TaxTMI 
TaxTMI 
2024 (1) TMI 1318
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....sh, 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 Pandey, Adv. Mr. Sanjay Kumar Tya....
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....or 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. Over the years, this Court initially attached greater weight to the former and has expressed scepticism over the latter, particularly if the offence in ....
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....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 twenty-one years and pregnant at that time, having lost all members of her family in the diabolical and brutal attacks, has once again approached this Court seeking justice by chall....
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....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 (Crl.) No.491 of 2022. Factual Background: 3. The factual background in which these writ petitions have been filed is that following the aforesaid unfortunate and grave incident, a First I....
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....er 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 the police officials and the doctors A bench comprising Mrs. Mridula Bhatkar and Mrs. V. K. Tahilramani, JJ. of the Bombay High Court upheld the conviction of the eleven persons accused of the offence of ri....
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....ly 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 application dated 01.08.2019 before the Secretary, Department of Home Affairs, State of Maharashtra, seeking premature release under Sections 432 and 433A of the CrPC. Respondent No.3 specifically relied on the or....
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....posed 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 effect on the society and there is a possibility of peace being disturbed. The other Committee members recommended the grant of remission to respondent No.3, on the ground that he had completed fifteen years of imprisonment an....
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.... 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 'appropriate Government' as referred to under Section 433 of the CrPC would be the State of Maharashtra, was rejected by this Court holding that the crime in the instant case was admittedly committed in the State of Gujarat and ordinarily, the....
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....spondent 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 release; however, the Jail Advisory Committee of Gujarat had given a positive opinion about the convict's premature release and the Superintendent, Godhra Sub-Jail had also given a positive opinion about the premature release. Thus, the Additional Director....
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....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 of certiorari for quashing the orders of remission passed by respondent no.1 with respect to the eleven convicts sentenced by the Special Judge, Greater Mumbai in Sessions Case No.634 of 2004. That the petitioners have not pleaded as to how their fundamental rights have ....
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....d 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 25.05.2022. A reminder was also sent on 08.06.2022. Ten proposals were received on 09.06.2022 and one proposal was received on 17.06.2022. The applications of the accused were considered according to the remission policy dated 09.07.1992 in accordance with the directions issued by t....
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....he 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. 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....
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....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. 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 o....
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....s 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 11.04.2008, 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 t....
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.... 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. Document Opinion of the concerned Authority 1. Premature release application dated 18.02.2021. - 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, Go....
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....f 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. 37. Copy of the relevant records qua the prisoner, Govindbhai Akhambhai Nai (Raval) is annexed herewith as Annexure R-10. 38. I say that the relevant records pertaining to the application for remission qua the prisoner, Jashvantbhai Chaturbhai Nai (Raval), is as under: Sl. No. Document Opinion of the concerned Authority 1. Premature release application dated 15.02.2021 - 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 dat....
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....mittee 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, Rameshbhai Rupabhai Chandana is annexed herewith as Annexure R-12. 40. I say that the relevant records pertaining to the application for remission qua the prisoner, Radheshyam Bhagwandas Shah @ Lala Vakil, is as under: Sl. No. Document Opinion of the concerned Authority 1. Premature release application dated 01.08.2019 - 2. Letter dated 14.08.2019 from the Superintendent of Police, CBI, SCB, Mumbai. Prisoner should not be release....
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....ed the material on record as well as the judicial dicta cited at the Bar. 7. Learned counsel for the petitioner in Writ Petition (Crl.) No.491 of 2022, Ms. Shobha Gupta at the outset submitted that the en-masse remission granted to respondent Nos.3 to 13 by Orders dated 10.08.2022 has not only shattered the victim-petitioner and her family but has also shocked the collective conscience of the Indian society. That in the present case, the right of the victim and the cry of the society at large have been ignored by the State and Central Governments while recommending the grant of remission to all convicts in the case. 7.1 It was asserted that though the crime was committed in the State of Gujarat, the investigation and trial were carried out in the State of Maharashtra pursuant to the orders of this Court. Hence, in view of the unambiguous language of Section 432(7)(b), only the State of Maharashtra would be the appropriate government which could have considered the applications filed by respondent Nos.3 to 13 seeking remission of their sentences. Learned counsel has placed reliance on the following judgments to buttress her argument, namely, State of M.P. vs. Ratan Singh, (1976) 3....
