TaxTMI 
TaxTMI 
2024 (1) TMI 1318
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....garwal, Adv. Mr. Annam Venkatesh, Adv. Mr. Hitarth Raja, Adv. Ms. Madhumita Keshavan, Adv. Mr. Samrat Goswami, Adv. Mr. Harh Paul Singh, Adv. Ms. Sonali Sharma, Adv. contd.. - 3 - Mr. Tushar Mehta, SG Mr. S V Raju, A.S.G. Dr. Reeta Vasishta, Adv. Mr. Kanu Agrawal, Adv. Mrs. Shradha Deshmukh, Adv. Mr. Sanjay Kumar Tyagi, Adv. Mr. Annam Venkatesh, Adv. Mr. Siddharth Dharmadhikari, Adv. Mr. Arvind Kumar Sharma, AOR Mr. Rishi Malhotra, AOR Mr. Santosh Kumar, Adv. Mr. Shrey Sharawat, Adv. Mr. Sayooj Mohandas M., Adv. Mr. Sushil Kumar Dubey, Adv. Mr. Bhaskar Gautham, Adv. Mr. Vishal Arun, AOR Mr. Dileep Kumar Dubey, Adv. Ms. Mrinal Gopal Elker, AOR Mr. Saurabh Singh, Adv. Ms. Aarushi Gupta, Adv. Mr. Divyansh Singh, Adv. Mr. Ashish Rawat, Adv. Mrs. Sonia Mathur, Sr. Adv. Mr. Yashraj Singh Bundela, AOR Mr. Simarjeet Singh Saluja, Adv. Mr. Nikhil Chandra Jaiswal, Adv. Mr. Divik Mathur, Adv. Ms. Pratiksha Mishra, Adv. Ms. Rupakshi Soni, Adv. Ms. Prerna Dhall, Adv. Mr. Surjeet Singh, Adv. Ms. Ronika Tater, Adv. Mr. Pawan, Adv. Ms. Jyoti Verma, Adv. Mr. Sandeep Singh, AOR Mr. Sunil Kumar Tomar, Adv. Mr. Amit Sharma, Adv. Ms. Kavitha K T, Adv. Mr. Simarjeet Singh Saluja, Adv. Mr. Ajay Kumar Pan....
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....reface: Plato, the Greek Philosopher in his treatise, The Laws, underscores that punishment is to be inflicted, not for the sake of vengeance, for what is done cannot be undone, but for the sake of prevention and reformation (Thomas L. Pangle, The Laws of Plato, Basic Book Publishers, 1980). In his treatise, Plato reasons that the lawgiver, as far as he can, ought to imitate the doctor who does not apply his drug with a view to pain only, but to do the patient good. This curative theory of punishment likens penalty to medicine, administered for the good of the one who is being chastised (Trevor J. Saunders, Plato's Penal Code: Tradition, Controversy, and Reform in Greek Penology, Oxford University Press, 1991). Thus, if a criminal is curable, he ought to be improved by education and other suitable arts, and then set free again as a better citizen and less of a burden to the state. This postulate lies at the heart of the policy of remission. In addition, there are also competing interests involved- the rights of the victim and the victim's family to justice vis-a-vis a convict's claim to a second chance by way of remission or reduction of his sentence for reformation. O....
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....on shall be considered to be the lead petition), who were all convicted, having been found guilty of committing heinous crimes during the large-scale riots in Gujarat on 28.02.2002 and a few days thereafter which occurred in the aftermath of the burning of the train incident in Godhra in the State of Gujarat on 27.02.2002. 2.1. The grotesque and diabolical crime in question was driven by communal hatred and resulted in twelve convicts, amongst many others, brutally gang-raping the petitioner in Writ Petition (Crl.) No.491 of 2022, namely, Bilkis Yakub Rasool, who was pregnant at that time. Further, the petitioner's mother was gang raped and murdered, her cousin who had just delivered a baby was also gang raped and murdered. Eight minors including the petitioner's cousin's two-day-old infant were also murdered. The petitioner's three-year-old daughter was murdered by smashing her head on a rock, her two minor brothers, two minor sisters, her phupha, phupi, mama (uncle, aunt and uncle respectively) and three-cousins were all murdered. 2.2. While eventually, the perpetrators of the crime, including the police personnel were convicted and sentenced, the petitioner, who was aged t....
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....on an examination of the existing statutory framework. 2.6. Writ Petition (Crl.) No.403 of 2022 titled National Federation of Indian Women (NFIW) vs. State of Gujarat has been filed by the National Federation of Indian Women (NFIW), which is a women centric organization that was established on 04.06.1954 for the purpose of securing women's rights, seeking appropriate directions in the form of a writ of mandamus to the respondent to revoke the remission granted to respondent Nos.3 to 13 by the competent authority of the Government of Gujarat under the remission policy dated 09.07.1992 and to re-arrest respondent Nos.3 to 13 herein. 2.7. Writ Petition (Crl.) No.422 of 2022 titled Asma Shafique Shaikh vs. State of Gujarat has been filed by Asma Shafique Shaikh, a lawyer by profession and a social activist, seeking issuance of a writ, order or direction, quashing the Orders dated 10.08.2022. 2.8. As Writ Petition (Crl.) No.491 of 2022 has been filed by one of the victims, Bilkis Yakub Rasool, seeking quashing of the orders dated 10.08.2022, for the sake of convenience, the factual background, details as well as the status of the parties shall be with reference to Writ Petition....
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.... and the two doctors, against whom there were serious charges. Respondent Nos.3 to 13 herein were convicted for the offences punishable under Sections 143, 147, 148, 302 r/w 149 of the IPC for the murder of fourteen people; Section 376 (2)(e) & (g) for having committed gang-rape on the petitioner-victim; Section 376(2)(g) for having committed gang rape on other women. The police officer, Somabhai Gori was convicted of the offence punishable under Sections 217 and 218 of the IPC. 3.4. On 05.08.2013, a Division Bench of the High Court of Bombay passed an Order in Criminal Writ Petition No.305 of 2013 titled Ramesh Rupabhai Chandana vs. State of Maharashtra, preferred by respondent No.13 herein, holding that where a trial has been transferred from one State to another and such trial has been concluded and the prisoner has been convicted, the prisoner should be transferred to the prison of his State. 3.5. Against the judgment of the Trial Court dated 21.01.2008, the persons convicted, as well as the State filed Criminal Appeals before the Bombay High Court. While the convicts filed criminal appeals assailing their conviction, the State filed criminal appeal against acquittal of t....
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....akhs) to the petitioner within two weeks noting that the petitioner had been coerced into living the life of a nomad and an orphan and was barely sustaining herself on the charity of NGOs, having lost her family members. 3.8. After undergoing 14 years 5 months and 6 days of his sentence, respondent No.3 herein, namely, Radheshyam Bhagwandas Shah, filed Criminal Application No.4573 of 2019 before the Gujarat High Court challenging the non-consideration of his application for premature release under Sections 433 and 433A of the Code of Criminal Procedure, 1973 (hereinafter, the "CrPC" for the sake of brevity). The High Court after considering the submissions observed that respondent No.3 herein had been tried in the State of Maharashtra, hence, as per Section 432 (7), the 'appropriate government' for the purpose of Sections 432 and 433 of the CrPC would be the State of Maharashtra. The High Court placed reliance on the dictum of this Court in Union of India vs. V. Sriharan, (2016) 7 SCC 1 ("V. Sriharan") and by Order dated 17.07.2019 directed the petitioner therein (respondent No.3 herein) to pursue his remedy within the State of Maharashtra. 3.9. Respondent No.3 then moved an ....
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.... of Gujarat. It was further recorded in the said order that the counsel for respondent No.3 had sought the permission of the Court to move the High Court of Bombay for the same relief and therefore the application was disposed of with liberty to the writ petitioner therein in the aforesaid terms. It is pertinent to note that this order still holds the field as it has neither been challenged nor recalled or set aside in accordance with law. 3.14. On 20.07.2021, a meeting of the Jail Advisory Committee of the State of Gujarat took place which comprised of four social workers; two members of the State Legislative Assembly; the Superintendent of Police, Godhra; the District and Sessions Judge, Godhra; the Secretary, Jail Advisory Committee and Superintendent, Godhra Sub-Jail and the District Magistrate, Godhra (Chairman of the Jail Advisory Committee, Godhra Sub-Jail). 3.15 The Sessions Judge, Godhra, being one of the ten members of the Jail Advisory Committee, after going through the case papers observed that the convict, respondent No.3 herein, had been sentenced to undergo life imprisonment in a sensitive case and that if he was released prematurely, it may create an adverse e....
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....5 of 2022 titled Radheshyam Bhagwandas Shah vs. State of Gujarat, (2022) 8 SCC 552 ("Radheshyam Bhagwandas Shah"), was filed before this Court by respondent No.3 herein, seeking a direction in the nature of mandamus to the State of Gujarat to consider his application for pre-mature release under its policy dated 09.07.1992, which was existing at the time of commission of his crime and his conviction. 3.19 This Court noted that the policy on the date of conviction was as per the resolution dated 09.07.1992 passed by the State of Gujarat. Hence, respondent No.3 (petitioner therein) would be governed by the same. This Court placed reliance on the dictum in State of Haryana vs. Jagdish, (2010) 4 SCC 216 ("Jagdish") to observe that the application for grant of pre-mature release will have to be considered on the basis of the policy which stood as on the date of conviction. The other pertinent findings of this Court in its judgment and Order dated 13.05.2022, in Writ Petition (Crl.) No.135 of 2022 are culled out hereunder: i. The argument advanced by the respondents - State of Gujarat therein that since the trial had been concluded in the State of Maharashtra, the 'approp....
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....ated in rehabilitation and corrective programmes. That the convicts still had substantial years of life remaining. Accordingly, the Sessions Judge applied the policy dated 09.07.1992 and gave an 'affirmative' opinion as regards the premature release of respondent Nos.3 to 13. 3.22. The Additional Director General of Police, Prisons and Correctional Administration, State of Gujarat, addressed a letter dated 09.06.2022 to the Additional Chief Secretary, Home Department, Government of Gujarat, regarding the premature release of accused Kesarbhai Khimabhai Vahoniya. In the said letter, the details of the opinion given by the concerned authorities regarding the premature release of the said convict were also discussed. It was stated in the letter that the Superintendent of Police, Dahod, had given a positive opinion regarding premature release from jail; the Superintendent of Police, Special Crime Branch, Mumbai, however, had given a negative opinion about premature release from jail; the District Magistrate, Dahod, had given a positive opinion about the premature release from jail; the Sessions Court, Mumbai, which pronounced the sentence had given a negative opinion about premature....
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.... a criminal matter as the petitioners are in no way connected with the proceedings with which the convicted persons have been granted remission. Therefore, the writ petition may be dismissed on that ground alone. In support of this submission, reliance has been placed on Rajiv Ranjan Singh 'Lalan' (VIII) vs. Union of India, (2006) 6 SCC 613 ("Rajiv Ranjan"); Gulzar Ahmed Azmi vs. Union of India, (2012) 10 SCC 731 ("Gulzar Ahmed"); Simranjit Singh Mann vs. Union of India, (1992) 4 SCC 653 ("Simranjit Singh"); and, Ashok Kumar Pandey vs. State of West Bengal, (2004) 3 SCC 349 ("Ashok Kumar"). It is submitted that a third party/stranger either under the provisions of the CrPC or under any other statute is precluded from questioning the correctness of grant or refusal of 'sanction for prosecution' or the conviction and sentence imposed by the Court after a regular trial. Similarly, a third party stranger is precluded from questioning a remission order passed by the State Government which is in accordance with law. Therefore, dismissal of the petition at the threshold is sought. 4.2 It is next averred that the petitioners have not pleaded as to how they have the locus to seek a writ ....
