1 208311 vgm IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 2083 OF 2011 Chintaman Sitaram Kedari, Aged 62 years, Occu. Nil, residing at Village Pargaon,Taluka Panvel, Dist. Raigad (confined at Yerwada Central Prison, Yerwada, Pune 411 006) ...Petitioner V/s. 1. The State of Maharashtra (through Principal Secretary, Home & Prison, Government of Maharashtra, Mantralaya, Mumbai 400 032 ...Respondents Mr. N.N. Gavankar with Mr. Arfan Sait for the Petitioner Mr. P.S. Hingorani, A.P.P., for the State CORAM: A.M. KHANWILKAR AND P.D. KODE, JJ DATE: NOVEMBER 9, 2011. JUDGMENT (PER A.M. KHANWILKAR, J.) :- This petition under Article 226 of the Constitution of India has been filed by the convict, who is in jail in connection with offence 2 208311 punishable under Sections 452, 302 read with 149 of the Indian Penal Code, undergoing term of life imprisonment. The petitioner was arrested in connection with the said offence on 18th November, 1995. He was convicted by the Sessions Court, Raigad, and sentenced to undergo life imprisonment. According to the petitioner, he has completed actual 14 years of sentence on 1st June, 2010. His request for premature release should have been granted by the Authorities, more so because the co-accused in the same case, Shankar Ram Mhatre, was ordered to be released on completion of 14 years of actual imprisonment vide order passed by the Home Department, Government of Maharashtra, dated 4th January, 2011. 2. Considering the limited controversy brought before us, it is not necessary to advert to other factual matrix leading to the filing of this petition. The petition, filed on 19th July, 2011, was primarily based on the ground that the petitioner should also have been released prematurely as ordered in the case of co-accused, Shankar Ram Mhatre, following the dictum of this Court in the case of Mahendra Tarachnd Varsale v. State of Maharashtra & Anr. in Criminal Writ Petition No. 996 of 1977 decided on December 15, 1997, which was 3 208311 followed in the case of Laxman Shavaru Kale v. State of Maharahstra & Anr. in Criminal Writ Petition No. 1712 of 2010. 3. According to the petitioner, the principle stated in the above-stated decisions applies on all fours to the case of the petitioner. However, it is noticed that, on the date on which this petition was filed praying for declaration that the continued detention of the petitioner is illegal and unlawful on and from 5th January, 2011 and for which reason, the respondents should be ordered to release the petitioner from prison forthwith, the Competent Authority, i..e, Additional Secretary, Home Department, Government of Maharashtra, vide order dated 19th July, 2011, re-considered the proposal of the petitioner and opined that, as regards the case of co-accused, Shankar Ram Mhatre, he had already completed 23 years and 8 months of sentence, including remission, whereas the petitioner has undergone only 17 years, 11 months and 21 days of sentence, including remission. Further, the petitioner can be considered for premature release on completion of 22 years of sentence, including remission, as per clause 4(b) of the Guidelines dated 15th March, 2010. In other words, the co-accused was ordered to be released, as he had already completed 22 years of sentence period, including remission, in connection with the said 4 208311 offence. As a result of this order, the petitioner has amended the petition, and has now prayed for quashing and setting aside the said order dated 19th July, 2011 on the further grounds incorporated in the Writ Petition. 4. The principal question that needs to be addressed in this case is: Whether the petitioner has been rightly categorised as covered by clause 4(b) of the Guidelines of 2010. As regards that question, we find that there is no challenge, that the petitioner has been convicted in connection with the offence punishable under Sections 452 and 302 read with 149 of the I.P.C. for having caused death. Considering the circumstances in which the offence was committed by the accused named in the said case in which the petitioner was named as accused No. 18, no fault can be found with the decision of the Authorities to place him under clause 4(b) of the Guidelines of 2010. As per the said Guidelines, the convict is required to undergo total 22 years of sentence period, including remission, with at least 14 years of actual imprisonment. From the decision of the Appropriate Authority dated 19th July, 2011, it is amply clear that, as regards co-accused Shankar Ram Mhatre, he had already completed more than 22 years of sentence period, including remission, as required by clause 4(b) of the 5 208311 said Guidelines, i.e., more than 23 years and 8 months of sentence. It is for that reason he was ordered to be released by the Competent Authority vide order dated 4th January, 