1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL STAMP NO.32 OF 2011 Suhas Purshottam Joshi .. Appellant. Vs. The State of Maharashtra .. Respondent. Mrs. A. S. Pai APP for the State. CORAM : B. H. MARLAPALLE & U. D. SALVI, JJ. DATED : MARCH 16, 2011. ORAL ORDER: (PER B. H. MARLAPALLE, J.) 1. In obedience of the order dated 11th March, 2011 the appellant – Shri Suhas Purshottam Joshi has been produced before us. In our earlier order dated 28th January, 2010 we have noted that the proposal dated 18.10.2010 submitted by the Additional Director General of Police (Prisons) to the Principal Secretary (Appeals), Home Department, Government of Maharashtra was not decided and, therefore, Shri Sadanand Gavit, Joint Secretary from the Home Department filed an affidavit. A copy of the proposal submitted on 18.10.2010 by the Additional Director General of Police (Prisons) is also placed on record. Ms.Pai, learned A.P.P. has also placed before S 2 us the record which contains, inter alia, the proposal dated 21.5.2010 submitted by the Assistant Superintendent, Central Jail, Aguada regarding nominal role of the prisoner (Shri Joshi) confined in the said jail. The letter dated 26.2.2010 addressed by the District Superintendent of Police, Porvorim, North Goa to the Deputy Commissioner of Police, Zone I, Greater Mumbai states that Shri Joshi was undergoing life sentence at Yervada Central Prison, Pune. On 17.1.2005 by his request he came to be transferred to the Central Jail, Aguada, Goa under the reciprocal transfer policy. By the said letter the District Superintendent of Police also requested the Deputy Commissioner of Police, Zone – I, Mumbai to furnish information regarding premature release of Shri Suhas Joshi (Convict Prisoner No.716 of 2005). Despite all these correspondence no final order was passed by the Home Department, Government of Maharashtra for the release of Shri Joshi on completion of life sentence including remissions as available under the scheme/guidelines framed by the State of Maharashtra in exercise of its powers under section 432 of the Code of Criminal Procedure. 2. The appellant was employed with the Bank of California, Branch at Nariman Point from 1991 onwards and the said bank was located at the relevant time at the 9th floor, “B” Wing, 91/92 Mittal Court Building, Nariman Point, Mumbai. The said bank used to have three shifts i.e. 7 am to 2 pm (1st shift) 2 pm to 11.30 pm (2nd shift) and 10.30 am to 7.30 pm (General shift). On 31.10.1994, Shri Joshi 3 was in the second shift which started from 2 pm. At about 8 pm he assaulted Shri Kalyansundaram with a sickle causing multiple injuries including the injuries on his head and shoulder in presence of Shri Satyanarayan Pillai and Anand Neetthiyath (co-employees). Shri Joshi also assaulted another employee by name Meena Valkina. She was working as Operations Controller of Customer Service. She also sustained multiple bleeding injuries. The accused was employed as a Telex Operator. He threatened all other employees present in the bank of dire consequences if anyone intervened and, therefore, under the eminent threat for their life they ran out of the branch. The accused closed the shutters from inside, went to the balcony and in an attempt to commit suicide jumped from the 9th floor and fell on the third floor terrace with multiple injuries and in alcoholic condition. The employees who were driven away alerted the security and the police arrived at the scene and broke open the doors. The police sought help of Dr.Paresh Desai who was around and after he examined both the victims he declared them dead. One of the employees of the bank or members of the police scheme located the accused lying on the third floor terrace and he was picked up from there. The weapon used by him was lying on the ground and behind the window alongwith a pair of shoes. The accused was put on trial in Sessions Case No.1196 of 1995 after he was arrested on 31.10.1994 for the offence punishable under section 302 of IPC. The learned Addl. Sessions Judge for Greater Mumbai vide his order dated 23rd March 1998 convicted the accused for the offence 4 punishable under section 302 and sentenced him to suffer life imprisonment. 3. The plea of insanity was taken before the trial Court as is evident from the order of conviction and sentence and in the oral evidence of more than one doctors indicated that the accused had become insane. However, from the evidence some witnesses were examined including D.W.3 – Dr.Dilip Deshmukh. The trial Court held that it was for the defence to prove that the accused was insane when he committed the crime and the evidence adduced by the defence did not prove the same. We also noted that there was not much of resistance to the charge framed against the accused. It was admitted that he caused homicidal death of two of his colleagues while in the office and by inflicting multiple blows by a sickle. He did not stop there alone. He used screw-drivers