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Judgment
S.S. Shinde, J.—The present Writ Petition was heard on 9th December, 2016, and following order was passed :
"This petition under Article 226 of the Constitution of India is filed seeking directions to the respondents to release the petitioner on the ground that he has undergone the actual imprisonment for more than 18 years.
Pursuant to the notices issued to the respondents, reply is filed on behalf of respondent Nos.1 to 3 by one Shri Rajkumar s/o. Keshavrao Sali, presently working as Superintendent, Open District Prison, Paithan, Dist. Aurangabad. Para 7 of the said affidavit reads thus :
"7. I say that, accordingly, the Superintendent of Open Prison, Paithan, vide letters dated 17.10.2012, 28.04.2014, 12.07.2014, 09.12.2015, 07.04.2016, 10.11.2016, sought opinion from the City Sessions Judge, Mumbai in respect of premature release of the petitioner, the respondents are consistently taking follow up of the matter. The copies of the letters dated 17.10.2012, 28.04.2014, 12.07.2014, 09.12.2015, 07.04.2016, 10.11.2016, are annexed herewith and marked as "EXHIBIT R2" collectively."
We are surprised to note that though the opinion from the City Civil and Sessions Judge, at Mumbai in respect of premature release of the applicant is sought in the year 2012, the concerned Judge has not yet given the opinion.
In the circumstances, we direct the Principal Judge, City Civil and Sessions Court, at Mumbai to submit report, as to why opinion, as sought, has not been given till date by the concerned Judge, when the said case of the petitioner is referred for opinion in the year 2013.
Learned Registrar (Judicial) shall ensure that such report is received from the Principal Judge, City Civil and Sessions Court at Mumbai, on or before 22nd December, 2016.
List on 4th January, 2017."
Pursuant to the order dated 9th December, 2016, the Registrar [Judicial] has received report from the Principal Judge, City Civil and Sessions Court at Mumbai. Along with the said report, the letter written by the Additional Sessions Judge, City Civil and Sessions Court, Greater Mumbai to the Superintendent, Open District Prison, Paithan, District Aurangabad is also annexed. It appears that, by the said letter the Additional Sessions Judge has communicated his remarks.
It appears from the reply filed by respondent nos. 1 to 3 that, the Superintendent, Open Prison, Paithan from 17.10.2012 to 10.11.2016 had written as many as 6 letters, seeking opinion of the Sessions Judge, City Civil and Sessions Court, Mumbai. However, it is mentioned in the letter written by the Principal Judge, City Civil and Sessions Court, Mumbai to the Registrar that, only 2 letters i.e. letters dated 12.07.2014 and 10.11.2016 were received by the office of Principal Judge, City Civil and Sessions Court, Mumbai.
Be that as it may, we do not wish to enter the discussion about how many letters were written by the Superintendent, Open Prison, Paithan to the Principal Judge, City Civil and Sessions Court, Mumbai and as a matter of fact how many of them were received by the office of the Principal Judge, City Civil and Sessions Court, Mumbai. Suffice it to say that, the Circular issued by the Department of Home [Prison], Government of Maharashtra, bearing Circular No. (vkj,yih) 1099/10/263/3 (ihvkj,l), dated 2nd August, 2004, provides for procedure and time limit to complete the proposal for premature release of the convict. The following instructions are issued in the said Circular :