2011. As regards the petitioner, it has been found that, till 25th May, 2011, the petitioner has undergone only 17 years, 11 months and 21 days of imprisonment, including remission. Since that was less than 22 years of imprisonment, including remission, as specified by clause 4(b) of the Guidelines of 2010, the Appropriate Authority was justified in concluding that the case of the petitioner can be considered for premature release only upon completion of 22 years of imprisonment, including remission period, subject to fulfilment of other requirements under the Guidelines. No fault can be found with the said opinion recorded by the Appropriate Authority. In that view of the matter, it is not a case of discrimination as was pleaded by the petitioner. 5. According to the petitioner, several important points have been overlooked, such as (1) the applicability of clause 4(b) of the 2010 Guidelines, (2) the respective roles of co-accused Shankar Ram Mhatre, on the one hand, and that of the petitioner, on the other hand, (3) the role of Shankar Ram Mhatre was prominent, whereas the role of the petitioner was only that of exhorting, (iv) Shankar Ram Mhatre had 6 208311 shot down the deceased with his own gun, whereas the petitioner was exhorting, (v) the principle of common intention cannot be extended while applying Guidelines for premature release, (vi) the period of actual imprisonment undergone by Shankar Ram Mhatre and the petitioner is equal, (vii) the remissions earned by Shankar Ram Mhatre are more because he was physically fit to travel to open prison, where they earn 390 days of remission per annum, whereas the petitioner was unfit for travel, being diabetic, having numbness in left hand, lost one finger and having lost sight of one eye. 6. The counsel for the petitioner, after closure of the arguments, had filed a praecipe praying for permission to amend the Writ Petition or to allow the petitioner to withdraw the petition and file fresh petition. As regards the request for permitting the petitioner to amend the petition to urge further grounds, ordinarily, we would not have declined that request. But, in this case, even if we were to allow the petitioner to urge the abovenoted points, which have not been specifically taken in the Writ Petition, the question is: Whether that can be the basis to grant any relief to the petitioner in the context of the exercise of power by the Appropriate Authority under Section 432 (1) of the Code of Criminal Procedure and other enabling powers 7 208311 thereunder? It is well-established position that the convict does not have right of premature release. His only right is to be considered for premature release as and when he becomes eligible in that behalf as per the extant Regulations. The proposal of premature release of convicts is required to be examined, keeping in mind the parameters specified in Sections 432, 433 and 433-A of the Code read with the Guidelines issued by the State Government from time to time. A convict can be released prematurely only upon fulfilment of all stipulations contained in the aforesaid provisions and the relevant Guidelines. As per the mandate of the provisions of the Code, no convict can be prematurely released until completion of actual 14 years of imprisonment. Besides, the prisoner has to fulfil all other parameters specified in the Guidelines issued by the State Government as may be applicable to his case. No doubt, the petitioner in this case has completed 14 years of actual imprisonment, but that, by itself, is not sufficient to release him prematurely. He is required to fulfil other criteria specified in the applicable Guidelines, inter alia, the Guidelines of 2010. His case has been categorised as covered by clause 4(b) thereof. As already held by us, we do not find any infirmity in the said categorisation, considering the background and circumstances in which the offence in question was committed by the accused persons. 8 208311 7. The fact that the petitioner was denied opportunity of being sent to open prison which would have enabled him to earn higher remission period or that there are other compassionate circumstances such as he has already become senior citizen, having attained the age of 62 years, or has lost complete vision of his right eye and only has 40% vision in his left eye, and that he has lost middle finger of the right hand and was suffering from numbness of his left-hand because of being highly diabetic or that his wife has suffered paralytic stroke and is completely bed-ridden - these circumstances cannot be the basis to overlook the stipulation of minimum sentence period specified in the Code and the Guidelines applicable to the case of the petitioner. As aforesaid, as per the said Guidelines, the petitioner will have to undergo minimum sentence period of 22 years, including