1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CRIMINAL WRIT PETITION NO. 437 OF 2010 MURLIDHAR TUKARAM MAGAR .. .. PETITIONER VERSUS THE STATE OF MAHARASHTRA & ANR... ..RESPONDENTS Mr. N. N. Gawankar i/b Arfan Sait for the petitioner Mr. H. J. Dedhia, APP. CORAM: SMT. RANJANA DESAI & SMT. MRIDULA BHATKAR,JJ. DATED : 12th March, 2010 P.C. The petitioner is a life convict. He is undergoing imprisonment in Nashik Road Central prison. He was convicted by the IInd Additional Sessions Judge, Parbhani in Sessions Case No. 13 of 1992 and sentenced to suffer life imprisonment. He has completed 24 years of imprisonment including remissions. His grievance is that by order dated 3/1/06 the Government of Maharashtra has wrongly placed him in category 6(a) of 2 Guidelines dated 11/5/92 (“the said Guidelines”) while considering his case for premature release under the 14 years’ Rule. 2. According to the petitioner the murder had taken place without premeditation. The petitioner has no criminal history and, therefore, the petitioner should have been placed in category 3(a) of the said Guidelines. Reliance is placed on judgment of a Division Bench of this court in Criminal Writ Petition No. 644 of 1992 dated 8 th October, 1992 (S.W. Puranik & E.D.D.S. Da Silva, JJ.), Dnyandeo Sidhu Pote v. The State of Maharashtra. He has, therefore, prayed that order dated 3/1/06 be set aside and his case be declared to be covered by category 3(a) of the said Guidelines. 3. Before, we proceed further, we must note that the petitioner had filed Criminal Writ Petition No. 1696 of 2006. The said petition was disposed of on 22/1/2007 by a Division Bench to which one of us (Smt. Ranjana Desai, J.) was a party. It was pointed out to the Division Bench that the petitioner had tried to escape from prison and, therefore, he has been put in category 6 (a). Affidavit was filed by Shri Avinash M. Sable, Under Secretary to the Government of Maharashtra to that effect. On consideration of the said affidavit and category 6 (a), the Division Bench refused to interfere with the impugned order. The Division Bench made it clear that dismissal of the 3 petition will not come in the way of the authorities in considering the petitioner’s application afresh and in accordance with law. 4. We have perused the judgment under which the petitioner was convicted. It is a case in which the deceased died of a single blow. In paragraph 21 of the judgment learned Sessions Judge has observed that it is not a premeditated murder. Therefore, there is some substance in the contention of learned counsel for the petitioner Mr. Gawankar, that this case could fall in category 3(a) of the guidelines dated 11/5/1992. The reason why the petitioner is put in category 6(a) is because he tried to escape. Category 6(a) pertains to escapers and period of imprisonment to be undergone including remission subject to minimum 14 years of actual imprisonment including set off period for this category is 28 years. The petitioner did try to escape from the prison. The question is whether in the circumstances of the case he can be placed in category 6(a). 5. It is not disputed before us that because the petitioner tried to escape from prison an offence was registered against him under Section 224 of the Indian Penal Code and the Chief Judicial Magistrate, Aurangabad by his order dated 20/12/1994 sentenced him to suffer RI for six months and to pay fine of Rs.100/- in default to suffer RI for 15 days. It is also not disputed before us that for escaping from prison and remaining outside illegally for a 4 period of 10 days the punishment of forfeiture of remission has been imposed on the petitioner. What needs to be examined is whether because of the said offence for which he has been convicted he should be placed in category 6 (a) which provides for 28 years’ of imprisonment when his case prima facie appears to have to be covered by category 3(a). 6. In Dnyandeo Pote’s case, Division Bench of this court dealt with a similar fact situation. The Division Bench observed that for the offence of escaping from prison the petitioner therein was convicted under Section 224 of the I.P.C. Second punishment that was imposed on him was cancellation of substantial period of remissions earned by him. Putting him in category 6 (a) was described by the Division Bench as punishment and was violative of his rights under Article 20 sub-clause (2) of the Constitution of India. The Division Bench observed that it was indeed a case of double jeopardy inflicted upon the petitioner. We respectfully concur with the view expressed by the Division Bench. The petitioner has been convicted under Section 224 of the I.P.C. For offence of escaping from the prison his remission has been cut by imposing prison punishment. It is, therefore, not right to place him in category 6 (a) which pertains to escapers and enhance his period of imprisonment. That would amount to double jeopardy. This judgment was not brought to the notice of this court when it decided Criminal Writ Petition No. No. 622 of 1992. However, the Division Bench 5 had left it open to the State Government to consider the petitioner’s application afresh in accordance with law having regard to his alleged good conduct in jail. 7. We, therefore, set aside the impugned order and direct the Under Secretary to the Government of Maharashtra to reconsider the petitioner’s case in the light of judgment of this court in Dnyandeo Pote’s case and after carefully perusing the observations made by learned Sessions Judge in his judgment and order dated 24/2/1994 which we have quoted hereinabove and take a fresh decision as to whether indeed the petitioner’s case falls in category 3(a) of the Guidelines dated 11/5/1992. The petitioner’s case be considered as expeditiously as possible and at any rate within a period of eight weeks from the date of receipt of this order. Petition is disposed of in the aforestated terms. (SMT. RANJANA DESAI, J.) (SMT. MRIDULA BHATKAR, J.)