1 wp1629.10.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION Criminal Writ Petition No. 1629 of 2010 Mr. Kishor Jairam Vaity ....Petitioner Vs. The State of Maharashtra ....Respondent Mr. Madhav Jamdar, advocate for the petitioner. Mr. A.S.Gadkari, APP for State. CORAM:- A.M.KHANWILKAR AND U.D. SALVI, JJ DATED:- SEPTEMBER 03, 2010 P.C. Heard Counsel for the Petitioner and the Learned APP. 2. This Petition was originally filed through jail but during the pendency of the Petition, the Petitioner appointed his own Advocate. We have heard the Advocate for the Petitioner. This Petition essentially takes exception to the order passed by the Section Officer, Home Department, Government of Maharashtra dated 7th September, 2009 whereby the Petitioner’s request for 2 wp1629.10.sxw premature release has been decided. According to the Petitioner, he has been wrongly placed under category no. 1(c) of the guidelines for premature release under the “14 Year Rule” of prisoners undergoing the life sentence, dated 11th May, 1992. On the basis of that assumption the authority has remitted that portion of the sentence of imprisonment of life which is in excess of 24 years of total imprisonment including of remissions, subject to the completion of actual imprisonment of 14 years. According to the Petitioner his case was covered by category no. 1(a) of the guidelines of 1992, having regard to the fact that 1(a) pertains to convicts who have no previous criminal history and committed the offence in an individual capacity in a moment of anger and without premeditation. From the Judgment of the Sessions Court it is noticed that the Petitioner had committed murder of the deceased without premeditation over quarrel with the deceased as she had prevented him to meet her daughter. Besides there is no previous criminal history recorded against the Petitioner. As per the said guideline of 1992, the Petitioner ought to be released prematurely on completion of 22 years of sentence including remission, subject to 14 years of actual imprisonment. However, according to the Petitioner, the Petitioner’s case will have to be considered for premature release, keeping in mind the latest policy articulated by the State Government as noticed from Government Resolution dated 11th April, 2008. From the annexure-1 to the said Government 3 wp1629.10.sxw Resolution, the Petitioner’s case may fall in category 2(a) which corresponds with category 1(a) of 1992 policy but provides for only 20 years of imprisonment including set off and remission, subject to minimum of 14 years of actual imprisonment. According to the Petitioner, it is common ground that as on March 2010, the Petitioner had actually undergone sentence for a period of 16 years, 4 months and 2 days and with remission it would be 17 years, 4 months and 2 days. 3. Counsel for the Petitioner has also placed reliance on the recent decision of the Apex Court in the case of State of Haryana & ors. v/s. Jagdish reported in (2010) 4 SCC 216 which has considered the question as to whether the policy which makes a provision for remission of sentence should be that which was existing on the date of the conviction of the accused or should it be the policy that exists on the date of consideration of convict’s case for premature release by the appropriate authority? The Apex Court has answered the said question by opining that State has to exercise its power of remission keeping in mind any benefit to be construed liberally in favour of the convict which may depend upon case to case and for that purpose to relate to a policy which would be in favour of the convict. The liberal policy prevailing on the date of consideration of the case for premature release ought to be reckoned. 4 wp1629.10.sxw Considering the above, in our opinion, the appropriate course is to set aside the impugned decision dated 7th September, 2009 and instead call upon the appropriate authority to reconsider the case of the Petitioner on its own merits in accordance with law and pass fresh orders as may be advised. That be done as expeditiously as possible, in any case, not later than six weeks from today. Petition disposed of accordingly. (U.D. SALVI, J) (A.M.KHANWILKAR, J)