Bombay High Court
Case BriefsHigh Courts

   

Bombay High Court: In a petition filed by two convicts (‘petitioners’) challenging an order dated 09-07-2021 passed by Home Department, Government of Maharashtra directing their release after completion of 24 years of imprisonment including remission, as there are two different categories of crimes based on which remission is granted and their case seems to fall in a category having lesser year of imprisonment than 24 years as granted vide the impugned order, a Division Bench of Revati Mohite Dere and Madhav J Jamdar, JJ. held that even if it is assumed that the petitioners’ case falls under both the categories namely category no. 4 (c) and category no. 4 (d) of Guidelines dated 15-03-2010 (‘2010 Guidelines’), then also, the more beneficial category i.e., category no. 4 (c) will apply to the Petitioners’ case.

The petitioner claimed that the incident in question has taken place on account of a rivalry between two trade unions namely Mumbai Labour Union and Bhartiya Kamgar Sena. The deceased was a member of the Mumbai Labour Union, whereas, both, the Petitioners belonged to the Bhartiya Kamgar Sena. Petitioners i.e., Uday Dhaku Sutar and Ranjay Laxman Sawant (Accused 1 and 3) alongwith Prakash Yeragi (Accused 2), thus, were convicted for the offences punishable under Section 302 read with 34 of Penal Code, 1860 and were sentenced to suffer rigorous imprisonment for life.

Counsel for petitioners submitted that category 4 (c) of Guidelines dated 15th March, 2010 applies to the present case, whereas, the contention of the State is that category 4 (d) of said 2010 Guidelines is applicable.

Category 4 (c) covers Murder resulting from trade union activities and business rivalry mentioning 22 years as the period of imprisonment to be undergone including remission subject to a minimum of 14 years of actual imprisonment including set off period whereas Category 4 (d) covers murder committed by more than 1 person and mentions 22 years as the said period.

The Court noted that in the present case, murder has been committed by three persons, however, Guideline no. 4 (c) specifically contemplates murder resulting from trade union activities and does not further prescribe that the same will apply only if a murder has been committed by one person. What is relevant is murder should have been committed as a result of trade union activities and therefore, whether murder has been committed by more than one person/group of persons is totally irrelevant.

Placing reliance on State of Haryana v. Jagdish, (2010) 4 SCC 216, wherein the Court observed that “In case a liberal policy prevails on the date of consideration of the case of a “lifer” for premature release, he should be given benefit thereof.”

The Court remarked that it has been held by Supreme Court that in case of convicts the policy which was prevalent when the conviction takes place will apply and if any other liberal policy prevails on the date of consideration of case for premature release, then such policy will apply. The said principle of giving benefit to the convict of beneficial policy certainly applies to the two different policies/guidelines but the same will also apply to the categories in the same policy/guidelines, if case falls under both the categories.

Thus, the Court held that the present case is squarely governed by Guideline no. 4 (c) of Guidelines 2010, as the murder took place as a result of trade union activities and thereby quashed the impugned order.

[Uday Dhaku Sutar v. The State of Maharashtra, Criminal Writ Petition No. 4544 of 2021, decided on 08-09-2022]


Advocates who appeared in this case:

Mr. Rupesh Jaiswal, Advocate, for the Petitioner in both the Writ Petitions;

Mr. J. P. Yagnik, APP, Advocate, for the Respondent-State in Writ Petition No. 4544 of 2021;

Ms. M. H. Mhatre, APP, Advocate, for the Respondent-State in Writ Petition No. 4545 of 2021.


*Arunima Bose, Editorial Assistant has put this report together.

Case BriefsSupreme Court

Supreme Court: In a case where a man had brutally raped and murdered a 7-year-old girl, the 3-judge bench of AM Khanwilkar, Dinesh Maheshwari* and CT Ravikumar, JJ has reversed the concurrent findings of the Courts below and has commuted the death sentence into that of imprisonment for life, with the stipulation that the appellant shall not be entitled to premature release or remission before undergoing actual imprisonment for a period of 30 years.