and pierced into the head of each of the victims. Those screw drivers were removed by P.W.6 during the post mortem. The prosecution also did not deny that the accused after committing the crime had jumped from the 9th floor (may be with intention to commit suicide) and was lying in injured condition on the terrace of the third floor. He survived by killing two of his colleagues. It is under these circumstances he did not choose to file an appeal against the order of conviction and sentence passed on 23rd March, 1998 for more than 12 years. On our enquiry he informed us that the only intention in not filing an appeal was to accept the culpability and suffer imprisonment for life as the penance 5 for the wrong done. He also stated that he filed the appeal only after he realized that despite the period of actual imprisonment in excess of 16 years he was not released from the jail and, therefore, he sought intervention of this court. 4. The details submitted by the Assistant Superintendent, Central Jail, Aguada regarding the nominal role of the prisoner i.e. Shri Joshi indicat that as on 31.10.2010 he had undergone imprisonment as under: Years Months Days (i) Actual imprisonment 16 0 00 (including the period as under trial prisoner) (ii) Remissions earned as 3 3 13 on 30.4.2010 Whereas the proposal submitted by the Addl. Director General of Police (Prisons) on 18/19th October, 2010 states that the appellant had as on 30.10.2009 completed a total period of imprisonment of 20 years 11 months and 19 days. 5. Mrs.Pai, the learned A.P.P. on instructions from the Officers present from the Home Department stated that the proposal for remissions would be considered and that the appellant will be classified in the category enlisted at serial no.3(d) of the guidelines 6 for premature release of prisoners sentenced to life imprisonment or death penalty commuted to life imprisonment as have been brought into force with effect from 11th May, 1992. Category 3 of the guidelines reads as under: “3. MURDERS FOR OTHER REASONS (a) Where a murder is committed in the 22 years of total course of a quarrel without premeditation imprisonment in an individual capacity and where the including set off. person has no previous criminal history. (b) As at (a) above but with 24 years. premeditation or by a gang. (c) Murders resulting from trade union 26 years. activities and business rivalry. (d) Murder committed with premeditation 26 years. and with exceptional violence or perversity. 6. It was submitted by Mrs.Pai that in the instant case two murders were committed with premeditation and with exceptional violence and, therefore, the State Government proposes to classify the appellant in category 3(d) of the aforesaid guidelines. In the normal course we would have left the issue to be decided by the State Government. However, we have noted that as per the amended guidelines brought into force from 11th May, 1992, for remissions to be granted under Section 432 of the Code of Criminal Procedure the jails concerned were required to submit a proposal in respect of the 7 appellant on completion of 12 years of actual imprisonment for review under the “14 Year Rule”. Despite the fact that the Additional Director General of Police (Prisons) submitted belated proposal dated 18/19th October, 2010, precious little was done by the Home Department for passing the final order granting the remissions to the appellant. The present record of the appellant also shows that he did not engage in any act of omission or commission while he has been in jail for the last more than 16 years. He also stated before us that if he is released now under the May, 1992 guidelines as applicable to his case, he would not press for the instant appeal. 7. We have also enquired into his family background and other elder members of his family. He is the youngest of five brothers and one of the brothers is settled at Goa on his retirement as a Professor. The other three brothers have settled at Mumbai. He has a family house and agricultural land at village Auronda, Taluka Swantwadi, District Sindhudurg. He proposes to settle down at his village and look-after the agricultural land of the family. He is unmarried and appeared normal and full of repentance for the dastardly acts that he committed. 8. We have perused the reasoning set out in the order of conviction passed by the learned Addl. Sessions Judge. It has been admitted by the prosecution that motive behind the crime could not be established and as the accused had not seriously challenged his 8 culpability in the crime and on the face of evidence of eye witnesses, the issue of motive was inconsequential. The trial Court, therefore, proceeded to hold that it was the appellant, who caused the murder of two of his colleagues with a weapon (sickle). Category 3(d) of the guidelines is applicable to the murder committed with premeditation and with exceptional violence or perversity. In the instant case, the admitted evidence on record shows that the crime was committed with exceptional violence or perversity but there was no element of premeditation and for premeditation, undoubtedly, there has to be a motive behind the act. The letter dated 11th May, 1992 issued by the Home Department and addressed to the Inspector General of Prisons regarding the amended guidelines in paragraph 2 states that, “The guiding principles laid down herein indicate only a broad division of the pattern of crimes for the purpose of premature release of prisoners sentenced to imprisonment for life after 18th December, 1978 and do not cover all the categories of prisoners for various offences.” 