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....ourteen years of imprisonment and who were imposed punishment of life imprisonment. As per the aforesaid Policy of 1992, the Inspector General of Jail is mandated to obtain the opinion of the District Police Officer, District Magistrate, Jail Superintendent and Advisory Board Committee for early release of a convict. Thereafter, the Inspector General of Jail is mandated to give his opinion with the copy of the nominal roll and copy of the judgment and the recommendation of the Government. Further, the Jail Advisory Board at the time of consideration of the premature release application shall be guided by the Policy of 1992. A copy of the policy has been annexed as Annexure R-2. It is further submitted that the State Government considered the case of all the eleven convicts as per the Policy of 1992. Further, the remission in these cases was not granted under the Circular governing grant of remission to prisoners as part of celebration as 'Azadi Ka Amrit Mahotsav". 4.5. The State Government in fact directed the Additional Director General of Prisons, Ahmedabad to send the necessary proposal of remission as per the direction of this Court before 31.05.2022 vide letter dated 25.05.....
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....mature release application dated 19.02.2021. - 2. Letter dated 11.03.2021 from the Superintendent of Police, CBI, SCB, Mumbai. Prisoner should not be released prematurely. 3. Letter dated 22.03.2021 from the Special Judge (CBI), City Civil & Sessions Court, Gr. Bombay Considering the Govt. Resolution dated 11.04.2008, issued by the State of Maharashtra, prisoner should not be released prematurely. 4. Letter dated 07.03.2022 from the Superintendent of Police, Dahod,Gujarat. No objection to the premature release of the prisoner. 5. Letter dated 07.03.2022 from the Collector & DM, Dahod, Gujarat No objection to the premature release of the prisoner. 6. Opinion of the Jail Superintendent, Godhra Sub-Jail, Gujarat. No objection to the premature release of the prisoner. 7. Opinion of the Jail Advisory Committee, dated 26.05.2022. The committee has unanimously given the opinion in favour of the premature release of the prisoner. 8. Letter dated 09.06.2022 to the Home Department, Govt. of Gujarat, from the Addl. Director General of Police, Prisons & Correctional Administration, Ahmedabad. ....
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....he Home Department, Govt. of Gujarat from the Ministry of Home Affairs, Govt. of India Approved the premature release of the prisoner. Copy of the relevant records qua the prisoner, Shaileshbhai Chimanlal Bhatt is annexed herewith as Annexure-RG-4. 31. I say that the relevant records pertaining to the application for remission qua the prisoner, Pradip Ramanlal Modhiya, is as under: Sl. No. Document Opinion of the concerned Authority 1. Premature release application dated 23.02.2021. - 2. Letter dated 11.03.2021 from the Superintendent of Police, CBI, SCB, Mumbai. Prisoner should not be released prematurely. 3. Letter dated 22.03.2021 from the Special Judge (CBI), City Civil & Sessions Court, Gr. Bombay Considering the Govt. Resolution dated 11.04.2008, issued by the State of Maharashtra, prisoner should not be released prematurely. 4. Letter dated 07.03.2022 from the Superintendent of Police, Dahod, Gujarat. No objection to the premature release of the prisoner. 5. Letter dated 07.03.2022 from the Collector & DM, Dahod, Gujarat No objection to the premature release of the prisoner....
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....Correctional Administration, Ahmedabad. No objection to the premature release of the prisoner. 9. Letter dated 28.06.2022 to the Ministry of Home Affairs, Govt. of India from Home Department, Govt. of Gujarat. Recommended premature release of the prisoner. Sought approval/suitable orders from the Govt. of India. 10. Letter dated 11.07.2022 to the Home Department, Govt. of Gujarat from the Ministry of Home Affairs, Govt. of India Approved the premature release of the prisoner. Copy of the relevant records qua the prisoner, Mitesh Chimanlal Bhatt is annexed herewith as ANNEXURE RG-6. 33. I say that the relevant records pertaining to the application for remission qua the prisoner, Bipinchandra Kanaiyalal Joshi, is as under: Sl. No. Document Opinion of the concerned Authority 1. Premature release application dated 16.02.2021. - 2. Letter dated 10.03.2021 from the Superintendent of Police, CBI, SCB, Mumbai. Prisoner should not be released prematurely. 3. Letter dated 22.03.2021 from the Special Judge (CBI), City Civil & Sessions Court, Gr. Bombay. Considering the Govt. Resolution dated 11.04.200....
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....l Superintendent, Godhra Sub-Jail, Gujarat. No objection to the premature release of the prisoner. 7. Opinion of the Jail Advisory Committee, dated 26.05.2022. The committee has unanimously given the opinion in favour of the premature release of the prisoner. 8. Letter dated 09.06.2022 to the Home Department, Govt. of Gujarat, from the Addl. Director General of Police, Prisons & Correctional Administration, Ahmedabad No objection to the premature release of the prisoner. . 9. Letter dated 28.06.2022 to the Ministry of Home Affairs, Govt. of India from Home Department, Govt. of Gujarat. Recommended premature release of the prisoner. Sought approval/suitable orders from the Govt. of India. 10 . Letter dated 11.07.2022 to the Home Department, Govt. of Gujarat from the Ministry of Home Affairs, Govt. of India Approved the premature release of the prisoner. Copy of the relevant records qua the prisoner, Rajubhai Babulal Soni is annexed herewith as ANNEXURE RG-8. 35. I say that the relevant records pertaining to the application for remission qua the prisoner, Bakabhai Khimabhai Vahoniya, is as under: Sl. No.  ....
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....1.04.2008, issued by the State of Maharashtra, prisoner should not be released prematurely. 4. Letter dated 07.03.2022 from the Superintendent of Police, Dahod, Gujarat. No objection to the premature release of the prisoner. 5. Letter dated 07.03.2022 from the Collector & DM, Dahod, Gujarat No objection to the premature release of the prisoner. 6. Opinion of the Jail Superintendent, Godhra Sub-Jail, Gujarat No objection to the premature release of the prisoner. 7. Opinion of the Jail Advisory Committee, dated 26.05.2022 The committee has unanimously given the opinion in favour of the premature release of the prisoner. 8. Letter dated 09.06.2022 to the Home Department, Govt. of Gujarat, from the Addl. Director General of Police, Prisons & Correctional Administration, Ahmedabad. No objection to the premature release of the prisoner. 9. Letter dated 28.06.2022 to the Ministry of Home Affairs, Govt. of India from Home Department, Govt. of Gujarat. Recommended premature release of the prisoner. Sought approval/ suitable orders from the Govt. of India 10. Letter dated 11.07.2022 to the Home De....
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....for remission qua the prisoner, Rameshbhai Rupabhai Chandana, is as under: Sl. No. Document Opinion of the concerned Authority 1. Premature release application dated 25.02.2021 - 2. Letter dated 10.03.2021 from the Superintendent of Police, CBI, SCB, Mumbai. Prisoner should not be released prematurely. 3. Letter dated 22.03.2021 from the Special Judge (CBI), City Civil & Sessions Court, Gr. Bombay Considering the Govt. Resolution dated 11.04.2008, issued by the State of Maharashtra, prisoner should not be released prematurely. 4. Letter dated 07.03.2022 from the Superintendent of Police, Dahod, Gujarat. No objection to the premature release of the prisoner. 5. Letter dated 07.03.2022 from the Collector & DM, Dahod, Gujarat No objection to the premature release of the prisoner. 6. Opinion of the Jail Superintendent, Godhra Sub-Jail, Gujarat No objection to the premature release of the prisoner. 7. Opinion of the Jail Advisory Committee, dated 26.05.2022 The committee has unanimously given the opinion in favour of the premature release of the prisoner. 8. Letter dated 09.06.2022 to the Home Department....
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.... Govt. of India. Approved the premature release of the prisoner. Copy of the relevant records qua the prisoner, Radheshyam Bhgwandas Shah @ Lala Vakil is annexed herewith as Annexure R-13." 4.7 Therefore, it has been contended that PIL is not maintainable as it is misconceived and devoid of any merit and as such is liable to be dismissed. 5. Respondent No.2 has not filed any pleading in this matter. Even though respondent Nos.3 to 13 have filed their counter affidavits, we do not find it necessary to advert to the same as they would be replicating the stand of the State of Gujarat. Submissions: 6. We have heard learned counsel Ms. Shobha Gupta for the petitioner in Writ Petition (Crl.) No.491 of 2022; learned ASG, Sri S.V. Raju appearing on behalf of the State of Gujarat and Union of India; and learned senior counsel Mr. Sidharth Luthra and other counsel for respondent Nos.3 to 13 and perused the material on record. 6.1 We have also heard learned senior counsel and learned counsel Ms. Indira Jaising, Ms. Vrinda Grover and Ms. Aparna Bhat, for the petitioners in the public interest litigations. 6.2 We have perused the material on record as well a....
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....entation of the judgment of this Court in Sangeet vs. State of Haryana, (2013) 2 SCC 452 ("Sangeet"), wherein this Court held that before actually exercising the power of remission under Section 432 of the CrPC, the appropriate government must obtain the opinion of the Presiding Judge of the convicting or confirming court and that the remission shall not be granted in a wholesale manner, such as, on the occasion of Independence Day etc. That pursuant to the cancellation of the policy dated 09.07.1992, the State of Gujarat came up with a new remission policy dated 23.01.2014, and even this policy would not entitle remission of the accused herein, for two reasons: firstly, because the remission policy of the State of Maharashtra would be applicable as it is the 'appropriate government', and secondly, the 2014 policy of the State of Gujarat bars the grant of remission to convicts of heinous crimes. 7.4. Relying on the opinion of the Special Judge, Sessions Court, Greater Mumbai, it was submitted that the Special Judge had rightly stated that the remission policy applicable in the present case would be the Policy dated 11.04.2008 of the State of Maharashtra in respect of which the C....
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....udhakar, Swamy Shraddhananda (2) vs. State of Karnataka, (2008) 13 SCC 767, ("Shraddhananda"), and Jagdish. Reliance was also placed on the decision in Laxman Naskar wherein this Court had discussed the factors to be considered before granting remission. 7.9. It was urged that the prerogative power of remission is not immune from judicial review, vide Epuru Sudhakar wherein it was observed that judicial review of the order of remission is available on the following grounds: (i) non-application of mind; (ii) order is mala fide; (iii) order has been passed on extraneous or wholly irrelevant considerations; (iv) relevant materials kept out of consideration; (v) order suffers from arbitrariness. 7.10. It was contended that in the present case, remission was granted to all the convicts mechanically and without application of mind to each of the cases and that the relevant factors were not considered. That the State Government failed to consider the relevant material and make an objective assessment while considering the applications of the convicts for remission. The nature and gravity of the crime, the impact of the remission orders on the victim and her family, witnesses and soc....
