The learned APP produced on the record the decision of Criminal Appeal No. 490-491/2011 (Sangeet v. State of Haryana) by the Apex Court on 20.11.2012 and he submitted that it is incumbent on the part of State to obtain the opinion before taking decision on commutation of life sentence. {Para 5}
6. It is true that as per the ratio of the Apex Court laid down in the case of Jagdish cited supra, it is necessary for the State to collect the opinion of the Sessions Court. For consideration of commutation of life sentence. The Government has prepared guidelines which came to be amended from time to time and the were lastly amended in the year 2010. The Government has created categories of the convicts and as per the categories, prepared on the basis of the nature of offence committed by the prisoner, he is placed in that category and the sentence provided for that category is given when the life sentence is commuted to fix the period of imprisonment.
7. The aforesaid communication made by the learned Ad-hoc District Judge-2 and Assistant Sessions Judge shows that the learned Judge was not aware of the purpose for which his opinion was sought. This Court wants to observe that in such cases, the learned Sessions Judge needs to look in to the matters personally as files with regard to such opinion are generally kept in the office of Sessions Judge. Only due to non availability of that file, it can be said that the communication for aforesaid nature was made by the learned Ad-hoc District Judge-2 and Assistant Sessions Judge. The matter comes to the Sessions Court after completion of around 14 years of imprisonment as only after that the matters are considered of commutation purpose by the State. When the matter comes to Sessions Court from the authority for opinion, ordinarily the Judicial Officer who has delivered the judgment against the prisoner is not available at the station and this circumstance needs to be kept in mind. In view of these circumstances and the seriousness of the matter, this Court holds that ordinarily the learned Sessions Judge should consider such matters and he should give opinion in this regard. Consideration of such matter by the learned Sessions Judge does not require much time and we are sure that he/she hardly requires 5-10 minutes for forming opinion and for giving opinion as guidelines are already given by the State Government. On the basis of the nature of offence only opinion is required to be given as to in which category the prisoner can be placed.
In the High Court of Bombay
(Before T.V. Nalawade and M.G. Sewlikar, JJ.)
Kishor Laxman Lonari Vs State of Maharashtra,
Criminal Writ Petition No. 1923 of 2019
Decided on March 4, 2020
Citation: 2020 SCC OnLine Bom 377
1. Rule. Rule made returnable forthwith. By consent, heard both the sides for final disposal.
2. Present proceeding is filed by the prisoner for relief of direction against the respondents to give him benefit of scheme of the Government of commutation of life sentence and the scheme prepared of premature release of life convict.
3. The submissions made by both the sides and correspondence made with Sessions Court Jalgaon shows that the Government had requested Sessions Court which had convicted the petitioner for life sentence for giving opinion in respect of the benefit of scheme of premature release. The learned Ad-hoc District Judge-2 & and Assistant Sessions Judge, Jalgaon made communication as under:—
“No. 96 of 2015
Court of Ad-hoc District Judge-2
& A.S. J. Jalgaon
Date:- 23.2.2015.
To,
The Superintendent,
Central Prison,
NASHIK ROAD.
Sub:- Opinion of the Sessions Court convicting the life convict on the cause of early release.
Ref:- Your office letter No.
dated 3/2/2015.
Sir,
With reference to the subject noted above and the references, perusal of the concerned record, it reveals that in the Sessions Case no. 41/2003 accused was Kishor Laxman Lonari and it was decision of the II Ad-hoc Additional Sessions Judge, Jalgaon. Perusal of the papers reveals that considering the nature of crime and the aspects considered in the judgment by then Hon'ble II Ad-hoc Additional Session Judge, Jalgaon, it needs no special and separate opinion as to the subject release of the convict Kishor No. C-52. He may be dealt further according to law. Hence this opinion.
Sd/-
Ad-hoc District Judge - 2 &
Assistant Sessions Judge, Jalgaon.”
4. The learned counsel for the petitioner drew the attention of this Court to the law laid down by the Hon'ble Apex Court in the case of State of Haryana v. Jagdish reported as (2010) 4 SCC 216 : AIR 2010 SC 1690. In para 43, the Apex Court has made following observations at the end of the para:—
“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.”
5. The learned APP produced on the record the decision of Criminal Appeal No. 490-491/2011 (Sangeet v. State of Haryana) by the Apex Court on 20.11.2012 and he submitted that it is incumbent on the part of State to obtain the opinion before taking decision on commutation of life sentence.
6. It is true that as per the ratio of the Apex Court laid down in the case of Jagdish cited supra, it is necessary for the State to collect the opinion of the Sessions Court. For consideration of commutation of life sentence. The Government has prepared guidelines which came to be amended from time to time and the were lastly amended in the year 2010. The Government has created categories of the convicts and as per the categories, prepared on the basis of the nature of offence committed by the prisoner, he is placed in that category and the sentence provided for that category is given when the life sentence is commuted to fix the period of imprisonment.
7. The aforesaid communication made by the learned Ad-hoc District Judge-2 and Assistant Sessions Judge shows that the learned Judge was not aware of the purpose for which his opinion was sought. This Court wants to observe that in such cases, the learned Sessions Judge needs to look in to the matters personally as files with regard to such opinion are generally kept in the office of Sessions Judge. Only due to non availability of that file, it can be said that the communication for aforesaid nature was made by the learned Ad-hoc District Judge-2 and Assistant Sessions Judge. The matter comes to the Sessions Court after completion of around 14 years of imprisonment as only after that the matters are considered of commutation purpose by the State. When the matter comes to Sessions Court from the authority for opinion, ordinarily the Judicial Officer who has delivered the judgment against the prisoner is not available at the station and this circumstance needs to be kept in mind. In view of these circumstances and the seriousness of the matter, this Court holds that ordinarily the learned Sessions Judge should consider such matters and he should give opinion in this regard. Consideration of such matter by the learned Sessions Judge does not require much time and we are sure that he/she hardly requires 5-10 minutes for forming opinion and for giving opinion as guidelines are already given by the State Government. On the basis of the nature of offence only opinion is required to be given as to in which category the prisoner can be placed. It appears that only due to aforesaid confusion, the matter of the present petitioner was not decided for more than 6 years. In the result, following order.
ORDER
(I) Petition is partly allowed.
(II) Direction is hereby given to the authority respondents to again send the matter to Sessions Court with specific request that the opinion of the learned Sessions Judge is required in the matter. Within seven days thereafter the learned Sessions Judge is to give opinion and within 30 days thereafter decision is to be taken by the authority on the application made for premature release, Copy of this order is to be sent to all the Sessions Courts of Maharashtra for compliance.
(III) Fees of the learned counsel appointed is quantified as Rs. 3,000/- and it is to be paid through High Court Legal Services Authority Sub Committee.
8. Rule is made absolute in those terms.
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