9. There are in all eight main categories in the guidelines and for the present purpose only category no.3 : “Murders for other reasons” is relevant which in fact is not disputed by the State Government. The guidelines also indicate that unless the case of the convict falls in any of the specified categories, the case is covered by 9 category no.3 and under it the minimum total sentence provided is of 22 years. Having regard to the peculiar facts of this case, in our opinion, the case of the appellant comes close to category no.3(a) i.e. 22 years of total imprisonment. 10. Mrs. Pai, the learned APP, has placed before us the details of the calculation of remissions as made by the Superintendent of Yerawada Central Prison at Pune in the case of the appellant and as per the same he has, by now, completed a total sentence period of 19 years, 8 months and 10 days as on 28/2/2011. On our specific query, it was submitted by the learned APP that the order of conviction and sentence was passed on 23/3/1998 and the remissions will be calculated only from that date, though the appellant was arrested on 1/1/1994 and he remained as an under-trial prisoner throughout till the order of conviction and sentence was passed and the benefit of set off under Section 428 has been granted by the learned Additional Sessions Judge. She tried to support this plea of the Government by referring to Rule No. 7 of the Maharashtra Prisons (Employment of Prisoners) Rules, 1965, Rules 6 and 9 of the Maharashtra Prisons (Remission System) Rules, 1962 and Section 5 of the Prisons Act 1894. The said provisions are reproduced as under:- “Rule 7- Unless he so desires, no undertrial prisoner shall be allotted any work except that it shall be his duty to keep his bedding, clothing and yard, clean: 10 Provided that no such prisoner, shall be allotted any work which is to be executed along with a convicted criminal prisoner or outside his yard. Rule 6 – Subject to the provisions of these rules, ordinary remission at the scales prescribed in rule 8 may be granted to the following classes of prisoners, that is to say - (a) Non-habitual prisoners having a substantive sentence of rigorous imprisonment of three months and more; Explanation.- For the purpose of ascertaining whether or not narily be treated as standard reference; (b) prisoners sentenced to simple imprisonment of three months a prisoner is a habitual, the entries in court papers shall ordi-and more who volunteer to work and actually work; (c) prisoners undergoing imprisonment (whether simple or rigorous) irrespective of fine, who are working on conservancy jobs. (d) prisoners undergoing imprisonment in lieu of fine which immediately follows and is in continuation of the sentence which makes the prisoner otherwise eligible to remission. (e) ex-military prisoners for the period they pass while in transit or in military custody before their admission to prisons in the State of Maharashtra. Rule 9 – (i) Subject to the provisions of these rules (including this rule), ordinary remission shall be calculated from the first day of the calender month, if a prisoner was sentenced on that day, and in any other case, from the first day of the calender month next following the date of his sentence. 11 Provided that, where the broken periods spent in jail in the months in which a prisoner is released and readmitted together exceed 30 days, the prisoner may, in respect of these months be given remission as if he had been in prison for the calender month. Explanation.- (1) For the purposes of sub-rule (1), all out-periods, that is to say, release on furlough or transfer from one prison to another (which are reckoned as part of sentence) shall not be treated as broken periods. Explanation.-(2) If a prisoner is promoted as a convict officer in the course of any month and as such he has got a broken period in that capacity, he shall get ordinary remission admissible to the prisoners other than the convict officers in that month. (ii) In the case of prisoners falling under clause (f) or rule 7, they may be eligible for remission from the first day of the calendar month next following the date of their re-admission into the prison. (iii) No prisoner shall be granted ordinary remission for the month in which he is released. (iv) In the case of a prisoner, transferred from a sub-jail to a prison, the period spent by him in the sub-jail (excluding the period spent as an undertrial prisoner), shall be computed along with the period spent by him in the prison for calculating remission. (v) If a prisoner is undergoing two consecutive sentences, one of which is for a term of three months or more, and one of the sentences is remitted on appeal or otherwise, and the other sentence is not less than three months, any remission granted to him in respect of the sentence so remitted shall be taken into consideration for shortening his consecutive sentence.” 