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....t Magistrate, Dahod, also gave a positive opinion in favour of the premature release of all the convicts. On 26.05.2022, a meeting of the Jail Advisory Committee of Gujarat was held and this time, all the members of the Committee gave a positive opinion. The Additional Director General of Police, Prisons and Correctional Administration vide letter dated 09.06.2022 this time gave a positive opinion and did not raise any objection for the release of the ten convicts. 7.13. That although the reference by the Jail Advisory Committee to the State Government, was only qua respondent Nos.4 to 13, the State Government erroneously recommended the name of respondent No.3 also, to the Central Government for remission even in the absence of any application pending before the State Government. 7.14. Learned counsel for the petitioner next submitted that the Presiding Judge's reasoned negative opinion opposing the premature release was disregarded and this was contrary to the mandate of Section 432(2) of the CrPC. The remission Orders dated 10.08.2022 of respondent No.1 are in the teeth of the negative opinion of the Presiding Judge, Special Judge (CBI), Sessions Court, Greater Mumbai, dat....
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....the fine of Rs. 34,000/- to which each of them was sentenced, nor have they served any sentence in default of the non-payment of fine. It was submitted that the penalty of imprisonment ordered for default in payment of fine stands on a completely different footing from the substantive sentence of imprisonment to be undergone for an offence. While under Section 432 of the CrPC, the Government has the power to remit 'punishment for offence', the executive discretion does not extend to waiving off the penalty of imprisonment for default in payment of fine under Section 64 of the IPC. In this regard, reliance was placed on Sharad Hiru Kolambe vs. State of Maharashtra, (2018) 18 SCC 718 ("Sharad Kolambe") and Shantilal vs. State of M.P., (2007) 11 SCC 243 ("Shantilal"). 7.16. It was asserted that respondent No.1 while granting premature release failed to apply its mind and address the determinative factors outlined by this Court in Laxman Naskar. Thus, the orders of remission are vitiated by the vice of arbitrariness for non-consideration of relevant facts and factors. According to learned counsel for the petitioners, a bare perusal of the Orders dated 10.08.2022 would make it clear ....
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....he importance of considering the impact of premature release on the victims in particular and the society in general. That even the Superintendent of Police, Dahod, on 03.02.2020 had recommended against the release of Radheyshyam Bhagwandas Shah as he had cited the possibility of peace being disturbed. The Sessions Judge, Panchmahal at Godhra also raised questions regarding the security of the victim - petitioner herein. 7.20. Learned counsel next asserted that the en-masse and nonspeaking "sanction" of the Central Government dated 11.07.2022 under Section 435(1)(a) of the CrPC does not meet the statutory requirement of "consultation". The said sanction conveys its approval for the premature release of eleven convicts sans any reason as to why the case of each respondent-convict is deemed fit for grant of remission. Thus, the approval was granted without considering the relevant factors outlined in Laxman Naskar. 7.21. That non-application of mind is evident in the non-speaking and stereotyped orders dated 10.08.2022 which are bereft of any reason. The Orders are devoid of reasons or grounds as to why the respondents-convicts were found fit for the grant of remission. All of ....
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....ticle 32 or Article 226. Reliance was placed on Epuru Sudhakar and Ram Chander. Further, the jurisdiction of this Court is not ousted by the existence of alternative legal remedies. Reliance was placed on a Constitution Bench decision of this Court in Kavalappara Kottarathil Kochuni vs. States of Madras and Kerala, (1960) 3 SCR 887 ("Kochuni"). (iv) that the present proceedings pertain to administrative law and not criminal law and as a result, the principle of being a stranger to the criminal proceeding does not apply to the case at hand. Nevertheless, this Court has entertained petitions filed by 'strangers' in criminal matters in the past, as in the case of K. Anbazhagan vs. Superintendent of Police, (2004) 3 SCC 767 ("K. Anbazhagan"). (v) that such exercises of executive power may be challenged on the basis of the grounds laid down in Epuru Sudhakar and Maru Ram. (vi) that an important question of law arises in the present proceedings, namely, whether it is appropriate to grant remission after a period of fourteen years to convicts of heinous crimes. That a further question arises, as to whether, the victims of such crimes must be heard and due consid....
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....hakar, Sanaboina Satyanarayana and Zahid Hussain vs. State of West Bengal, 2001 (3) SCC 750 ("Zahid Hussain"). That the non-consideration of these factors proves the mala fide, arbitrary and unreasonable manner in which the impugned orders were passed. (x) that the 1992 Policy of remission of the State of Gujarat does not contain any substantive guidelines pertaining to remission and merely deals with procedural formalities. That the 2014 Policy is thus the first instance at which categories of crimes for which remission may not be granted was outlined. As such, it is the 2014 Policy that would apply to the question of remission for respondent Nos.3 to 13. (xi) that the grant of remission to the respondent Nos.3 to 13 is in violation of India's obligations under international law, specifically instruments such as the International Covenant on Civil and Political Rights and the Convention on the Elimination of All Forms of Discrimination Against Women. That rape was used as a tool of oppression by the perpetrators and the victim in the instant case experienced significant trauma as a consequence. (xii) that the grant of remission in the instant case is in ....
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....principles. (iv) that reference has only been made to four documents, namely (1) the order of this Court dated 13.05.2022, (2) the letter of the Additional Director General of Police and Inspector General of Prisons, State of Gujarat at Ahmedabad, (3) the Department Circular dated 09.07.1992 and (4) the letter of the Ministry of Home Affairs, Government of India in the impugned orders of remission. It was contended that the non-consideration of determinative factors has rendered the remission orders mechanical and arbitrary, with reliance placed on what is described as the untenable and unlawful en-masse approval of the Central Government. (v) that one of the criteria that is required to be considered which was highlighted in Laxman Naskar is the possibility of reformation and recidivism. That these factors have been given no consideration as there is no mention of the respondent-convicts' behavior while in prison, as well as offences committed while out on parole/furlough. That a case has been registered against one of the respondent-convicts under Sections 304, 306 and 354 IPC while on parole. That a range of punishments were imposed on the respondent-convicts i....
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.... i.e., investigation and trial must be treated as being on a different footing as guilt would not have been established and the fair trial rights of the accused still subsisted. However, there is no right to remission post-conviction as held in V. Sriharan. That it is only upon conviction that the need for the accused to remain in prison becomes a concern of the society. That all theories of punishment, including those of retributivism and utilitarianism, emphasize the impact on society as being of primary importance. Reliance was placed on T.K. Gopal vs. State of Karnataka, (2000) 6 SCC 168 ("T.K. Gopal"), Narinder Singh vs. State of Punjab, (2014) 6 SCC 466 ("Narinder Singh"), Shailesh Jasvantbhai vs. State of Gujarat, (2006) 2 SCC 359 ("Shailesh Jasvantbhai") and Ahmed Hussain Vali Mohammed Saiyed vs. State of Gujarat, (2009) 7 SCC 254 ("Mohammed Saiyed"). 12. Sri. S.V. Raju, learned Additional Solicitor General of India, appearing on behalf of the State of Gujarat and Union of India, at the outset submitted that the writ petitions filed by persons other than the victim are not maintainable. That the said persons are strangers and have no locus-standi to challenge the remissi....
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....der(s) dated 10.08.2022 were passed after duly considering the opinions expressed by Inspector General of Prisons, Gujarat State; Jail Superintendent; Jail Advisory Committee, District Magistrate; Superintendent of Police, CBI, Special Crime Branch, Mumbai; and the Special Court, Mumbai (CBI). That as per Section 435 of the CrPC, it is indispensable to obtain the sanction of the Government of India in cases in which the investigation of the offence was carried out by a central investigation agency. In the present case, the investigation was carried out by CBI, hence, the State Government obtained the approval of Government of India. 12.4. It was next submitted that respondent Nos.3 to 13 had completed more than fourteen years in custody, that their behaviour had been good and the opinions of the concerned authorities had been obtained as per the policy of 09.07.1992. The State Government submitted the opinions of the concerned authorities to the Ministry of Home Affairs, Government of India vide letter dated 28.06.2022 and sought the approval of the Government of India which conveyed its concurrence/approval under Section 435 of the CrPC for the premature release of eleven convi....
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.... Petition is not maintainable. Thus, the only remedy, if any, available to the petitioner-victim herein against the dismissal of the Review Petition, is to file a Curative Petition as propounded by this Court in the case of Rupa Ashok Hurra. 13.1. Sri Rishi Malhotra further submitted that in this proceeding this Court cannot sit over the judgment passed by another coordinate bench. It was further submitted that this Court by its judgment dated 13.05.2022 was right in categorically directing the State of Gujarat to consider the application for premature release of respondent No.3 in terms of the policy dated 09.07.1992 which was applicable on the date of conviction. That after duly taking into account the fact that respondent No.3 had undergone over fifteen years of imprisonment and that no objections were received from the Jail Superintendent, Godhra and that nine out of ten members of the Jail Advisory Committee had recommended his premature release. That coupled with the aforesaid facts the Home Department of the State of Gujarat as well as the Union Government had recommended and approved the premature release of respondent No.3. This clearly demonstrates that the remission o....
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.... writ petition. ii) As regards the issue of appropriate government and appropriate policy, learned senior counsel Sri Luthra submitted that the said issues stood settled in view of this Court's Order dated 13.05.2022. The judgments of this Court in Rashidul Jafar vs. State of U.P., 2022 SCC OnLine SC 1201 ("Rashidul Jafar"); State of Haryana vs. Raj Kumar, (2021) 9 SCC 292 ("Raj Kumar") and Hitesh vs. State of Gujarat (Writ Petition (Crl.) No.467/2022) ("Hitesh") were pressed into service wherein it had been held that the policy as on the date of conviction would apply, and therefore, the 1992 Policy of the State of Gujarat will apply for the grant of remission in the present case. iii) Learned senior counsel thereafter raised the plea that in India, a reformative/rehabilitative and penal sentencing policy is followed and not one which is punitive in nature. The same was reiterated when the Model Prison Act, 2023 was finalized which aims at "reforming prison management and ensuring the transformation of inmates into law-abiding citizens and their rehabilitation in society." Furthermore, in the case of Vinter vs. The United Kingdom (Applications Nos.66069/09, 130/1....
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....in part or in whole either in appeal, or in revision, or in other appropriate judicial proceedings or 'otherwise', whereas, a term of imprisonment ordered in default of payment of fine stands on a different footing vide Shantilal; Abdul Gani vs. State of Madhya Pradesh, (1950) SCC OnLine MP 119 ("Abdul Gani") and Shahejadkham Mahebubkham Pathan vs. State of Gujarat, (2013) 1 SCC 570 ("Shahejadkham Mahebubkham Pathan"). Further, reliance was placed on Sharad Kolambe, wherein it was observed by this Court that, "If the term of imprisonment in default of payment of fine is a penalty which a person incurs on account of non-payment of fine and is not a sentence in strict sense, imposition of such default sentence is completely different and qualitatively distinct from a substantive sentence." 15. Learned senior counsel appearing for respondent No.7 Mrs. Sonia Mathur, while adopting the submissions of other senior counsel further contended as under: 15.1. That as per Section 432 (7)(b) of the CrPC and the judicial precedent set in Radheshyam Bhagwandas Shah, the appropriate government would be the State of Gujarat. The said judgment has attained finality as the Review Petition file....
