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2021 DIGILAW 1024 (BOM)

Vinesh Fal Dessai v. State Of Goa

2021-07-22

M.S.JAWALKAR, M.S.SONAK

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JUDGMENT M. S. Sonak, J. - Heard Mr. Ryan Menezes, learned Counsel for the petitioner and Mr. Pravin Faldessai, learned Additional Public Prosecutor for the respondent - State. 2. Rule. Rule is made returnable forthwith at the request of and with the consent of the learned Counsel appearing for the parties. 3. The challenge in this petition is to the decision of the Sentence Review Board dated 18.09.2020 rejecting the petitioner's plea for premature release and further deferring the consideration of such similar plea for a period of two years thereafter. 4. The impugned decision reads as under: "16. CASE 10 - CONVICT PRISONER NO.175/15 - VINESH FALDESSAI : (a) I.G. Prisons briefed the Board that the said convict prisoner is 37 years of age, who is convicted under Section 376 of IPC for committing offence of rape on minor child, under Section 354 of IPC for assault/criminal force to woman with intent to outrage her modesty and under Section 8(2) of Goa Children's Act 2003 for child abuse and sexual assault. As on 31/07/2020, the said convict has undergone 9 years 5 months and 24 days of actual imprisonment whereas he has 1 year 3 months remission to his credit. (b) I.G. Prisons further informed that the said convict prisoner is eligible under Rule 398(3)(iv) of the Goa Prisons Rules, 2006. The report from I.P.H.B. states that the prisoner is not showing features of psychosis, depression, anxiety disorder or obsessive compulsive disorder at present. (c) Superintendent of Police (South Goa District) has not recommended the case for premature release on the ground that the prisoner may take revenge against the victim, prosecution witnesses and villagers who have supported the prosecution directly or indirectly, which may lead to disturbance of peace and tranquility in the village. (d) Further, District Magistrate (South Goa District) has not recommended premature release of the prisoner. However, his report is partly based on the report of the Superintendent of Police (South Goa District). DECISION TAKEN BY THE BOARD :- The case was discussed in detail. Upon detail deliberations on the opinion/reports submitted by the various authorities and in absence of clear report form the District Magistrate, the Board did not recommend the case of the convict prisoner No.175/15-Vinesh Faldessai for premature release and decided that the case may be taken up for review after a period of two years." 5. Upon detail deliberations on the opinion/reports submitted by the various authorities and in absence of clear report form the District Magistrate, the Board did not recommend the case of the convict prisoner No.175/15-Vinesh Faldessai for premature release and decided that the case may be taken up for review after a period of two years." 5. The impugned decision appears to be based mainly on the report of the Superintendent of Police (South Goa District). This report is not before us. Mr. Menezes submits that normally such reports are not backed by any cogent evidence in support of the conclusion. He submits that the parameters set out in Rule 403 of the Prison Rules have also not been considered by the Board. He submits that there are no reasons whatsoever for the deferment by two years. 6. Rue 403 of the Prison Rules reads as follows: "(3.5) Rule 403 of the Rules mandates that the following factors shall guide the review of a sentence: (a) social history of the prisoner, (b) circumstances of his/her criminal behaviour, (c) conduct in the prison, (d) response to training and treatment, (e) marked changes in habits, attitude and character, (f) degree of criminality, (g) health and mental condition and the possibility of his resettlement after release, (h) such circumstances as were not before the Court when the sentence was awarded, and, (i) opinion of the Superintendent of Police and the District Magistrate." 7. From the perusal of the impugned decision we agree with Mr. Menezes that there is no proper consideration of the parameters prescribed under Rule 403. At least, the decision which is placed before us does not reflect that there is proper consideration of such parameters. 8. The report of the Superintendent of Police (South Goa District) has also not been placed before us. Therefore, we are unable to make any observation on the same. However, we agree that the contention of Mr. Menezes that the report in such matters should not be some mere ipse dixit. The report must be based upon some relevant material and the consideration of such relevant material must also be reflected in the report itself. This applies also to the report of District Magistrate, which is also not before us in this case. 9. Menezes that the report in such matters should not be some mere ipse dixit. The report must be based upon some relevant material and the consideration of such relevant material must also be reflected in the report itself. This applies also to the report of District Magistrate, which is also not before us in this case. 9. Though, the Board is entitled to defer its decision for a period not exceeding three years in terms of Rule 403(3), normally, the decision must reflect some reasons for deferment. In the present case, there are no reasons on this aspect. 10. Having regard to all the aforesaid circumstance, we quash and set aside the impugned decision and direct the Sentence Review Board to reconsider the petitioner's case for premature release by adverting to the provisions of Rule 403 of the Prison Rules and other relevant considerations. Before such reconsideration, the Superintendent of Police (South Goa District) as well as the District Magistrate to make fresh reports, which will reflect due application of mind and which will have to be based on some relevant material. 11. The Sentence Review Board will have to complete its exercise of reconsideration on or before 31.12.2021. This means that the Superintendent of Police and the District Magistrate will have to submit their reports before the meeting of the Board to reconsider the case of the petitioner. 12. The rule is made partly absolute in the aforesaid terms and this petition is disposed of with the aforesaid directions. 13. All concerned to act on the basis of an authenticated copy of this order.