MCOCA Convicts Not Excluded Under 2006 Remission Policy: Bombay High Court While Allowing Arun Gawli's Early Release

The Bombay High Court recently held that life convicts under the Maharashtra Control of Organized Crime Act, 1999 (MCOCA) are not excluded from the revised remission policy of 2006.

A division bench of Justice Vinay Joshi and Justice Vrushali V. Joshi sitting at Nagpur allowed premature release of gangster-turned-politician Arun Gawli convicted in 2012 under MCOCA observing –

“the petitioner is entitled to the benefits flowing from the remission policy dated 10.01.2006, which was prevailing on the date of his conviction. We also hold that by applying the rule of ejusdem generis, convicts of MCOC Act cannot be excluded from availing the benefits of the said policy.”

Gawli, convicted under MCOCA and sentenced to life imprisonment for the murder of Shiv Sena leader Kamalakar Jamsandekar, filed the present writ petition for early release based on the remission policy of 2006, in effect at the time of his conviction in 2012.

Having completed 14 years of actual imprisonment and reaching the age of 65 as well as certified weak by the medical board, Gawli fulfilled the criteria outlined in the 2006 policy. However, his petition was rejected by the state authorities citing a subsequent modification to the Maharashtra Prisons [Review of Sentences] Rules in 2015, which excluded MCOCA convicts from the remission policy.

Thus, he filed the present petition contending that the 2006 policy would be applicable to him.

The court noted that the state has discretion of the state to frame such policies under the Prisons Act, 1894. Initially the State Government in 1999 framed a Special Remission Policy, for prisoners who have completed 65 years of age; weak and had undergone 14 years of actual imprisonment. In 2006, the policy was revised having the same eligibility criteria but excluding the convicts under 'MPDA, TADA, NDPS etc.'

In 2015, Rule 6 of the Maharashtra Prisons [Review of Sentences] Rules, 1972 was been modified and excluded applicability of the policy to the convicts under MCOCA as well.

The court relied on various Supreme Court judgments and highlighted Court that the policy in force at the time of conviction would be applicable unless a subsequent policy is more advantageous to the convict.

The court dismissed the prosecution's argument that MCOCA convicts should be excluded under the rule of ejusdem generis. The court reasoned that the statutes mentioned in the exclusion clause of the 2006 policy, i.e., MPDA, TADA, and NDPS lack commonality with MCOCA in purpose and scope.

“The learned Addl.P.P. besides referring rule of ejusdem generis, has not argued about the similarity or common thread in these statutes. We do not find any similarity in all these statues, nor they can be termed as belonging to one class to invoke the rule of ejusdem generis.”

The court highlighted that MCOCA was intentionally excluded from the remission policy of 2006, as the framers were aware of its existence at the time of policy formulation. Moreover, the revised policy of 2015 explicitly excluded MCOCA convicts, indicating a deliberate change in approach, the court opined.

Additionally, the court rebuffed the state's attempt to invoke revised guidelines from 2010, which provide a 40-year of actual imprisonment threshold for organized crime convicts. These guidelines are irrelevant as the 2006 policy specifically catered to elderly and infirm prisoners, creating a separate class for their benefit, the court stated holding that the 2010 guidelines did not apply to Gawli's case.

Thus, the court held that Gawli was entitled to the benefits of the 2006 remission policy, directing the respondent authority to issue consequential orders.

Case no. – Criminal Writ Petition No. 155 of 2023

Case Title – Arun Gulab Gawli v. State of Maharashtra