"1- tUeBsi ca|kph U;k;k/khu dkGko/khlg fuOoG 12 o"ksZ iw.kZ >kY;koj lacaf/kr dkjkx`g vf/k{kd ;kauh ca|kP;k eqnriqoZ lqVdspk izLrko ''kklukl ikBfo.;kdjhrk izfdz;k lq: djkoh0M
2- egkjk"V~ dkjkx`g fu;ekoGhrhG egkjk"V~ fiz>Ul fjOg;w vkWQ lsUVsUl :Yl 1972 e/khG fu;e 26 uqlkj laca/khr dkjkx`g vf/k{kd ;kauh lacaf/kr iksGhlkapk vgokG 3 efgU;kr izkIr gksbZG vls igkos0 ca|kP;k eqnriqoZ lqVdsckcr iksGhl vgoky ekxforkauk iksGhlkuka R;kaP;k vgokGkr lnj canh vfHkopu@lafpr jtsoj dkjkx`gkckgsj vkGk vlrkauk lnj ca|kph R;kosGh orZ.kqd d''kh gksrh] R;kosGh R;kps fo:) dks.kh iksGhlkdMs xqUgk o rdzkj uksanfoGsGs vkgs dk; fdaok dls] ;kcnnGP;k ekfgrhpk u pqdrk lekos''k dj.;kckcr dGfo.;kr ;kos0
3- R;kuarj fu;e 26 uqlkj laca/khr ftYgknaMkf/kdkjh ;kaps vfHkizk; 2 efgU;kr izkIr gksrhG v''kh n{krk lacaf/kr dkjkx`g vf/k{kd ;kauh ?;koh0
4- egkjk"V~ fiz>Ul fjOg;w vkWQ lsUVsUl :Yl 1972 e/khy fu;e 21 o 22 vuqlkj lYGkxkj eaMGkps lnL;] lfpo ;k ukR;kus vf/k{kd dkjx`g ;kauh iq<+hG ;s.kk&;k tkusokjh&Qsczqokjh fdaok tqyS&vkWxLV e/;s lYGkxkj eaMGkph cSBd vk;ksftr dj.;kph dk;Zokgh djkoh] nj 6 efgR;krwu lYGkxkj eaMGkph cSBd ?ks.ks vko'';d vkgs gh ckc lYGkxkj eaMGkus v/;{k o lnL;kaP;k fun''kZukl vk.kkoh0
5- dkjkx`g vf/k{kd ;kauh dkjkx`g lYGkxkj eaMGkph cSBd >kY;kuarj lnj cSBdhps dk;Zo`Rr r;kj d:u egkjk"V~ dkjkx`g fu;ekoGhrhG egkjk"V~ fiz>Ul fjOg;w vkWQ lsUVsUl :Yl 1972 e/khG fu;e 16@1 [kkGhG rjrqnhuqlkj R;ke/;s lnj dS|kP;k eqnriwoZ lqVdsckcrP;k dkj.kkfeekalslg Li"V vfHkizk; lknj dj.ks vko'';d vlY;kps v/;{kkaP;k fun''kZukl vk.kqu r''kh dkj.kfeekalk dk;Zo`Rrkar ueqn djkoh o dk;Zo`Rr ''kklukl izLrkoklkscr ikBokos0
6- vf/k{kd dkjkx`g ;kauh lacaf/kr tUeBis ca|kph egkjk"V~ fiz>Ul fjOg;w vkWQ lsUVsUl :Yl 1972 e/khG fu;e 25 vuqlkj vko'';d vlGsGh loZ ekfgrh tek d:u rks izLrkokr lekfo"B djkoh0
7- tUeBsi canh ;kus dkjkx`gke/;s f''k{kk Hkksxhr vlrkauk R;kaP;ke/;s >kGsY;k lq/kkj.ksP;k n`"Vhus R;kus dkeke/;s dsGsY;k oS;fDrd izxrhph ekfgrh] R;kus f''k{k.kke/;s dsGsY;k izxrhph ekfgrh] lkekftd ckaf/kGdhP;k n`"Vhus R;kus fnysY;k mRd`"V oS;fDrd ;ksxnkukph ekfgrh ;kpk dkjkx`g vf/k{kd ;kuh osxG;k ifjPNsnk}kjs lekos''k djkok0
8- rlsp tUeBsi ca/kkus dsGsY;k xqUg;kr f''k{kk >kGsY;k] lgvijk/;kaph ukaos rs lgvijk/kh T;k dkjkx`gkr f''k{kk ?ksr vkgs R;k dkjkx`gkph ukaos o R;k lgvijk/kh ;kaP;k 14 o"khZ; vgokGkckcrP;k l|%fLFkrhP;k ekfgrhpkgh Lora= ifjPNsnk}kjs izLrkoke/;s lekos''k djkok0
9- tUeBsi canh gh o`) vktkjh] v''kDr o ekufld n`"V;k vktkjh vlY;kl dkjkx`g vf/k{kd ;kauh R;kpk u pqdrk izLrkoke/;s osxG;k ifjPNsnk}kjs lekos''k djkok0
10- v''kk izdkjs laiq.kZ ekfgrhlg o lYGkxkj eaMG] lacaf/kr iksGhl] ftYgknaMkf/kdkjh ;kaps Li"V vfHkizk;klg dkjkx`g vf/k{kd ;kauh egkjk"V~ fiz>Ul fjOg;w vkWQ lsUVsUl :Yl 1972 e/khG fu;e 17 vuqlkj tUeBsi ca|kP;k eqnriqoZ lqVdspk izLrko dkjkx`g egkfujh{kd] e0jk0 iq.ks ;kauk lknj djkok0
11- dkjkx`g egkfufj{kd] egkjk"V~ jkT;] iq.ks ;kauh lnjgw izLrko ''kklukl ikBforkauk fofgr ueqU;kr u ikBfork i= Lo:ikr ''kklukl ikBokok0