The Court observed,

“The heinous nature of crime like that of present one, in brutal rape and murder of a seven-year-old girl child, definitely discloses aggravating circumstances, particularly when the manner of its commission shows depravity and shocks the conscience. But, at the same time, it is noticeable that the appellant has no criminal antecedents, comes from a very poor socio-economic background, has a family comprising of wife, children and aged father, and has unblemished jail conduct.”

The Trial Court and the High Court had sentenced the appellant to death for enticing a seven-year-old girl to accompany him on the pretext of picking lychee fruits; having thereafter committed rape upon the child; having caused her death; and having dumped the dead body near a bridge on the riverbank, after having dragged the dead body over a distance of one and one-quarter kilometres.

The Supreme Court, however, noticed that both the Trial Court as also the High Court have taken the abhorrent nature of crime alone to be the decisive factor for awarding death sentence in the present case.

The Trial Court convicted the appellant on 07.12.2016 and on the next day, proceeded to award the sentence. The sentencing order did not indicate if the appellant was extended reasonable opportunity to make out a case of mitigating circumstances by bringing relevant material on record. The sentencing order also failed to satisfy if the Trial Court consciously pondered over the mitigating factors before finding it to be a ‘rarest of rare’ case.

The Trial Court also observed that ‘if such heinous crime is committed by him, it is not justifiable to show any sort of mercy in the punishment.’

The High Court confirmed the order of the Trial Court, with a cursory observation that there were no substantial mitigating factors and the aggravating circumstances were aplenty, after making rather intense comments on the menace of rape and brutal murder of children as also on the society’s abhorrence of such crime.

In such circumstances, the Court observed that the approach of the Trial Court and High Court had been that the accused-appellant was about 33-34 years of age at the time of occurrence and was supposed to be sensible. The Supreme Court, hence, held that the impugned orders awarding and confirming death sentence could only be said to be of assumptive conclusions, where it has been assumed that death sentence has to be awarded because of the ghastly crime and its abhorrent nature.

Disagreeing with the concurrent findings of the Courts below, the Supreme Court held that,

“There is nothing on record to rule out the probability of reformation and rehabilitation of the appellant, in our view, it would be unsafe to treat this case as falling in ‘rarest of rare’ category.”

It observed that when the appellant is not shown to be a person having criminal antecedents and is appellant is not shown to be a person having criminal antecedents and is not a hardened criminal, it cannot be said that there is no probability of him being reformed and rehabilitated. His unblemished jail conduct and having a family of wife, children and aged father would also indicate towards the probability of his reformation.

It was, however, observed that even when the present case is taken to be not falling in the category of ‘rarest of rare’ so as to require termination of the life of the appellant yet, the impact of the offences in question on the conscience of the society as a whole cannot be ignored. Hence, commutation of death sentence to life imprisonment without application of the provisions of premature release/remission before mandatory actual imprisonment, was found to be just and reasonable.

The Court, hence, awarded the punishment of imprisonment for life to the appellant for the offence under Section 302 IPC while providing for actual imprisonment for a minimum period of 30 years. All the substantive sentences to run concurrently.

[Pappu v. State of Uttar Pradesh, 2022 SCC OnLine SC 176, decided on 09.02.22]

*Judgment by: Justice Dinesh Maheshwari

Case BriefsSupreme Court

Supreme Court: A Division Bench of Hemant Gupta and A.S. Bopanna, JJ. disposed of a criminal appeal holding, inter alia, that if a prisoner has undergone more than 14 years of actual imprisonment, the State Government, as an appropriate Government, is competent to pass an order of premature release; but in case of the prisoner who has not undergone 14 years or more of actual imprisonment, the Governor has a power to grant pardon, reprieve, respite and remission of punishment or to suspend, remit or commute the sentence of any person.

Appeal

The parties before the Supreme Court were aggrieved by the order of the Punjab and Haryana High Court wherein it had, inter alia, directed the State to consider the feasibility of drafting a fresh policy for grant of remission to prisoners, particularly in respect of exercise of powers conferred under Article 161 of the Constitution.

The High Court referred to several policies circulated by the State Government. The first policy in connection with the premature release of prisoners was circulated in 1987. After that came the policies of 1988, 1991, 2000 and 2002 which contemplated that the case of premature release would be considered on individual basis to be reviewed by a State Committee and thereafter shall be put before the Governor. However, the latest policy of 2008 did not contemplate that individual cases will have to be placed before the Governor.

