The presiding officers, when such opinion is called from them, should be armed with all the necessary documents and it would be then the job of the prison authorities, who call their opinion to place before them the necessary documents including the behaviour of the convict while undergoing imprisonment. We take this opportunity to give directions to the respondents as well as to the presiding officers/the judges from whom the opinion is sought under Section 432(2) of the Cr.P.C.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO.950 OF 2022
Bharat s/o Fakira Dhivar Vs The State of Maharashtra,
WITH
CRIMINAL WRIT PETITION NO.1001 OF 2022
Bhagwan s/o Ranoji Patole Vs State of Maharashtra,
CORAM : SMT. VIBHA KANKANWADI AND
ABHAY S. WAGHWASE, JJ.
DATE : NOVEMBER 22, 2022.
ORDER :- [Per Smt. Vibha Kankanwadi, J.]
Both the petitioners are life convicts. The petitioner - Bharat
Dhivar has prayed for quashing the order dated 02.03.2020 passed
by respondent No.2 and to issue directions to respondent No.2 to
place him in Category 2 (e) of Guidelines of 2010 or Category 1(e)
of year 1992 Guidelines and to release him forthwith, whereas the
petitioner - Bhagwan Patole prayed for directing respondent No.2 to
decide his Premature Release Application and when his application
was decided, he amended the petition and prayed for quashment of
the order passed by respondent No.2 dated 02.03.2020 and to
issue directions to respondent No.2 to place him in Category 2(b) of
Guidelines of 2010.
2. Heard learned Advocate Mr. Rupesh A. Jaiswal for the
petitioners in both the matters, learned APP Mr. A. M. Phule and
learned APP Mr. M. M. Nerlikar for respondents - State in respective
matters. Perused the affidavits-in-reply filed on behalf of the respondents in both the petitions.
3. At the outset, it is to be noted that both the convicts were
held guilty for the offence punishable under Section 302 of Indian
Penal Code (for short "IPC") as well as other Sections of IPC and
were sentenced to undergo imprisonment for life. The fact differs as
regards the petitioner Bharat Dhivar that he was sentenced to
death by learned Sessions Judge, Ahmednagar, then he preferred
appeal before this Court. Thereupon this Court allowed his appeal
and thereby acquitted him. Thereafter, being aggrieved with the
said order the State has preferred Criminal Appeal No.1246 of
1997, wherein Hon'ble the Supreme Court upheld the order of
learned Sessions Court, but altered the death sentence to
imprisonment for life. Both of them have undergone imprisonment
for a period of 23 years 10 months actual imprisonment and
including remission 31 years and 10 months as well as 14 years and
10 months actual imprisonment and including remission 21 years
respectively on the date of respective petitions.
4. It has been vehemently submitted on behalf of the
petitioners that respondent No.2 has not considered various
guidelines especially in M/s. Kranti Associates Pvt. Ltd. Vs. Sh.
Masood Khan and others, [2010 (6) ALL MR 992 (S.C.)].
Even though the petitioners are convicts, they have right to life and
liberty enshrined under Article 21 of the Constitution of India.
Various factors i.e. criminal antecedents, conduct during
incarceration, likelihood of abstaining from crime etc. have not been
properly considered. Further it was not considered that the
guidelines which were applicable at the time of sentence ought to
have been considered and not those guidelines which come up by
way of amendment periodically. The subsequent guidelines cannot
be made applicable respectively to the petitioners. Therefore, taking
into consideration the various guidelines of this Court as well as the
Hon'ble Supreme Court, the category of the petitioners need to be
changed and directions are required to be issued in that respect.
5. Learned Advocate for the petitioners has relied on the
decision in Life Convict Laxman Naskar Vs. State of West
Bengal and anr., [2000 ALL MR (Cri.) 1526], wherein it has
been observed by the Hon'ble Supreme Court that :-
" The reasons given by the Government are palpably
irrelevant or devoid of substance. Firstly, the views of
the witnesses who had been examined in the case or
the persons in the locality cannot determine whether
the petitioner would be a danger if prematurely
released because the persons in the locality and the
witnesses may still live in the past and their memories
are being relied upon without reference to the present
and the report of the jail authorities to the effect that
the petitioner has reformed himself to a large extent.