12- dkjkx`g egkfufj{kd] ;kauh R;kaP;k vfHkizk;klg ca|kph laiq.kZ ekfgrh] ca|kP;k gkrqu ?kMysY;k xqUg;kph lfoLrj ekfgrh dkjkx`gkrhG ca|kP;k dkeke/;s ''kS{kf.kd izxrhe/;s b0 n`"Vhus ca|ke/;s >kGsY;k lq/kkj.kk fo"k;h lfoLrj ekfgrh] iksGhl] ftYgkf/kdkjh o lYGkxkj eaMGkps dkj.kfeekalslg vfHkizk; osxosxG;k ifjPNsnkr ueqn d:u ''kklukl izLrko ikBokok0
13- rlps ''kklukl izLrko ikBforkauk lYGkxkj eaMGkP;k vfHkizk;kis{kk dkjkx`g egkfufj{kd ;kaps vfHkizk; osxGs vlY;kl dkjkx`g egkfufj{kd ;kauh R;kckcr Li"V dkj.kfeekalk n;koh0 rlsp fn0 11 esa] 1992 P;k i=krhG ekxZn''kZd lq=krhG izoxZ izLrkfor djrkauk dS|kl rks izoxZ dk izLrkfor dj.;kr vkGk vkgs] ;kaphgh dkj.kfeekalk Li"Vi.ks ueqn djkoh0
14- tUeBsi ca|kP;k eqnriqoZ lqVdsckcrpk vgoky r;kj dj.;kph izfdz;k ,d rs lOok o"kkZr iq.kZ djkoh ts.ks d:u v''kk dS|kph fuOoG 14 o"kZ iq.kZ gks.;kl 1 o"kZ ckdh vlrkauk izLrko ''kklukl izkIr gksbZG o fuOoG 14 o"kZ iw.kZ gksr vlrkauk ''kklukl R;kP;k eqnr iwoZ lqVdsckcr fu.kZ; ?ks.ks ''kD; gksbZG0"
After going through the afore stated instructions, it reveals that, the Superintendent of Jail has to initiate the requisite process for proposal of premature release of the convict and submit the same to the higher authorities within stipulated period. Till the entire process is complete, the total period required as stated in clause 14 is 12 months to 15 months.
Moreover, the Hon''ble Supreme Court in the case of Sangeet and another v. State of Haryana, [2013] 2 SCC 452, was pleased to issue direction to obtain opinion with reason of the Presiding Judge of the convicting or confirming Court prior to exercising the powers of remission under Section 432 of the Criminal Procedure Code by the appropriate Government. Relevant directions given by the Hon''ble Supreme Court in the case of Sangeet & another v. State of Haryana [cited supra] in para 77.7 are as under :
77.7. Before actually exercising the power of remission under Section 432 CrPC the appropriate Government must obtain the opinion (with reasons) of the Presiding Judge of the convicting or confirming Court. Remissions can, therefore, be given only on a case-by-case basis and not in a wholesale manner.
In that view of the matter, in case opinion with reasons as contemplated in the aforesaid case referred supra are not given by the concerned Sessions Judge at the earliest, in that case the entire process is likely to be delayed for considerable period, as it is happened in the present case.
In such peculiar circumstances, as mentioned above, it is expected from the concerned learned Sessions Judges that, as and when the letter seeking opinion of the concerned Judge is received from the Jail Authority, opinion should be given expeditiously so as to avoid further delay.
It is informed by the learned APP that, already the petitioner is released from the Jail. In that view of the matter, the Writ Petition stands disposed of accordingly.
The learned Registrar [Judicial] to circulate this order to all the Principal District and Sessions Judges, and other Judges of the City Civil and Sessions Court, Mumbai and also to all the Sessions Judge, working throughout the State of Maharashtra within the territorial jurisdiction of the Bombay High Court.