the side of liberty where the quantum of deprivation of freedom is in issue. In short, the benefit of doubt, other things being equal must go to the citizen in penal statute. With this prefatory caution, we may read the section: `Where a sentence of imprisonment for life is imposed on conviction of a person . . . In short, the benefit of doubt, other things being equal must go to the citizen in penal statute. With this prefatory caution, we may read the section: `Where a sentence of imprisonment for life is imposed on conviction of a person . . . such person shall not be released from prison unless he had served at least fourteen years of imprisonment'. Strict conformity to tense applied by a precision grammarian may fault the draftsman for using the past-perfect tense. That apart, the plain meaning of this clause is that `is' means `is' and, therefore, if a person is sentenced to imprisonment for life after Section 433-A comes into force, such sentence shall not be released before the 14 year condition set out therein is fulfilled. More precisely, any person who has been convicted before Section 433A comes into force goes out of the pale of the provision and will enjoy such benefits as accrued to him before Section 433A entered Chapter XXXII. The other clause in the provision suggests the application of the mandatory minimum to cases of commutation which have already been perfected and reads: "Where a sentence of death . . . has been commuted under Section 433 into one of imprisonment for life, such person shall not b released from prison unless he had served at least fourteen years of imprisonment." The draftsman, apparently, is no a grammarian. He uses the tenses without being finical. We are satisfied that event his latter clause merely means that if a sentence of death has been commuted after this section comes into force, such person shall not be released until the condition therein is complied with. `Is' and `has' are not words which are weighed in the scales of grammar nicely enough in this Section and, therefore, overstress on the present tense and the Present-perfect tense may not be a clear indication. The general rule bearing on ordinary penal statutes in their construction must govern this case. In another situation, interpreting the import of "has been sentenced" this Court held that "the language of the clause is neutral" regarding prospectivity. It inevitably follows that every person who has been convicted by the sentencing court before December 18, 1978 shall be entitled to the benefits accruing to him from the remission scheme or short-sentencing project as if Section 433-A did not stand in his way. It inevitably follows that every person who has been convicted by the sentencing court before December 18, 1978 shall be entitled to the benefits accruing to him from the remission scheme or short-sentencing project as if Section 433-A did not stand in his way. The section uses the word `conviction' of a person and, in the context, it must mean `conviction' by the sentencing court; for that first quantified his deprivation of personal liberty." Then the Supreme Court mentioned its formulation in paragraph 72. Paragraph 72 subclause (7) reads thus: "(7) We declare that Section 433-A, in both its limbs (i.e. both types of life imprisonment specified in it), is prospective in effect. To put the position beyond doubt, we direct that the mandatory minimum of 14 years' actual imprisonment will not operate against those whose cases were decided by the trial Court before December 18, 1978 when Section 433-A came into force. All `Lifers' whose conviction by the court of fist instance was entered prior to that date are entitled to consideration by government for release on the strength of earned remissions although a release can take place only if government makes an order to that effect. To this extent the battle of the tenses is won by the prisoners. It follows, by the same logic, that short-sentencing legislations, if any, will entitle a prisoner to claim release thereunder of his conviction by the court of first instance was before Section 433-A was brought into effect." 14. Therefore, Section 433-A of the Code of Criminal Procedure was declared to be inoperative as far as those persons, who had been convicted before 18th December, 1978. So this in effect would mean that the law with regard to remission which existed at the time of conviction was the relevant law for the purpose of considering premature release. So if Section 433-A would not apply retrospectively so would not be the guidelines framed under Section 433-A of the Code of Criminal Procedure. Therefore, we follow the judgment in the case of Bhup Singh (supra) and hold that the petitioner's case has to be considered in accordance with the guidelines which were prevalent at the time of his conviction. 15. Therefore, we follow the judgment in the case of Bhup Singh (supra) and hold that the petitioner's case has to be considered in accordance with the guidelines which were prevalent at the time of his conviction. 15. In view of what has been stated above, we hold that the guide lines of 2008 were not applicable to the petitioner and hold that the guide lines which were in force at the time of his conviction were applicable to the petitioner. Therefore, The impugned order dated 27th January, 2009 passed by the Section Officer, Home Department, State of Maharashtra is quashed and set aside and the respondents are directed to reconsider the matter in the light of the observations made in this Judgment. 16. Rule made absolute in terms aforesaid. 17. Writ Petition is allowed accordingly. 18. There shall be no order as to costs.