ASHOK VASUDEO SHETYE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) The petitioner was arrested on 11th June, 1975 for offences punishable under sections 302, 307 and 326 of the Indian Penal Code on the allegations that on that day at about 7:30 p.m. he was black -marketing cinema tickets at Apsara Cinema along Lamington Road, Bombay and there were hot exchange of words and abuses with deceased Ratan Ardeshar Karbhari and Nasarwanji Turner, the head door-keeper and cashier of the Apsara Cinema on account of which the petitioner had stabbed with a gupti the said Ratan Ardeshar Karbhari. Ratan Ardeshar Karbhari succumbed to the injuries received by him and Nasarwanji survived . Petitioner was then tried in Session Case No. 401 of 1975. In the sessions Court at Bombay and was convicted for offences punishable under sections 302 and 307 of the Indian Penal Code for which he was respectively sentenced to suffer imprisonment for life and seven years rigorous imprisonment. The sentences were directed to run concurrently. The said Judgment was passed against the petitioner on 20th July, 1976.

(2.) It is the case of the petitioner that ever since his day of arrest he was in prison as an under-trial prisoner and thereafter as a convicted prisoner. Thus, according to him, he had undergone, total imprisonment of 16 years, 5 months and 8 days on the day when he had filed the writ petition under Article 226 of the Constitution on 27th February, 1987 as under : (i) Undertrial period 11-6-1975 to 19-7-1976. : 1 years 1 month 8 days. (ii) Actual imprisonment 20-7-1976 to 20-2-1987. : 10 years 7 months -days. (iii) Remission granted by the Government on 1-5-1984. : 2 years-months -days. (iv) Remission of Gandhi Jayanti : 0 years-months-days. (v) Remission for good conduct according to the provisions : 2 years-month-days of the Prison Rules. -------------------------------- TOTAL : 16 years 5 months 8 days --------------------------------- Therefore, he contended that his sentence exceeded 14 years and he was accordingly entitled to be considered for release from prison as was done in case of 9 other life convicts. He also contended that the respondents committed breach of Rule 6(i) and Rule 25 of the Maharashtra Prisons (Review of Sentences) Rules, 1972 inasmuch as his case was not taken up for consideration for premature release as provided by these rules. It appears that when this petition was pending hearing and final disposal in this Court, the Government of Maharashtra, Home Department, vide its order RLP -1087/7/113/PRS-3 dated 19th March, 1987 exercised its jurisdiction under sub-section (1) of section 432 of the Code of Criminal Procedure, 1979 and remitted that portion of the sentence of imprisonment for life which was in excess of 24 (twenty four) years of total imprisonment, including all remissions subject to the condition of the petitioners good behaviour and conduct in the prison till the time of his release and if the said condition was acceptable to the petitioner. Therefore, the petitioner amended this writ petition and further prayed that the order passed by the Government on 19th March, 1987, be quashed and set aside and he be released forthwith as the said order was totally arbitrary, illegal and unlawful.

(3.) The State Government filed returns resisting this writ petition, through J.J. Deshmukh, Desk Officer, Home Department. It is their case that a sentence of imprisonment for life is a sentence for the whole of the remaining period of the convicted persons natural life but section 432 of the Criminal Procedure Code gives unfettered powers to the State Government as to when a prisoner who has been awarded life sentence should be released from prison. On behalf of the respondents it was also contended that in accordance with Rules 6(1) of the Maharashtra Prison (Review of Sentences) Rules, 1972 the case of the petitioner was forwarded to the Advisory Board on 31st July, 1985 after he completed 12 years and 7 months of imprisonment. However, the said committee did not recommend the release of the petitioner. The committee then directed that the case of the petitioner be placed before them after two years. Then in accordance with Rule 25 of the Maharashtra Prisons (Review of Sentences) Rules, 1972, after completion of 14 years of sentence undergone by the petitioner, a report was sent by the inspector General of Prison on 19th February, 1987 which was received by the State Government on 19th March, 1987. And according in exercise of the powers conferred by sub-section (1) of section 432 of the Criminal Procedure Code , 1973, the Government of Maharashtra remitted that portion of the sentence of imprisonment for life which was in excess of 24 years of total imprisonment, including all remissions subject to the conditions of the petitioners good behaviour and conduct in the prison till the time of release. It was also contended on behalf of the respondents that the petitioner was released on furlough on 20th February, 1982 for a period of two weeks and he was to surrender on 7th March, 1982 but he failed to surrender on the due date. He was, therefore, arrested on 29th March, 1982 by Deorukh Police and was brought to jail on 30th March, 1982. He was again granted parole for a period of 5 days on 22nd September, 1987 to attend the last rites of his mother who had died on 14th September, 1987. He was required to surrender to jail authorities on 28th September, 1987 but he did not do it and had to surrender to jail authorities only on 17th February, 1988 at the direction of this Court. Therefore according to the respondents when the petitioner was on parole he had absconded and thus his case was covered by guideline 6 of the guidelines laid down by the Government of Maharashtra for premature release under the 14 year Rule of prisoners serving life sentence, under Government letters, Home Department, No. RLP-5171/54309 IV, dated the 8th January, 1974 and No. RLP-1077/348- XXIV, dated the 4th October, 1977 and not guide at serial No. 3(a) of the said guidelines. It was also the contention of the respondents that the petitioner had on 28th February, 1987 completed only 15 years, 6 months and 9 days of sentence as under: (i) Actual period undergone till 28-2-2987 : 9 years 5 months 17 days. (ii) Remission (Ordinary) : 2 years 5 months 14 days. (iii) Remission (State Remission) : 2 years 6 months - days (iv) Set off period ( from 12-6-75 to 19-7-76) : 1 year 1 month 8 days. ------------------------------------- 15 years 6 months 9 days. --------------------------------------