1 cr-wp-1096-11 jdk IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRI. WRIT PETITION NO. 1096 OF 2011 Chintaman Sitaram Kedari ] Aged 62 years, Occ: Nil ] Residing at Village Pargaon, ] Taluka Panvel, Dist. Raigad ] (now confined at Yerawada Central ] Prison, Yerawada, Pune 411 006 ]..Petitioner Vs. 1. The State of Maharashtra ] (Through Principal Secretary ] Home and Prison, Government ] Of Maharashtra, Mantralaya ] Mumbai 400 032) ] ] 2. The Superintendent, ] Yerawada Central Prison, ] Yerawada, Pune 411 006 ]..Respondents .... Mr. N.N.Gawankar Advocate i/b Mr. Arfan Sait Advocate for Petitioner Mr. K.V.Saste Additional Public Prosecutor for Respondents .... CORAM : P.V.HARDAS AND M.N.GILANI, JJ. DATED : MAY 02, 2011 ORAL JUDGMENT [PER P.V.HARDAS, J.] : 1 Rule. Rule returnable forthwith. With the consent of the 2 cr-wp-1096-11 learned Counsel for the parties this petition is heard finally at the stage of admission. 2 This is a petition under Article 226 of the Constitution of India by which the petitioner prays for issuance of a writ for quashing and setting aside the impugned order dated 8.4.2011 passed by respondent no.1 and also prays for directing the respondent no.2 to release the petitioner from prison forthwith. 3 It appears that the co-accused of the petitioner was sentenced and ultimately released after undergoing 14 years of actual imprisonment. The case of the petitioner was categorized and the petitioner was directed to undergo 22 years imprisonment with remission though the case of both the petitioner and his co-accused was identical. The petitioner being aggrieved with his categorization accordingly filed Criminal Writ Petition No. 217 of 2011 in this Court. The Division Bench of this Court by decision dated 2.2.2011 allowed the petition and directed the respondents to re-examine the case of the petitioner in the light of the decision taken in the case of co-accused Shankar Ram Mhatre. This Court directed the authorities to take a decision afresh within 15 days from the date of the order. It appears that pursuant thereto the respondent no.1 passed an order dated 8.4.2011 maintaining the same categorization of the petitioner 3 cr-wp-1096-11 i.e. 22 years with remission. It is obvious to us that the respondent no.1 has not taken into consideration the fact that co-accused of the petitioner was released on 14 years of actual imprisonment and the case of the petitioner and his co-accused stand on the same footing if not the fact that case of co-accused would be slightly aggravated as it is alleged that he is the person who had actually shot. Be that as it may, perusal of the impugned order clearly indicates that the aforesaid aspect has not been examined by respondent no.1 nor has the respondent no.1 considered the judgment of the Division Bench of this Court adverted to above. 4 In that light of the matter therefore we quash and set aside the impugned order dated 8.4.2011 and direct the respondents to decide the categorization of the petitioner particularly for premature release in the light of the judgment of this Court dated 2.2.2011 in Criminal Writ Petition No. 217 of 2011, within four weeks from today. Learned A.P.P. undertakes to communicate this order to respondent no.1. 5 Rule is thus made absolute on the above terms with no order as to costs. [ M.N.GILANI, J. ] [ P.V.HARDAS, J. ]