Criminal Writ Petition No.1542 of 2010

18th August, 2010

Petitioner Counsel: Mr. N. N. GAVANKAR,Mr. ARFAN SAIT
Respondent Counsel: Mr. J. P. YAGNIK

Cases Cited:
Gopal Vinayak Godse Vs. State of Maharashtra, AIR 1961 SC 600 [Para 7]
Maru Ram Vs. Union of India, AIR 1980 SC 2147 [Para 7]
Dalbir Singh Vs. State of Punjab, AIR 1979 SC 1384 [Para 7]
Mohd. Munna Vs. Union of India, 2006 ALL MR (Cri) 217 (S.C.)=(2005)7 SCC 417 [Para 7]
Ramraj Vs. State of Chattisgarh, AIR 2010 SC 420 [Para 7]
State of Haryana Vs. Jagdish, 2010 ALL SCR 943 : (2010)4 SCC 216 [Para 7]

JUDGMENT

B. H. MARLAPALLE, J.:- This petition filed under Article 226 of the Constitution of India seeks to challenge the order dated 08.02.2010 passed by the Government of Maharashtra, through its Home Department, invoking its powers under Section 432(1) of the Code of Criminal Procedure, 1973 (for short, "the Code"), thereby directing that the petitioner be released after completion of 30 years of imprisonment along with all remissions earned by him and to remit the portion of the sentence of imprisonment of life in excess of 30 years.

2. The petitioner was convicted in TADA Special Case No.31/1994 by the Designated Court and for the offences punishable under Sections 3(2)(ii), 5 & 6 of Terrorists and Disruptive Activities (Prevention) Act, 1987 (for short, "TADA") and Section 307 of Indian Penal Code (for short, "IPC"), Section 25(1-B)(a) and Section 27 of Indian Arms Act as well as Section 333 of IPC. He was sentenced to suffer life imprisonment on different counts. On 28.08.2008, the State Government passed an order under Section 432 of the Code and directed that the petitioner shall be released after completion of 30 years of imprisonment along with remissions earned by him and to remit the portion of the sentence of imprisonment of life in excess of 30 years. The said order was challenged in Criminal Writ Petition No.1356/2008. The said petition was decided on 21.08.2008 and the order dated 21.08.2008 was set aside, with further directions to the State Government to reconsider the matter. The State Government passed fresh order on 23.10.2008 and it came to be challenged in Writ Petition No.2598/2008 and the petition was allowed and the impugned order dated 23.10.2008 was set aside. A fresh order of granting remission was passed on 27.01.2009, but the total period of 30 years was maintained and, therefore, in the third round Criminal Writ Petition No.207/2009 was filed by the petitioner which was again allowed by the Division Bench by its judgment dated 03.08.2009 and the impugned order dated 27.01.2009 was set aside. The State Government was directed to re-consider the issue afresh in the light of the observations made in the aid judgment. The petitioner in the fourth round came in Criminal Writ Petition No.2333/2009 before this Court raising the ground that inspite of the earlier directions dated 03.08.2009, his case was not considered and it was pending. The learned PP had assured the Court that the petitioner's case would be decided within two weeks and by noting down the assurance, the petition was disposed off on 08.09.2009. In the fifth round, as the fresh order was not passed, the petitioner filed Criminal Writ Petition No.251/2010 and while it was pending, the impugned order dated 08.02.2010 came to be passed and, thus, Criminal Writ Petition No.251/2010 became infructuous. It was therefore disposed off as such on 22.02.2010.