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....ic, the nation or of this Court". In this context, reliance was placed on the judgments of this Court in Epuru Sudhakar; Satpal vs. State of Haryana, (2000) 5 SCC 170 ("Satpal") and Mohammed Ishaq vs. S. Kazam Pasha, (2009) 12 SCC 748 ("Mohammed Ishaq"). It was submitted that a similar issue of maintainability arose in Mohammed Ishaq, wherein this Court observed that the mere existence of an alternative remedy in the form of Article 226 does not preclude an aggrieved person from approaching this Court directly under Article 32. The rule requiring the exhaustion of alternative remedies was described as being one of "convenience and discretion" as opposed to being absolute or inflexible in nature. (iii) that this Court had in the past entertained writ petitions under Article 32 filed by convicts seeking intervention in matters of premature release or the issuance of appropriate directions. Reliance was placed on the judgments in Ram Chander, Laxman Naskar and Rajan. (iv) that this Court had earlier entertained a writ petition filed by none other than respondent No.3 himself and no question was raised as to the maintainability of that writ petition. All of the other ....
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....ficacious remedy available to the petitioner. 16.1. Reiterating her submissions regarding the non-consideration of the negative opinions of the investigating agency, namely the CBI as well as the Judge of the Special CBI Court, Mumbai, learned counsel went on to refute the claim of the learned Additional Solicitor-General that the relevant opinion would be that of the Presiding Judge of the Godhra Court who was convinced of the merits of grant of remission. That this contention of learned ASG would contradict the plain language of Section 432(2) which specifies that the Presiding Judge should have been the one who awarded or confirmed the sentence. Reliance was again placed on the judgments of this Court in Sangeet, Ram Chander and V. Sriharan. Learned counsel further contended that the submission of the learned ASG that the use of the word 'may' in Section 432(2) would imply that there is no necessary requirement to seek the opinion of the Presiding Judge is erroneous in light of the dictum of this Court in V. Sriharan. 16.2. It was next contended that a letter dated 17.11.2021 was filed along with the application dated 10.08.2022. The said letter by the State of Gujarat add....
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.....3, there was no mention of material particulars, such as, the name of the petitioner-victim and the nature of the crimes in question, i.e., gang rape and mass murder in the petition. Also the fact that his application for grant of remission before the State of Maharashtra had been negatively opined by all the concerned authorities. That respondent No.3 did not place on record the judgements and orders of the Trial Court, High Court, and this Court that had upheld his conviction. That he made "incorrect and misleading" statements with reference to the orders of the Bombay High Court dated 05.08.2013 and Gujarat High Court dated 17.07.2019, namely, that the two courts had given differing opinions, and this fact played a role in this Court's decision-making while passing the order dated 13.05.2022. Respondent No.3 made it seem like both High Courts were sending him to the other State and that there was a contradiction. However, the aforesaid order of the Bombay High Court was dealing with the transfer of convicts to another jail in their parent State and did not discuss the issue of remission, which could not have arisen in the year 2013. 16.8. It was reiterated that the investiga....
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....ppropriate Government in Writ Petition (Crl.) No.135 of 2022, filed by respondent No.3, is completely contrary to the position of law laid down in Naresh Shridhar Mirajkar, wherein it was held that no writ petition alleging the violation of fundamental rights would lie against the judgement or order of a court. That the respondent No.3 committed fraud on this Court by misrepresenting the order of the Bombay High Court dated 05.08.2013 in Writ Petition (Crl.) No.135 of 2022. That the question of two High Courts taking "dramatically different views" did not arise as the issue of appropriate Government was not in question before the Bombay High Court at all. That this amounts to suppressio veri, expression falsi. That this Court in Union of India vs. Ramesh Gandhi, (2012) 1 SCC 476 ("Ramesh Gandhi"), has held that any judgement that is a consequence of misrepresentation of necessary facts would constitute fraud and would be treated as a nullity. That this error of the Court cannot lead to the deprivation of justice to the victims. While the criminal justice system must strive to adopt a reformative approach, proportionality of sentence must be treated as an equally important ideal. Re....
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....n Gujarat are undergoing life imprisonment, at least a fraction of whom have completed fourteen years of incarceration. That no special case has been made out either by the State of Gujarat or the Union of India as to why respondent Nos.3 to 13 are singularly entitled to remission over all of the other convicts. Reliance was placed on judgements in S. G. Jaisinghani vs. Union of India, AIR 1967 SC 1427 ("S. G. Jaisinghani") and E.P. Royappa vs. State of T.N., (1974) 4 SCC 3 ("E.P. Royappa"), wherein this Court held that arbitrary and mala fide exercise of power by the State would constitute a violation of Article 14 of the Constitution. That discretionary and en-masse remission on festive occasions was held to be impermissible in the case of Sangeet. 19.1. It was further submitted that there is no right to remission that a convict can necessarily avail. That remission must be an exercise of discretion judiciously by the concerned authorities. Reliance was placed on the judgments of this Court in Sangeet, V. Sriharan, State of Haryana vs. Mahender Singh, (2007) 13 SCC 606 ("Mahender Singh"); Mohinder Singh, Maru Ram and Shri Bhagwan vs. State of Rajasthan, (2001) 6 SCC 296 ("Shri....
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.... plea regarding maintainability of Writ Petition (Crl.) No.491 of 2022 filed by the victim by contending that the said petitioner had filed a review petition challenging the order dated 13.05.2022 passed in Writ Petition (Crl.) No.135 of 2022 and the same was dismissed. Therefore, the only remedy open to the petitioner was to file a curative petition in terms of the judgment of this Court in Rupa Ashok Hurrah and not challenging the remission orders by filing a fresh writ petition. We shall answer this contention in detail while considering point No.3. 22.1. One of the contentions raised by learned Senior Counsel, Sri S. Guru Krishna Kumar appearing for one of the private respondents was that the petitioner in Writ Petition (Crl.) No.491 of 2022, Bilkis Bano, ought to have challenged the orders of remission before the Gujarat High Court by filing a petition under Article 226 of the Constitution rather than invoking Article 32 of the Constitution before this Court. In this regard, it was submitted that by straightaway filing a petition under Article 32 of the Constitution a right of approaching this Court by way of an appeal by an aggrieved party has been lost. It was submitted t....
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....Petition (Crl.) No.135 of 2022 invoking Article 32 of the Constitution before this Court by seeking a direction to the State of Gujarat to consider his case for remission under the Policy of 1992. This Court issued a categorical direction to that effect. In fact, the respondent-State has understood the said direction as if it was a command or a direction to grant remission within a period of two months. But, before this Court in the said proceedings, one of the serious contentions raised by the State of Gujarat was that it was not the appropriate Government to grant remission which contention was negatived by the order dated 13.05.2022. In fact, that is one of the grounds raised by the petitioner victim to assail the orders of remission granted to respondent Nos.3 to 13. That being so, the High Court of Gujarat would not have been in a position to entertain the aforesaid contention in view of the categorical direction issued by this Court in Writ Petition (Crl.) No.491 of 2022 disposed on 13.05.2022. In the teeth of the aforesaid order of this Court, the contention regarding the State of Gujarat not being the competent State to consider the validity of the orders of remission in a ....
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....y to reproduce the same once again. 23.3. Respondent No.3 has challenged the locus of the petitioners in Writ Petition (Crl.) No.319 of 2022 and connected writ petitions and contended that the petitioners therein are not related to the said case and are third-party/strangers to the case. If petitions filed by third- party strangers are entertained by this Court, then it would unsettle the settled position of law and would open floodgates for litigation. Learned counsel for respondent No.3 Sri Rishi Malhotra placed reliance on the decision of this Court in Janata Dal vs. H.S. Chowdhary, (1992) 4 SCC 305 ("Janata Dal") which was reiterated and followed in Simranjit Singh and in Subramanian Swamy vs. Raju, (2013) 10 SCC 465 ("Subramanian Swamy") where it has consistently been held that a third party, who is a total stranger to the prosecution has no 'locus standi' in criminal matters and has no right whatsoever to file a petition under Article 32. 23.4. In Simranjit Singh, this Court was faced with the situation where a conviction of some of the accused persons by this Court under the Terrorist and Disruptive Activities (Prevention) Act, (TADA Act) was sought to be chall....
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....ood and sufficient ground for throwing out a petition under Article 32, if the existence of a fundamental right and a breach, actual or threatened, of such right is alleged and is prima facie established on the petition." 24.3. As regards the respondents' submission that a stranger to the criminal proceedings under any circumstance cannot file a petition under Article 32, it was contended that the instant proceedings are not criminal in nature, they fall within the realm of administrative law as they seek to challenge orders of remission which are administrative decisions. Learned senior counsel brought to our notice the fact that this Court had entertained a petition filed by a DMK leader under Section 406 of the CrPC seeking the transfer of a pending criminal trial against his political opponent, J. Jayalalithaa, from the State of Tamil Nadu to the State of Karnataka vide K. Anbazhagan. 25. Ms. Vrinda Grover, learned counsel for the petitioner in Writ Petition (Crl.) No.352 of 2022, at the outset, submitted that the said petition has been filed in the larger public interest by the petitioners who have vast knowledge and practical expertise on issues of public policy, govern....
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....olence against women. (Vide Sheonandan Paswan vs. State of Bihar, (1987) 1 SCC 288 ("Sheonandan Paswan") and Abdul Wahab K. vs. State of Kerala, (2018) 18 SCC 448 ("Abdul Wahab"). 25.4. Learned counsel next submitted that this Court in Subramanian Swamy, while adjudicating on the locus of a publicspirited intervenor in a case requiring interpretation of the Juvenile Justice (Care and Protection of Children) Act, 2015, held that the intervenor had sought an interpretation of criminal law which would have a wide implication beyond the scope of the parties in that case and hence, allowed the same. Thus, when larger questions of law are involved, which include interpretation of statutory provisions for the purpose of grant of premature release/remission, public-spirited persons who approach the Court in a bona fide manner, ought not to be prevented from assisting the Court to arrive at a just and fair outcome. 25.5. Learned counsel Ms. Grover further submitted that in cases where offences have shocked the conscience of the society, spread fear and alarm amongst citizens and have impugned on the secular fabric of society, like in the instant case, this Court has allowed interventi....
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....sions made on behalf of the respective parties, we do not think it is necessary to answer the point regarding maintainability of the PILs in this case inasmuch as one of the victims, namely, Bilkis Bano has also filed a writ petition invoking Article 32 of the Constitution assailing the orders of remission which we have held to be maintainable. The consideration of that petition on its merits would suffice in the instant case. Hence, we are of the view that the question of maintainability of the PILs challenging the orders of remission in the instant case would not call for an answer from us owing to the aforesaid reason. As a result, we hold that consideration of the point on the maintainability of the PILs has been rendered wholly academic and not requiring an answer in this case. Therefore, the question regarding maintainability of a PIL challenging orders of remission is kept open to be considered in any other appropriate case. 28. Before we consider point No.3, we shall deal with the concept of remission. Remission : Scope & Ambit 29. Krishna Iyer, J. in Mohammad Giasuddin vs. State of A.P., (1997) 3 SCC 287, quoted George Bernard Shaw the famous satirist who said, "If y....
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....nflicts for a crime he has committed. It affects both the punishment prescribed for the offence and the guilt of the offender. But pardon has to be distinguished from "amnesty" which is defined as a "general pardon of political prisoners; an act of oblivion". An amnesty would result in the release of the convict but does not affect disqualification incurred, if any. 'Reprieve' means a stay of execution of a sentence, a postponement of a capital sentence. Respite means awarding a lesser sentence instead of the penalty prescribed in view of the fact that the accused has had no previous conviction. It is something like a release on probation for good conduct under Section 360 of the CrPC. On the other hand, remission is reduction of a sentence without changing its character. In the case of a remission, the guilt of the offender is not affected, nor is the sentence of the court, except in the sense that the person concerned does not suffer incarceration for the entire period of the sentence, but is relieved from serving out a part of it. Commutation is change of a sentence to a lighter sentence of a different kind. Section 432 empowers the appropriate Government to suspend or remit sen....