Secondly, by reason of one's age one cannot say
whether the convict has still potentiality of committing
the crime or not, but it depends on his attitude to
matters, which is not being taken note of by the
Government. Lastly, the suggestion on that the
incident is not an individual act of crime but a sequel of
the political feud affecting society at large, whether his
political views have been changed or still carries the
same so as to commit crime has not been examined by
the Government. On the basis of the grounds stated
above the Government could not have rejected the
claim made by the petitioner"
6. He further relied on the recent decision in Ram Chander Vs.
The State of Chattisgarh and Anr., [2022 LiveLaw (SC) 401],
wherein which factors are required to be considered while
considering remission under Section 432(2) of the Code of Criminal
Procedure (for short "Cr.P.C.) have been enumerated. It has been
observed in this case that "it cannot be said that the opinion of the
presiding judge is only a relevant factor, which does not have any
determinative effect on the application for remission. The purpose
of the procedural safeguard under Section 432(2) of the Cr.P.C.
would stand defeated if the opinion of the presiding judge becomes
just another factor that may be taken into consideration by the
government while deciding the application for remission....
An opinion accompanied by inadequate reasoning would not
satisfy the requirement of Section 432(2)."
In the said case, the Hon'ble Supreme Court had observed
the relevant factors to be considered to include while assessing the
point of remission (i) whether the offence affects the society at
large; (ii) the probability of the crime being repeated; (iii) the
potential of the convict to commit crimes in future; (iv) if any
fruitful purpose is being served by keeping the convict in prison;
and (v) the socio-economic condition of the convict's family. It was
held that all these factors should be considered by the presiding
judge also. Then it has been opined that if the opinion of the
presiding officer does not comply with the requirements of Section
432(2) or if the judge does not consider the relevant factors for
grant of remission that have been laid down in Laxman Naskar
(Supra), the government may request the presiding judge to
consider the matter afresh." The Hon'ble Supreme Court had
reiterated the decision in Union of India Vs. Sriharan @
Murugan, [(2014) 4 SCC 242]. Learned Advocate for the
petitioners has further relied on the decision in Sharafat Ali Vs.
State of Uttar Pradesh and Another, [2022 LiveLaw (SC)
179], which is the full bench decision of the Hon'ble Supreme. It
reiterates that prior criminal history, conduct and behaviour in jail,
possible danger to society etc. are relevant considerations for
premature release of a convict. Learned Advocate for the petitioner
has also relied on the decisions of this Court in Mr. Dilip S. Shetye
Vs. State Sentence Review Board, Chief Secretary Govt. of
Goa, [Criminal Writ Petition No.255 of 2019] decided on
06.11.2020, wherein the petitioner was directed to be released
prematurely. Similar decisions were taken in V. V. Mohan Vs.
State of Goa and others, [2022 (2) Bom. C.R.(Cri.) 72], Ravi
Patil Vs. State of Goa and others, [2020 DGLS (Bom.) 1314],
Anup Pratapsingh Varma Vs. State of Maharashtra, [2007
(Supp.) Bom.C.R. 794], Satish @ Sabbe Vs. The State of
Uttar Pradesh, [2020 CJ (SC) 550], Shor Vs. State of Uttar
Pradesh and Another, [Writ Petition (Criminal) No.58 of
2020] decided by the Hon'ble Supreme Court on 05.08.2020.
7. Learned APP on the basis of the affidavit-in-reply filed on
behalf of the respondents submitted that all the necessary
information and opinion has been taken by the government in both
the cases and taking into consideration the facts of the case also,
the prayer for premature release of the petitioners was rejected.
8. We have perused the file and the documents those are
attached by the respondents along with the affidavit. As regards
the petitioner Bharat Dhivar is concerned, his present age is 70
years and as aforesaid, he has undergone a substantial
imprisonment. The facts of the case were that he had committed
rape on a three year old girl and had murdered her. That appears
to be the main consideration that has been taken by respondent
No.2 for rejecting his prayer for released/granting remission to him.
