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2010 DIGILAW 551 (BOM)

Naushad Ali Abdul Hasan Shaikh v. State of Mah

2010-04-09

S.B.DESHMUKH, S.S.SHINDE

body2010
PER COURT:- 1. Heard respective counsel. 2. Petitioner challenges the order passed by respondent No.1 dt. 7.9.2009. According to this order, case of the petitioner is being governed by Guideline No.1(d). The verdict of respondent is not accepted by the petitioner. According to learned counsel for the petitioner, case of the petitioner can be considered to be within the para meters of Guideline No.1(c). This is the short controversy amongst the parties before the Court. 3. Commutation of sentence is the matter of policy, laid down by the State of Maharashtra, in view of section 433-A of the Code of Criminal Procedure. It is not in dispute that such policy was laid down by the State of Maharashtra initially by formulating guidelines on 18.12.1978. Copy of such guidelines is annexed with the petition Learned counsel for the petitioner took us through the judgment of the trial Court in Sessions Case No.1187 of 1995. 4. Without discussing the facts and findings of the trial Court, we shall straight way refer to the operative part of the said judgment. The trial Court found the petitioner guilty of the offense punishable under Section 302 of IPC and sentenced him to suffer life imprisonment on 20.7.1999. Both counsel have taken us through the said judgment in support of their submissions. According to the learned counsel for the petitioner, case of the petitioner is not governed by Guideline No.1(d) i.e. crime committed with premeditation. According to learned counsel, this can be said to be a case of crime committed without premeditation and/or at the spur of the moment. (Emphasis supplied). 5. Before controverting to the submissions of the learned counsel on merits, we shall examine the parameters for consideration of the petition. This petition is filed under Article 226 / 227 of the Constitution of India. The judgment of the trial court is not questioned by any of the parties before this Court as an appellate Court. The judgment of the trial Court was considered by respondent No.1, in view of the Guidelines of 1992. While determining as to whether case of the petitioner falls under Guideline No.1(d) or 1 (c), respondent No.1 was required to consider the judgment of the trial Court. The judgment of the trial Court was considered by respondent No.1, in view of the Guidelines of 1992. While determining as to whether case of the petitioner falls under Guideline No.1(d) or 1 (c), respondent No.1 was required to consider the judgment of the trial Court. Thus, the power and jurisdiction of respondent No.1 was limited by the Guidelines framed by the Government, which have been reiterated by the State of Maharashtra in the year 1992 with some exceptions and reservations, over which proposition, there is no dispute amongst the parties. There is also no dispute amongst the parties in respect of the application of the guidelines for the reason that the date of the judgment of the learned trial Judge is 20.7.1999 i.e. during operation of the revised guidelines of 1992. Thus, within the limited scope of guidelines, respondent No.1 has passed an order which is impugned in this writ petition. 6. This Court is neither exercising appellate jurisdiction nor revisional jurisdiction so far as the judgment of the trial Court or the order impugned. Order impugned is examined by this Court under Articles 226 and 227 of the Constitution of India. The scope of powers of this Court under the said Articles is also circumscribed to the extent of examining the decision making process adopted by the quasi judicial authority. In the case on hand, the order is passed by respondent No.1, indisputably, quasi judicial authority. We are, therefore, supposed to examine the said order within the parameters of Articles 226 and 227 of the Constitution. In other words, this Court is concerned with the decision making process adopted by respondent No.1 and really unconcerned with the decision itself. (Emphasis supplied). 7. Applying the test of extra ordinary jurisdiction of this Court, we have assessed the submissions advanced before us by the parties. From this point, in our view, respondent No.1 has considered the findings or conclusions arrived at by the learned trial Judge and recorded a finding that case of the petitioner is governed by Guideline No.1(d) of the Guidelines of 1992. We do not see any perversity to interfere with the impugned order. 8. In the result, Writ Petition stands dismissed. Rule discharged. No order as to costs.