Allowed

Shri. Abhijit B. Patil v. State of Goa and Anr.

Bombay HC8 Oct 2013WPCR/72/2013

Case brief

AI extract

What is this about?

In a Criminal Writ Petition, this Court addressed the petitioner's claim for set-off of jail time under CrPC Sections 428 and 433-A. Relying on Charoskar, the Court held that the Executive Government, not the judiciary, decides set-off eligibility. The petitioner to the High Court to consider the application for set-off based on government resolutions.

What did the court decide?

The State Government is directed to consider the petitioner's claim for set-off under Section 428 Cr.P.C. in light of applicable Government Resolutions and Circulars.

Shri. Abhijit B. Patil Vs State of Goa and Anr. — Criminal Trial and Appeal | Bombay HC (2013)

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WPCR72/2013

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IN THE HIGH COURT OF BOMBAY AT GOA

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CRIMINAL WRIT PETITION NO.72/2013

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Abhijit B. Patil, C.P.No.106/2013, S/o. Babasaheb Patil, r/o. Nanu Colony, Rawandfond, Margao, Salcete, Goa., presently lodged at Central Jail, Aguada, North Goa, Panaji, Goa. .. Petitioner

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Vs.

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State of Goa (Through Margao Police Station) .. Respondent

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Mr. R. Menezes, Advocate appearing under Legal Aid Scheme for the petitioner.

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Mr. S. R. Rivonkar, Public Prosecutor for the respondents.

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CORAM :- R. M. SAVANT, J.

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DATE :- 8 th October, 2013.

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ORAL JUDGMENT :

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Rule. With the consent of the learned Counsel for the parties, made returnable forthwith and heard.

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The petitioner above named has been convicted for the offence punishable under Section 302 of the I.P.C. and sentenced to Life Imprisonment and directed to pay the fine of

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WPCR72/2013

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Rs.10,000/- and in default, to undergo further imprisonment for six months. The petitioner has applied for being granted set off in respect of the period spent by him in jail prior to his conviction i.e. from 13/06/2010 to 02/05/2013. The above Petition has been submitted through jail. The cause for filing the above petition is the apprehension on the part of the petitioner that the benefit under Section 428 of the Cr.P.C. would not be given to him. The reason for the said apprehension is that in the operative part of the judgment of the Sessions Court, there is no direction to give set off to the petitioner as regards the period which he has spent in jail prior to he is being sentenced.

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The learned Counsel Shri Ryan Menezes, who has been appointed through the Legal Aid Scheme draws the attention of this Court to a Division Bench Judgment of this Court reported in 2008 All M R (Cri) 3407 in the matter of Rajaram Kashinath Charoskar Vs. State of Maharashtra . The issue in the said Writ Petition was to the following effect :

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"14. Whether in spite of specific order of the Sessions Judge, directing that no set off be granted under Section 428 of the Code to the petitioner, which direction has not been interfered with in

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WPCR72/2013

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appeal by the High Court, the petitioner is entitled to claim set off under Section 428 r/w 433-A of the Code of Criminal Procedure ?”

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The Division Bench, after adverting to the conspectus of the judgments cited before it concluded in paragraph 21 which is reproduced for the sake of ready reference hereinunder :

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“21. The aforesaid discussion of the relevant legal aspects of the matter thus shows that neither the judgment delivered by the Sessions Judge nor the one delivered by this Court in the appeal, can be read to mean that the petitioner cannot be granted set off to which he may otherwise be entitled to under the said Code. It was not for the judiciary to direct grant or otherwise of such a set off to the petitioner at that stage. It is exclusively within the domain of the Executive Government to take such a decision. Obviously, therefore, it is open for the Executive Government in terms of the aforesaid provisions of law and in the light of it's policy decisions reflected by relevant Government Resolutions and/or Circulars to decide the issue as to whether the petitioner is entitled to set off or not. In taking such a decision the aforesaid observations and/or order of the Sessions Judge or for that matter of this Court cannot operate as an hurdle much less prohibition.”

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WPCR72/2013

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The Division Bench has, therefore, observed that it is for the Executing Government in terms of the aforesaid provisions of law to decide the issue as regards the set off. Hence, the only direction that can be issued in the present case is that the State Government would consider the issue of set off to be granted to the petitioner in terms of Section 428 of the Cr.P.C. and in the light of the Government Resolutions/ Circulars, which are applicable.

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Rule is accordingly made absolute in the aforesaid

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terms.

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R. M. SAVANT, J.

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SMA

Shri. Abhijit B. Patil v. State of Goa and Anr.

Case brief

What is this about?

What did the court decide?

Shri. Abhijit B. Patil v. State of Goa and Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

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