However, perusal of the impugned order would show that the
presiding judge when called upon to give opinion has given opinion
on 03.03.2014 stating that "the offence committed by the accused
is serious and the convict appears to be habitual criminal and,
therefore, he is not entitled to remission."
9. The opinion that was given on 03.03.2014 by the learned
Sessions Judge has been considered by the respondent No.2 - State
and order to that effect has been passed on 02.03.2020. Why the
decision has been taken after so many years is not explained and if
at all a fresh consideration ought to have been decided to be taken
by the State, then they could have called a fresh opinion from the
concerned Judge. Whatever opinion that has been given by the
learned Sessions Judge does not appear to be in consonance of the
requirements as laid down in Laxman Naskar (Supra) and Ram
Chander (Supra). Note was taken in Laxman Naskar (Supra) and
guidelines were issued which should be the basis for the release of a convict prematurely and they are as follows :-
"1. Whether the offence is an individual act of
crime without affecting the society at large.
2. Whether there is any fruitful purpose of confining of
this convict anymore.
3. Whether there is any chance of future reoccurrence
of committing crime.
4. Socio-Economic condition of the convict's family."
10. Further, note will have to be taken in respect of the guidelines
given in Sriharan's case (Supra). It was held that the government
is bound to seek the opinion of the sentencing Court under Section
432(2) of the Cr.P.C. Thereafter, in Sangeet Vs. State of
Haryana, [(2013) 2 SCC 452], the Hon'ble Supreme Court held
that the opinion of the presiding judge of the sentencing court must
be accompanied by reasons. Here, in the present case, whatever
reason has been given is vague and similar opinion was deprecated
by the Hon'ble Supreme Court in Bhagwat Saran Vs. State of
UP, [Writ Petition (Criminal) Nos.1145-1149 of 19782]
decided on 06.12.1982. In that case also, the presiding judge had
simply stated that in his opinion in view of all the facts and
circumstances, it is not appropriate to allow the application of
remission. There is nothing to indicate that the judge took into
consideration the following three factors to grant remission, which
were (i) antecedents of the petitioner, (ii) conduct of the petitioner
in prison; and (iii) the likelihood of the petitioner of committing
crime if released and, therefore, the Hon'ble Supreme Court
observed, "bald statement without any attempt to indicate how law and order is likely to be adversely affected by their release cannot be accepted."
11. All these decisions of the Hon'ble Supreme Court were
considered in Ram Chander (Supra) and it was then further
considered that there appears to be a difference of opinion between
the High Courts on whether the opinion of the presiding judge is
binding on the government and in that respect following
observations are important :-
"20. In Sriharan (Supra), the Court observed that
the opinion of the presiding judge shines a light on the
nature of the crime that has been committed, the record
of the convict, their background and other relevant
factors. Crucially, the Court observed that the opinion
of the presiding judge would enable the government to
take the 'right' decision as to whether or not the
sentence should be remitted. Hence, it cannot be said
that the opinion of the presiding judge is only a relevant
factor, which does not have any determinative effect on
the application for remission. The purpose of the
procedural safeguard under Section 432(2) of the Code
of Criminal procedure would stand defeated if the
opinion of the presiding judge becomes just another
factor that may be taken into consideration by the
government while deciding the application for remission.
It is possible then that the procedure under Section
432(2) would become a mere formality
21.However, this is not to say that the appropriate
government should mechanically follow the opinion of
the presiding judge. If the opinion of the presiding
judge does not comply with the requirements of Section
432(2) of if the judge does not consider the relevant
factors for grant of remission that have been laid down
in Laxman Naskar (Supra), the government may
request the presiding judge to consider the matter
afresh."
12. In Ram Chander (Supra) thereafter the Hon'ble Supreme
Court found that there was nothing to indicate that the presiding
judge took into account the factors, which were laid down in
Laxman Naskar (Supra) and held that the petitioners application
for remission therefore needs to be sent for reconsideration. It will
not be out of place to mention here that the petition filed by Ram
Chander was under Article 32 of the Constitution of India, yet the
law laid down in that decision has not been followed in this case.
Hence, in view of above observations in paragraph No.21 in Ram
Chander (Supra), the matter needs to be sent back to respondent
No.2 with a direction that the opinion of the presiding judge should
be called afresh and then a decision be arrived at.
