1 criwp-744.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO. 744 OF 2011 Ravindra @ Boby Anant Surve, age 50 years, occup. pensioner, Resident of, at present in Open Prison, Paithan, Dist. Aurangabad. Petitioner versus 1. The State of Maharashtra,through Public Prosecutor, High Court at Aurangabad. 2. The Secretary, Home Department, Mantralaya, Mumbai - 400 032. 3. The Superintendent of Prison, Open Prison, Paithan, Taluka Paithan, District Aurangabad. Respondents ------ Smt. A.N. Ansari, Advocate, for the petitioner. Shri V.D. Godbharle, A.P.P. for the respondents. ------ Coram : A.H. Joshi and A.M. Thipsay, JJ. Date : Novembere 21, 2011. Judgment (Per: Joshi, J.) 1. Rule. Rule made returnable forthwith and heard by consent. 2. Petitioner was accused No. 5 in Sessions Case No. 444 of 1992. He was convicted, along with other accused persons, for offence punishable under Section 302 of 2 criwp-744.11 I.P.P.C, and sentenced for life, by learned Additional Sessions Judge, Greater Bombay, vide judgment and order dated 2.11.1995. 3. The petitioner has undergone imprisonment of around 14 years. 4. Respondent No.1 has categorized petitioner under clause no.5(b) of the guidelines dated 11.5.1992, corresponding to clause No.6(a) as contained in guidelines dated 15.3.2010, and decided that petitioner will have to serve the imprisonment for 28 years. 5. It is shown from the order dated 24.3.2006, annexure C (page 54/55 of petition) issued by Under Secretary, Home Department, Govt. of Maharashtra, to the Superintendent, Yeravada Central Prison, Pune . 6. By this petition, the petitioner has challenged his said categorization, on the grounds of discrimination and erroneous application of mind. 7. It is shown that Santosh alias Kalya Jagannath Shirwadkar, who is accused No. 3 Sessions Case No. 444 of 1992 (i.e. the same Case in which present petitioner was accused No.5) has been categorized as prisoner under clause 3 criwp-744.11 3(b) of the guidelines dated 11.5.1992 for serving the sentence for 26 years. 8. The petitioner has pointed out that:- (a) The accused persons have no antecedent criminal record and the quarrel leading to death had arisen over the programme of Dahihandi and no special and separate overt-acts are attributed against the present petitioner. (b) The order dated 27.7.2011 categorizing him as prisoner under clause 5(b) of the guidelines dated 11.5.1992, is based on an assumption that the dispute leading to the offence was a product of "gang war" 9. A perusal of the impugned order reveals that it proceeds on the basis that the case was of a dispute between two groups, totally different from the concept of gang war. Further, the ground on account of which accused Santosh has been categorized in clause 3(b), is not, in any manner, distinct from the situation in which the petitioner has been held guilty. Santosh and Petitioner, being accused in the same offence, stand on the same footing and belong to the membership of the same class or group of accused persons. 10. Therefore, we hold that the treatment meted out to petitioner is liable to be described as 'discriminatory'. 4 criwp-744.11 11. Classification of the petitioner as a member of 'gang' is also liable to be described as one, based on totally erroneous reading of the judgment of the Sessions Court. 12. We, therefore, by this order, modify the impugned order dated 27.7.2011, by issuing a writ of certiorari and expunge the observations of 'gang war' from the said order, and direct that the petitioner be treated as prisoner, as one falling in clause 3(b) of the guidelines dated 11.5.1992 corresponding to clause 4(d) of the guidelines dated 15.3.2010 in terms of prayer clause (B) of the Petition. Rule is made absolute in terms foregoing. (A.M. THIPSAY, J.) (A.H. JOSHI, J.) pnd/criwp-744.11