IMPORTANT POINT
The decision of the state government to grant remission is subject to judicial review, and courts have the power to determine whether rejection of the application for remission is arbitrary.

JUDGMENT :

Mangesh S. Patil, J.

Heard. Rule. Rule is made returnable forthwith. At the joint request of the parties, the matter is heard finally at the stage of admission.

2. The petitioners who are suffering sentences of life imprisonment, respectively, for causing murder and who have undergone more than 22 years of imprisonment including the remission, are seeking remission of remainder of the sentence under section 432 of the Code of Criminal Procedure and in accordance with the policy of the state government pronounced on 15-03-2010.

3. The Secretary of Home Department (Prison) who is the respondent no. 2 has taken a decision on behalf of the respondent no. 1 and has placed the petitioners in category 5(b) of the 2010 guidelines which prescribes for 26 years of incarceration, whereas the petitioners’ claim that they should have been placed in category 3(b) which provides for 22 years of imprisonment.

4. Learned advocate for the petitioners would submit that category 5 of 2010 guidelines provided for sub-categories under the head ‘Murder for Political Reasons’, whereas category 3 is provided for the cases relating to murders arising out of land dispute, family feuds, family prestige and superstition, of which sub-category (b) provides for crimes committed with premeditation either individually or by a gang. He would submit that in view of the decision in the matter of State of Haryana V. Jagdish; (2010) 9 SCC 496, the scheme of remission which is beneficial to the prisoner, has to be taken into consideration for grant of remission.

5. Learned advocate for the petitioners would submit that the facts and circumstances and the evidence before the convicting court indicated that though there was some animosity, may be on account of political rivalry between one of the accused Dagdu Barhate, the incident had taken place without premeditation. When the informant who was the son of the deceased Digambar for whose murder, the petitioners have been convicted, was passing by the side of the residential house of one of the accused - Shantabai, the other accused i.e. petitioners had arrived at the scene only incidentally one after the other and consequently, the motive sought to be attributed to all of them of political rivalry, in-fact, was not the motive and consequently, the petitioners ought not have been placed in category 5(b) which provides for murder for political reasons.

6. Learned APP would support the order under challenge. He would point out the observations of the trial court reproduced in the impugned order attributing political rivalry as the motive. He would also refer to the observations of this Court which decided the criminal appeals against conviction of some of the petitioners and also the revision whereby accused no. 3 - Shantabai was acquitted, wherein again there is a discussion regarding the political rivalry.

7. We have carefully considered the rival submissions and perused the papers.

8. We have no manner of doubt that the entire process of grant of remission undertaken by the respondents is not in accordance with the law laid down by the Supreme Court in catena of judgments. The impugned order is illegal for variety of reasons as we would point out herein-after.

9. Suffice for the purpose to observe that the impugned order merely refers to the opinion expressed by the convicting court submitted under section 432(2) of the Code of Criminal Procedure. In-fact, the reference to it can be found in the column of references just above the order. The entire order does not refer to any opinion, much less seeks to undertake any exercise of application of mind to the views expressed by the convicting court under that provision. Surprisingly, the impugned order refers to some observations of the convicting court in its judgment and order whereby petitioners were convicted, to arrive at the conclusion regarding the motive attributable to the petitioners.

10. It is important to note that after taking into consideration various jud