Criminal Writ Petition No. 228 of 2013

24th June, 2013

Petitioner Counsel: Ms. P.D. RANE
Respondent Counsel: Shri R.S. NAYAK

Cases Cited:
State of Haryana & Ors. Vs. Jagdish, 2010 ALL SCR 943=AIR 2010 SC 1690 [Para 3,7,9]
Usha Munna Upadhyay Vs. The State of Maharashtra, Criminal W.P. No.3701/2012, Dt.15/3/2013 [Para 3,8]

JUDGMENT

B. R. GAVAI, J. :- Rule. Rule made returnable forthwith. Heard the matter by consent of the learned counsel appearing for the parties.

2. The petitioner challenges order, passed by the State of Maharashtra, dated 9.10.2012, thereby holding that the petitioner's case would be covered by Clause 3(d) of the Guidelines issued by the State of Maharashtra dated 11.5.1992 and the petitioner was entitled to pre-mature release by condoning the period of imprisonment after he completes the imprisonment for a period of 26 years.

3. Ms P.D. Rane, learned counsel (appointed) appearing for the petitioner, submits that the respondents have grossly erred in making applicable the guidelines of 1992 to the case of the petitioner. Learned counsel submits that by Government Resolution dated 15.3.2010, the State of Maharashtra has revised the guidelines for pre-mature release of prisoners undergoing life sentences from time to time. Learned counsel further submits that the respondent - State has carved out on special category regarding offence relating to crime against the women and minors. Learned counsel further submits that the contention of the State that even under the said guidelines, the petitioner's case to fall under the category 2(c) is concerned, is without substance. Learned counsel submits that at the most the petitioner's case fall under the categories 2 (a) or 2(d). Learned counsel further relies on the judgment of the Apex Court in the case of State of Haryana & Ors. v. Jagdish, reported at AIR 2010 SC 1690 : [2010 ALL SCR 943] and the judgment of the Division Bench of this Court in Usha Munna Upadhyay vs. The State of Maharashtra, Criminal Writ Petition No.3701 of 2012 dated 15.3.2013.

4. Perusal of the guidelines issued by the State of Maharashtra of 11.5.1992, would reveal that there are various categories insofar as murders are concerned. However, there was no specific category with regard to the offence relating to or crime against women and minors. By said Government Resolution dated 11.5.1992, a special category of offence relating to women and minors has been carved out. The relevant portion thereof is thus :

3) MURDERS FOR OTHER REASONS

a) Where a murder is committed in the course of a quarrel without premeditation in an individual capacity and where the person has no previous criminal history.

b) As at (a) above but with premeditation or by a gang.

c) Murders resulting from trade union activities and business rivalry.

d) Murder committed with pre-meditation and with exceptional violence or perversity.

5. It is also relevant that category 3(d) which according to State is the category under which the petitioner's case would fall.

6. The learned Additional Public Prosecutor appearing for the respondents, submits that the case of the petitioner even if considered under Clause 2 of 2010 guidelines, still the petitioner would be required to undergo 26 years. Learned Additional Public Prosecutor submits that in view of clause 3(d) of 1992 guidelines, the petitioner would be required to undergo imprisonment of 26 years since the murder has been committed with pre-meditation and with exceptional violence or perversity. He submits that even under 2010 guidelines, the petitioner's case would be covered under clause 2(c) since the crime is committed with exceptional violence and or with brutality or death of victim due to burns.

7. The Apex Court in the case of State of Haryana & Ors., [2010 ALL SCR 943] cited supra has observed thus :

Para-37 : "Liberty is one of the most precious and cherished possession of a human being and he would resist forcefully any attempt to diminish it. Similarly, rehabilitation and social reconstruction of life convict, as objective of punishment become of paramount importance in a welfare state. "Society without crime is a utopian theory". The State has to achieve the goal of protecting the society from convict and also to rehabilitate the offender. There is a very real risk of revenge attack upon the convict from others. Punishment enables the convict to expiate his crime and assist his rehabilitation. The Remission policy manifests a process of reshaping a person who, under certain circumstances, has indulged in criminal activity and is required to be rehabilitated. Objective of the punishment are wholly or predominantly reformative and preventive. The basic principle of punishment that "guilty must pay for his crime" should not be extended to the extent that punishment becomes brutal. The matter is required to be examined keeping in view modern reformative concept of punishment. The concept of "Savage Justice" is not to be applied at all. The sentence softening schemes have to be viewed from a more human and social science oriented approach. Punishment should not be regarded as the end but as only the means to an end. The object of punishment must not be to wreak vengeance but to reform and rehabilitate the criminal. Moreso, relevancy of the circumstances of the offence and the state of mind of the convict, when the offence was committed, are the factors, to be taken note of."

