Suryakant @ Bandu Ranoji Andekar Vs the State of Maharashtra

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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 CRI. APPELLATE JURISDICTION

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 CRIMINAL WRIT PETITION NO. 1264 OF 2004

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 Shri Suryakant @ Bandu Ranoji Andekar,
 R/at 38, Nana Peth,
 Nr. Doketalim, Pune. ... Petitioner

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 V/s
 1. The State of Maharashtra,
 (Through the Secretary,
 Home and Prisons Department,
 Govt. of Maharashtra,
 Mantralaya, Mumbai - 32.

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 2. The Superintendent,
 Yerawada Central Prison, Pune.

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 3. The Inspector General of Police,
 State of Maharashtra,
 Central Bldg., Pune - 411 001.

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 4. The Secretary,
 Deptt. of Law & Judiciary,
 Govt. of Maharashtra,
 Mantralaya, Mumbai - 32. ... Respondents

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 Ms. Sharmila Kaushik for the petitioner.

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 Mr. D.S. Mhaispurkar, A.P.P. for the Resp.Nos. 1 to 4.

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CORAM: R.M.S. KHANDEPARKAR &
 P.V. KAKADE, JJ.

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DATED: 15TH FEBRUARY, 2005.

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ORAL JUDGMENT (Per Khandeparkar, J.):

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 1. Heard.

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 2. The petitioner seeks declaration to the effect that
 his detention in Yerwada Central Prison by the
 respondents for the period from 19.5.2003 to 30.12.2003
 was illegal and on that count seeks direction to the
 respondents to pay compensation of Rs.2 lacs. The basis
 for allegation regarding detention for the said period
 is that the petitioner, under letter dated 8.7.2002 by
 the Superintendent of the said jail, was informed about
 the date of release of the petitioner to be 19.5.2003
 but he was actually released only on 30.12.2003. On the
 other hand, it is the case of the respondents that the
 intimation given to the petitioner by the Jail
 Superintendent under letter dated 8.7.2002 was not a
 correct information and once it was realised that the
 petitioner was not entitled to avail the benefit of the
 period spent by him on parole and furlough leave as well
 as the period during which he did not surrender after
 availing the leave, for the purpose of calculation of
 minimum period of life imprisonment, the date of release
 of the petitioner was corrected and he was released on
 30th December, 2003 on completion of the required period
 in the imprisonment. Reliance is also placed in that
 regard in the letter dated 11.2.2003, copy of which is
 annexed as Exh.A to the affidavit in reply. Reliance is

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 also sought to be placed in the decision of the Apex

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 Court in Union of India & ors. v/s Sadha Singh,

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reported in (1999) 8 SCC 375. The learned advocate
 appearing for the petitioner, however sought to
 distinguish the said decision of the Apex Court by
 submitting that the decision therein applies to the
 persons undergoing the imprisonment under Army Act and
 not otherwise. She has also submitted that, in the
 absence of necessary chart being made available in
 relation to the various remissions and parole leave and
 statutory benefits enjoyed by the petitioner, the
 petitioner will not be able to ascertain the exact date
 on which he ought to have been released on completion of
 the period of his imprisonment.

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 3. The petitioner has approached the Court with
 specific plea that there has been illegal detention of
 the petitioner for the period from 19.5.2003 to
 30.12.2003 in Yerwada Central Prison. It is not in
 dispute that the petitioner was detained in the said
 prison pursuant to his conviction by the Sessions Judge

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 under Sec. 302 of the I.P.C. under judgment dated
 30.7.1987 in relation to C.R.No. 150 of 1985 which was
 lodged at Pharas Khana Police Station, Dist. Pune.

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 Undisputedly, he was arrested in connection with the
 said offence on 14.6.1985 and since then he was detained
 in the custody. It is also not in dispute that the
 petitioner was required to undergo actual minimum period
 of 14 years of imprisonment for compliance of the order
 in relation to the punishment for the life imprisonment
 on conviction under Sec. 302 of the I.P.C. At the same
 time, it is also not in dispute that the petitioner had
 availed parole and furlough leave from time to time in
 accordance with the law. It is also not in dispute that
 nearly for a period of 90 days he had over-stayed while
 availing such facility. In the back ground of these
 facts it is also undisputed fact that minimum period of
 actual imprisonment of 14 years was required to be
 completed in the jail and over all period including the
 remission and parole leave, the maximum period which was
 required to undergo was 24 years. In the back ground of

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 those facts, it was primarily necessary for the
 petitioner to establish that the detention of the
 petitioner beyond 19.5.2003 and upto 30.12.2003 was not
 in accordance with the provisions of law pertaining to
 the calculation of the period of minimum 14 years
 excluding the furlough and parole leave as well as other
 benefits, if any, available. The petition nowhere

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 discloses any such effort on the part of the petitioner
 apart from vague allegation that the petitioner was
 illegaly detained beyond 19.5.2003. No doubt, the basis
 for allegation has been the letter dated 8.7.2002 issued
 by the Jail Superintendent. However, once the
 respondents have stated on oath that the said intimation
 was based on wrong calculation and that the correct
 calculation required detention of the petition till
 30.12.2003 and more particularly taking into
 consideration the decision of the Apex Court in Sadha
 Singh, it was necessary for the petitioner to disclose

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 on record as to how the calculations arrived at by the
 respondents are wrong or incorrect in relation to the
 minimum period the petitioner could have been detained
 in the jail.