remission. That cannot be dispensed with or overlooked by the Authorities while deciding the proposal in exercise of powers under Section 432 of the Code. It is only after the petitioner completes the required sentence period of 22 years, including remission, he would be entitled for consideration of his proposal for premature release, and not earlier to that. Even after completion of 22 years of imprisonment, including remission, the petitioner will have to fulfil other requirements specified 9 208311 by the extant Regulations and the Appropriate Authority will have to take into account all those matters before exercising discretion in favour of the petitioner. As observed by the three Judges Bench of the Apex Court in its decision rendered in the case of State of Haryana & Ors. v. Jagdish - (2010) 4 SCC 216, in particular paragraphs 46 to 48, the Authority will have to weigh all matters before taking a final decision on the proposal. The said paragraphs read thus:- “46. At the time of considering the case of pre-mature release of a life convict, the authorities may require to consider his case mainly taking into consideration whether the offence was an individual act of crime without affecting the society at large; whether there was any chance of future recurrence of committing a crime; whether the convict had lost his potentiality in committing the crime; whether there was any fruitful purpose of confining the convict any more; the socio-economic condition of the convict's family and other similar circumstances. 47. Considerations of public policy and humanitarian impulses - supports the concept of executive power of clemency. If clemency power exercised and sentence is remitted, it does not erase the fact that an individual was convicted of a crime. It merely gives an opportunity to the convict to reintegrate into the society. The modern penology with its correctional and rehabilitative basis emphasis that exercise of such power be made as a means of infusing mercy into the justice system. Power of clemency is required to be pressed in service in an appropriate case. Exceptional circumstances, e.g. suffering of a convict from an incurable disease at last stage, may warrant his release even at much early stage. `Vana Est Illa Potentia Quae Nunquam Venit In Actum' means-vain is that power which never comes into play. 48. Pardon is an act of grace, proceedings from the power entrusted with the execution of the laws, which exempts the individual on whom it is bestowed from the punishment which law inflicts for a crime he has committed. Every 10 208311 civilised society recognises and has therefore provided for the pardoning power to be exercised as an act of grace and humanity in appropriate cases. This power has been exercised in most of the States from time immemorial, and has always been regarded as a necessary attribute of sovereignty. It is also an act of justice, supported by a wise public policy. It cannot, however, be treated as a privilege. It is as much an official duty as any other act. It is vested in the Authority not for the benefit of the convict only, but for the welfare of the people; who may properly insist upon the performance of that duty by him if a pardon or parole is to be granted.” 8. Suffice it to observe that the petitioner is not right in contending that his case is similar to that of the case of the co-accused, who has already been released by the Authorities in terms of order dated 4th January, 2011 on completion of 14 years, as is contended. It is, therefore, not a case of having caused any discrimination to the petitioner while considering his proposal. In that view of the matter, the dictum in the case of Mahendra Tarachnd Varsale (supra) and Laxman Shavaru Kale (supra) will have no application to the fact situation of the present case. We may place on record the argument of the learned A.P.P. that the petitioner should not be permitted to place reliance on the aforesaid two unreported orders, as the State Government has already challenged the decision of this Court in the case of Laxman Shavaru Kale before the Apex Court, inter alia, on the ground that the principle of parity cannot be invoked, if it is noticed 11 208311 that the order in favour of the co-accused is not legal and proper. To put it differently, the argument of the learned A.P.P. is that the concept of equality enshrined in Article 14 of the Constitution is a positive concept. Article 14 cannot be invoked for perpetuating irregularities or illegalities. The Court can command the State to give equal treatment to similarly situated persons; but cannot issue a mandate that the State should commit illegality or pass wrong order, because, in another case, such an illegality has been committed or wrong order has been passed. Thus, even if the petitioner, who has approached