The issue in the instant appeals was regarding applicability of the 2002 policy or the 2008 policy to the prisoner convicted in March 2010. The proposition for the consideration of the Court was that the 2002 policy referred to exercise of powers under Article 161 of the Constitution (since it mandated placing of individual cases before the Governor), whereas the 2008 policy was in exercise of powers under Section 432 read with Sections 433 and 433-A CrPC.

Discussion and Decision

At the outset, the Court referred to Article 161 (Power of Governor to grant pardons etc., and to suspend, remit or commute sentences in certain cases) of the Constitution; and Sections 432 (Power to suspend or remit sentences), 433 (Power to commute sentence) and 433-A (Restriction on powers of remission or commutation in certain cases) of the Criminal Procedure Code. The former article refers to power of the Governor, while the latter three sections refer to power of the appropriate Government.

The Court noted that the power of an appropriate Government to issue general or special orders allowing remissions is traceable to Section 432 CrPC. The policies in question were framed in exercise of powers conferred on appropriate Government under Section 432, and hence were statutory in nature.

The High Court’s direction for the State to consider drafting a fresh policy for remission was particularly in respect of  exercise of powers conferred under Article 161. The Supreme Court noted that the power under Article 161 can be exercised by the State Governments, not by the Governor on his own. The advice of the appropriate Government binds the Head of the State. The Court was of the opinion that no separate order for each individual case is necessary but any general order made must be clear enough to identify the group of cases and indicate the application of mind to the whole group. It was stated:

“Therefore, the policies of the State Government are composite policies encompassing both situations under Article 161 of the Constitution and Sections 432, 433 and 433-A of the Code.”

It was however clarified that the remission under Article 161 will override Section 433-A CrPC, if the State Government decides to be governed of its constitutional power.

The Court noted further that it has been a consistent view that the policy prevalent at the time of conviction shall be taken into consideration for considering the premature release of a prisoner. The 2008 policy for premature release was issued in the name of the Governor and was published in the official Gazette.  The 2008 policy which substituted the 2002 policy did not take over the discretion vested in the Governor to grant pardons, remissions or commute sentence in exercise of powers conferred under Article 161. Moreover,  the 2002 policy was also a statutory policy and cannot be put at a higher pedestal than the 2008 policy for the reason that it sought approval from the Governor. Such policy as was specifically superseded by the 2008 policy, ceased to be operative for the convicts who are convicted after 13-8-2008.

Coming to the restrictions on exercise of powers of remission under CrPC, the Court noted that Section 433-A starts with a non-obstante clause restricting the right of the appropriate Government to suspend the sentence of life imprisonment imposed on conviction of a person for an offence for which death is one of the punishments provided by law, that such person shall not be released from prison unless he has served at least 14 years of imprisonment. However, the power of the Governor under Article 161 to pardon or to commute sentence is independent of any such restriction or limitation.

As a necessary corollary, if a prisoner has undergone more than 14 years of actual imprisonment, the State Government is competent to pass an order of premature release, but if the prisoner has not undergone 14 years or more of actual imprisonment, the Governor has a power to grant pardons, reprieves, respites and remissions of punishment or to suspend, remit or commute the sentence of any person de hors the restrictions imposed under Section 433-A. The Court said that:

“Such power is in exercise of the power of the sovereign, though the Governor is bound to act on the aid and advice of the State Government.”

To conclude, the Supreme Court found that the impugned directions issued by the High Court were not sustainable “for the reason that the policies have to be read keeping in view the period of imprisonment undergone by a prisoner”.

On merits, it was noted that prisoner before the Court had completed 12 years and 25 days in prison. The prisoner was convicted in March 2010 and therefore as per his date of conviction, the 2008 policy was applicable to him. Accordingly, it was held that the case for premature release of the prisoner in terms of the State Government’s 2008 policy can be considered only after he completes 14 years of actual imprisonment. However, the State Government can consider the prisoner in question for premature release after undergoing imprisonment for less than 14 years only under Article 161 of the Constitution. [State of Haryana v. Raj Kumar, 2021 SCC OnLine SC 539, decided on 3-8-2021]


Tejaswi Pandit, Senior Editorial Assistant has reported this brief.