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 4. As regards the decision of the Apex Court in Sadha

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Singh’s case, the contention of the learned advocate for
 the petitioner that, it applies exclusively to the case
 where the person undergoes the imprisonment under the
 Army Act, is totally devoid of substance. Undisputedly,
 the Apex Court in the said case was dealingwith the
 matter wherein the concerned person was undergoing life
 imprisonment pursuant to the conviction under Sec. 302

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 of the I.P.C. read with Sec.69 of the Army Act, 1950.
 Nevertheless, the Apex Court therein has clearly held
 that -

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 "Section 433-A would operate in the field and a
 prisoner who is undergoing sentence of
 imprisonment for life and is convicted 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

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 under Section 433(1) of Cr.P.C. to

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 imprisonment for life, has to serve at least 14
 years of imprisonment excluding remissions
 earned in jail."

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 And has further ruled that -

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 "Section 433-A Cr.P.C. is a special provision
 applicable to all the convicts who are
 undergoing imprisonment for life as provided
 thereunder. For such convict, it puts an
 embargo for reduction of sentence below 14
 years of actual imprisonment."

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 Being so, the Apex Court has clearly held that provision
 of Sec. 433-A of Cr.P.C. applies to all the convicts
 undergoing imprisonment for life and it does not make any
 differenciation between the cases where the imprisonment
 is pursuant to conviction under Sec. 302 alone and those
 under Sec.302 read with provision of the Army Act. The
 conviction under Sec. 302 without any applicability of
 the provisions of Army Act would also be covered by the
 provision of Sec. 433-A, once the punishment imposed is a
 life imprisonment. Being so, it is for a person who
 undergoes the imprisonment for life pursuant to the
 conviction under the provisions of I.P.C. or otherwise
 whereunder such imprisonment can be imposed, and such a
 convict will have to undergo at least 14 years of actual
 imprisonment excluding any remission granted. Considering
 the same, the contention on behalf of the petitioner that
 the respondents have wrongly construed the decision of the
 Apex Court is to be rejected.

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 5. It was also sought to be argued that the letter dated
 11.2.2003 applies merely to the convicts under the
 provisions of N.D.P.S. Act. The contention is totally
 devoid of substance. The letter on the face of it,
 relates to the subject of the convict undergoing

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 imprisonment irrespective of the fact whether the
 conviction is under provision of I.P.C. or any other
 statute. Undisputedly, the last sentence of the letter
 clarifies that the requirement of minimum 14 years would
 also apply to the convict under N.D.P.S. Act. Same
 cannot be construed to mean that the letter applies only
 to the convicts under N.D.P.S. Act.

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 6. The last point sought to be raised is that no chart
 was made available to the petitioner about the actual
 remission granted to the petitioner. This contention of
 the petitioner is also devoid of substance. It is
 pertinent to note that inspite of the respondents having
 filed the affidavit disclosing the necessary details about
 the calculation of the period, for which the petitioner
 was required to be detained and justification for the
 petitioner’s release only on 30.12.2003, the petitioner
 has not countered the said statement of facts nor has come
 out with any further affidavit denying any of the facts
 stated in the affidavit in reply filed by the respondents.
 Being so, the statements in the affidavit in reply are to
 be accepted as true and correct. There is absolutely no
 material on record to doubt the varacity and truthfulness
 of the statements made in the said affidavit. Being so,

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 merely because the specific chart is not made available by
 the respondents, apart from the fact that there is nothing
 on record that such demand was made by the petitioner
 after filing of the affidavit, that would not enure to the
 benefit to the petitioner to contend that the petitioner
 had been illegaly detained during the period from

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 19.5.2003 to 30.12.2003.

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 7. The petitioner having not been able to establish the
 allegation about the illegal detention of the petitioner
 in the jail, no case is made out for the grant of relief
 prayed for or for the direction to pay any compensation.
 The petition therefore fails and is dismissed. The rule

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 is discharged with no order as to costs.

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 ( R.M.S. KHANDEPARKAR, J. )

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 ( P.V. KAKADE, J. )

Suryakant @ Bandu Ranoji Andekar v. the State of Maharashtra

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Suryakant @ Bandu Ranoji Andekar v. the State of Maharashtra

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