Mohd. Zuber Kasam Shaikh @ Tabrej @ Jugnu vs State Of Maharashtra & Ors.

1 The petitioner before us, a convict for an offence punishable under Section 302 Indian Penal Code (IPC) and under the provisions of the Maharashtra Control of Organised Crime Act (for short ‘MCOCA’), seek extension of benefit of the Scheme of the Home Department of the State of Maharashtra, declared through a Government Resolution dated 3/6/2017.

According to the said Government Resolution, in order to commemorate the 125^th Birth Anniversary of Dr. Babasaheb Ambedkar being celebrated as “Samata Varsh”, the State Government took a decision to grant remission to those convicts who are under going imprisonment in different prisons in the State of Maharashtra.

It is worth to note that this Government Resolution is issued by taking recourse to the provisions of Section 432(1) of the Code of Criminal Procedure, 1973, which is the power of the State Government to grant remission and the resolution declares that it shall be made applicable from 14/4/2016.

The Government Resolution classified the period of imprisonment and in proportionate, allowed the remission and for imprisonment more than five years or imposition of life imprisonment, the remission is granted for a period of three months.

The Government Resolution made it clear that the said policy decision will also be applicable to those prisoners who are released on bail on the date on which the policy is declared. However, it carved out certain category of prisoners, to whom the benefit could not be extended, but the offence under MCOCA or Section 302 do not fall within the excepted category.

2 As far as the petitioner is concerned, he being arraigned as original Accused no.5 and having been arrested on 2/6/1999, he was convicted by the Special Court under Section 3(1)(i) of the MCOCA and was sentenced to death.

He preferred an Appeal which was heard by the High Court along with the Confirmation Case and the petitioner along with the co-accused no.6 were acquitted by the High Court on 17/12/2003. However, pursuant to an Appeal filed by the State of Maharashtra before the Apex Court, by judgment dated 6/8/2009, he was sentenced to undergo imprisonment for Life.

3 On account of his conviction and imposition of sentence of life imprisonment, his case was taken up for categorization and in light of the prevailing policy as contained in G.R. dated 15/3/2010, which was prevalent at the time when he was sentenced, he was categorised and directed to undergo 60 years of Imprisonment with remission.

The petitioner thereafter approached the High Court at Nagpur Bench by filing Writ Petition and on 4/2/2026, the Court directed to consider his case under category 5(b) of the G.R. dated 11/5/1992 and also directed that an order be passed with a timeline specified.

This direction resulted into the categorization of the petitioner under clause 5(b) of G.R. dated 11/5/1992 and by the said categorization, he is to undergo 28 years of Imprisonment with remission.

4 According to Mr. Gavankar, the learned counsel representing the petitioner, on the date of filing the petition, the petitioner has completed 27 years and 9 months of imprisonment and he seek benefit of the policy of the State Government, allowing remission of three months to life convicts on account of the 125^th Birth Anniversary of Dr. Babasaheb Ambedkar, the policy being declared through a Government Resolution issued on 3/6/2017.

It is pertinent to note that while the State Government issued the resolution, it also directed that in order to ascertain whether the benefit of the policy shall be extended to the convict, the report from the concerned Court which had convicted him, shall be sought by the Jail Superintendent and thereafter, the benefit of the policy shall be extended.

Following this directive, the report from the Special Judge, MCOCA was called for and on 14/7/2026, the Superintendent, Nagpur Central Prison was informed that the convict is not entitled for premature release under the Scheme of the State Government, since the accusations against him were of serious nature, where three persons were killed brutally and seven persons injured and the role of the convict – Mohd Zubair Kasam Shaikh @ Tabrez @ Zabru had clearly surfaced on record as a Member of the Organized Crime Syndicate and therefore, he was convicted and sentenced to death, but the Supreme Court awarded him Life Imprisonment and his case fall under category 6 i.e. “Murder committed by gangsters, contract killers, racketeers etc.

Relying upon the said opinion, the benefit of the Government Circular dated 3/7/2017 is denied to the petitioner.