13. As regards the petitioner Bhagwan Patole is concerned the
presiding judge had given opinion on 21.08.2017 and the impugned
order by respondent No.2 appears to have been passed on
02.03.2020. In his case, it was opined by the learned Additional
Sessions Judge, Jalna that "accused has brutally committed murder
of his own innocent daughter of 02 years. He has committed very
heinous offence by killing his own innocent daughter of 02 years.
In such circumstances, considering nature of charge leveled against
accused and act committed by him, in my opinion he is not
deserving for his premature release." At the cost of repetition it
can be said that the learned Judges in both the matters had not
considered the relevant factors. It has not been placed on record
as to which documents were supplied to the concerned presiding
officers when their opinions were called. Even the petition filed by
petitioner Bhagwan Patole deserves to be remitted for the above
reasons.
14. This Court is again and again coming across such kind of
petitions. When guidelines have been issued by the Hon'ble Apex
Court then they are binding on all the authorities, yet it appears
that the authorities are mechanically giving their opinions and not
considering the guidelines, then, once again it is required to be
harped upon all those who are involved in the process of the act of
remission that they should adhere the guidelines those have been
given in various decisions of the Hon'ble Apex Court. The presiding
officers, when such opinion is called from them, should be armed
with all the necessary documents and it would be then the job of
the prison authorities, who call their opinion to place before them the necessary documents including the behaviour of the convict while undergoing imprisonment. We take this opportunity to give directions to the respondents as well as to the presiding officers/the judges from whom the opinion is sought under Section 432(2) of the Cr.P.C.. It will not be out of place to mention here that it appears from the various judgments those have been produced by the learned Advocate for the petitioners that the presiding officers of the sentencing Court are giving casual opinion and, therefore, the training/sensitization of the presiding officers at the judicial academy needs to be held periodically. If such presiding officers are trained, then it would not only help the State to arrive at a conclusion in respect of remission, but it may also avoid such petitions before this Court. Unnecessarily then the convicts are
required to approach this Court and even time is lapsed when they
either give simple application to this Court which would then be
treated as petition, some legal assistance in the form of
appointment of amicus curiae would then be required to be
appointed and it will cause loss of time. In order to avoid all these
difficulties, such training is then necessary. In view of the aforesaid
discussion, the following order is passed :-
ORDER
I) Writ Petition No.950 of 2022 and Writ Petition
No.1001 of 2022 stand partly allowed.
II) The order passed by respondent No.2 on
02.03.2020 in both the cases stand quashed and set
aside.
III) Respondent No.2 to consider respective
petitioner's application for remission afresh by calling
upon the opinion from the Judge of the sentencing
Court in respective matters.
IV) Such request letters from respondent No.2 or
the appropriate authority under the directions of
respondent No.2 be sent to the concerned judges of
the sentencing court afresh on or before 15.12.2022
along with all the necessary documents. It would be
necessary for the concerned Judge to form opinion.
V) The concerned presiding officers of the
sentencing Court should give the opinion afresh
accompanied by adequate reasoning taking into
consideration all the relevant factors that govern the
grant of remission as laid down in Laxman Naskar
(Supra) and Ram Chander (Supra).
VI) After receipt of such application, the concerned
presiding officer of the sentencing Court should give
his opinion before 31.12.2022.
VII) After receipt of the said opinion, respondent
No.2 to take final decision on the petitioners
applications for remission afresh within a period of a
month i.e. on or before 01.02.2023.
VIII) Registrar (Judicial) High Court of Bombay,
Bench at Aurangabad to forward a copy of this order
to Joint Director, Maharashtra Judicial Academy, Uttan
with direction to hold periodical training of the judicial
officers as to how they should give opinion when such
applications under Section 432(2) of the Cr.P.C. are
forwarded to them.
IX) Fees of learned Advocate Mr. Rupesh A. Jaiswal,
who came to be appointed as amicus curiae in
Criminal Writ Petition No.950 of 2022, is quantified at
Rs.8,000/- to be paid by High Court Legal Services
Sub Committee, Aurangabad.
[ABHAY S. WAGHWASE] [SMT. VIBHA KANKANWADI]
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