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....in respect of which the Circular dated 13.06.2008 of the State of Maharashtra was issued, wherein a convict of communal crime, gang rape and murder would fall under the categories 2(c), 2(d) and 4 (e) of the Policy which prescribes that the minimum period of imprisonment to be undergone by the convict before remission can be considered would be twenty eight years. Thus, respondents-convicts were not entitled to be granted remission as they had not completed the minimum period of imprisonment as per the applicable remission policy. 7.5. It was further contended that the remission orders under challenge failed to meet the criteria laid down by this Court in Sangeet; and Ram Chander vs. State of Chhattisgarh, (2022) 12 SCC 52 ("Ram Chander"), wherein it has been stated that the appropriate government must obtain the opinion of the Presiding Judge of the convicting court before deciding the remission application. That the State of Gujarat granted remission to all the convicts by completely ignoring the negative opinions expressed by two major stakeholders i.e., the Presiding Judge of the convicting Court in Mumbai and the prosecuting agency (CBI). 7.6. Reliance was placed on the deci....
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....esses and society at large, were not considered. That mere good behaviour in jail and completion of fourteen years in jail are not the only pre-requisites while considering the application for premature release of the convicts. 7.11. Attention was drawn to the fact that respondent No.3 herein had approached the High Court of Gujarat by way of Crl. Application No.4573 of 2019 seeking a direction to the State Government to consider his application for remission. The High Court vide Order dated 17.07.2019 dismissed the same in view of Section 432 of the CrPC. Respondent No.3's second application was also dismissed vide Order dated 13.03.2020 passed by the Gujarat High Court. That in fact, within fourteen days of the First Order dated 17.07.2019, respondent No.3 had approached the Government of Maharashtra by way of an application dated 01.08.2019. Upon his application, opinion was sought from the (i) Investigating Agency (CBI) and the (ii) Presiding Officer of the convicting court (Special Judge, Sessions Court, Greater Mumbai), both of whom opined in the negative and against remission being granted to the said respondent. Further, the Superintendent of Police, Dahod, vide letter dat....
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...., dated 03.01.2020 and 22.03.2021, thereby, defeating the purpose of Section 432(2) of the CrPC. Further, the remission Orders dated 10.08.2022 are conspicuously silent about the opinion of the Presiding Judge to be mandatorily obtained under Section 432(2) of the CrPC. Not even a reference is made to the said opinion. This amounts to an erasure of record by removing from consideration a document that is statutorily mandated to be considered and judicially held to be determinative. Reliance was placed on Ram Chander to contend that the opinion of the Presiding Judge of the court that convicted the offender will 'have a determinative effect' on the exercise of executive discretion under Section 432 of the CrPC. Further, reference was made to the decision of this Court in V. Sriharan, wherein a Constitution Bench of this Court held that the procedure stipulated in Section 432(2) of the CrPC is mandatory and that the opinion of the Presiding Judge of the Court which had tried the convict is critical and an essential safeguard to check that the power of remission is not exercised arbitrarily. 7.15. It was next contended that the premature release was granted illegally as the imprisonm....
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.... that premature release was granted mechanically and arbitrarily, without giving due consideration to the factors enumerated in Laxman Naskar, qua each of the respondents-convicts. That the Order(s) dated 10.08.2022 are conspicuous in their silence on the behavior and the following acts of misconduct of each of the respondents-convicts, including the offences committed while on parole/furlough, namely,: i. Case Crime No.1121001200158/2020 was registered against the respondent-convict, Mitesh Chimanlal Bhatt, under Sections 354, 304 and 306 of the IPC, committed on 19.06.2020 during parole/furlough; and ii. Case Crime No.02/2015 was registered against the respondent-convict, Rameshbhai Rupabhai Chadana under the Prisons Act. 7.17. It was further submitted that it is trite that in cases where a convict has been sentenced to more than one count of life imprisonment, he can only be released if remission is duly granted as per law for each count of life imprisonment. That it is a matter of record that the respondents-convicts were sentenced on fifteen counts of life imprisonment. However, the Orders dated 10.08.2022 have not granted remission for each of the fifteen counts and is....
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.... a verbatim replication of each other, having only substituted the name and personal details of the respondentsconvicts. Further, the recommendations of the Jail Advisory Committee dated 26.05.2022 as regards remission of respondent Nos.3 to 13 are untenable, being arbitrary and mechanical and vitiated by non-application of mind. The said opinions are verbatim and mechanical reproductions of each other that show no independent consideration of facts of each case of the convicts. 7.22 With the aforesaid submissions, it was prayed that Writ Petition (Crl.) No.491 of 2022 be allowed and a writ, order or direction be issued quashing the Orders dated 10.08.2022 passed by the State of Gujarat by which the convicts in Sessions Case No. 634 of 2004, Mumbai (respondent Nos.3 to 13 herein), were released prematurely. 8. Learned senior counsel Ms. Indira Jaising appearing for the petitioner in Writ Petition (Crl.) No.326 of 2022, at the outset submitted that the petitioner is a Member of Parliament and is a public personality and consequently possesses the locus to file this petition as a bona fide person and citizen of India. That the petitioner seeks to discharge her fundamental duty unde....