3. The conviction and sentence of the petitioner as passed by the Designated Court in TADA Special Case No.31/1994 is as under:

Sr. No.	u/s.	Punishment	Fine/in default
1. 2. 3. 4. 5. 6. 7. 8. 9. 10.	3(2)(ii) of TADA (P) Act 5 of TADA (P) Act 6 of TADA (P) Act 307, IPC 307, IPC 307, IPC 307, IPC 25(1-B) (a) of Indian Arms Act 27 of Indian Arms Act 333, IPC	Life Life Life Life Life Life Life 3 years 7 years 10 years	Rs.5,000/- RI 6 months Rs.500/- RI 1 month Rs.500/- RI 1 month Rs.500/- RI 1 month Rs.500/- RI 1 month Rs.500/- RI 1 month Rs.500/- RI 1 month Rs.500/- RI 1 month Rs.500/- RI 1 month Rs.500/- RI 1 month

Feeling aggrieved by the order of conviction and sentence passed by the Designated Court, the petitioner had approached the Supreme Court in Criminal Appeal No.230/1997 and it was dismissed on 08.05.2002, thereby confirming the order of conviction and sentence.

4. Mr. Gavankar, the learned counsel for the petitioner, submitted that the guidelines issued by the State Government on 11.05.1992, for the premature release under the "14 years rule" are not applicable to the petitioner inasmuch he has not been convicted for any offence for which one of the sentence is death penalty. The guidelines framed under Section 432 of the Code by the State Government on 16.11.1978 are only applicable. The petitioner has already undergone physical sentence of about 16 years and a total sentence with remissions of 21 years and 3 months and, therefore, he is required to be released forthwith. It is submitted that the guidelines of 1978 are applicable to the persons convicted under Section 302 of IPC and they are released on completion of total imprisonment of 18 to 20 years, whereas the petitioner has completed a total of more than 21 years of imprisonment with remissions and, therefore, the State Government has acted arbitrarily and in violation of Articles 14 and 21 of the Constitution of India. It has been further alleged that some other convicts who were sentenced to suffer life imprisonment for the offence punishable under Section 302 of IPC have been released on completion of 14 years of actual imprisonment, but the petitioner, despite the fact that he has completed more than 16 years of actual imprisonment has not yet been released and he continues to languish in the jail. It is further submitted that the observations made by this Court in its judgment dated 03.08.2009 while allowing Criminal Writ Petition No.207/2009 have not been taken into consideration and the impugned order has been passed in utter disregard to the said observations.

5. The State Government has filed an affidavit in reply, through the Principal Secretary, Home Department and has opposed the petition. It is submitted that after Criminal Writ Petition No.207/2009 filed by the petitioner was decided by this Court on 03.08.2009, his case was re-considered in exercise of the powers under Section 432 of the Code and the guidelines laid down in the State Government's letter dated 16-11-1978 for his pre-mature release. In normal circumstances the guidelines framed on 11.05.1992 are followed, but did not provide a specific category convicted under the Special Act such as TADA. As such, the guidelines framed on 11.05.1992 could not be made applicable to the petitioner's case. It is further pointed out that his case has been considered independently and mainly keeping in mind the observations made by the Supreme Court while dismissing Criminal Appeal No.230/1997 on 08.05.2002. It is further pointed out that the said observations made by the Supreme Court were not considered by this Court while allowing Criminal Writ Petition No.207/2009.

6. Section 55 of IPC states that in every case in which sentence of imprisonment of life shall have been passed, the appropriate Government may, without the consent of the offender, commute the punishment for imprisonment of either description for a term not exceeding fourteen years. As per Section 57 of IPC, in calculating fraction of terms of punishment, imprisonment for life shall be reckoned as equivalent to imprisonment for twenty years. Section 432 of the Code empowers the State Government to suspend or remit the sentences, whereas Section 433-A of the Code, which has been inserted with effect from 18.12.1978, states that notwithstanding anything contained in section 432, where a sentence of imprisonment for life is imposed on conviction of a person for an offence for which death is one of the punishments provided by law, or where a sentence of death imposed on a person has been commuted under section 433 into one of imprisonment for life, such person shall not be released from prison unless he had served at least fourteen years of imprisonment. Article 161 of the Constitution states that the Governor of a State shall have the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence against any law relating to a matter to which the executive power of the State extends. Undoubtedly, the petitioner is not covered by any of the two eventualities as set out in Section 433-A of the Code inasmuch as he has not been convicted for an offence for which death is one of the punishments provided by law, nor has he been sentenced with death penalty and it has been commuted under Section 433 of the Code into life imprisonment and, therefore, his case is covered by the powers of remittances of sentence under Section 432 of the Code and that power has been invoked by the State Government and it has been directed that he shall be released on completion of a total 30 years of imprisonment, including remissions. It is not an order passed under Article 161 of the Constitution by the Governor of Maharashtra. It is mainly contended that the impugned order is unsustainable solely on the ground that it is not in keeping with the observations made by this Court in its judgment dated 03.08.2009 in Criminal Writ Petition No.207/2009.