It can thus be seen that Apex Court in the afore-stated judgment has emphasized that the remission policy manifests a process of reshaping a person who under certain circumstances, has indulged in criminal activity and is required to be rehabilitated. It has been further held that the punishment enables the convict to expiate his crime and assist his rehabilitation. It has further been held that the basic principle of punishment that guilty must pay for his crime should not be extended to the extent that punishment becomes brutal. It has further been held that the schemes have to be viewed from a more human and social science oriented approach. It has further been held that the object of punishment must not be to wreak vengeance but to reform and rehabilitate the criminal.

It has further been held in para-42 that the State has to exercise its power of remission by referring to a policy which is in favour of the respondent. It has further been held that in case a liberal policy prevails on the date of consideration of the case of a "lifer" for pre-mature release, he should be given benefit thereof.

8. The judgment of the Division Bench of this Court in the case of Usha Munna Upadhyay vs. The State of Maharashtra, in Criminal Writ Petition No.3701 of 2012 dated 15.3.2013 also had an occasion to consider the question as to in cases of categories specially carved out under 2010 guidelines which policy i.e. 1992 policy or 2010 policy would apply. In the said case, the Division Bench of this Court was considering the category which was carved out in respect of offence relating to crime by women. The Division Bench held that when a special category has been carved out under 2010 guidelines, the case would not be covered by general guidelines and special provisions would be applicable.

9. In any case, the Apex Court in the case of State of Haryana & Ors., [2010 ALL SCR 943] cited supra has held that such a policy which is more beneficial to the prisoners would apply in case of remission. In that view of the matter we find that since a special category is carved out under 2010 guidelines, the petitioner's case would have to be considered under the said guidelines. We, therefore, find that if 2010 policy is applied in case of the petitioner, it will be more beneficial and as such in view of the judgment of the Apex Court cited supra, the case of the petitioner will have to be considered under 2010 guidelines.

10. Insofar as contention of the State that even applying 2010 guidelines, the case of the petitioner would fall under the category of 2(c) is concerned, it will be relevant to refer to the judgment of the learned Sessions Judge while convicting the present appellant. Perusal of judgment would reveal that the incident occurred on account of some previous quarrels between petitioner and the complainant i.e. husband of the deceased. It is the prosecution case that in the said incident, the accused had abused the complainant on his mother and sister and as such the complaint came to be filed by the complainant against the accused. It is the case of the prosecution that in order to take revenge regarding the same, the petitioner had fled away after assaulting wife of the complainant viz. Lata. However, it is to be noted that the alleged quarrel happened in 1995 whereas the incident had taken place in 1998. The evidence of the prosecution witness would reveal that the deceased was given only one blow by the petitioner. No doubt, that was from the sharp side of the axe. However, it is further to be noted that the deceased did not die instantly but she died either on the way to the hospital or soon after being admitted to the hospital. In that view of the matter, we find that the case cannot come in category of the crime committed with exceptional violence or in brutality. Undisputedly, the case is not of dying due to burns. We, therefore, find that the case would fall under category of 2(b) in as much as the petitioner does not have any criminal previous history and the murder is in an individual capacity, though it can be said that it has been committed with pre-meditation.

11. In that view of the matter, we find that the petition deserves to be allowed. The impugned judgment is quashed and set aside. We direct the respondents to consider the case of the petitioner as falling under category 2(b) of 2010 guidelines and give the necessary benefits.

12. Rule is made absolute in above terms. There shall be no order as to costs.

13. We must place on record our appreciation for the valuable assistance given by Ms P.D. Rane, the learned counsel appearing for the petitioner (Appointed).

14. The fees of the learned counsel appointed to appear on behalf of the petitioner is quantified at rupees one thousand only.

Petition allowed.