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....inivasmurthy"). 30.4. In Mahender Singh, this Court was considering the correctness of a judgment of the Punjab and Haryana High Court in which a circular/letter issued by the State of Haryana laying down criteria for premature release of the prisoners had been declared to be unconstitutional. In the above context, this Court considered the right of the convict to be considered for remission and not on what should be the criteria when the matter was taken up for grant thereof. 30.5. Satish was pressed into service to contend that the length of the sentence or the gravity of the original crime cannot be the sole basis for refusing premature release. Any assessment regarding a predilection to commit crime upon release must be based on antecedents as well as conduct of the prisoner while in jail, and not merely on his age or apprehensions of the victims and witnesses. It was observed that although, a convict cannot claim remission as a matter of right, once a law has been made by the appropriate legislature, it is not open for the executive authorities to surreptitiously subvert its mandate. It was further observed that where the authorities are found to have failed to discharge....
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....t of remissions may be to scale down the term to be endured and reduce it to nil, while leaving the factum and quantum of sentence intact. However, when the sentence is a life sentence, remissions, quantified in time, cannot reach a point of zero. Since Section 433-A deals only with life sentences, remissions cannot entitle a prisoner to release. It was further observed that remission, in the case of life imprisonment, ripens into a reduction of sentence of the entire balance only when a final release order is made. If this is not done, the prisoner will continue in custody. The reason is, that life sentence is nothing less than life long imprisonment and remission vests no right to release when the sentence is life imprisonment. Nor is any vested right to remission cancelled by compulsory fourteen years jail life as a life sentence is a sentence for whole life. (iii) Interpreting Section 433-A it was observed that there are three components in it which is in the nature of saving clause. Firstly, the CrPC generally governs matters covered by it. Secondly, if a special or local law exists covering the same area, the latter law will be saved and will prevail, such as short s....
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....duction or modification in the deterrent punishment would, far from reforming the criminal, be counter-productive. (b) Mohinder Singh is a case which arose under Section 432 on remission of sentence in which the difference between the terms `bail', `furlough' and `parole' having different connotations were discussed. It was observed that furloughs are variously known as temporary leaves, home visits or temporary community release and are usually granted when a convict is suddenly faced with a severe family crisis such as death or grave illness in the immediate family and often the convict/inmate is accompanied by an officer as part of the terms of temporary release of special leave which is granted to a prisoner facing a family crisis. Parole is a release of a prisoner temporarily for a special purpose or completely before the expiry of the sentence or on promise of good behaviour. Conditional release from imprisonment is to entitle a convict to serve remainder of his term outside the confines of an institution on his satisfactorily complying all terms and conditions provided in the parole order. (c) In Poonam Latha vs. M.L. Wadhwan, (1987) 3 SCC 347 ("Poonam Latha"), it was ....
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.... of the sentence. (4) The condition on which a sentence is suspended or remitted under this section may be one to be fulfilled by the person in whose favour the sentence is suspended or remitted, or one independent of his will. (5) The appropriate Government may, by general rules or special orders, give directions as to the suspension of sentences and the conditions on which petitions should be presented and dealt with: Provided that in the case of any sentence (other than a sentence of fine) passed on a male person above the age of eighteen years, no such petition by the person sentenced or by any other person on his behalf shall be entertained, unless the person sentenced is in jail, and- (a) where such petition is made by the person sentenced, it is presented through the officer in charge of the jail; or (b) where such petition is made by any other person, it contains a declaration that the person sentenced is in jail. (6) The provisions of the above sub-sections shall also apply to any order passed by a Criminal Court under any section of this Code or of any other law which restricts the liberty of any person or imposes any ....
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.... shall not be exercised by the State Government except after consultation with the Central Government. (2) No order of suspension, remission or commutation of sentences passed by the State Government in relation to a person, who has been convicted of offences, some of which relate to matters to which the executive power of the Union extends, and who has been sentenced to separate terms of imprisonment which are to run concurrently, shall have effect unless an order for the suspension, remission or commutation, as the case may be, of such sentences has also been made by the Central Government in relation to the offences committed by such person with regard to matters to which the executive power of the Union extends." 32.1. Sub-section (1) of Section 432 is an enabling provision which states that when any person has been sentenced to punishment for an offence, the appropriate Government may, at any time, without conditions or upon any condition which the person sentenced accepts, suspend the execution of his sentence or remit the whole or any part of the punishment to which he has been sentenced. The pertinent provision involved in this case is sub-section (2) which ....
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.... any law relating to a matter to which the executive power of the Union extends, the Central Government; and in other cases, the Government of the State within which the offender is sentenced or the said order is passed. 32.3. Section 433-A is a restriction on the powers of remission or commutation in certain cases. It begins with a non-obstante clause and states that notwithstanding anything contained in Section 432, where a sentence of imprisonment for life is imposed on conviction of a person for an offence for which death is one of the punishments provided by law, or where a sentence of death imposed on a person has been commuted under Section 433 into one of imprisonment for life, such person shall not be released from prison unless he had served at least fourteen years of imprisonment. 32.4. Section 434 states that the powers conferred by Sections 432 and 433 upon the State Government may in case of sentences of death also be exercised by the Central Government concurrently. 32.5. The necessity for the State Government to act in consultation with the Central Government in certain cases is mandated in Section 435. The powers conferred by Sections 432 and 433 up....
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.... Section 432 to mean that in cases where the sentence is for an offence against, or the order referred to in sub-section (6) is passed under, any law relating to a matter to which the executive power of the Union extends, the Central Government; in other cases, the Government of the State within which the offender is sentenced or the said order is passed. The expression "appropriate Government" also finds place in subsection (1) of Section 432 which, as already discussed above, states that when any person has been sentenced to punishment for an offence, the appropriate Government may, at any time, without conditions or upon any condition which the person sentenced accepts, suspend the execution of his sentence or remit the whole or any part of the punishment to which he has been sentenced. 33.3. Sub-section (1) of Section 432 of the CrPC deals with a power vested with the appropriate Government which is an enabling power. The discretion vested with the appropriate Government has to be exercised judiciously in an appropriate case and not to abuse the same. However, when an application is made to the appropriate Government for the suspension or remission of a sentence such as in t....
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.... rather than the place or location where the crime was committed. Such an interpretation would also include a situation, such as in the present case, where not only the investigation but also the trial of respondents No.3 to 13 herein was transferred from the State of Gujarat to the State of Maharashtra and particularly to the Special Court at Mumbai. Thus, the aforesaid definition also takes within its scope and ambit a circumstance wherein the trial is transferred by this Court for reasons to be recorded and which is in the interest of justice from one State to another State. 33.5. There may be various reasons for transferring of a trial from a competent Court within the territorial jurisdiction of one State to a Court of equivalent jurisdiction in another State, as has been done in the instant case. But what is certain is that the transfer of the trial to a court in another State would be a relevant consideration while considering as to which State has the competency to pass an order of remission. Thus, the definition of appropriate Government in sub-section (7) of Section 432 clearly indicates that the Government of the State within which the offender is sentenced, is the ap....
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.... of imprisonment for life means a sentence for the entire life of the prisoner unless the appropriate Government chooses to exercise its discretion to remit either the whole or a part of the sentence under Section 401 of the Code of Criminal Procedure; (2) that the appropriate Government has the undoubted discretion to remit or refuse to remit the sentence and where it refuses to remit the sentence no writ can be issued directing the State Government to release the prisoner. (3) that the appropriate Government which is empowered to grant remission under Section 401 of the Code of Criminal Procedure is the Government of the State where the prisoner has been convicted and sentenced, that is to say, the transferor State and not the transferee State where the prisoner may have been transferred at his instance under the Transfer of Prisoners Act; and (4) that where the transferee State feels that the accused has completed a period of 20 years it has merely to forward the request of the prisoner to the concerned State Government, that is to say, the Government of the State where the prisoner was convicted and sentenced and even if this request is rejected by th....
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....g of sub-section (7) of Section 432 of the CrPC and considering the judgments of this Court, it is the State of Maharashtra, which had the jurisdiction to consider the application for remission vis-à-vis respondent Nos.3 to 13 herein as they were sentenced by the Special Court, Mumbai. Hence the applications filed by respondent Nos.4 to 13 seeking remission had to be simply rejected by the State of Gujarat owing to lack of jurisdiction to consider them. This is because Government of Gujarat is not the appropriate Government within the meaning of the aforesaid provision. The High Court of Gujarat was therefore right in its order dated 17.07.2019. 33.9. When an authority does not have the jurisdiction to deal with a matter or it is not within the powers of the authority i.e. the State of Gujarat in the instant case, to be the appropriate Government to pass orders of remission under Section 432 of the CrPC, the orders of remission would have no legs to stand. On the aspect of jurisdiction and nullity of orders passed by an authority, the decision of the House of Lords in Anisminic vs. Foreign Compensation Commission, (1969) 2 WLR 163 : (1969) 1 All ER 208 ("Anisminic"), is o....
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.... the convicts-Radheshyam Bhagwandas Shah, respondent No.3 herein, had initially approached the High Court of Gujarat by filing Criminal Application No.4573 of 2019 for a direction to consider his application for remission by the State of Gujarat. By order dated 17.07.2019 the High Court disposed of Criminal Application No.4573 of 2019 by observing that he should approach the appropriate Government being the State of Maharashtra. His second such application before the Gujarat High Court was also dismissed vide order dated 13.03.2020. That when the said prisoner filed Writ Petition (Crl.) No.135 of 2022 before this Court, he did not disclose the following facts: (i) that within fourteen days of the order dated 17.07.2019, he had approached the Government of Maharashtra vide application dated 01.08.2019; (ii) that the CBI had given a negative recommendation vide its letter dated 14.08.2019; (iii) that the Special Judge (CBI), Mumbai had given a negative recommendation vide his letter dated 03.01.2020; (iv) that the Superintendent of Police, Dahod, Gujarat had given a negative recommendation vide his letter dated 03.02.2020; and, (v) t....
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....bsp;x x x That at this juncture it would be pertinent to mention herein that one of the co-accused Ramesh Rupabhai had approached the Bombay High Court by way of Crl. W.P. No.305/2013. In the said order, the Bombay High Court clarified that the undertrials in this case were lodged in Maharashtra Jail only because of the fact that at that time the Trial was pending in the State of Maharashtra (transferred from Gujarat to Maharashtra by the Supreme Court). The High Court further clarified that once the Trial has concluded and the prisoner has been convicted, the appropriate prison would be the State of Gujarat and accordingly, the said prisoners were transferred to the State of Gujarat from the State of Maharashtra... At this juncture, the petitioner had approached the Gujarat High Court on the ground that despite he having undergone more than actual sentence of 14 years, his case was not being considered by the respondent/authorities for premature release. The Gujarat High Court vide its order dated 17.7.19 with great respect took a completely a diametrically opposite view as that of Bombay High Court and erroneously held that since the petitioner's case was tried ....
