Pages

Monday 26 August 2024

Bombay HC: Special remission due to birth anniversary of Dr. Ambedkar is not available to convict who were not in jail as on 14.04.2016 or whose appeals were not pending

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

JUDGMENT : (PER : SMT. VIBHA KANKANWADI, J )

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


No comments:

Post a Comment