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2007 Supreme(Bom) 139
IN THE HIGH COURT OF BOMBAY
(S.B. Deshmukh and S. P. Kukday, JJ.)
HAMID s/o RAHIM KHATIK - Petitioner
Versus
STATE OF MAHARASHTRA and others - Respondents
Cri. W. P. No. 740 of 2006
Decided on 2-2-2007
Advocates appeared
For petitioner: Mrs. A. N. Ansari
For respondents: K. B. Chaudhari, A.P.P.
Headnote:Criminal Procedure Code, 1973 - Section 432 - Premature release - Exercise of power under Section 432 of Code - Parameters - Genesis of incident - Business rivalry alleged by prosecution - Court recorded finding that deceased was killed in course of quarrel in individual capacity without premeditation - Finding of Court important and material - To be taken into consideration while considering case of a prisoner under guidelines. - The State Government has prepared guidelines for premature release under Section 432 of the Criminal Procedure Code. There is no dispute regarding the copy of the guidelines which is placed on record, on behalf of the petitioner. Thus the State Government has exercised the powers under Section 432 of Criminal Procedure Code and framed guidelines. In the present case, though from the prosecution allegation it appears that the genesis of the occurrence is out of business rivalry in between the present petitioner and other accused persons on one hand and deceased Isak on the other hand, ultimate finding recorded by the Court in criminal Appeal No. 114 of 1994, is a murder of deceased Isak in the course of quarrel without premeditation and in an individual capacity. In Court’s view, the prosecution allegation is one aspect of every criminal case. While applying guidelines, the finding recorded by the Court regarding the occurrence and offence is important. If the Court comes to the conclusion that the occurrence or the murder has been committed in course of quarrel or without premeditation and in individual capacity, as well as where the person has no previous criminal history, in that circumstance, the guideline framed by the State Government under category 3(a) needs to be applied. In other words, finding recorded by the Court, regarding the offence of murder is material and has to be taken into consideration while considering the individual case of prisoner under the se guidelines.
Criminal Procedure Code, 1973 - Section 432 - Premature release of prisoner - Accused convicted under Section 302 of IPC - Quarrel between accused and deceased took place all of sudden without prior meeting of minds - Not from business rivalry as alleged by prosecution - Deceased was killed without premeditation and in individual capacity by accused having no criminal history - Guidelines framed by State Government under category 3(a) required to be applied. - Here, in the State of Maharashtra the State Government has already framed the guidelines, a copy of which is on record. There is no dispute, here, in this case, that the case o f the present petitioner was considered by the Inspector General of Prisons, Pune and order impugned in this petition, came to be passed. This order is under challenge in this criminal writ petition. Facts, therefore, are distinct and ratio of the judgment in the matter of State of Punjab, is riot applicable to the facts of the case on hand. In this view of the matter, in Court’s view, the order impugned in this writ petition needs to be quashed and set aside holding that the petitioner’s case falls in category 3(a) of the guidelines.
S. B. DESHMUKH, J. :- Heard learned counsel Mrs. A N. Ansari for the petitioner and learned AP.P. Mr. K. B. Chaudhari for the respondents.
2. Rule. By consent of the parties, rule is taken up for hearing forthwith.
3. The petitioner seeks to quash and set aside the order passed by the respondent No.2, dated 28th September, 2006, in relation to premature release of the present petitioner. It is undisputed fact that the petitioner was accused No. 1 in Sessions Case No. 1 of 1993 along with three other co-accused persons. Sessions Case No. 1 of 1993 ended in conviction and sentence of life imprisonment and to pay a fine of Rs. 100/-, each, in default R.I. for two years in relation to present petitioner/accused No.1 and three other accused persons, by the learned Additional Sessions Judge, Amalner, District Jalgaon. The present petitioner, along with other three co-accused persons, had filed Criminal Appeal No. 114 of 1994 in this High Court. This Court, after hearing the parties, allowed the appeal. However, the conviction of the present petitioner, who was accused No.1 and original accused No.2 was maintained for the offence under section 302 read with section 34 of Indian Penal Code and their appeal was dismissed by this Court, by the judgment dated 30th September, 1998 in Criminal Appeal No. 114 of 1994. The petitioner/convict is undergoing the conviction and sentence inflicted upon him. At present, the petitioner is in Central Prison, Nashik Road, Nashik. The learned counsel for the petitioner submits that the case of the petitioner cannot be said to have been governed by guideline No. -1 (c) i.e. "murder resulting from trade union activities and business rivalry". According to the learned counsel for the petitioner, the case of the present petitioner is being governed by category No.3 (a) which reads thus:
"3 (a) Whether a murder is committed in the course of quarrel without premeditation in an individual capacity and where the person has no previous criminal history."
4. Learned AP.P. Mr. Chaudhari has invited our attention to the affidavit in reply, sworn in by one Mr. Bhaskar s/o Bhaurao Autade, Senior Jailor, Central Prison, Nashik Road, Nashik. In this reply affidavit, filed on behalf of the respondents, it is stated that the Inspector General of Prisons, Pune, by his communication dated 28th July, 2005 recommended for premature release of the petitioner/convict after 26 years of imprisonment in accordance with category 3 (c) of the guidelines dated 11th May, 1992. This guideline, according to the Inspector General of Prisons reads as "murder resulting from trade union activities and business rivalry".
5. Considering the material on record, ultimately, the government came to the conclusion that the case of the present petitioner/prisoner falls under category 3 (c) of the guidelines. Accordingly, order came to be passed, which is impugned in this Criminal Writ Petition.
6. Mr. Chaudhari, learned A.P.P. also relies on a judgment of the Apex Court in the matter of State of Punjab vs. Kesar Singh reported in AIR 1996 SC 2512.
7. Criminal Appeal No. 114 of 1994 is decided by this Court. We have been at benefit of reading the judgment of this Court in Criminal Appeal No. 114 of 1994, which is tagged with this writ petition. It appears that the occurrence in the case had taken place on 29th September, 1993 at about 03.00 p.m. in mutton market area at Chopda, Taluka Chopda, District Jalgaon. According to the prosecution allegations, there are good number of mutton shops at Chopda. One of the accused Salim brought one customer. The customer disliked the mutton which was kept for sale in the shop belonging to the accused persons, in the Sessions Case, including the present petitioner. The customer then went to the shop of another shop keeper - deceased Isak. One of the accused Salim disliked visit of the said customer to another shop of deceased Isak. Accused Salim asked deceased Isak not to sell mutton to said custome
