Vitthal Rayaji Gadekar vs State of Maharashtra

R.K. Deshpande, J

Rule, made returnable forthwith. Heard finally by consent of the learned counsels appearing for the parties.

The claim for grant of remission in the sentence imposed for the offences punishable under Sections 498-A and 306 of the Indian Penal Code on

the basis of the Government Resolution dated 3-6-2017, laying down the policy of granting remission on account of the 125th Birth Anniversary of

Late Shri Dr. Babasaheb Ambedkar, has been rejected on the ground that the concerned Additional Sessions Judge has on 5-3-2018 opined in exercise of his power conferred by Section 432(2) of the Code of Criminal Procedure to reject the claim. This is the subject-matter of challenge in the present criminal writ petition.

The only reason assigned in the opinion dated 5-3-2018 is that the offence is of abetment of suicide and, therefore, the convict does not deserve

any remission of sentence as per the Government Resolution. It is not the opinion or the case of the respondents that the petitioner-prisoner does not qualify for such remission in terms of the Government Resolution. The stand of the respondents is that because of the opinion expressed by the learned Additional Sessions Judge, the claim for grant of remission is rejected.

The claim of the petitioner-prisoner was on the basis of the Government Resolution dated 3-6-2017. What was required to be seen is whether

the petitioner-prisoner falls in any of the excepted categories carved out at Serial Nos.i to vi of the said Government Resolution. It is not the case of the respondents that the petitioner-prisoner falls in any of the excepted categories so as to deny him the benefit of the said Government Resolution.

The reason assigned in the opinion that the petitioner-prisoner is the convict for the offence of abetment of suicide, in our view, is not germane to the issue of his entitlement to remission in terms of the said Government Resolution. The denial of the claim for grant of remission was, therefore, in our

view, not justified.

The prison authority seeking opinion of the Judicial Officer in terms of Section 432(2) of the Code of Criminal Procedure has to forward its proposal

as to whether the prisoner-claimant satisfies the requirements of the policy of the State Government on the basis of which the claim is made. If such proposal is not received, it is open for the concerned Judicial Officer to call for it from the concerned Superintendent of Jail. Upon receipt of such proposal, it has to be scrutinized in terms of the policy and after application of mind, the determination has to be on the question whether the prisoner-claimant satisfies the requirements or qualifies for grant of remission.

We are repeatedly coming across the orders passed by the Judicial Officers under Section 432(2) of the Code of Criminal Procedure without even

looking into the policy of the State Government, on which reliance is placed by the prisoner. A typical narrow-minded and mechanical judicial approach of erring on safer side seems to be adopted. The Judicial Officers have to be mindful of the independence of the Judiciary, and in ignorance of teaching, if any, contrary to the conscience, the orders are required to be passed or the opinion is required to be expressed without any

fear. The matters are required to be dealt with confidence and the reasons germane to the issue involved are required to be recorded. The matters of personal liberty are required to be seen with sensitivity. The attitude of shirking responsibility, and frustrating the object of Section 432(2)

of the Code of Criminal Procedure, has to be avoided. The judicial officers must see that the opinion expressed does not give rise to unnecessary

litigation. The opinion expressed by him may not bind the authorities which may pass order contrary to it. Any prisoner aggrieved by it can have his recourse to the remedy available in law.

In view of above, the impugned order dated 5-3-2018 passed by the learned Additional Sessions Judge, Washim, cannot be sustained and the

same will have to be quashed and set aside with a direction to the respondents to release the petitioner-prisoner in accordance with the

Government Resolution dated 3-6-2017.

In the result, this criminal writ petition is allowed and the order is passed as under :

(1) The order dated 5-3-2018 passed by the learned Additional Sessions Judge, Washim, is hereby quashed and set aside.

(2) The respondents are directed to grant the petitioner-prisoner the benefit available to him under the Government Resolution dated 3-6-2017,

immediately.

(3) We also direct that while dealing with the cases referred to the concerned Sessions or the Additional Sessions Judge for his opinion under Section

432(2) of the Code of Criminal Procedure, the proposal received has to be scrutinized in terms of the policy of the State Government applicable

thereto.