Case BriefsSupreme Court

Supreme Court: Dealing with an issue relating to special remission being granted to certain categories of prisoners by the Governor of Haryana on the occasion of the Independence Day i.e., 15th August, 2019, in exercise of powers conferred by Article 161 of the Constitution of India, The 3-judge bench of UU Lalit, MM Shantanagoudar and Vineet Saran referred the question to a larger bench and framed the following issue:

“Whether in exercise of power conferred under Article 161 of the Constitution a policy can be framed, whereunder certain norms or postulates are laid down, on the satisfaction of which the benefit of remission can thereafter be granted by the Executive without placing facts or material with respect to any of the cases before the Governor and whether such exercise can override the requirements under Section 433-A of the Code.”

In the matter before the Court, the appellant was convicted under Section 302 read with Section 34 of the Penal Code and sentenced to suffer life imprisonment and to other punishments including fine and default sentence under certain other offences. The Supreme Court had rejected his bail application in 2017 and when t\the Court took up the second bail application for consideration, it was reported that after having completed 8 years of actual sentence and the Appellant being aged above 75 years, in accordance with the existing policy of the State Government, he was prematurely released in 2019.

The Court, therefore, called upon the State to file an affidavit indicating whether the policy permitted premature release even before completion of actual sentence of 14 years in connection with an offence punishable under Section 302 IPC. State submitted before the Court that special remission was granted to certain categories of prisoners by the Governor of Haryana on the occasion of the Independence Day i.e., 15th August, 2019, in exercise of powers conferred by Article 161 of the Constitution of India. The individual facts and circumstances of the case were not even placed before the Governor.

While hearing the matter, the Court noticed that the consistent line of cases decided by this Court has laid down that the principles of Section 433-A of the Code do not and cannot apply to the exercise of constitutional power either under Article 72 or under Article 161 of the Constitution.

“It has always been accepted that no limitation can be read into the exercise of such constitutional power that the sovereign power would not be bound by restrictions emanating from Section 433-A of the Code.”

In Maru Ram v. Union of India, (1981) 1 SCC 107 , the Constitution Bench of this Court considered the validity of Section 433-A of the Code. The majority Judgment cautioned that mere length of imprisonment may not by itself regenerate goodness in a convict and stated that the rules of remission may be effective guidelines of a recommendatory nature.

“The decisions of this Court rendered since Maru Ram and some of them being decisions of the Benches of three Judges of this Court, do show that the relevant material must be placed before the Governor in order to enable him to exercise the power under Article 161 of the Constitution and failure on that count could result in quashing of the concerned orders of remission issued under Article 161 of the Constitution.”

The Court further noticed that the modalities adopted in the present matter, unmistakably, show that the individual facts and circumstances of the case were not even placed before the Governor. The basic aspects viz., the manner in which the crime was committed, the impact of the crime on the Society and the seriousness of the crime got completely suppressed and relegated in the background under the norms laid down in the policy and it was then left to the Executive to see whether any individual case came within the parameters laid down by the policy. The basic facts and circumstances of the case were not even looked into.

Hence, considering that the decision in Maru Ram was rendered by the Constitution Bench, the Court thought it proper to refer the matter to a larger bench.

[Pyare Lal v. State of Haryana, 2020 SCC OnLine SC 583 , order dated 17.07.2020]

Case BriefsSupreme Court

Supreme Court: The Bench comprising of Kurian Joseph and S. Abdul Nazeer, JJ., while allowing an appeal directed for a premature release to the petitioner.

In the present case, the petitioner was a convict under Sections 302 and 394 IPC and had served sentence for 29 years. The age of the petitioner was over 60 years and in accordance of the Rules, a person who has crossed the age of 60 years and has served sentence for 16 years without remission is eligible to be considered for premature release.

Therefore, the Supreme Court in light of the facts and circumstances of the case, was of the view that further consideration by the State is not needed and the petitioner satisfies the eligibility criterion for the said release.

The Court directed for petitioner’s release unless he required to be detained for any other case. [Ram Sewak v. State of U.P.,2018 SCC OnLine SC 2012, Order dated 11-10-2018]