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....lacing reliance on the judgment of this Court in Union of India v. V. Sriharan alias Murugan and Ors. 2015:INSC:886 : (2016) 7 SCC 1, on the premise that since the trial has been concluded in the State of Maharashtra, the application for pre-mature release has to be filed in the State of Maharashtra and not in the State of Gujarat, as prayed by the Petitioner by judgment impugned dated 17th July 2019. xxx xxx xxx 10. Learned Counsel for the Respondents has placed reliance on the judgment of this Court in Union of India v. V. Sridharan alias Murugan and Ors. (supra) and submits that since the trial has been concluded in the State of Maharashtra, taking assistance of Section 432(7) Code of Criminal Procedure, the expression 'appropriate government as referred to Under Section 433 Code of Criminal Procedure in the instant case, would be the State of Maharashtra and accordingly no error has been committed by the High Court in the order impugned. 11. In our considered view, the submission made by learned Counsel for the Respondents is not sustainable for the reason that the crime in the instant case was admittedly committed in the State of Gujarat and ordi....
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....f conviction and may be decided within a period of two months. If any adverse order is passed, the Petitioner is at liberty to seek remedy available to him under the law. 36.3. The following aspects are noted by this Court in the order dated 13.05.2022: (i) that the crime was committed in the State of Gujarat but this Court in Transfer Petition (Crl.) No. 192 of 2004 had considered it appropriate to transfer Sessions Case No. 161 of 2004 pending before the learned Additional Sessions Judge, Dahod, Ahmedabad to the competent court in Mumbai for trial and disposal by order dated 06.08.2004. (ii) that the trial court, Mumbai in Sessions Case No. 634 of 2004, on completion of the trial held the said Respondent as well as the other Accused guilty and sentenced them to undergo rigorous imprisonment for life by judgment and order dated 21.01.2008. (iii) that one of the co-Accused Ramesh Rupabhai had approached the Bombay High Court by filing Writ Petition (Crl.) No. 305 of 2013 seeking premature release but his application was dismissed by order 05.08.2013 on the premise that the crime was committed in the state of Gujarat and his trial was transferred to the....
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....l Procedure and on the basis of the decision in V. Sriharan as the trial had been concluded in the State of Maharashtra; (iii) that Respondent No. 3 had not stated that the application for premature release had been filed by him in the State of Maharashtra and not in the State of Gujarat as directed by the judgment of the Gujarat High Court dated 17.07.2019; (iv) Respondent No. 3 herein who had filed the writ petition had not disclosed that he had acted upon the order dated 17.07.2019 passed by the Gujarat High Court inasmuch as- (a) he had approached the Government of Maharashtra vide application dated 01.08.2019; (b) the CBI had given a negative recommendation vide its letter dated 14.08.2019; (c) the Special Judge (CBI), Mumbai had given a negative recommendation vide his letter dated 03.01.2020; (d) the Superintendent of Police, Dahod, Gujarat had given a negative recommendation vide his letter dated 03.02.2020; and, (e) the District Magistrate, Dahod, Gujarat had given a negative recommendation vide his letter dated 19.02.2020. (v) that the Respondent No. 3 had not assailed the order dated 17.07.2019 passe....
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....ed by this Court. (x) that although the Respondent No. 3 who approached this Court as well as the State of Gujarat had termed the order of the Gujarat High Court dated 17.07.2019 as "impugned Order", the said order was not at all impugned or assailed in the proceedings before this Court. What was filed by the convict i.e., Respondent No. 3 before this Court was a writ petition Under Article 32 of the Constitution seeking a direction to the State of Gujarat to consider his remission application; (xi) More significantly, while a reference has been made to Criminal Writ Petition No. 305 of 2013 filed by one of the co-Accused Ramesh Rupabhai in the year 2013 before the Bombay High Court seeking a direction for transfer of the convicts from Maharashtra Jail to Gujarat Jail, the reference to the Order of the Gujarat High Court dated 17.07.2019 dismissing the writ petition filed by Respondent No. 3 herein directing him to approach the Maharashtra State for remission was only in the context of the said order being "diametrically opposite" to the view of the Bombay High Court without explaining and by suppression of the backgrounds under which the two writ petitions were f....
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....the appropriate Government in terms of the provisions Under Section 432 of the Code of Criminal Procedure. It was further observed that the exercise of power by the appropriate Government Under Sub-section (1) of Section 432 of the Code of Criminal Procedure cannot be suo motu for the simple reason that this Sub-section is only an enabling provision. In other words, the appropriate Government is enabled to "override" a judicially pronounced sentence, subject to fulfillment of certain conditions. Those conditions are found either in the jail manual or in statutory rules. Therefore, Sub-section (1) of Section 432 of the Code of Criminal Procedure cannot be read to enable the appropriate Government to "further override" the judicial pronouncement over and above what is permitted by the jail manual or the statutory rules. On such an application being made, the appropriate Government is required to approach the Presiding Judge of the Court before or by which the conviction was made or confirmed to opine (with reasons) whether the application should be granted or refused. Thereafter, the appropriate Government may take a decision on the remission application and pass orders granting remi....
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....oup murder of two or more persons. x x x (d) Prisoners convicted for murder with rape or gang rape. (xv) Realising that Respondent Nos. 3 to 13 would not be released under the Remission Policy dated 23.01.2014, which had substituted the earlier Policy dated 09.07.1992, which had been cancelled, the writ petition was filed by Respondent No. 3 herein before this Court seeking a specific direction to the State of Gujarat to consider his case as per the Policy dated 09.07.1992 which had by then been cancelled and substituted by another Policy dated 23.01.2014. (xvi) What is the effect of cancellation of the said policy by the State of Gujarat in light of the judgment of this Court in Sangeet and the communication of Union of India issued to each of the states including the State of Gujarat? Does it mean that the said policy of 09.07.1992 had stood cancelled and therefore got effaced and erased from the statute book and substituted by a new policy of 2014 which had to be considered. There was no pleading or discussion to that effect. 36.5 Thus, by suppressing material aspects and by misleading this Court, a direction was sought and issued to the Re....
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....f the High Court could have been set aside in a proceeding Under Article 32 thereof. This proposition of law has been settled long ago by a nine-Judge bench decision of this Court in Naresh Shridhar Mirajkar v. State of Maharashtra AIR 1967 SC 1, which is binding on us. 39.1. When an oral order of the learned Judge passed in the original suit of the Bombay High Court was challenged by the Petitioner therein by way of a writ petition Under Article 226 of the Constitution of India before the Bombay High Court, the writ petition was dismissed by a division bench of the Bombay High Court on the ground that the impugned order was a judicial order of the High Court and was not amenable to writ jurisdiction Under Article 226. Thereafter, the Petitioner therein moved this Court Under Article 32 of the Constitution of India for enforcement of his fundamental rights Under Article 19(1)(a) and (g) of the Constitution of India. This Court observed that the impugned order was passed by the learned Judge in the course of trial of a suit before him after hearing the parties. This Court took the view that the restraint order was passed to prohibit publication of evidence in the media during the....
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....ature release. 41. We are of the considered view that the writ proceedings before this Court is pursuant to suppression and misleading of this Court and a result of suppressio veri suggestio falsi. Hence, in our view, the said order was obtained by fraud played on this Court and hence, is a nullity and non est in law. In view of the aforesaid discussion, we hold that consequently the order dated 13.05.2022 passed by this Court in Writ Petition (Crl.) No. 135 of 2022 in the case of Radheshyam Bhagwandas Shah is hit by fraud and is a nullity and non est in the eye of law and therefore cannot be given effect to and hence, all proceedings pursuant to the said order are vitiated. 42. It is trite that fraud vitiates everything. It is a settled proposition of law that fraud avoids all judicial acts. In S.P. Chengalvaraya Naidu v. Jagannath (Dead) through LRs,(1994) 1 SCC 1 ("S.P. Chengalvaraya Naidu"), it has been observed that "fraud avoids all judicial acts, ecclesiastical or temporal." Further, "no judgment of a court, no order of a minister would be allowed to stand if it has been obtained by fraud. Fraud unravels everything" vide Lazarus Estates Ltd. v. Beasley, (1956) 1 ALL ER....
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.... law, the party who invokes the extraordinary jurisdiction of this Court Under Article 32 or of a High Court Under Article 226 of the Constitution is supposed to be truthful, frank and open. He must disclose all material facts without any reservation even if they are against him. He cannot be allowed to play "hide and seek" or to "pick and choose" the facts he likes to disclose and to suppress (keep back) or not to disclose (conceal) other facts. The very basis of the writ jurisdiction rests in disclosure of true and complete (correct) facts. If material facts are suppressed or distorted, the very functioning of writ courts and exercise would become impossible. The Petitioner must disclose all the facts having a bearing on the relief sought without any qualification. This is because "the court knows law but not facts". 39. ... Suppression or concealment of material facts is not an advocacy. It is a jugglery, manipulation, maneuvering or misrepresentation, which has no place in equitable and prerogative jurisdiction. If the applicant does not disclose all the material facts fairly and truly but states them in a distorted manner and misleads the court, the court has inherent....
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....-vis the appropriate Government which is vested with the power to consider an application for remission as per Sub-section (7) of Section 432 of the Code of Criminal Procedure and that of the nine Judge Bench decision in Naresh Shridhar Mirajkar that an order of a High Court cannot be set aside in a proceeding Under Article 32 of the Constitution. 44.1. In State of U.P. v. Synthetics and Chemicals Ltd., (1991) 4 SCC 139 ("Synthetics and Chemicals Ltd."), a two Judge Bench of this Court (speaking through Sahai J. who also wrote the concurring judgment along with Thommen, J.) observed that the expression per incuriam means per ignoratium. This principle is an exception to the Rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratium of a statute or other binding authority'. It would result in a judgment or order which is per incuriam. In the case of Synthetics and Chemicals Ltd., the High Court relied upon the observations in paragraph 86 of the judgment of the Constitution Bench in Synthetics and Chemicals Ltd., namely, "sales tax cannot be charged on industrial alcohol in the present case, because under the Ethyl Alcoho....
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....ring this question, this Court categorically held that intoxicating liquor within the meaning of Entry 8 of List II was confined to potable liquor and did not include industrial liquor. This Court did not deal with the taxing power of the State under Entry 54 of List II which deals with 'taxes on the sale or purchase of goods other than newspapers, subject to the provisions of Entry 92-A of List I'. The power of the State to levy taxes on sale or purchase of goods under that entry was not the subject matter of discussion by this Court although in paragraph 86 of the leading judgment of this Court, there was a reference to sales tax. Therefore, the only question that was considered by the seven- judge bench of this Court was whether the State could levy "excise duty" or "vend fee" or "transport fee" and the like by recourse to Entry 51 or 8 in List II in respect of industrial alcohol. Entry 52 List II was not applicable to fee or charges in question. Entry 52 List II refers to "Taxes on the entry of goods into a local area for consumption, use or sale therein". Further, the observation that sales tax cannot be charged by the State on industrial alcohol was an abrupt....
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....doing so, the Bench recorded the above conclusion. It was not preceded by any discussion. No reason or rationale could be found in the judgment. Therefore, it was held by the two-Judge Bench that the same was per incuriam and was liable to be ignored in a subsequent matter between the same parties. The courts have taken recourse to this principle for relieving from injustice being perpetrated by unjust precedents. It was observed that uniformity and consistency are core of judicial discipline. But, if a decision proceeds contrary to the law declared, it cannot be a binding precedent. It was further observed that the seven-Judge Bench in Synthetics and Chemicals Ltd. did not discuss the matter and had observed that the State cannot levy sales tax on industrial alcohol. In the subsequent matter which arose from the High Court between the same parties, it was held by this Court that the conclusion of law by the Constitution Bench that no sales or purchase tax could be levied on industrial alcohol was per incuriam and also covered by the Rule of sub-silentio and therefore, was not a binding authority or precedent. Thus, although it is the ratio decidendi which is a precedent a....
