Gangabhdar Vithoba Dhakne and Anr. Vs the State of Maharashtra and Ors.

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

CRIMINAL WRIT PETITION NO.712 OF 2009

`1)`	`Gangadhar Vithoba Dhakne,`	`]`
	`Prisoner No.4632, Open Jail`	`]`
	`Paithan, Aurangabad.`	`]`
`2)`	`Ramesh Sakharam Jaibhai,` `Convict No.3677,`	`]` `]` `]`
	`Open Prison, Paithan,`	`]`
	`Paithan, District Aurangabad.`	`]..`	`Petitioners.`
	`Versus`
`1)`	`The State of Maharashtra` `Through Secretary,`	`]` `]`
	`Home Department,`	`]`
	`Mantralaya Mumbai – 32.`	`]`
`2)`	`The Inspector General of` `Prison,`	`]` `]` `]`
	`Maharashtra State, Pune,`	`]` `]`
`3)`	`The Superintendent,`	`]`
	`Open Prison, Paithan,`	`]`
	`Paithan,`	`]`
	`District Aurangabad.`	`]..`	`Respondents.`

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Smt. A.N. Ansari, Advocate,for petitioners.

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Shri S.D. Kaldate, Additional Public Prosecutor
for respondents

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CORAM : NARESH H. PATIL &
 SHRIHARI P. DAVARE, JJ.
DATED : 16th September, 2009.

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ORAL JUDGMENT (Per Shrihari P Davare, J.):

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1)Rule. By consent of the counsel for the
parties, rule made returnable forthwith and

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taken up for final hearing.

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2)Petitioners – namely, Gangadhar Vithoba
Dhakne and Ramesh Sakharam Jaibhai who are
convicts presently in Open Prison, Paithan, were
convicted for an offence punishable under section
302 read with section 34 of the Indian Penal Code
by way of judgment and order rendered by
Additional Sessions Judge Greater Bombay on
18-8-1998. the incident in question occurred on
4-1-1995 and both the petitioner were arrested on
the same day i.e. 4-1-1995 and they were under
trial prisoners since the said date.

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3)By two different orders dated 19th May
2009 the Government of Maharashtra has fixed the

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category of both the petitioners – convicts and
they were categorised under category 2-b of the
guidelines dated 11-5-1992. They were ordered to
undergo 24 years of imprisonment including all
remissions subject to completion of actual
imprisonment of 14 years under Section 432 (1) of
the Code of Criminal Procedure. Accordingly the
date of release of the petitioners was given as
27th May 2010.

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4)However,thegrievanceofthe

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petitioners is that they are not being given the
benefit of two years State remission granted by
the Government of Maharashtra on the eve of
Golden Jubilee of Independence by way of Circular
/ communication dated 6th August 1997 and the
petitioners are denied the benefit of the said
State remission of two years contending that
since the date of conviction of the said convicts
is later i.e. Dated 18-8-1998, they were not the
convicts on 15-8-1997, and hence the said State

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remission cannot be given to them.

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5)The petitioners / convicts placed

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reliance on the order passed by the Bombay High
Court, Nagpur Bench, in Criminal Writ Petition
No.163 of 2008 on 20th June 2008 and the order
passed in Criminal Writ Petition No.244/2008 on
30th June 2008. The petitioners contend that
similar issue was dealt with in the said orders
and it was held that communication dated 6-8-1997
giving remission on the eve of Golden Jubilee of
Independence under section 432(1) of the Code of
Criminal Procedure is not only applicable to the
convicts on 15-1-1997 but it is applicable to the
under trial prisoners who were in custody as on
15-8-1997.

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6)The respondent No.3 – Ganesh Shankar

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Shelke, Jailer Group-II, Open District Prison,
Paithan has filed affidavit-in-reply and thereby
denied the averments and contentions made by the
petitioners in the present petition specifically

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and opposed the present petition vehemently. It
is stated in the said reply that SLP (Cri) No.
1798 of 2009 had been filed before the Hon’ble
Supreme Court challenging the above referred
orders passed by the Bombay High Court, Nagpur
Bench and the said petition has been listed on
Board on 1-10-2009. In the light of the said
facts, Mr. Kaldate, learned Additional Public
Prosecutor opposed the present petition.

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7)We have perused the orders passed by the
Government of Maharashtra on 19thMay 2009
categorizing the prisoners under category 2(b) of
the Guidelines dated 11-5-1992. We have also
perused the copies of the orders passed in
Criminal Writ Petition No.163 of 2008 dated 20th
June 2008 and in Criminal Writ Petition No.244 of
2008 on 30th June 2008 by Bombay High Court,
Nagpur Bench.

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8)Keeping in mind the said aspects and
coming to the present case wherein the prisoners

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– convicts were arrested on 4-1-1995 and were
under trial prisoners since then, and
consequently, were convicted on 18-8-1998.
Meanwhile by way of Circular / communication
dated 6th August 1997 issued by the Government of
Maharashtra, Home Department, the State remission
was granted with effect from 15-8-1997 on the eve
of Golden Jubilee of Independence applicable to
the convicts on the said date invoking the
provisions of Section 432(1) of the Code of
Criminal Procedure.

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9)Now, the question involved in the
present matter is having a narrow compass that
whether the said circular / communication dated
6-8-1997 which was made effective from 15-8-1997
to the convicts on the said date is applicable to
the present prisoners / convicts in the present
matter and whether the benefit of the said
circular / communication can be given to the
petitioners herein. Admittedly, the petitioners
herein were not convicts on 15-8-1997. However,

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they were under trial prisoners since 4-1-1995

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and were ultimately convicted on 18-8-1998 and
hence computation of their sentence relates back
to their date of arrest and period undergone in
custody. Hence we are inclined to hold that, the
petitioners are entitled to the benefits of the
circular / communication dated 6-8-1997 and more
particularly, clause 15 thereof i.e. State
remission of 2 years on the eve of Golden Jubilee
of the Independence under section 432(1) of the
Code of Criminal Procedure.

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10)As regards the contention raised by the
respondents in respect of pendency of the SLP
before the Hon’ble Supreme Court, Mr. Kaldate,
learned Additional Public Prosecutor was unable
to point out that any interim relief was obtained
therein.

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11)In the light of the facts and

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circumstances we are of the considered view that,
the petition deserves to be allowed and the same

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is allowed. The respondents are directed to
extend the benefit of the State remission by way
of the circular / communication dated 6th August
1997 to the petitioners.

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12)Rule is made absolute in the above

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terms.

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13)At this stage, Mr. Kaldate, learned
Additional Public Prosecutor makes a request that
operation of the above order be stayed for a
period of four weeks. Mrs. Ansari opposed the
said prayer. Considering the rival submissions,
the request made by Mr. Kaldate stands rejected
since there is no substance therein.

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(SHRIHARI P. DAVARE, J.) (NARESH H. PATIL, J.)

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rsl / crwp.712.09

Gangabhdar Vithoba Dhakne and Anr. v. the State of Maharashtra and Ors.

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Gangabhdar Vithoba Dhakne and Anr. v. the State of Maharashtra and Ors.

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