Research › Search › Judgment

Bombay High Court · body

2019 DIGILAW 2215 (BOM)

Basawaraj Y. Patil v. State Of Goa

2019-09-25

M.S.SONAK, NUTAN D.SARDESSAI

body2019
JUDGMENT : M.S. Sonak, J. Heard Mr. A. V. Pavithran for the petitioner and Mr. P. Faldessai, learned Additional Public Prosecutor for the State. 2. Rule. Rule is made returnable forthwith with the consent and at the request of the learned Counsel for the parties. 3. The main grievance of the petitioner, in the petition, is that the State is not acting on the basis of the recommendation made by the Sentence Review Board in its meeting held on 16.04.2018. 4. Record indicates that the Sentence Review Board, in its meeting held on 16.04.2018, has in fact recommended the case of the petitioner for premature release. The relevant observations in this regard, as reflected in the minutes of meeting held on 16.04.2018, read as follows: "Considering the overall facts of the case vis-a-vis the reports received from the concerned authorities i.e. report of the Initial district magistrate, Police, Probation officer, I.P.H.B. and the opinion of the Superintendent, Central jail, Colvale given based on his observations/office records maintained in Jail of more than 17 years of actual imprisonment undergone by the said convict prisoner, the Board has recommended the premature release of convict prisoner C.P. No. 539/02-Basavraj Patil. However, the Board held that the Government, before actually exercising the power of remission u/s 432 of the CRPC may obtain the opinion of the Presiding Judge of the convicting or confirming Court in terms of the Judgment in Criminal Appeal No. 490-491 of 2011 of the Hon'ble Supreme Court of India." 5. The minutes correctly recorded that the Government, before actually exercising the power of remission under Section 432 of the C.R.P.C., may obtain opinion of the Presiding Judge in terms of the Judgment of Hon'ble Apex Court in Criminal Appeal No.490-491 of 2011 in the case of Sangeet & Another v/s. State of Haryana, (2013) 2 SCC 452 . 6. The minutes correctly recorded that the Government, before actually exercising the power of remission under Section 432 of the C.R.P.C., may obtain opinion of the Presiding Judge in terms of the Judgment of Hon'ble Apex Court in Criminal Appeal No.490-491 of 2011 in the case of Sangeet & Another v/s. State of Haryana, (2013) 2 SCC 452 . 6. According to us, the State, upon receipt of recommendation from the Board, was required to act expeditiously, no doubt, by complying with the provisions of Section 432 of the C.R.P.C. Section 432 of the C.R.P.C., inter alia, provides that whenever an application is made to the appropriate Government for suspension or remission of sentence, the appropriate Government may require the Presiding Judge of the Court before or by which the conviction was had or confirmed, to state his opinion as to whether the application should be granted or refused, together with his reasons for such opinion and also to forward with the statement of such opinion, a certified copy of the record of the trial or of such record thereof as exists. 7. This means that the State is required to consider the recommendation of the Board after receipt of opinion from the Presiding Judge of the Court before or by which the conviction was had or confirmed. 8. In our Judgment and Order dated 13.09.2019 in Criminal Writ Petition No.110/2019, we have indicated a detailed procedure to be adopted by the State in such matters. The operative portion of the said Judgment and Order reads thus: "24. 8. In our Judgment and Order dated 13.09.2019 in Criminal Writ Petition No.110/2019, we have indicated a detailed procedure to be adopted by the State in such matters. The operative portion of the said Judgment and Order reads thus: "24. We, accordingly, dispose of this Petition by making the following Order : (A) The decision of the Board in its meeting held on 19th August,2019 is, hereby, set aside; (B) The Board is directed to consider the case of the Petitioner, as also 21 other convicts referred to in the minutes of meeting dated 19th August,2019 for recommending or otherwise of premature release of such convicts, and the Board is expected to take into account all relevant considerations and eschew irrelevant considerations; (C) If the Board recommends the release of the Petitioner, as also other convicts referred to in the minutes of meeting dated 19th August,2019, the same may be forwarded to the Government within 15 days, along with copies to the Petitioner and the other convicts; (D) The Government, within 15 days from date of receipt of the recommendations from the Board, to call for opinion of the Presiding Judge in terms of Section 432(2) of the Cr.P.C. The Presiding Judge to furnish opinion considering the provisions of Section 432(2) of the Cr.P.C. as expeditiously as possible and, in any case, within a period of four weeks from the date of receipt of the communication from the Government, seeking opinion in terms of Section 432(2) of the Cr.P.C. Since, we have held that the view taken by the Presiding Officer in her communication dated 23rd January, 2018 is inconsistent with the predicates of Section 432(2) of the Cr.P.C., the Presiding Officer will now be expected to furnish her reasoned opinion, consistent with the requirements of Section 432(2) of the Cr.P.C., upon application of mind to all relevant considerations in this regard. (E) The Government to thereafter make appropriate orders on the issue of premature release of the Petitioner and other convicts, as expeditiously as possible and, in any case, within a period of four weeks from the date of receipt of the opinion from the Presiding Judge." 9. (E) The Government to thereafter make appropriate orders on the issue of premature release of the Petitioner and other convicts, as expeditiously as possible and, in any case, within a period of four weeks from the date of receipt of the opinion from the Presiding Judge." 9. In the present case, since there is already a recommendation of the Board, the State will, within 15 days from today, have to call for the opinion of the Presiding Judge in terms of Section 432(2) of C.R.P.C. Taking into consideration the delay which has already occasioned, we request the Presiding Judge to furnish opinion, considering the provisions of Section 432(2) of C.R.P.C. as expeditiously as possible and in any case within a period of 4 weeks from the date of receipt of communication from the Government seeking opinion under Section 432(2) of C.R.P.C. Upon receipt of such opinion, the State to take appropriate decision in the matter and communicate the same to the petitioner within a period of maximum 4 weeks from the date of receipt of the opinion from the Presiding Judge. 10. Mr. Faldessai points out that by virtue of Judgment and Order dated 13.09.2019 in Criminal Writ Petition No.110 of 2019, we had issued directions to reconsider the cases of several convicts, since, in the said matter, we had noted that the Board had unjustifiably insisted upon securing the opinion of the Presiding Judge, even before the Board to take a decision in the matter. He points out that the present petitioner's case was also directed to be reconsidered by the Board. 11. In this case, we noted that the case of the petitioner was already recommended by the Board for premature release. All that remains to be done was that the State to take an appropriate decision on the basis of such recommendation. In the peculiar facts of this case, we feel that there is no necessity for the Board to reconsider the matter, but the matter has to proceed from the stage of recommendation of the Board which, is favourable to the petitioner. 12. With the aforesaid directions we dispose of the present petition. 13. The Rule is made absolute in the aforesaid terms. There shall be no order for costs. 14. All the concerned to act on the basis of an authenticated copy of this order.