Criminal Writ Petition No. 479 of 2007

4th February, 2008

Petitioner Counsel: Mr. R. R. SHRIVASTAV
Respondent Counsel: Mr. SHYAM AHIRKAR

JUDGMENT

A. P. LAVANDE, J.:- Heard Mr. Shrivastav, learned counsel for petitioner and Mr. Ahirkar, A.P.P., for respondents. Rule. Mr. Ahirkar, A.P.P., waives notice for respondents. By consent, heard forthwith.

2. By this petition, the petitioner, who is undergoing sentence of imprisonment for having committed offences punishable under Sections 306 read with Section 498-A of Indian Penal Code, challenges the action of respondents in refusing him remission to the extent of 12 months in terms of notifications dated 6.8.1997 and 28.4.1999.

3. The petitioner was convicted by the trial Court for the offences punishable under Sections 306 and 498-A of Indian Penal Code and sentenced to suffer rigorous imprisonment for four years under section 306 and for one year under Section 498-A of Indian Penal Code. Appeal was preferred by the petitioner against his conviction and sentence as well as by the State aggrieved by inadequacy of the sentence. Both these appeals were disposed of by common judgment on 2.8.2006 by which the appeal preferred by the petitioner/accused was dismissed and the appeal preferred by the State seeking enhancement of sentence was allowed and the substantive sentence for the offence under Section 306 of Indian Penal Code was enhanced to six years and the petitioner was ordered to pay fine of Rs.2,000/-, in default to suffer simple imprisonment for two months.

4. Mr. Shrivastav, learned counsel, placing reliance upon notifications dated 6.8.1997 and 28.4.1999, submitted that the petitioner is entitled to remission of 12 months since the petitioner has been sentenced to undergo rigorous imprisonment for six years by the order passed by this Court in the appeal preferred by the State. According to Mr. Shrivastav, although the benefit of first notification dated 6.8.1997 was available only to the accused undergoing actual jail sentence, in terms of the notification dated 28.4.1999 the benefit has been extended even to those accused who were convicted prior to 6.8.1997 but were on bail pending appeal.

5. Per contra, Mr. Ahirkar, A.P.P., submitted that the petitioner is not entitled to remission of 12 months but he is entitled only for remission of eight months only.

6. Having considered the submissions made by the learned counsel for the petitioner and learned A.P.P. and having perused the record, we are of the considered opinion that the petition deserves to be allowed. In terms of notification dated 6.8.1997 benefit of remission to the accused who are undergoing sentence was given depending upon the sentence of imprisonment imposed on them. In order to avail benefit of said notification, the accused had necessarily to be in jail on the date of notification. However in terms of notification dated 28.4.1999 the benefit was extended even to those accused who were on bail on 6.8.1997. Indisputably, in the present case, the judgment and order of conviction was passed on 16.2.1991 and he was on bail till 2.8.2006 when his appeal against conviction was dismissed and sentence was enhanced. This being the factual position, in our considered opinion, the petitioner is entitled to the benefit conferred by notification dated 28.4.1999. The petitioner is entitled to remission of 12 months since he has been ordered to undergo rigorous imprisonment for six years.

7. In the result, petition is allowed. Petitioner is held entitled to remission of 12 months in stead of eight months. Rule is made absolute in above terms. The fees payable to Mr. Shrivastav, learned counsel appointed to appear for the petitioner, are quantified at Rs.750/-.

Petition allowed.