MADHAV SHANKAR SONAWANE AND STATE OF MAHARASHTRA Vs. STATE OF MAHARASHTRA AND MADHAV SHANKAR SONAWANE

JUDGEMENT

(1.) "This criminal appeal by the accused, who has been convicted of the offence under section 302, Indian Penal Code, and sentenced to imprisonment for life for the said offence, had been referred to the Full Bench by Dharmadhikari and Mohta, JJ., because they doubted the correctness of the direction given by another Division Bench of this Court in (State of Maharashtra v. Manohar Kashinath Ghodake) 84 Bom.L.R. 29 which required that the accused in that case, who also convicted of the offence under section 307 read with section 34 of the Indian Penal Code as well as under section 302 read with section 34 of the Indian Penal Code, will remain in jail at least for a period of 25 years notwithstanding the remissions and concessions, if any, granted to him under the relevant rules".

(2.) It is clear that on behalf of the State a similar direction was sought in the present appeal, but the Division Bench found that there was no power in the Court to say that the convict shall undergo imprisonment for a particular minimum period because any direction with regard to the minimum period required to be undergone by way of sentence by an accused would encroach upon the field reserved for the executive and would be contrary to the provision of section 433-A of the Code of Criminal Procedure, it is not necessary for us to refer to the facts leading to the conviction of the appellant because the facts and the evidence relied upon by the prosecution have been set out in great detail in the judgment of the Division Bench. The Division Bench has confirmed the conviction of the accused for the offence punishable under section 302 of the Indian Penal Code. It was argued before the Division Bench that the Sessions Judge having awarded sentence of imprisonment for life on the facts of the case, no enhancement of the sentence was called for and the Division Bench discharged the notice for enhancement of the sentence and confirmed the sentence of imprisonment for life awarded by the trial Court. It was insisted on behalf of the State that the Court should at least give a direction that the accused should not be allowed to come out of the jail in any case before the completion of 25 years of imprisonment. Such a request was made in view of the decision of the Division Bench of this Court in Manohar Ghodakes case cited supra. The Division Bench however took the view that they found it difficult to hold "that is permissible for the courts to direct the life convict to undergo imprisonments for a minimum period different than the one prescribed by the Legislature notwithstanding the remissions that he may earn as per law" The Division bench took the view that any view to the contrary would amount to re-enacting section 433-A of the Criminal Procedure Code and would encroach upon the field reserved for executive and the Court was concerned merely with the passing of the sentence. The Division Bench also referred to the provisions of Article 72 and 161 of the Constitution of India which dealt with the power of the President and the Governor to grant pardon, suspend or commute the sentence in certain cases and the Division Bench took the view that it will not be permissible for the courts to say that despite exercise of the Constitutional jurisdiction by the high constitutional functionaries, namely, the President and the Governor, the convict shall undergo imprisonment for a particular minimum period. Having thus doubted the correctness of the view taken in Ghodakes case, the appeal has been referred to the Full Bench.

(3.) We may at the outset make it clear that the learned Public Prosecutor Mr. Barday, who also appeared in the appeal on behalf of the State before the Division Bench, found himself unable to support the view taken by the earlier Division Bench in Ghodakes case. The learned Public Prosecutor however made it clear that since the earlier Division Bench had taken the view that a direction specifying that an accused sentenced to life imprisonment should not be released unless he undergone a minimum period of sentence of 25 years could be given and that the possibility of the lower courts making such directions could not be ruled out, he thought it necessary to bring the matter to the notice of the Division Bench in the form of an argument that such a direction should be given in he instant case also, so that the correct legal position could be laid down.