Partly allowed

Tolabai W/O. Raosaheb Dabyakale (C-8012) v. the State of Maharashtra and Anr.

Bombay HC13 Feb 2019WP/61/2019

Case brief

AI extract

What is this about?

This criminal writ petition addressed the placement of a convicted woman offender under prison release guidelines. The court distinguished the facts from Usha Munna Upadhyay and held that due to premeditation, exceptional violence, and fatal burns to a female victim, the petitioner is correctly categorized under Category 2(b) for 22 years, not Category 1.

What did the court decide?

The petitioner directed to be placed under Category 2(b) of the Guidelines of 2010 for a term of 22 years imprisonment.

Tolabai W/O. Raosaheb Dabyakale (C-8012) Vs… — Pension and Retirement Benefits | Bombay HC (2019)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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BENCH AT AURANGABAD

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CRIMINAL WRIT PETITION NO.61 OF 2019

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Tolabai w/o Raosaheb @ Dabya Kale
(C-8012), Central Prison,
Aurangabad
...PETITIONER

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 VERSUS

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1) The State of Maharashtra,
 Through Superintendent of Jail,
 Central Prison, Aurangabad,

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2) State of Maharashtra,
 Through Secretary,
 Home Department (Prison),
 Mumbai-400005.

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...RESPONDENTS

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...

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 Mr. R.A. Jaiswal, Advocate for Petitioner.
 Mr.D.R. Kale, A.P.P. for Respondent Nos.1
 and 2.

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...

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CORAM: S.S. SHINDE AND

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 R.G. AVACHAT, JJ.

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DATE OF RESERVING JUDGMENT : 5TH FEBRUARY, 2019

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 DATE OF PRONOUNCING JUDGMENT: 13TH FEBRUARY, 2019

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JUDGMENT [PER S.S. SHINDE, J.]:

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1. Rule. Rule made returnable forthwith and

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heard finally with the consent of the learned
counsel appearing for the parties.

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2.The petitioner has filed this Petition

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with following substantive prayers :-

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“A)By writ of mandamus or any other
appropriate writ, order or direction in the
like nature, the order passed by respondent
No.2 (Exhibit-B) dated 06.01.2018 may kindly
be quashed and set aside, and, or,

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B)To place the petitioner in category 1(b)
of Guidelines of 2010, and thereby direct the
Respondents to release petitioner forthwith.”

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3.Learned counsel appearing for the

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petitioner submits that by Judgment and order

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dated 13th November, 2003, passed by the Additional
Sessions Judge, Solapur in Sessions Case No.105 of

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2003, the petitioner has been convicted for the
offence punishable under Section 302 read with 34
of the Indian Penal Code, and sentenced to suffer
life imprisonment. The Petitioner was under-trial
prisoner since 11th January, 2002, till the date of
conviction and sentence, and presently the
petitioner is lodged in Central Prison,
Aurangabad.

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4.Learned counsel further submits that the
story of the prosecution is that on 11th October,
2002, deceased Manisha Popat Kale was present in
her house, at that time co-accused Raosaheb
entered in her house and started beating her, and
at the same time, co-accused Raosaheb poured
kerosene on the person of deceased Manisha, and
present Petitioner set her ablaze. The Petitioner
along with another accused Raosaheb were tried
before the Sessions Court at Solapur and convicted
and sentenced as afore-stated.

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5.Learned counsel further submits that

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Respondent No.2 by order dated 6th January, 2018,

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has decided the application filed by the
petitioner for her premature release, and has
placed the petitioner in Category 3(d) of the
Guidelines of 1992, and Category 2(c) of the
Guidelines of 2010, and directed that the
Petitioner should undergo the sentence of 26
years. Learned counsel submits that the said order
dated 6th January, 2018, is under challenge in
this Petition.

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6.Learned counsel further submits that the

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Petitioner being a woman should have been placed
in Category 1(a) or 1(b) of Guidelines of 2010,
but the Respondent authorities have placed the
Petitioner in wrong category. In the present case,
the crime is committed by a woman, but Respondent
No.2 failed to consider this aspect and placed her

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in wrong category, and therefore, the impugned
order is bad in law. Learned counsel relying upon
the Guidelines of 2010, submits that under the
said Guidelines specific category i.e. Category 1
is introduced for “Offences relating to crime by
women”. It is submitted that as per Category 1(a),
where convict has no criminal history and has
committed the murder in an individual capacity and
in moment of anger, and without premeditation or
underphysicalmentalprovocation,the

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imprisonment is provided for 18 years, and as per
Category 1(b), where murder is committed with
premeditation, or by a gang, the imprisonment is
provided for 20 years.

