We are in agreement with the decisions in Akash S/o
Devanand Tempe (supra) and Rameshwar s/o Chunnilal Hardule
(supra). The said GR was issued with a particular purpose as a
special remission scheme and it was made available to those
convicts, who were in jail as on 14.04.2016 or whose appeals are
pending but they are released on bail on suspension of sentence. It was the special occasion i.e. 125th Birth Anniversary of late Dr.
Babasaheb Ambedkar. Whether to grant a special remission or in
other words granting remission under special scheme is within the prerogative of the State Government. Even otherwise also the
wording of the GR dated 03.06.2017 was sufficient to infer that it
was applicable to those category of persons only, but now the
clarification has been given on 20.02.2024, it has to be considered. {Para 7}
8. As the conviction awarded to the present petitioner is in the
case that came to be registered in 2019 and the judgment is
pronounced on 07.02.2020, the scheme is not applicable to him.
After considering the communication dated 04.07.2023 given by
the learned Principal District and Sessions Judge, Gondia, it can be seen that the offence took place on 01.06.2019, that means on the day when the GR was issued i.e. on 03.06.2017, the offence was not even committed and therefore, it cannot be said that the said GR is applicable to the present petitioner. The present petition is devoid of merits and therefore, deserves to be dismissed and accordingly, it is dismissed.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL WRIT PETITION NO.865 OF 2023
Sonu alias Ashwin S/o Vitthal Meshram Vs State of Maharashtra,
CORAM : SMT. VIBHA KANKANWADI
& MRS. VRUSHALI V. JOSHI, JJ.
PRONOUNCED ON : 01.08.2024
1. We have heard Mr. Raju Kadu, learned Advocate for the
petitioner and the learned APP for the State.
2. Rule. Rule is made returnable forthwith. Heard finally by the
consent of the learned Advocates for the parties.
3. The present petition has been filed by the convict/petitioner
for quashing and setting aside the opinion dated 04.07.2023 given
by the learned Principal District and Sessions Judge, Gondia,
thereby refusing to grant benefit of remission of three months to
the petitioner on account of 125th Birth Anniversary of late Dr.
Babasaheb Ambedkar, in view of the Government Resolution (GR)
dated 03.06.2017. Consequential relief is also prayed.
4. It has been submitted by the learned Advocate for the
petitioner that the petitioner came to be convicted for the offence
punishable under Section 376AB of the IPC and Section 6 of the
Protection of Children from Sexual Offences Act, 2012 (POCSO
Act). By the judgment and order dated 07.02.2020 passed in
POCSO Cri. Case No.45/2019, he has been sentenced to suffer
Rigorous Imprisonment (RI) for twenty years and to pay fine of
Rs.75,000/-, in default of payment of fine, to undergo further RI.
for three years. Presently, the petitioner is in Central Jail Nagpur.
The petitioner had submitted the application for remission under
the GR dated 03.06.2017. It is submitted that the grant of
remission ought to have been considered in view of the behaviour
of the petitioner in jail and the ground for rejection/refusal to grant
remission by the learned Principal District and Sessions Court,
Gondia, is illegal.
5. According to the said GR, there is categorization of remission
given to a convict i.e. who is convicted for three months, he gets
seven days remission; the convict, who is convicted for more than
three months but less than twelve months, he gets remission of
fifteen days; the convict, who is convicted for more than one year
but less than five years, he would get remission of two months; and
lastly a convict, who is convicted for more than five years or
imprisonment for life, he would get three months remission. The
said GR was published on account of 125th Birth Anniversary of
late Dr. Babasaheb Ambedkar. The learned Advocate for the
petitioner relies on the decision in Eknath s/o Bapunath Chougule
and others Vs. The State of Maharashtra and anr. (Criminal Writ
Petition No.1788 of 2017), decided on 09.02.2018, by this Court
Bench at Aurangabad, to which one of us (Smt. Vibha Kankanwadi,
J.) was a party. He also relies on the decision in Yogesh Pandurang
Kupekar Vs. State of Maharashtra and anr. (Criminal Writ Petition
No.462 of 2022) decided on 7.09.2022, in which the similarly
situated convicts have been granted benefits by this Court. He also
relies on Satish Dada Londhe Vs. The State of Maharashtra
(Criminal Writ Petition No.1414 of 2018) decided on 01.02.2019,
by the Principal Seat of this Court, Nilesh s/o Sukhlal Karosiya Vs.