7. A Constitution Bench of the Supreme Court in the case of Gopal Vinayak Godse Vs. State of Maharashtra, AIR 1961 SC 600, held that unless the sentence of RI for life is commuted or remitted by an appropriate authority under the relevant provisions of the Indian Penal Code or the Code of Criminal Procedure, a prisoner sentenced to life imprisonment is bound in law to serve the life term in prison. The Constitution of India as well as the Code of Criminal Procedure confer the power to remit a sentence on the executive Government and it is in its exclusive province.

In the case of Maru Ram & anr. Vs. Union of India, AIR 1980 SC 2147, another Constitution Bench of the Supreme Court upheld the constitutional validity of section 433-A of the Code and further held that it was applicable prospectively.

In the case of Dalbir Singh Vs. State of Punjab, AIR 1979 SC 1384, the Supreme Court came to the conclusion that "life imprisonment" means imprisonment for the whole of the man's life.

In the case of Mohd. Munna Vs. Union of India, (2005)7 SCC 417 : [2006 ALL MR (Cri) 217 (S.C.)], the Supreme Court came to the conclusion that life imprisonment was not equivalent to imprisonment for 14 years or 20 years and it means imprisonment for the whole of the remaining period of the convicted persons natural life. There was no provision either in IPC or Cr.P.C., whereby life imprisonment can be treated as either 14 years or 20 years incarceration without there being a formal remission by the appropriate Government and the contention that having regarding to the provision of Section 57 of IPC, a prisoner was entitled to be released on completing 20 years of imprisonment was rejected. More recently, in the case of Ramraj Vs. State of Chattisgarh, AIR 2010 SC 420, the Supreme Court held as under :

"23. In the various decisions rendered after the decision in Godse case, 'imprisonment for life' has been repeatedly held to mean imprisonment for the natural life term of a convict, though the actual period of imprisonment may stand reduced on account of remissions earned. But in no case, with the possible exception of the powers vested in the President under Article 72 of the Constitution and the powers vested in the Governor under Article 161 of the Constitution, even with remissions earned, can a sentence of imprisonment for life be reduced to below 14 years. It is thereafter left to the discretion of the authorities concerned to determine the actual length of imprisonment having regard to the gravity and intensity of the offence."

In the case of State of Haryana & ors. Vs. Jagdish, (2010)4 SCC 216 : [2010 ALL SCR 943], a Three Judge Bench of the Supreme Court stated as under :

"46. At the time of considering the case of premature release of a life convict, the authorities may require to consider his case mainly taking into consideration whether the offence was an individual act of crime without affecting the society at large; whether there was any chance of future recurrence of committing a crime; whether the convict had lost his potentiality in committing the crime; whether there was any fruitful purpose of confining the convict any more; the socio-economic condition of the convict's family and other similar circumstances.

54. The State authority is under an obligation to at least exercise its discretion in relation to an honest expectation perceived by the convict, at the time of his conviction that his case for premature release would be considered after serving the sentence, prescribed in the short-sentencing policy existing on that date. The State has to exercise its power of remission also keeping in view any such benefit to be construed liberally in favour of a convict which may depend upon case to case and for that purpose, in our opinion, it should relate to a policy which, in the instant case, was in favour of the respondent. In case a liberal policy prevails on the date of consideration of the case of a "lifer" for premature release, he should be given benefit thereof."