the Court, can be said to be similarly placed, cannot invoke the jurisdiction of the High Court and seek a direction that the same irregularity or illegality be committed in his favour by the State or his agencies / instrumentalities. To buttress this submission, reliance is placed on recent decision of the Apex Court in the case of Agenda Sports v. Union of India – (2009) 15 SCC 705. We may notice the submission of the learned A.P.P. that the exposition in the case of Mahendra Tarachnd Varsale is not correct statement of law. Inasmuch as, in that case, even though the Court found that, ordinarily, a prisoner is liable to be released from prison only after completion of the period of sentence, as provided under the Guidelines framed by the State Government under Section 433 of the Cr.P.C., ordered release of the petitioner on the ground that 12 208311 the co-accused in the same case was already released even though he had not completed the required 24 years of imprisonment, including remission. In view of the finding already recorded earlier that the petitioner’s case is not similar to that of the case of the co-accused Shankar Ram Mhatre, it is not necessary to dilate further on this aspect. 9. The next question is: Whether the petitioner should be permitted to withdraw this petition to enable him to pursue fresh petition. We have no difficulty in acceding to the request of the petitioner to permit him to withdraw this petition, but we may make it clear that the withdrawal of this petition will not entitle the petitioner to re-agitate the grounds which are relevant and material for examining the correctness of the decision of the Appropriate Authority dated 19th July, 2011 passed in exercise of powers under Section 432 of the Code. However, at the same time, we may notice that it will not preclude the petitioner to pursue remedy of invoking clemency power of the President or the Governor under Article 72 or Article 161 of the Constitution, as the case may be, even before he completes the incarceration period provided in the Guidelines framed by the State Government under Sections 432, 433 and 433-A of the Code. The Apex Court in the case of State of Haryana (supra), has noticed that 13 208311 Articles 72 and 161 of the Constitution provide for residuary sovereign power. Thus, there can be nothing to debar the Authority concerned to exercise such power, even after rejection of one clemency petition. In paragraph 38 of the said decision, the Apex Court has observed thus:- “38. In view of the above, it is evident that the clemency power of the Executive is absolute and remains unfettered for the reason that the provisions contained under Article 72 or 161 of the Constitution cannot be restricted by the provisions of Sections 432, 433 and 433A Cr. P.C. though the Authority has to meet the requirements referred to hereinabove while exercising the clemency power. To say that clemency power under Articles 72/161 of the Constitution cannot be exercised by the President or the Governor, as the case may be, before a convict completes the incarceration period provided in the short- sentencing policy, even in an exceptional case, would be mutually inconsistent with the theory that clemency power is unfettered.” 10. In view of the above, the petitioner may be free to take recourse to the other remedy as may be permissible in law. Whether the petitioner’s case would fall in the exceptional category for exercise of such power is a matter to be considered in the said proceedings. We may not be understood to have expressed any opinion, one way or the other, on the said issue merely because we have permitted the petitioner to withdraw this petition. 11. In view of the above, the petition is allowed to be withdrawn with the aforesaid observations. 14 208311 12. While parting, we deem it appropriate to call upon the State Government to disclose as to the outcome of the inquiry held against the concerned Officers into the premature release of co-accused Francis Albert Rocha and about the missing file regarding premature release of the said prisoner as noted in the concluding paragraph of the Judgment in Mahendra Tarachand Varsale (supra). Further, to disclose whether any similar action/inquiry has been initiated against the Officer(s) with regard to premature release of co-accused Ambadas Shavaru Kale and Shivaji Dhonduram Kale before completion of the period specified in the applicable guidelines as noted in the order dated 30th August, 2010 in Criminal Writ Petition No.1712 of 2010. That be disclosed on affidavit to be filed by the Secretary, Home Department. The proposed affidavit be filed on or before 25th November, 2011. The matter be notified on 28th November, 2011 before the appropriate Bench under caption `directions’ for reporting compliance. P.D. KODE, J. A.M. KHANWILKAR, J.