On hearing the learned counsel Mr. Gavankar and Mr. Khan, the learned APP, we really wonder as to what prevents the officials of the State Government including the respondent nos.2 and 3 to extend the benefit of policy decision formulated by the Home Department of the State to certain category of prisoners and particularly, when the petitioner is entitled for the benefit under the said policy.

We find that it is to commensurate the Samata year, the State Government had taken a decision to grant remission of certain period, by invoking Section 432(1) which is the power of the State Government to grant remission and the policy has also clearly set out the exceptions when the benefit cannot be extended. Time and again, we are told that because the convict has committed an heinous offence or that the crime committed by him was of serious nature, the benefit of the policy cannot be extended.

We wonder whether it is open for those implementing the policy decision of the Home Department to have any discretion, as we find that when the State intended to exclude certain categories of prisoners from the applicability of the policy decision, and it specifically provided in the Government Resolution and we find as much as six categories, to which the benefit of the Government Resolution dated 3/6/2017 will not be applicable. It is worth to note that every offence is serious and there cannot be a classification of seriousness as far as the applicability of the benefit conferred by the G.R dated 3/6/2017 is concerned, save and except the category which is specifically excluded.

For a person undergoing life imprisonment or for more than five years, the benefit of remission is three months, and we see no reason as to why the petitioner, who was initially sentenced to death but subsequently sentence being reduced to Life Imprisonment and who is now even categorised under the policy of the State Government, classifying the convicts so as to determine the maximum period of imprisonment which a person will have to undergo, on being sentenced to Life Imprisonment on being convicted under various statutes, and now he has been categorised to undergo 28 years of Imprisonment with remission, why the benefit of the policy is not be extended to him.

One another important aspect which warrant our consideration is the opinion of the District Judge being solely relied upon to deny the benefit, and on a previous occasion when we dealt with such a contingency in WP No.2255/2024 (Tukaram Pandurang Mhaske vs. State of Maharashtra), in our judgment dated 11/6/2024, we observed as below :-

The learned APP Mr.Khan has placed before us the opinion of the Special Judge and we are really surprised to note that except focusing upon the gravity of the offence for which the convict is sentenced, we find no other singular reason as to why the benefit of the policy of the State Government contained in G.R.No. 3/6/2017 should be denied to him.

We must clarify that considering the opinion of the Special Judge, who has laid his emphasis on the seriousness of the offence and the criminal history, it is to be noted that on recording a finding of guilt, taking into consideration his antecedents, an appropriate sentence has been imposed upon him and we do not think that the Special Judge can focus upon any other aspect than what was the basis of the judgment of conviction which resulted into imposition of a sentence commensurating with gravity of the accusations and the manner in which the charges have been proved before the Sessions Court.

We have already indicated in the portion reproduced by us above that there is no discretion in the State Government in denying the benefit of the policy unless and until something exceptional is brought to its notice by the Judge who has convicted the prisoner, who seek benefit of the policy of the State Government granting remission as an exceptional case.

Noting that except highlighting the gravity of the offence, the District Judge has not commented upon any other aspect, and since we are of the view that because of of the findings that are rendered in the impugned judgment, a befitting sentence has been imposed upon him, there is nothing suggestive in the Government Resolution to exclude its applicability and it is not made dependent upon the gravity of the accusation but any convict undergoing life imprisonment is entitled for remission of three months and we see no reason why this benefit should not be extended to the prisoner.

For this reason, we declare that the petitioner is entitled for the benefit of the policy as contained in the G.R. dated 3/6/2016 which will make him entitle for remission of a period of three months.

As we have allowed the Writ Petition, we direct the benefit of remission of three months to be added to the record of the petitioner and pursuant thereto, if he is entitled for release, necessary steps shall be taken by the Jail Superintendent. We direct the aforesaid exercise to be carried out on consideration of the remission by three months which we have granted by allowing the Petition, forthwith, and in no case, later than three days from today.

Writ Petition is made absolute in above terms.

The learned APP Mr.Khan to communicate this order to all concerned with its implementation.