1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO.712 OF 2009 1) Gangadhar Vithoba Dhakne, ] Prisoner No.4632, Open Jail ] Paithan, Aurangabad. ] ] 2) Ramesh Sakharam Jaibhai, ] Convict No.3677, ] Open Prison, Paithan, ] Paithan, District Aurangabad.].. Petitioners. Versus 1) The State of Maharashtra ] Through Secretary, ] Home Department, ] Mantralaya Mumbai – 32. ] ] 2) The Inspector General of ] Prison, ] Maharashtra State, Pune, ] ] 3) The Superintendent, ] Open Prison, Paithan, ] Paithan, ] District Aurangabad. ].. Respondents. ----- Smt. A.N. Ansari, Advocate,for petitioners. Shri S.D. Kaldate, Additional Public Prosecutor for respondents ----- CORAM : NARESH H. PATIL & SHRIHARI P. DAVARE, JJ. DATED : 16th September, 2009. 2 ORAL JUDGMENT (Per Shrihari P Davare, J.): 1) Rule. By consent of the counsel for the parties, rule made returnable forthwith and taken up for final hearing. 2) Petitioners – namely, Gangadhar Vithoba Dhakne and Ramesh Sakharam Jaibhai who are convicts presently in Open Prison, Paithan, were convicted for an offence punishable under section 302 read with section 34 of the Indian Penal Code by way of judgment and order rendered by Additional Sessions Judge Greater Bombay on 18-8-1998. the incident in question occurred on 4-1-1995 and both the petitioner were arrested on the same day i.e. 4-1-1995 and they were under trial prisoners since the said date. 3) By two different orders dated 19th May 2009 the Government of Maharashtra has fixed the 3 category of both the petitioners – convicts and they were categorised under category 2-b of the guidelines dated 11-5-1992. They were ordered to undergo 24 years of imprisonment including all remissions subject to completion of actual imprisonment of 14 years under Section 432 (1) of the Code of Criminal Procedure. Accordingly the date of release of the petitioners was given as 27th May 2010. 4) However, the grievance of the petitioners is that they are not being given the benefit of two years State remission granted by the Government of Maharashtra on the eve of Golden Jubilee of Independence by way of Circular / communication dated 6th August 1997 and the petitioners are denied the benefit of the said State remission of two years contending that since the date of conviction of the said convicts is later i.e. Dated 18-8-1998, they were not the convicts on 15-8-1997, and hence the said State 4 remission cannot be given to them. 5) The petitioners / convicts placed reliance on the order passed by the Bombay High Court, Nagpur Bench, in Criminal Writ Petition No.163 of 2008 on 20th June 2008 and the order passed in Criminal Writ Petition No.244/2008 on 30th June 2008. The petitioners contend that similar issue was dealt with in the said orders and it was held that communication dated 6-8-1997 giving remission on the eve of Golden Jubilee of Independence under section 432(1) of the Code of Criminal Procedure is not only applicable to the convicts on 15-1-1997 but it is applicable to the under trial prisoners who were in custody as on 15-8-1997. 6) The respondent No.3 – Ganesh Shankar Shelke, Jailer Group-II, Open District Prison, Paithan has filed affidavit-in-reply and thereby denied the averments and contentions made by the petitioners in the present petition specifically 5 and opposed the present petition vehemently. It is stated in the said reply that SLP (Cri) No. 1798 of 2009 had been filed before the Hon’ble Supreme Court challenging the above referred orders passed by the Bombay High Court, Nagpur Bench and the said petition has been listed on Board on 1-10-2009. In the light of the said facts, Mr. Kaldate, learned Additional Public Prosecutor opposed the present petition. 7) We have perused the orders passed by the Government of Maharashtra on 19th May 2009 categorizing the prisoners under category 2(b) of the Guidelines dated 11-5-1992. We have also perused the copies of the orders passed in Criminal Writ Petition No.163 of 2008 dated 20th June 2008 and in Criminal Writ Petition No.244 of 2008 on 30th June 2008 by Bombay High Court, Nagpur Bench. 8) Keeping in mind the said aspects and coming to the present case wherein the prisoners 6 – convicts were arrested on 4-1-1995 and were under trial prisoners since then, and consequently, were convicted on 18-8-1998. Meanwhile by way of Circular / communication dated 6th August 1997 issued by the Government of Maharashtra, Home Department, the State remission was granted with effect from 15-8-1997 on the eve of Golden Jubilee of Independence applicable to the convicts on the said date invoking the provisions of Section 432(1) of the Code of Criminal Procedure. 9) Now, the question involved in the present matter is having a narrow compass that whether the said circular / communication dated 6-8-1997 which was made effective from 15-8-1997 to the convicts on the said date is applicable to the present prisoners / convicts in the present matter and whether the benefit of the said circular / communication can be given to the petitioners herein. Admittedly, the petitioners herein were not convicts on 15-8-1997. However, 7 they were under trial prisoners since 4-1-1995 and were ultimately convicted on 18-8-1998 and hence computation of their sentence relates back to their date of arrest and period undergone in custody. Hence we are inclined to hold that, the petitioners are entitled to the benefits of the circular / communication dated 6-8-1997 and more particularly, clause 15 thereof i.e. State remission of 2 years on the eve of Golden Jubilee of the Independence under section 432(1) of the Code of Criminal Procedure. 10) As regards the contention raised by the respondents in respect of pendency of the SLP before the Hon’ble Supreme Court, Mr. Kaldate, learned Additional Public Prosecutor was unable to point out that any interim relief was obtained therein. 11) In the light of the facts and circumstances we are of the considered view that, the petition deserves to be allowed and the same 8 is allowed. The respondents are directed to extend the benefit of the State remission by way of the circular / communication dated 6th August 1997 to the petitioners. 12) Rule is made absolute in the above terms. 13) At this stage, Mr. Kaldate, learned Additional Public Prosecutor makes a request that operation of the above order be stayed for a period of four weeks. Mrs. Ansari opposed the said prayer. Considering the rival submissions, the request made by Mr. Kaldate stands rejected since there is no substance therein. (SHRIHARI P. DAVARE, J.) (NARESH H. PATIL, J.) rsl / crwp.712.09