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7.Learned counsel further submits that, the
Government of Maharashtra amended the Guidelines,
and brought new Guidelines of 2010, wherein a
special category i.e. Category 1(a) and 1(b) had
been inserted regarding “the offence relating to

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crime by women”. Learned counsel placed reliance
upon the exposition of law by the Supreme Court in
the case of State of Haryana and others vs.
Jagdish1, and submitted that in the said Judgment,
it is held that if the Guidelines which were in
existence at the time of conviction of convict are
subsequently changed, the convict will be entitled
to get the benefit of the Guidelines which are
favourable to the convict. Learned counsel further
submits that as per the Guidelines of 2010,
special category i.e. Category 1 is provided for
the offence by woman, and therefore, the
Petitioner being woman, no other category will be
applicable to her case. Learned counsel further
submits that the Petitioner is aged about 62 years
and she is never released on furlough or parole.

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8.Learned counsel submits that as per
Category 1(b) of the Guidelines of 2010, the

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1AIR 2010 SC 1690

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convict needs to undergo imprisonment of 20 years
and in the present case the Petitioner has already
undergone more than 20 years imprisonment
including remission. Learned counsel appearing for
the petitioner in support of his submissions,
placed reliance upon the exposition of law in the
case of Usha Munna Upadhyay vs. the State of
Maharashtra2, and in particular Para-21 of the
Judgment, which reads thus:

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“21. In our opinion, category 1 of the 2010
guidelines which is exclusively for women
offenders must cover all the cases of women
offenders, and the women offenders can be
fitted only in that category. Because of the
creation of a special category of women
offenders, the other categories which are of
a general nature, classified on the basis of
nature of offences, would not apply to women
offenders. Consequently, we hold that the
order dated 4 September 2012 passed by the
Government of Maharashtra placing the
petitioner in Category 5(b) of the 2010
guidelines and Category 6(a) of the 2010

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22015 ALL MR (Cri) 3209

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guidelines, is not proper and that the
petitioner may be placed in Category 1(b) of
the 2010 guidelines for considering her
premature release.”

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9. Learned counsel appearing for the

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Petitioner submits that the impugned order dated
6th January, 2018, deserves to be quashed and set
and aside, by allowing the Petition.

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10.On the other hand learned A.P.P.

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appearing for the State, referring to the reply
filed on behalf of the Respondents, submits that

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the Petitioner is convicted for the offence
punishable under Section 302 read with 34 of the
Indian Penal Code. The conviction is on the basis
of evidence adduced by the prosecution and the
Petitioner along with co-accused namely, Raosaheb
have been convicted for life imprisonment by the

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Sessions Court, Solapur. It is the case of pouring
kerosene on the victim and thereby committing her

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murder. Learned A.P.P. submits that, therefore,
the categorization made by the Respondent

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authorities while passing the order on 6th January,
2018, is legal and proper.

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11.Learned A.P.P. further submits that the
accused have committed murder of Manisha due to
the dispute of illicit relationship. It is further
submitted that the Respondent authority has
submitted proposal for premature release as per
Category 3(d) of the Guidelines of 1992 and
Category 2(c) of the Guidelines of 2010, whereby
26 years imprisonment is provided. It is submitted
that the said proposal has been approved by
District and Sessions Court, Solapur, by its
letter dated 18th June, 2016, wherein it is opined
that the Petitioner is liable to suffer 26 years
imprisonment. Learned A.P.P. further submits that
in the present case the offence is committed by
the accused with exceptional violence and/or with

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brutal death of victim due to burns. Therefore,
the categorization applied by the Respondent
authority is legal and proper, as the said offence
is not committed in an individual capacity. The
Petitioner, along-with another co-accused, has
committed murder of the victim with intention and
motive, and it is premeditated murder.

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12.Learned A.P.P. further submits that, as

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per the provisions of Section 432 of the Code of
Criminal Procedure, the Government has power to
pass an order as per the prevailing policy wherein
suspension and remission can be granted by the
Government. Learned A.P.P. referring to the
Judgment of the Supreme Court in the case of State
of Haryana vs. Jagdish, cited supra, submits that
in the said case the guidelines have been issued
while passing order by the State Authority at the
time of deciding the application for premature
release. Learned A.P.P. further submits that in

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the present case, the offence committed by the
accused is of serious nature and victim sustained
75% burn injuries and therefore, as per the
recommendation made by the District and Sessions
Judge, Solapur, the Government has applied correct
and legal categorization while deciding the
proposal of the Petitioner for premature release,
and the Petitioner is rightly placed under
Category 3(d) of the Guidelines of 1992 and
Category 2(c) of the Guidelines of 2010, wherein

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the imprisonment of 26 years is provided.