12 We are not impressed by the reasoning set out by Mrs. Pai in support of the contentions that the period of under-trial prisoner though is counted as a period of sentence because of the set off available under Section 428 of Cr.P.C., the same period cannot be taken into consideration for granting remissions. We see no such prohibition under any of the Rules cited by Mrs. Pai and, therefore, in our opinion, for granting remissions under the May 1992 guide-lines, the State of Maharashtra is required to consider the entire period of imprisonment i.e. from 1/1/1994 and not from 23/3/1998. It was also pointed out by the learned APP that after the appellant was admitted at the Central Prison, Aguada, Panji with effect from 17/1/2005, the remissions available to him will be as per the Remission Rules framed by the State of Goa in view of Rule No. 9 of Non-Statutory Rules – Section II (Removal of Prisoners), which reads as under: Rule 9 – A prisoner transferred under the reciprocal arrangements shall be governed by the Prison Rules of the State to which he has been transferred. The appropriate Government as defined in Section 402 Criminal Procedure Code will be the authority to order premature release of such prisoners under Section 401, Criminal Procedure Code. The appellant submitted that the remissions for the period of imprisonment undergone at the Central Prison, Aguada, Panji and 13 as placed on record, are not realistic. He claimed that he had never refused to work while in the said prison and he cannot be blamed if there was no work available or assigned to him by the jail authorities. he also pointed out that while in the prisons in the State of Maharashtra, he earned remissions anywhere from 114 to 126 days in each year, whereas in the prison at Goa, he has been shown to have earned the remissions from 36 to 76 days. He urged before us that the calculation of his remissions done for the period of imprisonment in the Central Prison at Aguada is not by a competent authority and it is required to be re-calculated, more so when the Remission Rules for the State of Goa are on the line of the Remission Rules framed by the State of Maharashtra. 11. In our opinion, the entire issue is left to the Government of Maharashtra through the Home Department to calculate the remissions available to the appellant, but on the basis that the imprisonment period commenced from 1/1/1994 and pass an appropriate order after re-verifying the total period of remissions available for the period he has been at the Central Prison, Aguada, Panji. This re-verification will have to be done by a competent authority In-charge for prisons in the State of Goa. At the same time, we make it clear that the case of the appellant would fall in category no.3(a) of the remissions guide-lines brought into force from May, 1992 by the Government of Maharashtra. 14 12. The appellant relied upon the decision of this court (Nagpur Bench) in the case of Chottu Ratan Lal Punekar vs. State of Maharashtra [2008 (3) Crimes 504 (Bom.)] in support of his case that even though he has been convicted by the order dated 23/3/1998, he would be entitled for the remissions announced by the State of Maharashtra on the eve of Golden Jublee of Indian Independence. However, the learned APP placed before us a copy of the order passed by the Supreme Court in SLP (Cri) No. 1798 of 2009 on 7/12/2009 wherein the order passed in the case of Chottu Punekar (Supra) has been stayed and the SLP is likely to appear before the Supreme Court for final disposal on 8/4/2011. We have no doubt that the State of Maharashtra will consider the appellant’s case for grant of remissions declared on the eve of Golden Jublee of Indian Independence as per the final decision of the Supreme Court in the case of Chottu Punekar and the pendency of the case before the Supreme Court would not in any way detain the Government of Maharashtra to pass the order of remissions on the above lines. We direct that the remission order be passed by the State Government within four weeks from today. 13. The appellant, who was present before us, also reiterated that he has no intentions to pursue this appeal against the order of conviction and sentence in view of the directions given by us to pass the order of remissions within four weeks from today. 15 14. Hence, the appeal is disposed as not pressed. (U.D.SALVI,J.) (B.H.MARLAPALLE,J.)