Remission under CrPC requires competent government and convicting court opinion; unlawful remission orders were quashed.

Article 32 was treated as an available remedy to challenge allegedly unlawful remission orders affecting Articles 14 and 21, and the victim's petition was held maintainable despite the existence of Article 226. The "appropriate Government" for remission under Section 432(7) CrPC was construed as the Government of the State where the offender was sentenced, so Gujarat lacked jurisdiction because the trial and conviction were in Mumbai. The mandatory safeguard under Section 432(2) CrPC required consideration of the convicting court's reasoned opinion; that safeguard was not properly followed, and the unpaid fine and default sentence were ignored. The remission orders were therefore quashed as illegal and a nullity.

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Issues: (i) Whether the victim's writ petition under Article 32 was maintainable; (ii) whether the State of Gujarat was the competent appropriate Government to consider and grant remission; (iii) whether the impugned remission orders dated 10.08.2022 were lawful and could be sustained, including the effect of the opinion of the convicting court and non-payment of fine.

Issue (i): Whether the victim's writ petition under Article 32 was maintainable.

Analysis: The right to move the Supreme Court under Article 32 was treated as a fundamental remedy to enforce Articles 14 and 21. The availability of Article 226 was not regarded as a bar where the challenge was to an alleged unlawful executive action affecting fundamental rights. The earlier writ filed by a convict did not prevent the victim from invoking Article 32 to assail the remission orders.

Conclusion: The victim's writ petition under Article 32 was held maintainable.

Issue (ii): Whether the State of Gujarat was the competent appropriate Government to consider and grant remission.

Analysis: The expression "appropriate Government" under Section 432(7) of the Code of Criminal Procedure, 1973 was construed to mean the Government of the State within which the offender was sentenced. The place of offence or the place of imprisonment was held not to control the statutory allocation of power. Since the trial and conviction took place in Mumbai, the State of Maharashtra, and not the State of Gujarat, was the competent authority. The prior direction treating Gujarat as the competent Government was found to have been procured by suppression and misrepresentation of material facts and was therefore treated as a nullity and non est.

Conclusion: The State of Gujarat was held not to be the appropriate Government and lacked jurisdiction to grant remission.

Issue (iii): Whether the impugned remission orders dated 10.08.2022 were lawful and could be sustained, including the effect of the opinion of the convicting court and non-payment of fine.

Analysis: The procedural safeguard in Section 432(2) of the Code of Criminal Procedure, 1973 was held mandatory, requiring the opinion of the Presiding Judge of the convicting or confirming court. The opinion of the Special Judge at Mumbai was ignored, while the opinion of the Sessions Judge at Dahod, who was not the convicting judge and was also part of the local committee, could not cure the defect. The orders were further found to be mechanically fashioned and to have ignored the unpaid fine and consequential default sentence, which was a relevant consideration. The exercise of power was characterised as an abuse of discretion and a usurpation of power.

Conclusion: The remission orders were held illegal and liable to be quashed.

Final Conclusion: The challenge succeeded, the remission orders were set aside, and the convicts were directed to surrender and report to jail authorities.

Ratio Decidendi: For remission under Section 432 of the Code of Criminal Procedure, 1973, the competent authority is the Government of the State where the offender was sentenced, and the mandatory safeguard of obtaining and considering the reasoned opinion of the convicting court cannot be bypassed; an order passed by an incompetent authority or in disregard of these safeguards is a nullity.

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