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A relatively significant degree of mental agony and suffering inflicted by one person on another is mental trauma. If the mental trauma is caused by the loss of near and dear ones, the Court must consider the said circumstance. This was undoubtedly upheld in the High Court Of Bombay. The judgment was pronounced by the honorable Judges SJ KATHAWALLA & MILIND N. JADHAV, JJ on 30.12.2021 in MRITUNJAY GHOSH S/O GOBIND GHOSH V. STATE OF MAHARASHTRA AND ANR (Writ Petition No. 6769 Of 2021).

While convicting Respondent No. 8, the learned Additional Sessions Judge stated categorically in point no.3 of the Conviction Order dated 3.11.2006 that the Petitioner and co-accused are entitled to set off under Section 428 CrPC for the time spent in custody regarding sentences of imprisonment imposed under Sections 394 and 449 read with section 34 of IPC. It was thus argued that, by implication, the Trial Court had not granted set-off under Section 428 Cr.P.C. for the time spent in custody for offenses under Section 302 read with section 34 IPC.

 Thus, Respondent No.8 is not entitled to the benefit under Section 428 CrPC concerning his conviction and imprisonment under Section 302, read with section 34 of IPC. Finally, the Petitioner’s Counsel requested this Court to remember the horrific character of Respondent No. 8’s cold-blooded murder of the Petitioner’s wife Lipika, aged 27 years, and son Pranay, four old years, on December 24, 2001. Respondent No.8 threatened the Petitioner after perpetrating the heinous crime of double murder, for which the Petitioner filed an NC with the DN Nagar Police Station on January 27, 2014.

The Learned Public Prosecutor has filed a Report dated 29.12.2021 in respect of Respondent No.8 and the calculation and rationale for classifying Respondent No.8 under Category 4(e) of the Guidelines dated 15.03.2010. In calculating the total of 26 years, which is the period of imprisonment to be served by the Respondent No. 8, including remissions, under Category 4(e) of the Guidelines dated 15.03.2010, the Report (Nomination List) at Point No.15, sub-para (2) gives the benefit of 4 years, 10 months, and 29 days for the time spent by the Respondent No.8 in judicial custody during the trial.

The Learned Public Prosecutor argued that no intervention with the category is required, and hence the Petition must be rejected. Since the aforementioned Criminal Writ Petition addressed a significant legal matter, this Court found it appropriate to appoint Learned Counsel, Shri Pranav Badheka, as ‘amicus curiae’ to help the Court with the problems made in this Criminal Writ Petition.

It is clear from this Court’s Order in Criminal Writ Petition No.328 of 2015 that the classification and relevance of the Guidelines were upheld by this Court, which Order was not challenged further. Thus the Petitioner’s arguments regarding the categorization of Respondent No.8 under Category 4(e) and the applicability of the Guidelines of 2010 cannot be accepted. In reality, even if the 1992 Guidelines are applied, the duration of imprisonment for Respondent No.8 would be 26 years, including remission.

The Petitioner’s claim that the succeeding Guidelines of 2010 will not apply and that the 1992 Guidelines will take precedence is without substance. The Learned Amicus Curiae relied on an Apex Court ruling in the State of Haryana V. Jagdish to support this claim.

However, in this case, the Petitioner’s argument is pretty meaningless because, under both the 1992 and 2010 Guidelines, the period of imprisonment to be served, including remissions, by Respondent No. 8, subject to a minimum of 14 years actual imprisonment including set off period, is the same, namely 26 years.

Despite the foregoing arguments, this Court cannot be indifferent to the mental anguish experienced by the Petitioner after losing two of his closest friends in a brutal act committed by Respondent No. 8 and his co-accused and then being allegedly threatened by Respondent No. 8, for which the Petitioner had to file another NC, as previously stated. As a result, if the Petitioner is threatened by Respondent No. 8 in the future, or if he believes he is in imminent danger at the hands of Respondent No. 8, he shall be free to immediately approach the concerned police station for necessary action on his complaint, or to petition a court for appropriate action, depending on the facts at the time.

Click here to view the Judgement

Reviewed by Rangasree