Dismissed

Firoz Abdul Aziz Pathan and Ors. v. the State of Maharashtra

Bombay HC20 Feb 2019WP/383/2019

Case brief

AI extract

What is this about?

Petitioners convicted of murder challenged the State Government's categorization of their case under sub-category 4(e) involving exceptional violence for premature release. The court upheld the classification, finding the State Government's view not perverse based on trial and appellate findings of brutality.

What did the court decide?

The writ petition filed under Article 226 of the Constitution of India is rejected and dismissed.

Firoz Abdul Aziz Pathan and Ors. Vs the… — Constitutional and Fundamental Rights | Bombay HC (2019)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION

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CRIMINAL WRIT PETITION NO. 383 OF 2019

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Firoz Abdul Aziz Pathan, 2. Inden Sayyed Shaikh, 3. Rahimtullah Ali Shaikh. … Petitioners. V/s. The State of Maharashtra. … Respondent.

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Dr.Yug Mohit Chaudhary with Ms.Payoshi Roy for the petitioners. Mr.V.V.Gangurde, APP for the respondent- State.

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CORAM : A.S.OKA AND A.S.GADKARI, JJ.

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DATE : 20^th February 2019.

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P.C. :

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The submission of the learned counsel appearing for the petitioners were heard on the earlier date. Today, the petition is listed for passing orders. The present petitioners are accused Nos.11, 12 and 13 who were convicted under the judgment and order dated 16^th August 2011 passed by the Additional Sessions Judge, Kalyan in Sessions Case No.46/2003 for the offence punishable under section 302 read with section 34 of Indian Penal Code (for short “IPC”). The appeals preferred by the accused have been dismissed by the Division Bench of this Court vide judgment and order dated 10^th May 2018. The grievance made in this petition under Article 226 of the Constitution of India is about the order dated 16^th March 2018 by which the State Government came to the conclusion that the case of the petitioners for premature release will

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considered after the petitioners undergo 26 years of imprisonment including remissions subject to undergoing sentence of 14 years. The State Government categorized the case of the petitioners as covered by category 4(e) of Annexure-I to the Government Resolution dated 15^th March 2010.

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The finding recorded by the Sessions Court and this Court against the petitioners is that they were carrying revolvers and choppers and they committed murder of the deceased Naresh Ananda Gaikwad who was a councilor of Ambernath Municipal Council. The incident took place in the office of the deceased when the accused persons entered and fired bullets towards Naresh, the deceased. The deceased sustained 20 injuries which are enlisted in paragraph-19 of the judgment of the Sessions Court which include several incise wounds as well as fracture of scull at left temporal and occipital region.

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The learned counsel appearing for the petitioners has taken us through Annexure-I to the Government Resolution dated 15^th March 2010. Firstly, his submission is that the case of the petitioners is covered by more than one categories in Annexure-I and, therefore, the category which prescribes minimum period has to be considered. Without prejudice to the said submission, he submitted that the reasons for large number of injuries was that even according to the case of the prosecution, large number of accused were involved. He submitted that merely because there are large number of injuries on the person of the deceased, it cannot be said to be a case of murder committed with exceptional

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violence and brutality. He urged that those cases of exceptional brutality will be very rare. He submitted that there was a dispute between the petitioner No.2 and the deceased and, therefore, in any case, sub-category (e) of category-4 will not apply. He submitted that term “exceptional violence/ brutality” will have to be read ejusdem genesis with the rest of the provisions. He would, therefore, submit that categorization made by the State Government under sub-category (e) of category-4 of Annexure-I to the said Government Resolution is completely erroneous.

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We have considered the submissions. We have carefully perused the judgment of the Sessions Court as well as the judgment of this Court and Annexure-I to the Government Resolution dated 15^th March 2010. Category-3 is applicable when the murder arises out of land dispute or family feuds, family prestige and superstition and, therefore, considering the findings recorded in the judgments, category-3 will not be applicable. It is not the case of the petitioners that their case falls under categories-1, 2, 5, 6, 7 or 8. Category-4 deals with murders for other reasons. Sub-categories (a) and (b) of category-4 will not apply as in this case, the offence is committed by more than one person. Sub-category (c) of category-4 will not apply as it cannot be said that the murder was on account of result of trade union activities or business rivalry. So what remains to be decided whether the case falls in which of the subcategories (d) and (e). If the case is not covered by sub-category (e) of category-4 then sub-category (d) of category-4 will apply and the case of the petitioners will have to be considered after undergoing 24 years of imprisonment including all remission.

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SKN

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We must note here that sub-category (e) of category-4 reads

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thus:

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“4. MURDERS FOR OTHER REASONS. (a) to (d) ….. ….. ….. ….. ….. …..

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(e) Murder committed with exceptional violence/ brutality/ kidnapping. Murder committed by dacoits and robbers in the act of committing dacoities and robberies. Murder committed by bootleggers, gamblers, flesh traders etc.”

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There are three distinct sub-categories in category-4(e). The first category is of murder committed with exceptional violence/ brutality/ kidnapping. The second is of a murder committed by dacoits and robbers in the act of committing dacoities and robberies and the third is of a murder committed by bootleggers, gamblers, flesh traders etc. The case of the Government as mentioned in the impugned order is that the case of the petitioners is governed by the first sub-category category- 4(e) i.e. murder committed with exceptional violence and brutality.

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We must note here that we are dealing with exercise of power by the State Government to consider premature release of the petitioners who are sentenced to undergo life imprisonment. We are not deciding an appeal against the order made by the State Government categorizing the petitioners under sub-category (e) of category- 4 of the Annexure-I of the Government Resolution dated 15^th March 2010. The incident occurred in the evening at about 5.45 p.m. in the office of the deceased who was the President of a political party and an elected Municipal Councilor.

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According to the prosecution case, the accused Nos.2 and 11 to 16 entered the office of the deceased with weapons including revolvers and choppers. The accused Nos.11 and 12 fired bullets on the deceased and assaulted him with choppers. This prosecution case has been accepted by the trial Court as well as by this Court. We have already referred to paragraph-19 of the judgment of the trial Court which has been confirmed by the Division Bench of this Court. As stated earlier, apart from injuries resulting from firing of bullets, there are several incise wounds on the person of the deceased. Moreover, there was a fracture of scull at left temporal and occipital region and the internal examination showed that brain was herniating at the place of wound.

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Considering the findings which have been recorded by the trial Court and confirmed by this Court, we cannot call the approach of the State Government as perverse when it came to the conclusion that murder was committed with exceptional violence and brutality. The view taken by the State Government cannot be said to be such that no prudent person could have taken the said view on the basis of the findings recorded by the trial Court and confirmed by the appellate Court. Hence, we find no error in the view taken by the State Government. The petition is rejected.

Firoz Abdul Aziz Pathan and Ors. v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

Firoz Abdul Aziz Pathan and Ors. v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

What the court decided

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