CHANDRAKANT KRISHNA BANKAR Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) BY means of this writ petition under Art. 226 of the Constitution of India, the petitioner is seeking premature release on the plea that he is entitled to be considered for such release under the Guidelines dated 16th November, 1978 framed by the State of Maharashtra for premature release of prisoners serving life sentence (hereinafter referred to as "1978 Guidelines" ). The facts leading to this Writ Petition are few and may be shortly stated. The petitioner was tried and convicted on 30th May, 1981 under Sections 302 and 307 of I. P. C. by the learned Sessions Judge, Kolhapur and was sentenced to death. The death sentence was confirmed by this Court on 28th September, 1981. The appeal filed by the petitioner to the Supreme Court came to be dismissed on 5th April, 1982. Subsequently, the death sentence awarded to the petitioner was commuted to life imprisonment by the President of India under Art. 72 of the Constitution in a mercy petition submitted by the petitioner. Since then he is serving time. It seems that the total imprisonment undergone by the petitioner till 31.8 . 97 is 27 years, 5 months and 16 days. The petitioner's case in a nutshell is that the power to grant commutation of sentence under Article 72 of the Constitution is independent and separate from the one provided under section 433 (a) of the Code and, therefore, the provisions of Section 433 (A) introduced by the Amendment Act, 1978 are not applicable to the petitioner. Therefore, the 1992 Guidelines framed by the State Government pursuant to enactment of Section 433 (A) are also inapplicable to the case of the petitioner. The petitioner's case is therefore liable to be considered in the light of the Guidelines of 1978. Under the Guidelines of 1978 a life prisoner whose death sentence is commuted is entitled to be considered for premature release after completion of 24 years of imprisonment including remissions. The petitioner submits that despite this legal position, the State Government had issued orders requiring the petitioner to undergo 30 years of imprisonment with remissions as per the guidelines of 1992. The petitioner has therefore prayed for a writ of habeas corpus for his release from the prison.

(2.) WE have heard Mr. Gavankar, learned counsel for the petitioner and Mrs. Pawar, learned A. P. P. In order to appreciate the contention raised by the petitioner, it is necessary to make a brief reference to the relevant provisions contained in Criminal Procedure Code. Chapter XXXII of the Code to which Section 433a was added, entitled. " Execution, Suspension, Remission and Commutation of Sentences. " Sections 432 and 433 are of some importance. Section 432 confers power on the appropriate Government to suspend the execution of an offender's sentence, or to remit the whole or any part of the punishment to which he has been sentenced while Section 433 confers powers on the Government to commute (a) a sentence of death for any other punishment (b) a sentence of imprisonment for life, for imprisonment for a term not exceeding 14 years or for fine (c) a sentence of rigorous imprisonment or for fine, and (d) a sentence of simple imprisonment or fine. Section 433a was added by the Amendment Act of 1978 which reads as under : " 433a. Restriction on powers of remission or commutation in certain cases-Notwithstanding anything contained in Section 432, where a sentence of imprisonment for life is imposed on conviction of a person for an offence for which death is one of the punishments provided by law, or where a sentence of death imposed on a person has been commuted under Section 433 into one of imprisonment for life, such person shall not be released from prison unless he had served at least fourteen years of imprisonment. "

(3.) IN Maru Ram's case the Supreme Court held that Section 433a is prospective. Therefore, every person who has been convicted by the sentencing court after 18th December, 1978 shall be governed by 14 Year Rule enumerated in Section 433a. The Supreme Court also repelled the challenge raised against the Constitutional validity of Section 433a on the ground based upon alleged violation of Articles 72 and 161 of the Constitution. It was held that Section 433a cannot be invalidated as indirectly violative of Art. 72 and 161 on the ground that, it detracts from the operation of Ss. 432 and 433 (a) which are the legislative surrogates, as it were, of the pardon power under the Constitution. It was observed that superficially viewed, the two powers, one constitutional and the other statutory, are co-extensive. But two things may be similar but not the same. The power which is the creature of the code cannot be equated with a high prerogative vested by the Constitution in the highest functionaries of the Union and the States. The Supreme Court however made it clear that the power of pardon must be exercised in keeping with legislative intent expressed in Section 433a. It was observed : " Higher the power, the more cautious would be its exercise. This is particularly so because section 433a has been passed by the Parliament on being sponsored by the Central Government itself. It is, therefore, manifest that while exercising the powers under Articles 72 and 161 of the Constitution neither the President, who act on the advice of the Council of Ministers, nor the State Government is likely to overlook the subject, spirit and philosophy of S. 433a so as to create a conflict between the legislative intent and the executive power. "