The State of Maharashtra and anr. (Criminal Writ Petition No. 108
of 2019) decided on 04.03.2019, by this Court Bench at
Aurangabad and Satish Yadavrao Dhoke Vs. State of Maharashtra
and anr. (Criminal Writ Petition No.758 of 2023) decided on
04.12.2023, by this Court, wherein also benefit of remission has
been given to the respective petitioners.
6. Per contra, the learned APP submits that the said GR was
issued for some purpose i.e. for giving remission to the convicts,
who were already in jail when the country was celebrating 125th
Birth Anniversary of late Dr. Babasaheb Ambedkar. Thereafter,
modification was made in that GR by another GR dated
19.11.2018, wherein the category stated as “convicts punished under
the Central enactment” was replaced by “the cases under Section
435(2) of the CrPC”. Thereafter, in Criminal Writ Petition
Nos.865 of 2023, 857 of 2023 and 846 of 2023, this Court has
sought clarification from the Government and accordingly, a
clarification was issued on 20.02.2024 and it was specifically stated
that the said remission was available to the convicts, who have been
convicted in the State of Maharashtra and it would be available to
those convicts, who were undergoing the incarceration as on
14.04.2016. It was then made available to those convicts also who
were on bail under the order of the Court, that means the convicts
whose appeals are pending. However, as regards the present
petitioner is concerned, he came to be convicted by the judgment
and order dated 07.02.2020 i.e. after the cutoff date mentioned in
the GR and therefore, this Court has taken a view in Akash S/o
Devanand Tempe Vs. State of Maharashtra and anr. (Writ Petition
No.857 of 2023), decided on 21.02.2024 and Rameshwar s/o
Chunnilal Hardule Vs. State of Maharashtra and anr. (Criminal
Writ Petition No.331 of 2024) decided on 29.04.2024, to which
one of us (Mrs. Vrushali V. Joshi, J.) was a party and observed that
after going through the decisions in Yogesh Pandurang Kupekar
(supra) and Nitin s/o Shamraoji Pawnikar Vs. State of Maharashtra
and anr. (Criminal Writ Petition No.579 of 2023), decided on
19.01.2024, it could be revealed that those decisions do not bear
the reference about the cutoff date and it’s implementation and
hence, the clarification is sought. It is a special remission that was
introduced and therefore, it depends upon the policy of the State
Government. The convicts who have been convicted after the
cutoff date i.e. 14.04.2016, are not entitled to get the special
remission.
7. We are in agreement with the decisions in Akash S/o
Devanand Tempe (supra) and Rameshwar s/o Chunnilal Hardule
(supra). The said GR was issued with a particular purpose as a
special remission scheme and it was made available to those
convicts, who were in jail as on 14.04.2016 or whose appeals are
pending but they are released on bail on suspension of sentence. It
was the special occasion i.e. 125th Birth Anniversary of late Dr.
Babasaheb Ambedkar. Whether to grant a special remission or in
other words granting remission under special scheme is within the
prerogative of the State Government. Even otherwise also the
wording of the GR dated 03.06.2017 was sufficient to infer that it
was applicable to those category of persons only, but now the
clarification has been given on 20.02.2024, it has to be considered.
8. As the conviction awarded to the present petitioner is in the
case that came to be registered in 2019 and the judgment is
pronounced on 07.02.2020, the scheme is not applicable to him.
After considering the communication dated 04.07.2023 given by
the learned Principal District and Sessions Judge, Gondia, it can be
seen that the offence took place on 01.06.2019, that means on the
day when the GR was issued i.e. on 03.06.2017, the offence was
not even committed and therefore, it cannot be said that the said
GR is applicable to the present petitioner. The present petition is
devoid of merits and therefore, deserves to be dismissed and
accordingly, it is dismissed.
Rule stands discharged. No costs.
[MRS. VRUSHALI V. JOSHI, J] [SMT. VIBHA KANKANWADI, J
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