8. While dealing with the petitioner's Appeal challenging the order of conviction and sentence passed by the Designated Court under the TADA, the Supreme Court made the following observations :

"When a dastardly act is sought to be executed in such a bold and daring manner, what is the message which the accused intends to convey to the ordinary people of this country ? The message is that obedience to Law is irrelevant. People must obey the dictates of the law breakers. Neither the Courts nor the police force can give them any protection for it is the right of the criminals to command habitual obedience from the citizens of this Country. The State has lost is supremacy in any events its subjects must disregard the code of conduct established by law and must obey the dictates of those for whom law is meaningless. If they fail to do so they shall be dealt with in the same manner as the victim in the instant case. Notwithstanding the fact that he was under police protection and the incident was being witnesses by a large number of persons within the Court premises. Such activities have the effect of undermining the very authority of the State and have a terrorizing effect on those who witness such an incident and those who come to know of it. The terror, fear and panic which they suffer is unfathomable and tend to completely demoralize the ordinary man in the street. The blatant manner in which the plan was executed in the instant case leave no manner of doubt that the intention of the perpetrator was not merely to kill the victim, but also to send a terrorizing message to the people in general, so that there was no defiance of their command in future. An attempt was also made on the lives of three policemen which reinforces the conclusion that the intention was to strike terror and the killing was attempted to achieve that objective."

9. As per the prosecution case, criminal conspiracy was hatched from January to April, 1994, between the petitioner, accused no.2 Nagesh, accused no.3 Arun Gawali and the absconding accused Sada Pawale at Yeravada Prison to commit terrorist acts on 18.04.1994 in the precincts of the Sessions Court at Brihan Mumbai by firing the shots from revolver and had attempt to commit the murder of under-trial prisoner Ashwin Naik and the members of Police escorting party. The targeted person Ashwin Naik survived. Three police personnel received bullet injuries and but for the medical treatment they would have lost their lives. It is for these reasons that the Designated Court has awarded the sentence for life under seven different heads to the petitioner. His case cannot be compared with any ordinary convict. His case does not fit into any guidelines framed by the State Government either invoking powers under Section 432 or 433-A of the Code. Having regard to the observations made by the Supreme Court and quoted hereinabove, it is clear that the incident was nothing short of undermining the very authority of the State Government and had a terrorising effect on those who witnessed the incident and came to know of it. The blatant manner in which the plan was executed by the petitioner and his gang left no manner of doubt that the intention of the petitioner and his gang was not merely to kill the victim, but also to send a terrorising message to the people in general. An attempt was made also on the lives of three policemen and the intention was writ large to strike terror and fire was opened to achieve that object. It is only the strong lifeline of the victims that they were saved from the clutches of death, and that too in the court premises.

10. Having regard to the seriousness of the offences in which the petitioner was found guilty and the exceptional observations made by the Supreme Court while dismissing his Appeal, it cannot be said that the State Government has passed the impugned order without application of mind or has acted in breach of Articles 14 and 21 of the Constitution. The State Government has shown a leniency in directing that the petitioner would be released on completion of 30 years of total imprisonment, including remissions and the contentions of the petitioner that he is entitled to be released as he has completed more than 16 years of actual imprisonment cannot be accepted. He has no such vested right of being released by reducing the remission already granted. But for the impugned order of remissions, he was required to spend the remainder of his life in jail. Section 57 of IPC, notwithstanding, we do not find any infirmity with the impugned order and the observations made by this Court in the earlier judgment dated 03.08.2009 while allowing Criminal Writ Petition No.207/2009 were made without taking into consideration the observations made by the Supreme Court and as reproduced hereinabove. In fact, the State Government would be justified in declining to show any leniency and to exercise the power of remission under Section 432 of the Code in such a case and nevertheless, if the State Government has passed the impugned order, it cannot be accepted that the petitioner has a vested right for reduction of the sentence and release him on completion of total sentence of any period less than 30 years with remissions. The State has exercised its discretionary powers in granting remissions by considering the observations made by the Supreme Court in dismissing the petitioner's Criminal Appeal and hence, we are not inclined to disturb the impugned order, as there is no case to cause interference with the same.

11. Hence, this petition fails and is hereby dismissed.

Petition dismissed.