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13.Learned A.P.P. submits that after

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applying its mind and after taking into
consideration the opinion expressed by District
and Sessions Court, Solapur, the Respondent
authorities have rightly passed the impugned order
dated 6th January, 2018. Learned A.P.P. therefore
submits that the Petition deserves to be rejected.

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14.We have heard learned counsel appearing
for the Petitioner and learned A.P.P. appearing
for the State. With their able assistance, we have
perused the pleadings in the Petition, grounds
taken therein, annexures thereto, reply filed on
behalf of the Respondents, the relevant Guidelines
of 2010, and the reported Judgments relied upon by
learned counsel appearing for the parties.

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15.We have carefully perused the opinion
expressed by the District Judge-2, and Additional
Sessions Judge, Solapur, dated 18th June, 2016,
wherein it is opined that:-

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“On perusal of entire record and proceedings
of Sessions Case No.105/03, it appears that
the accused Tolabai Ravsaheb @ Dabya Kale
has brutally committed the murder of Manisha
Popat Kale. Therefore, considering the
circumstances under which the accused
Tolabai Ravsaheb @ Dabya Kale has committed
an offence her case falls under category

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4(D) of Government Resolution dt.11-4-2008

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and she should undergo the sentence of
imprisonment for 26 years.”

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16.We have also independently perused and
considered the findings recorded by Vth Additional
Sessions Judge, Solapur, in Sessions Case No.105
of 2003, by which the Petitioner along with other
co-accused Raosaheb, were convicted for the
offence punishable under Section 302 read with 34
of the Indian Penal Code and sentenced to suffer
rigorous imprisonment for life. In our considered
view, the opinion expressed by the District
Judge-2, and Additional Sessions Judge, Solapur
that, the Petitioner shall undergo the sentence of
imprisonment for 26 years, cannot be faulted with.

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17.However, learned counsel appearing for

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the Petitioner has placed reliance upon the ratio
laid down in the case of Usha Munna Upadhyay V/s
the State of Maharashtra, cited supra, and made

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submission that the view taken by the High Court
that Category 1 of Guidelines of 2010, which is
exclusively for women offenders must cover all the
cases of women offenders, and therefore, the
Petitioner being woman offender deserves to be
placed in said Category 1 of 2010 Guidelines.

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18.We have carefully perused the facts of
the said case of Usha Munna Upadhyay, cited supra
and the facts of the present case, and we find
that in the present case the victim is also a
woman. Therefore, upon careful perusal of the
Guidelines of 2010, laid down by Government
Resolution No. RLP No.100/CR621/PRS-3, dated 15th
March, 2010. Category 2 of the said Guidelines of
2010, deals with “Offences relating to crimes
against women and minors”. In the facts of the
Judgment in the case of Usha Munna Upadhyay, cited
supra, the Division Bench did not consider that
Category 2 in the Guidelines of 2010, is special

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category for the offences relating to crimes
against women and minors. Therefore, the
observations of the Division Bench to the extent
that, “Category 1 laid down in aforesaid
Guidelines of 2010 is special category and all
other categories are general categories”, would
not be applicable to the present case, as the
facts of the present case are different than the
facts in the case of Usha Munna Upadhyay, cited
supra.

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19.In the peculiar facts and circumstances
of this case, in our considered opinion the
categorization in the Guidelines of 2010, will
have be harmoniously construed. Upon careful
perusal of Category 1 and Category 2 of the
Guidelines of 2010, conjointly, where the crime is
committed with premeditation and with exceptional
violence or with brutality or death of victim due
to burns, will have to be harmoniously construed

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with Category 1(a) and (b) of the Guidelines of
2010, and on such harmonious consideration, we
deem it appropriate to categorize the case of the
Petitioner in Category 2(b) of the Guidelines of
2010, and proper sentence in the case of the
Petitioner, would be of 22 years.

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20.In the light of discussion herein above,

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we direct the Respondent authorities to place the
the Petitioner under Category 2(b) of the
Guidelines of 2010, and accordingly the Petitioner
should undergo the sentence of imprisonment of 22
years.

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21.The Writ Petition is partly allowed and

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the same stands disposed of, accordingly. Rule

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made absolute in above terms.

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[R.G. AVACHAT, J.] [S.S. SHINDE, J.]

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asb/FEB18

Tolabai W/O. Raosaheb Dabyakale (C-8012) v. the State of Maharashtra and Anr.

Case brief

What is this about?

What did the court decide?

Tolabai W/O. Raosaheb Dabyakale (C-8012) v. the State of Maharashtra and Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

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