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2019 DIGILAW 1019 (BOM)

Prashant Samar Mazi v. State of Maharashtra

2019-04-11

B.P.DHARMADHIKARI, PRAKASH D.NAIK

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JUDGMENT : 1. Heard Mr.Nargolkar, learned counsel appointed for petitioner, learned APP for Respondent-State finally. Rule. Rule made returnable forthwith, with consent of parties. 2. Perused the impugned order dated 17th November, 2017, which categorize petitioner in Category 3(b) of 2010 Guidelines and puts him in 26 years category. The petitioner contends that this cateogrization is basically because of similar order dated 18th August, 2016, passed in case of co- convict, which puts co-convict in the same category. According to him, that order was not passed after due application of mind. 2 In this backdrop, advocate Nargolkar submits that as per settled law, as the prisoner has been convicted on 23rd November, 2006, Guidelines then prevailing framed in the year 1992 or then guidelines of 2010, if later are more beneficial, must apply. Submission is that, the State Government has erred in invoking Guidelines 3(d) of 1992 Guidelines and Guidelines 3(e) thereof ought to have been used in present matter. 3. Learned APP, on the other hand relies upon the judgment dated 29th July, 2013, delivered by this Court in Criminal Appeal 582 of 2007, upholding the conviction, to urge that Guidelines 3() is an apt provision. He submits that other heads in 1992 Guidelines are not relevant. Guideline 5 is about murders committed by professional criminals and State Government has not recognized petitioner as a professional criminal. Without prejudice, he has invited our attention to 2010 Guideline also. According to him if 2010 Guidelines are to be used, Guideline 4 which deals with murders for other reasons and its Sub-clause (e) which deals with murder committed by dacoits and robbers in the act of committing dacoities and robberies is attracted. He pointed out that even in this head, quantum of punishment does not undergo any change. He, therefore, prays for dismissal of petition. 4. Learned counsel for prisoners, in reply points out that heading of a particular category in 1992 Guidelines cannot be viewed as decisive, and, as such, the recourse to Guideline 3(d) is unwarranted. 5. The fact that the respondent-State has not treated petitioner as professional criminal is apparent because of its refusal to apply category 5(a) to petitioner. These Guidelines are framed in 1992 and offence of murder have been put into five categories. 5. The fact that the respondent-State has not treated petitioner as professional criminal is apparent because of its refusal to apply category 5(a) to petitioner. These Guidelines are framed in 1992 and offence of murder have been put into five categories. Murders relating to sexual matters or arising out of relations with women or dowry deaths and other forms bride killing etc., are put in first category. Murders arising out of land dispute, family funds, family prestige and superstition are put in second category. Murders for other reasons are put in third category. Murders for political reasons are put in fourth category. Murders by professional criminals are placed in fifth category. There are three more categories of offences but those are not relevant for present. 6. The word "Professional" in Guideline no.5 or its heading, cannot be seen as superfluous. When that word is associated with word "Criminal", its purpose become obvious. Thus, the word "Professional Criminals", has been deliberately employed to carve out distinct category and murders committed by them have been treated separately by these Guidelines. Sub-clause (a) thereof speaks of murders committed by dacoits and robbers in the act of committing dacoities and robberies, whereas Sub-clause (b) speaks of murders committed by gangsters, contract killers, smugglers, drug traffickers, racketers, bootleggers, gamblers, flesh traders and those indulging in other forms of organised crime in furtherance of their criminal activities. Petitioner has made an effort to urge that the entry does not employ a singular number and using plural number in Guideline no.5, shows that the murders must be by the criminals, who are in the profession of either dacoity or robbery or other businesses specified in that Guideline. We need not deal with these contentions in present matter, as the petitioner is not shown to be a habitual robber or thief. State Government itself has not used Guideline 5(a) to categorize him. Moreover judgment upholding that conviction delivered by this Court shows their status as employees in shop. 7. State Government has used a sort of residuary entry in 1992 guidelines i.e. entry no.3, which deals with murders for other reasons. Sub-cause(a) therein is about murder committed in course of quarrel without premeditation and Sub-cause (c) is about murders resulting from Trade Union activities and business rivalry. Obviously, both are not relevant here. 7. State Government has used a sort of residuary entry in 1992 guidelines i.e. entry no.3, which deals with murders for other reasons. Sub-cause(a) therein is about murder committed in course of quarrel without premeditation and Sub-cause (c) is about murders resulting from Trade Union activities and business rivalry. Obviously, both are not relevant here. According to petitioner, Sub-clause (b), which speaks of a species of Sub-clause (a) i.e. murder with premeditation or by gang, is relevant and it would put him into 24 years category. Respondents point out that when murder is committed with premeditation and with exceptional violence or perverse, it is is put in Sub-clause (d) of CL 3. They therefore put petitioner in 26 years category. The petitioner is a person who entered into the house of complainant employer Mr.Ghosh, a jweller, in the afternoon. The wife and son were killed in the offence. Question before this court is whether visit by accused person to commit robbery can be seen as a visit to commit murder. Whether preparation was for robbery or for murder also. Again, we do not find it necessary to answer this question also, because Sub-clause (d) requires such murder to be committed with exceptional violence. Material on record does not show that murder was committed with exceptional violence. Recourse to the entry 3(d) therefore, appears to be unsustainable. Only other entry, which therefore remains available is entry 3(b), which puts applicant/petitioner in to 24 years category. 8. The Guidelines issued in 2010 are more specific and in Category 4, while describing murders for other reasons, in Sub-cause (a) murder committed by dacoits and robbers in the act of committing dacoities and robberies have been separately treated. Thus, murders taking place during robbery are taken note of and put him in category 4(e) with 26 years jail. This treatment is obviously, with the view to remove lacuna which must have emerged during the working of 1992 Guidelines. 9. During arguments, learned APP invited our attention to order dated 25th August, 2016, passed by this Court in the case of Laltu Ashok Ghosh Vs. State of Maharashtra (Passed in W.P.No.3284 of 2015). According to him, paragraph 4 therein clinches the controversy. 9. During arguments, learned APP invited our attention to order dated 25th August, 2016, passed by this Court in the case of Laltu Ashok Ghosh Vs. State of Maharashtra (Passed in W.P.No.3284 of 2015). According to him, paragraph 4 therein clinches the controversy. We find from perusal of the said order that controversy, as presented to us with its facets was not even raised before that Bench and therefore that Bench was not required to appreciate the rival contentions arising out of 1992 Guidelines and 2010 Guidelines. The said order, therefore, cannot be said to be laying down any law for consideration in the present controversy. 10. However, as Guidelines which are more liberal to prisoner must apply, we find that Guideline 3(b) of 1992 guideline is relevant and petitioner therefore should have been classified under this category and put in 24 years category. 11. Accordingly, we quash and set aside the order dated 17th November, 2017 and direct respondents to place him in 24 years category as per category 3(b) of 1992 Guidelines. This exercise be completed within three months and its benefits be extended to him at the earliest.