Women convicts to spend 14 yrs lifer unlike male convicts: HC

The Bombay High Court has ruled that women convicts serving life sentence in Maharashtra jails are required to spend only 14 years unlike the male convicts, who have to be behind bars for a period ranging from 14 to 28 years depending on the nature of offence committed by them.

The ruling was delivered on March 15 by Justices Abhay Thipsay and P V Hardas, who were hearing a petition filed by Usha Upadhyay challenging the decision of the state government in respect of benefit of premature release to be given to her on the basis of guidelines framed by the Government.

"In our opinion, category 1 of 2010 guidelines, which is exclusively for women offenders, must cover all cases of women offenders and that they can be fitted only in that category. Because of creation of a special category of women offenders the other categories which are of a general nature, classified on the basis of nature of offences, would not apply to women," the Judges held while interpreting the guidelines.

"Consequently, we hold that the order dated September 4, 2012, passed by the Government of Maharashtra placing the petitioner in Category 5(b) of 1992 guidelines and Category 6(a) of 2010 guidelines, is not proper and that the petitioner may be placed in Category 1(b) of 2010 guidelines for considering her premature release", noted the judges.

"We, therefore, allow the petition by setting aside the (impugned) order dated 4 September 2012 and direct that the petitioner's case be considered in accordance with the Category 1(b) of 2010 guidelines (which provide for 14 years jail term including remissions)", the bench ruled.

The petitioner has been in prison since 10 February, 1999 and has undergone 13 years of actual imprisonment. When she was convicted, the guidelines framed in 1992 were in force but subsequently revised guidelines were framed in 2010.

The petitioner was placed in category 6(a) of 2010 guidelines which provide imprisonment for 28 years to be undergone for the purpose of premature release.

Under the 1992 guidelines, the petitioner would be placed in the category 5(b) which also provides for the same period.

The petitioner made a grievance that she had been placed under a wrong category and that she is actually entitled to be placed in category 1(b) of 2010 guidelines which provide for a maximum of 14 years time spent in jail for being eligible for pre-mature release.

The petitioner argued that in keeping with a Supreme Court judgement, she would be entitled to have the guidelines which are in her favour and more beneficial to her, to be applied. In other words, either the 1992 guidelines or that of 2010, whichever are in her favour, should be applied for considering her case for premature release.

The judges held "we have perused the September 4 order of the state in respect of premature release of the petitioner. The order says that she falls in category 5(b) of 1992 guidelines and category 6(a) of 2010 guidelines which are similar and therefore her case for premature release will be considered after she undergoes imprisonment for 28 years."

"We find that category 1(b) of the 2010 guidelines is a new category in respect of 'crimes by women'. There was no separate category of a similar nature in the 1992 guidelines", the bench noted.

Government Pleader Aruna Pai argued that the murder committed by the petitioner fell under the category of murder committed by gangsters and contract killers, which falls in category 6(a) of the 2010 guidelines and category 5(b) of the 1992 guidelines.

Accepting for the sake of arguments that the murder committed by the petitioner was as a gangster, and by way of contract killing, the question would be whether her case would fall under category 6(a) of 2010 guidelines or 5(b) of the 1999 guidelines, or whether the petitioner being a woman, her case would fall in category 1(b) of the 2010 guidelines?, the Judges asked.

Categorisation in guidelines has to be harmoniously constructed. Assuming that the offence committed by the petitioner falls in category 6(a) of 2010 guidelines because of the nature of the offence, still, considering that she is a woman, the offence committed by her, falls within category 1 of the 2010 guidelines. The only question is what should prevail, the bench observed.

"We find that the category 1 is special relating to 'Crime by Women' which is divided in two sub categories (a) and (b). The other categories are based on the classification of offences and not on the classification of the offenders on the basis of gender. Thus, the provision with respect to the offences committed by woman, is a special category and the other categories are general", said judges.

"The categorisation as 'Crime by Women' in category 1, indicates that so far as women offenders are concerned, the applicability of other categories is ruled out.

It is a settled principle of interpretation of statutes and instruments, that if a special provision is made on a certain matter, that matter is excluded from general provision".
"Since, in this case, a special provision has been made with respect to the offences or crimes by women, the applicability of other provisions of a general nature to women offenders, is excluded," the bench noted.

"It is not possible to take any other view of the matter, in as much as, if women offenders are attempted to be fitted in other categories, the category 1 would be rendered totally and wholly redundant. If women offenders were to be placed in other categories, the separate category of women need not have been created at all", the judges observed.