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....judgments of this Court and our own understanding of the order dated 13.05.2022 passed by a coordinate Bench of this Court in Writ Petition No. 135 of 2022, we hold as follows: (i) that the Government of State of Gujarat (Respondent No. 1 herein) had no jurisdiction to entertain the applications for remission or pass the orders of remission on 10.08.2022 in favour of Respondent No. 3 to 13 herein as it was not the appropriate Government within the meaning of Sub-section (7) of Section 432 of the Code of Criminal Procedure; (ii) that this Court's order dated 13.05.2022 being vitiated and obtained by fraud is therefore a nullity and non est in law. All proceedings taken pursuant to the said order also stand vitiated and are non est in the eye of law. 47. Point No. 3 is accordingly answered. Point No. 4: Whether the impugned order of remission passed by the Respondent - State of Gujarat in favour of Respondent Nos. 3 to 13 are in accordance with law? 48. We have perused the original record which is the English translation from Gujrati language. 48.1. Even according to the Respondent State of Gujarat Radheshyam Bhagwandas Shah has not made any ap....
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....in those cases it is need to be consulted with Central Government is required. This case was investigated by CBI, therefore the State Government of Gujarat in consultance with Central Government letter dated 28/06/2022. Pursuant to which the Ministry of Home Affairs of the Government of India has given a positive opinion regarding the release of the prisoner from the letter reference (4), considering all the details, the release of Mr. Radheshyam Bhagwandas Shah was under consideration. ::ORDER:: Provision under Code of Criminal Procedure, 1973 Section 443(A), power given to State Government Under Section 432 of Code of Criminal Procedure, 1973, the convict prisoner Radheshyam Bhagwandas Shah's life sentence remitted under the following conditions and taken decision by Government to release him from immediate effect. ::CONDITIONS:: (1) He shall to furnish surety of two gentlemen about after releasing him, he will behave good up to two years and also given undertaking he will not breach public peace and harass parties and witnesses. (2) After being released from prison if he commits cognizable offense causing grievous hurt to anyone o....
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....ercised Under Section 432(1) and it can only be initiated by an application of the person convicted as provided Under Section 432(2) and the ultimate order of suspension of sentence or remission should be guided by the opinion to be rendered by the Presiding Officer of the Court concerned. In this case the earlier judgment of this Court in Sangeet was approved. (b) In Sangeet, it was observed that a convict undergoing a sentence does not have a right to get remission of sentence, however, he certainly does have a right to have his case considered for the grant of remission as held in Mahender Singh and Jagdish. It was further observed in the said case that there does not seem to be any decision of this Court detailing the procedure to be followed for the exercise of power Under Section 432 of the Code of Criminal Procedure which only lays down the basic procedure i.e. by making an application to the appropriate Government for the suspension or remission of a sentence, either by the convict or someone on his behalf. It was observed that Sub-section (1) of Section 432 of the Code of Criminal Procedure is only an enabling provision to override a judicially pronounced sentence, subj....
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.... Section 432 of the Code of Criminal Procedure reduces the period of incarceration by an order passed by an appropriate Government which cannot be reduced to less than fourteen years as per Section 433-A of the Code of Criminal Procedure. This Court after a detailed discussion came to the following conclusions on the aspect of grant of remissions: 77.5. The grant of remissions is statutory. However, to prevent its arbitrary exercise, the legislature has built in some procedural and substantive checks in the statute. These need to be faithfully enforced. 77.6. Remission can be granted Under Section 432 Code of Criminal Procedure in the case of a definite term of sentence. The power under this Section is available only for granting "additional" remission, that is, for a period over and above the remission granted or awarded to a convict under the Jail Manual or other statutory rules. If the term of sentence is indefinite (as in life imprisonment), the power Under Section 432 Code of Criminal Procedure can certainly be exercised but not on the basis that life imprisonment is an arbitrary or notional figure of twenty years of imprisonment. 77.7. Before actual....
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....ith adequate reasoning and taking into consideration all the relevant factors that govern the grant of remission as laid down in Laxman Naskar. (d) Epuru Sudhakar is also a case where a writ petition was filed Under Section 32 of the Constitution challenging an order of Government of Andhra Pradesh, whereby a convict (Respondent No. 2 therein) was granted remission of unexpired period of about seven years' imprisonment. The petition was filed by the son of the murdered persons while the convict was on bail in the murder case of Petitioner No. 1's father therein. In the writ petition it was alleged, inter alia, that the grant of remission was illegal as relevant materials were not placed before the Governor and the impugned order was made without application of mind and based on irrelevant and extraneous materials and therefore, liable to be set aside. That was a case where remission or grant of pardon was Under Article 161 of the Constitution by the Governor of the State of Andhra Pradesh. This Court, while considering the philosophy underlining the power of pardon or the power of clemency observed that the said power exercised by a department or functionary of the Gover....
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....y need not be given the reasons but that does not mean that there should not be legitimate or relevant reasons for passing the order. It was also observed that in the absence of any specific reference Under Articles 72 or 161 of Constitution with regard to withdrawal of an order of remission, there is no bar for such power being exercised. (iii) On a consideration of the facts of the said case, it was observed that, irrelevant and extraneous materials had entered into the decision-making process, thereby vitiating it. The order granting remission impugned in the writ petitions was set aside being unsustainable and directed to be reconsidered and the writ petition was allowed to that extent. Kapadia, J., as the learned Chief Justice then was, in his concurring opinion observed that, exercise of executive clemency is a matter of discretion and yet subject to certain standards. The discretion has to be exercised or public considerations allowed. Therefore, the principle of exclusive cognizance would not apply when the decision impugned is in derogation of a constitutional provision. It was further stated that granting of pardon has the effect of eliminating conviction without....
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.... judicial review and the vindication of the Rule of law being the main object of judicial review, the mechanism for giving effect to that justification varies. Thus, Rule of law should be the overarching conditional justification for judicial review. (g) In Rajan, it was observed that where a person has been convicted on several counts for different offences in relation to which life imprisonment has been granted, the convict may succeed in being released prematurely only if the competent authority passes an order of remission concerning all the life sentences awarded to the convict on each count which is a matter to be considered by the competent authority. 48.7. With regard to the remission policy applicable in a given case, the following judgments are of relevance: (a) In Jagdish, a three Judge Bench of this Court considered the conflicting opinions expressed in State of Haryana v. Balwan, (1999) 7 SCC 355 ("Balwan") on the one hand and Mahendar Singh, and State of Haryana v. Bhup Singh, (2009) 2 SCC 268 ("Bhup Singh") on the other. The question considered by the three- Judge bench was, whether, the policy which provides for remission and sentence should be that which w....
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....ode of Criminal Procedure. 48.8. At this juncture, it is relevant to refer to the following decisions of this Court, wherein orders of remission have been quashed and set aside by this Court on various grounds: (a) In Swaran Singh v. State of Uttar Pradesh, (1998) 4 SCC 75, a three-Judge Bench of this Court considered the question as to scope of judicial review of an order of a Governor Under Article 161 of the Constitution of India. In the said case, a Member of the Legislative Assembly of the State of Uttar Pradesh had been convicted of the offence of murder and within a period of less than two years, he was granted remission from the remaining long period of his life sentence. The son of the deceased moved the Allahabad High Court challenging the aforesaid action of the Governor and the same having been dismissed, the matter had been brought to this Court. This Court noticed that the Governor exercised the power to grant remission, without being appraised of material facts concerning the prisoner, such as, his involvement in five other criminal cases of serious nature, the rejection of his earlier clemency petition and the report of the jail authority that his conduct insi....
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.... therefore, suggested by the bench to make Rules for its own guidance in the exercise of the pardon power keeping a large residuary power to meet special situations or sudden developments. 12. In view of the aforesaid settled legal position, we cannot accept the rigid contention of the learned Counsel for the third Respondent that this Court has no power to touch the order passed by the Governor Under Article 161 of the constitution. If such power was exercised arbitrarily, mala fide or in absolute disregard of the finer canons of the constitutionalism, the by-product order cannot get the approval of law and in such cases, the judicial hand must be stretched to it. (underlining by us) (b) In Joginder Singh v. State of Punjab, (2001) 8 SCC 306 the facts were that the Respondents-convicts therein were convicted for offences punishable Under Sections 324, 325 and 326 read with Section 34 of the Indian Penal Code and had been awarded a sentence of one year and six months which was challenged upto the High Court of Punjab and Haryana and was confirmed. On the dismissal of the Revision Petition by the High Court, the convicts surrendered before the Superintendent of ....
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....ut the aid and advice of the Government, namely, the concerned Minister. This Court examined the said case having regard to the parameters of judicial review in relation to an order granting remission by the Governor. It was noted that the Governor had proceeded to grant remission of sentence without any knowledge as to the period of sentence already served by the convicts and if at all they had undergone any period of imprisonment. It was noted that an order granting remission would be arbitrary and irrational if passed without knowledge or consideration of material facts. 49. On a reading of the aforesaid judgments what emerges is that the power to grant remission on an application filed by the convict or on his behalf, is ultimately an exercise of discretion by the appropriate Government. It is trite that where there is exercise of legal power coupled with discretion by administrative authorities, the test is, whether, the authority concerned was acting within the scope of its powers. This would not only mean that the concerned authority and in the instant case, the appropriate Government had not only the jurisdiction and authority vested to exercise its powers but it exercis....
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....f Maharashtra and not the State of Gujarat. The said contention was in accordance with the definition of appropriate Government under Clause (b) of Sub-section (7) of Section 432 of the Code of Criminal Procedure. However, the said contention was rejected by this Court contrary to several judgments of this Court including that of the Constitution Bench in V. Sriharan. But the State of Gujarat failed to file a review petition seeking correction of the order of this Court dated 13.05.2022, (particularly when we have now held that the said order is a nullity). Complying with the said order can also be said to be an instance of usurpation of power when the provision, namely, Clause (b) of Sub-section (7) of Section 432 states otherwise. 50.2. We fail to understand as to, why, the State of Gujarat, first Respondent herein, did not file a review petition seeking correction of the order dated 13.05.2022 passed by this Court in Writ Petition No. 135 of 2022 in the case of Respondent No. 3 herein. Had the State of Gujarat filed an application seeking review of the said order and impressed upon this Court that it was not the "appropriate Government" but the State of Maharashtra was the "a....
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....ased on the perceptions of the CBI as recorded in its report and should not be taken as a reflection on the competence or impartiality of the judiciary in the State of Gujarat. Having regard to the peculiar facts of this case the State of Gujarat shall bear the expenditure of the defence of the Accused in accordance with the provisions of the Section 304 of the Code of Criminal Procedure. It is made clear that for the purpose of this case the Central Government will appoint the public prosecutor. Criminal Appeal Nos. 727-733 of 2019, order dated 23.04.2019 - compensation ORDER The Appellant, Bilkis Yakub Rasool, is a victim of riots which occurred in the aftermath of the Godhra train burning incident in the State of Gujarat on February 27, 2002. While eventually, the perpetrators of the crime including the police personnel stand punished, the Appellant, who was aged twenty-one years and pregnant at that time, having lost all members of her family in the diabolical and brutal attacks needs to be adequately compensated. Additional facts which we must note are that the Appellant was repeatedly gangraped and was a mute and helpless witness to her ....
