Staying the release order issued by the state home department on December 2, the Bombay high court (HC) on Monday ordered 11 men convicted in the Lakhan Bhaiya case to surrender on January 4 and serve their life sentences.
Lakhan Bhaiya was killed in a fake encounter at Versova in 2006. The home department suspended for six months the life sentence using its power under section 432 of the CrPC, 1973. “We have sought a copy of the HC order. Once we receive it, we will take a decision [on filing an appeal in the SC] within two days,” said KP Bakshi, additional chief secretary, home.
While section 432 empowers the government to suspend, commute or remit sentences, section 433 (a) curtails this power in case of conviction for offences attracting a death sentence, but still sentenced to life and those who have not served a prison term of 14 years.
“Prima facie we are of the view that section 433(a) of the Criminal Procedure Code, 1973, places an embargo on exercise of powers under section 432 of the code,” said a division bench of Justice Ranjit More and Justice VL Achliya, while hearing a petition filed by advocate Ramprasad Gupta, brother of the slain gangster. “Otherwise, it would be very easy for life convicts to approach the government and get their sentences suspended, if the high court rejected their bail pleas during the pendency of appeals. The provision of section 432 appears to enable the state to release prisoners who are old, terminally ill, suffering from prolonged illnesses,” the judges said.
The comment came after advocate Girish Godbole, the counsel for some of the convicts, said section 433 (a) uses the word “released” and the restraint imposed by section 433 (a) would not apply in case of suspension of sentence as the sentence is merely kept in abeyance for a certain period.
He argued suspension is completely different from commutation or remission of sentence, as it does not reduce the prison term. Godbole pointed out if the term “released” used in 433(a) was given a wider meaning, life convicts could not be released on parole or furlough, and the provisions concerned would become redundant.
The argument failed to convince the judges who found force in the submissions of Gupta’s counsel, advocate Yug Mohit Chowdhury. Chowdhury said section 433 (a) of the CrPC takes away the power of the state to release life convicts for offences attracting death penalty by suspending, commuting or remitting their sentence before such convicts serve at least 14 years in prison. He also pointed out the section was added to the statute book by Parliament in 1978 to curb the misuse of power by state governments in remitting, commuting and suspending sentences of politically influential persons, and releasing them from prisons.
The convicts — Dilip Palande, Nitin Sartape, Ganesh Harpunde, Anand Palande, Prakash Kadam, Devidas Sakpal, Pandurang Kokam, Ratnakar Kamble, Sandip Sardar, Tanaji Desai and Vinayak Shinde – have been asked to surrender.