BITTU RAJU TIWARIversusSTATE OF MAHARASHTRA AND ORS

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 Sagar Magar

                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                     CRIMINAL APPELLATE JURISDICTION

                  CRIMINAL WRIT PETITION NO. 1369 OF 2026


Bittu Raju Tiwari                                       … Petitioner
      Versus
State of Maharashtra & Ors.                             ... Respondents

                            __________
Ms. Ankita Naik for Petitioner.
Ms. Gauri Rao, APP for the Respondent-State.
Mr. Narayan B. Mane, under Secretary, Home Department,
Mantralaya, Mumbai is present.
Mr. Pandurang S. Shinde, Jailor, Yerwada Central Prison, Pune is
present.
                            __________

                     CORAM : SARANG V. KOTWAL &
                             RANJITSINHA RAJA BHONSALE, JJ.

                     DATE     : 5th OCTOBER 2026

JUDGMENT : PER (SARANG V. KOTWAL, J.)

1)             Rule. Rule made returnable forthwith. Heard with the

consent of the parties.


2)             Heard, Ms. Ankita Naik, learned counsel for the Petitioner

and Ms. Gauri Rao, learned APP for the Respondent-State.


3)             The present Petition is filed for setting aside the Order

dated 6th February 2026 passed by the State of Maharashtra through the
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Home Department. By the impugned Order dated 6 th February 2026, the

Petitioner was placed in Category 4(e) mentioned in Annexure-I of the

G.R. dated 15th March 2010.


4)          Learned Counsel for the Petitioner submitted that there is a

separate category in the said Annexure for offences relating to crime by

women and, under that caption, at the highest, the Petitioner could be

kept in Category 1(b), which provides for 20 years' imprisonment

including remission, subject to a minimum of 14 years of actual

imprisonment including set off period.


5)          Learned Counsel for the Petitioner, in support of her

contention, relied on the observations of a Division Bench of this Court

in the case of Usha Munna Upadhyay Vs. The State of Maharashtra in

Criminal Writ Petition No. 3701 of 2012 by Order dated 15th March

2013.


6)          Learned APP, on the other hand, submitted that the

Petitioner's offence is covered under Category 4(e) and the sentence

which she is required to undergo is 26 years. The said category is

mentioned thus:-


           “Murder          committed          with         exceptional
           violence/brutality/kidnapping.
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            Murder committed by dacoits and robbers in the act of
            committing dacoities and robberies.

            Murder committed by bootleggers, gamblers, flesh traders
            etc.”

7)          Learned APP relied on the observations of the Additional

Sessions Judge, Kalyan, made in the Judgment whereby the Petitioner

was convicted. It was observed as under:-


         “24. After considering all the facts, circumstances and
         available evidence on record, I hold that the testimony of P.W.
         5 minor witness Sumit has completely proved the allegations
         levelled against the accused Nos. 1 and 2. Testimonies of P.W.
         4 Pushpa and P.W. 1 Sanjaykumar have corroborated to the
         testimony of P.W. 5 minor Sumit. It is well supported by
         medical evidence as well as factual aspects of the matter. I
         hold that consistent evidence of prosecution has inspired my
         confidence to say that the accused Nos. 1 & 2 have killed the
         deceased Raju by pouring kerosene and setting ablaze to him.
         Accuse have committed crime under Section 302 r/w. Section
         34 of the Indian Penal Code. Therefore, they are required to
         be convicted. I stop for a while.”

         “26. aspects of the matter, I find that the offence itself is
         serious and anti-social. Both the accused have killed deceased
         Raju who is husband of accused No. 2 Bittu, by setting ablaze
         by pouring kerosene.”

8)          Learned    APP   therefore      submitted   that   the   offence

committed by the Petitioner was committed with exceptional violence

and brutality. It was committed with the help of co-accused.
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9)          Learned APP relied on the Government Circular dated 8 th

December 2011. A copy of the same is taken on record and marked ‘X’

for identification. It is mentioned in the said Circular that accused and

co-accused who are convicted in the same trial be kept in one category.

In the present case, the co-accused is placed in the category of 4(e) and

therefore, in this case also, the Petitioner is rightly placed under

Category 4(e).


10)         We have considered these submissions. We are unable to

accept the submissions of the learned APP. Learned Counsel for the

Petitioner has rightly relied on the observation of the Division Bench of

this Court in the case of Usha Munna Upadhyay Vs. State of

Maharashtra . Paragraphs 18 to 21 are relevant, which are as follows:-


         “18. We find that the category 1 is a special category 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.

         19. The categorization 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. This principle is expressed in
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         the maxims Generalia specialibus non derogant, and Generalia
         specialibus derogant. Since, in this case, a special provision
         has been made with respect to the offences or crimes by
         women, the applicability of the other provisions of a general
         nature to women offenders, is excluded.

         20. It is not possible to take any other view of the matter,
         inasmuch as, if women offenders are attempted to be fitted in
         other categories, the category 1 would be rendered totally and
         wholly redundant. For instance, the women offenders falling
         under category 1(a) can fall also in categories 2(a) and 3(a)
         and the Women Offenders falling under category 1(b) can fall
         in categories 2(b) and 3(b) etc. also. If women offenders were
         to be placed in other categories, the separate category of
         women need not have been created at all.

         21. In our opinion, category 1 of the 2010 guidelines which is
         exclusively for women offenders must cover all the cases of
         women offenders, and the women offenders can be fitted only
         in that category. Because of the 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 offenders. Consequently, we hold
         that the order dated 4 September 2012 passed by the
         Government of Maharashtra placing the petitioner in Category
         5(b) of the 1992 guidelines and Category 6(a) of the 2010
         guidelines, is not proper and that the petitioner may be placed
         in Category 1(b) of the 2010 guidelines for considering her
         premature release.”

11)         We respectfully agree with the observation made by the

Division Bench in the said case. The observations are squarely

applicable to the present case and therefore the petition must succeed.


12)         Learned APP states that the Petitioner has completed 21
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                      years, 10 months, 9 days till 30th September 2026 and that she has

                      already undergone the maximum period prescribed under Category

                      1(b) of Annexure-I of the 2010 Circular.


                      13)           Hence the following Order :


                             i)      Rule is made absolute in terms of prayer clause ‘a’
                                     and ‘b’ which are as follows :-

                                    “a) This Hon’ble Court by appropriate writ, order
                                    or direction, quash and set aside the order dated
                                    06/02/2026 passed by respondent no. 3 (Home
                                    Department, Mantralaya).

                                    b) This Hon’ble Court be pleased to release the
                                    petitioner under the category of 1(b) as per the
                                    Government Resolution dated 15/03/2010.”

                             ii)     The Petitioner be released forthwith, if not required
                                     in any other case.

                             iii)    Petition is disposed of.




                      (RANJITSINHA RAJA BHONSALE, J.)                  (SARANG V. KOTWAL, J.)

SAGAR
SANTOSH
MAGAR
Digitally signed by
SAGAR SANTOSH
MAGAR
Date: 2026.10.07
19:18:52 +0530