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....ull and material facts before this Court. Relief was granted by this Court by conferring jurisdiction on State of Gujarat which it did not possess as per Section 432(7) of the Code of Criminal Procedure, in the guise of consideration for remission on the basis of the 09.07.1992 policy, which had also stood cancelled in the year 2013. Taking advantage of this Court's order dated 13.05.2022, all other convicts also sought consideration of their case by the Government of Gujarat for remission even in the absence of any such direction in their cases by this Court. Thus, the State of Gujarat has acted on the basis of the direction issued by this Court but contrary to the letter and spirit of law. We have already said that the State of Gujarat never sought for the review of the order of this Court dated 13.05.2022 by bringing to the notice of this Court that it was contrary to Section 432(7) and judgments of this Court. 50.5. Instead, the State of Gujarat has acted in tandem and was complicit with what the Petitioner-Respondent No. 3 herein had sought before this Court. This is exactly what this Court had apprehended at the previous stages of this case and had intervened on three ....
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....i S.V. Raju submitted that the expression "appropriate Government may require the opinion of the Presiding Judge of the Court" indicates that this is not a mandatory requirement, therefore, in the instant case the opinion of the Presiding Judge of the Court by which Respondent Nos. 3 to 13 were convicted, namely, the Special Judge, Mumbai, was unnecessary. It was further submitted that since the State of Gujarat was considering the applications for remission filed by Respondent Nos. 3 to 13, the opinion of local Sessions Judge at Dahod was obtained as a member of the Jail Advisory Committee and there was a positive opinion for grant of remission to Respondent Nos. 3 to 13 herein. 52.1. This contention was however refuted by the learned Counsel Ms. Shobha Gupta by reiterating her submission that the expression "may require" in Sub-section (2) of Section 432 of the Code of Criminal Procedure ought to be read as "shall require". This is evident from the dicta of this Court. In this regard, reliance was placed on certain judgments of this Court which we shall advert to in the first instance as under: (i) In Sangeet, it was observed that before actually exercising the power ....
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....at the procedure Under Section 432(2) would become a mere formality. 26. However, this is not to say that the appropriate government should mechanically follow the opinion of the presiding judge. If the opinion of the presiding judge does not comply with the requirements of Section 432(2) or if the judge does not consider the relevant factors for grant of remission that have been laid down in Laxman Naskar v. Union of India (supra), the government may request the presiding judge to consider the matter afresh. (iv) In paragraph 27, it was further observed that the Presiding Judge in the said case had not taken into account the factors which have been laid down in Laxman Naskar and that the opinion was a mechanical one bereft of reasons and therefore, inadequate and not in accordance with law. Consequently, the Petitioner's application for remission was directed to be considered afresh with a direction to the Special Judge, Durg to provide an opinion on the application afresh accompanied with adequate reasoning, taking into account all the relevant factors that govern the grant of remission as laid down in Laxman Naskar. A direction was issued to State of Chhatt....
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....he opinion of the local Sessions Court at Dahod was obtained and the opinion of the Special Judge, Mumbai where the trial had taken place was ignored. The Sessions Court at Dahod obviously had not complied with the mandatory requirements noted above Under Sub-section (2) of Section 432 of the Code of Criminal Procedure inasmuch as the opinion was not forwarded along with reasons having regard to the record of the trial as no trial had taken place before the Sessions Court, Dahod. Further, the Presiding Judge of the Sessions Court, Dahod also did not forward any certified copy of the record of the trial. Moreover, learned Sessions Judge at Dahod was also a member of the Jail Advisory Committee. 52.5. We further observe that the Presiding Judge of the Court before which the conviction happens can never be a Member of the Jail Advisory Committee, inasmuch he is an independent authority who should give his opinion on the application seeking remission which is a mandatory requirement as per the requirements of Sub-section (2) of Section 432. In the instant case, the opinion given by the District & Sessions Judge at Dahod is vitiated for two reasons: firstly, because he was not the Pr....
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....nd further, there is no compliance of Sub-section (2) of Section 432 of the Code of Criminal Procedure in the instant case in as much as the said opinion was not considered by the appropriate Government. On that score also, the orders of remission dated 10.08.2022 are vitiated. Sentence in default of fine: 54. Learned Counsel Mrs. Shobha Gupta contended that Respondent Nos. 3 to 13 had not paid the fine and therefore, in the absence of payment of fine, the default sentence ought to have been undergone by the said Respondents. This aspect of the matter has been lost sight of or ignored while granting the orders of remission and therefore, the orders of remission are vitiated on that score. 54.1. In response to the above arguments, learned Senior Counsel, Sri Sidharth Luthra, at the outset, submitted that although applications for payment of fine have been filed and are pending consideration before this Court, nevertheless Respondent Nos. 3 to 13 have now on their own tendered the fine and the same has been accepted by the Special Court at Mumbai. 54.2. In this regard, following judgments were referred to at the bar: (a) In Shantilal v. State of Madhya Pradesh, (2007) 11 ....
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....ourteen years of actual sentence, the Appellant would still be inside till he completes twenty-four years. This was because the trial court in the said case directed "all sentences shall run concurrently", therefore, all default sentences must also run concurrently inter se. It was contended that the default sentences so directed was unconscionable and excessive. (i) This Court speaking through Lalit, J. (as the learned Chief Justice then was) observed that if the term of imprisonment in default of payment of fine is a penalty which a person incurs on account of non-payment of fine and is not a sentence in a strict sense, imposition of such default sentence is completely different and qualitatively distinct from a substantive sentence. Theoretically, if the default sentences awarded in respect of imposition of fine in connection with two or more offences are to be clubbed or directed to run concurrently, there would not be any occasion for the persons so sentenced to deposit the fine in respect of the second or further offences. It would effectively mean imposition of one single or combined sentence of fine. Such an exercise would render the very idea of imposition of fine....
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....om the Presiding Judge of the Court which had convicted, Respondent Nos. 3 to 13 herein, the aspect regarding non-payment of fine would have surfaced. In the absence of non- compliance with the direction to pay fine, there would be default sentence which would be in the nature of penalty. The question whether the default sentence or penalty had to be undergone by these Respondents, was a crucial consideration at the time of recommending remission to the State Government by the Jail Advisory Committee. This aspect of the matter has also not been taken into consideration by the State Government while passing the impugned orders of remission. Realising this, during the pendency of these writ petitions, applications were filed seeking permission to tender the fine amount. However, even before the said applications could be considered and orders passed thereon, the Respondents convicts have paid the fine amount and have produced receipts in that regard. This fact would not alter the consideration of the case of Respondent Nos. 3 to 13 herein inasmuch the fact of payment of fine ought to have been a point which had to be taken into consideration prior to the passing of the orders of remi....
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....case; (iii) the opinion must have a nexus to the record of the trial or of such record thereof as exists; (iv) the Presiding Judge of the Court before or by which the conviction was had or confirmed, must also forward along with the statement of such opinion granting or refusing remission, a certified copy of the record of the trial or of such record thereof as exists. (d) The policy of remission applicable would therefore be the Policy of the State which is the appropriate Government and which has the jurisdiction to consider that application. The policy of remission applicable at the time of the conviction could apply and only if for any reason, the said policy cannot be made applicable a more benevolent policy, if in vogue, could apply. (e) While considering an application for remission, there cannot be any abuse of discretion. In this regard, it is necessary to bear in mind the following aspects as mentioned in Laxman Naskar, namely, - (i) Whether the offence is an individual act of crime without affecting the society at large? (ii) Whether there is any chance of future recurrence of committing crime? (iii) Whether ....
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....rtain the prayers seeking remission of Respondent Nos. 3 to 13 herein as it was not the appropriate Government within the meaning of the aforesaid provisions. Hence, the orders of remission dated 10.08.2022 made in favour of Respondent Nos. 3 to 13 herein are illegal, vitiated and therefore, quashed. d) While holding as above, we also hold that the judgment dated 13.05.2022 passed by this Court is a nullity and is non est in law since the said order was sought by suppression of material facts as well as by misrepresentation of facts (suppressio veri, suggestio falsi) and therefore, fraudulently obtained at the hands of this Court. i) Further, the Petitioner in Writ Petition (Crl.) No. 491 of 2022 not being a party to the said writ proceeding, the same is not binding on her and she is entitled in law to question the orders of remission dated 10.08.2022 from all angles including the correctness of the order dated 13.05.2022. ii) In addition to the above, the said order, being contrary to the larger bench decisions of this Court, (holding that it is the Government of the State within which the offender is sentenced which is the appropriate Government which c....
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....ad filed his application before the State of Maharashtra. Respondent Nos. 3 to 13 have been released pursuant to the orders of remission dated 10.08.2022 and set at liberty. We have now quashed the orders of remission. Since 10.08.2022, Respondent Nos. 3 to 13 have been the beneficiaries of the orders passed by an incompetent authority inasmuch as the impugned orders are not passed by the appropriate Government within the meaning of Section 432 of the Code of Criminal Procedure. So long as the said orders impugned were not set-aside, they had carried the stamp of validity and hence till date the impugned orders of remission were deemed to have been valid. Respondent Nos. 3 to 13 are out of jail. Since we have quashed the orders of remission, what follows? 58. In our view, the most important constitutional value is personal liberty which is a fundamental right enshrined in Article 21 of our Constitution. It is in fact an inalienable right of man and which can be deprived of or taken away only in accordance with law. That is the quintessence of Article 21. But, this is a case where Respondent Nos. 3 to 13 have been granted liberty and have been released from imprisonment by virtue....
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....3 their right to freedom and liberty? We wish to make it clear that only when Rule of law prevails will liberty and all other fundamental rights would prevail under our Constitution including the right to equality and equal protection of law as enshrined in Article 14 thereof. In other words, whether liberty of a person would have any meaning at all under our Constitution in the absence of Rule of law or the same being ignored or turned a blind eye? Can Rule of law surrender to liberty earned as a consequence of its breach? Can breach of Rule of law be ignored in order to protect a person's liberty that he is not entitled to? 61. Before we proceed further, we wish to reiterate what this Court has spoken on the concept of Rule of law through its various judgments. 62. Rule of law means wherever and whenever the State fails to perform its duties, the Court would step in to ensure that the Rule of law prevails over the abuse of the process of law. Such abuse may result from, inter alia, inaction or even arbitrary action of protecting the true offenders or failure by different authorities in discharging statutory or other obligations in consonance with the procedural and pena....
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....inly through the power of judicial review conferred on an independent institutional authority such as the High Court or the Supreme Court that the Rule of law is maintained and every organ of the State is kept within the limits of the law. Thus, those concerned with the Rule of law must remain unmindful and unruffled by the ripples caused by it. Rule of law does not mean protection to a fortunate few. The very existence of the Rule of law and the fear of being brought to book operates as a deterrent to those who have no scruples in killing others if it suits their ends. In the words of Krishna Iyer, J., "the finest hour of the Rule of law is when law disciplines life and matches promise with performance". In ADM, Jabalpur v. Shivakant Shukla, H.R. Khanna, J. in his dissenting judgment said, "rule of law is the antithesis of arbitrariness". 66. In this context, it would also be useful to refer to the notion of justice in the present case. It is said that justice should remain loyal to the Rule of law. In our view, justice cannot be done without adherence to Rule of law. This Court has observed "the concept of "justice" encompasses not just the rights of the convict, but also of t....