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....sion. That there needs to be a consideration of how compliant such executive actions and the associated policies are with constitutional morality. Therefore, this Court may quash the remission orders passed under Section 432 of the CrPC if they appear to be poorly reasoned. (vii) that there is a need to situate the crimes committed in the larger context of sectarian and communal violence that was ensuing in the 2002 riots in Gujarat State. That the crimes were specifically targeted at the victim on the basis of her religion and gender. That these heinous crimes constitute crimes against humanity. It was submitted that the nature of the crime is important to consider while deciding whether to grant remission. The heinousness of the crimes committed by respondent Nos.3 to 13, the communal motivation of the crimes and the context in which those took place are contended to have not been considered by the State while granting remission. Reliance was placed on Sanaboina Satyanarayana vs. Government of Andhra Pradesh, (2003) 10 SCC 78 ("Sanaboina Satyanarayana"), wherein a certain Government Order issued by the State of Andhra Pradesh that excluded from the scope of remission those pri....
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....m of jus cogens. That there is a link between the peremptory norm of jus cogens and fundamental values, making the former non-derogable and a part of domestic law even if not explicitly codified. Reliance was placed on State of Punjab vs. Dalbir Singh, (2012) 3 SCC 346 ("Dalbir Singh") on this aspect. (xiii) that the acts of violence that were committed in Gujarat in 2002 are crimes against humanity, owing to their widespread nature and communal motivations. That remission must not be granted to perpetrators of crimes of such gravity. 8.2 With the above submissions learned senior counsel for the petitioners sought quashing of the impugned orders. 9. Learned counsel Ms. Vrinda Grover for the petitioner in Writ Petition (Crl.) No.352 of 2022, submitted that it was absolutely necessary to consider the opinion of the Presiding Judge. Reliance was placed on Ram Chander and V. Sriharan. Her further submissions are recorded as under: (i) that the Presiding Judge, namely the Special Judge (CBI), Sessions Court, Mumbai gave negative opinions dated 03.01.2020 and 22.03.2021 as to grant of remission to respondent Nos.3 to 13. The said opinion was well-reasoned and took into account all....
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....the victim if the respondent-convicts are released into society. This has been reflected in the recommendation of Superintendent of Police, Dahod as well as the questions raised by the Principal and Sessions Judge, Panchmahal at Godhra in the Jail Advisory Committee meeting dated 26.05.2022. (vii) that remission must be granted for each particular count of life imprisonment, as all of these are superimposed over each other. Remission granted qua one sentence does not automatically extend to the others as well. That a generic, mechanical and unreasoned blanket order of remission has been passed by the respondent-State, as remission is not stated to have been granted for all of the life sentences of each respondent-convict. (viii) that Section 435(1)(a) of the CrPC makes it mandatory for the State Government to consult the Central Government regarding the exercise of power to grant remission. But the en-masse and nonspeaking nature of the sanction granted by the Central Government, merely conveys approval of the premature release of the respondent-convicts, which do not meet the requirement of 'consultation'. Reliance was again placed on Laxman Naskar. (ix) further, the opin....
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....minated in the grant of remission to the convicts. Reliance was placed on the decisions of this Court in Rajiv Ranjan; Gulzar Ahmed Azmi; Simranjit Singh and Ashok Kumar to contend that no third party/stranger's interference in criminal matters is permissible in law in the garb of filing a PIL. 12.1. Referring to Writ Petition (Crl.) No.319 of 2022, it was contended that nowhere has the petitioner therein, namely, Subhasini Ali pleaded as to how her fundamental rights had been abridged and as to how she was aggrieved by the action of the State Government. That the petitioner therein was nothing but an interloper and a busybody and not a 'person aggrieved' as per the dicta of this Court in M. V. Dabholkar and Jasbhai Motibhai. Thus, the PIL filed by such a person is nothing but an abuse of the PIL jurisdiction of this Court and against the principles laid down in Tehseen and Ashok Kumar. Therefore, learned ASG sought for dismissal of all the PILs challenging the impugned orders of remission on the ground of maintainability. 12.2. It was next contended that there was no illegality in the Orders granting remission to respondent Nos.3 to 13, dated 10.08.2022. That this Court i....
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....ourt. 12.5. Reliance was placed on the judgment of this Court in Jagdish wherein it was held that if a policy which is beneficial to the convict exists at the time of consideration of his application for premature release, then the convict cannot be deprived of such a beneficial policy. It was held in the said case that, "In case a liberal policy prevails on the date of consideration of the case of a "lifer" for premature release, he should be given the benefit thereof." That bearing in mind such considerations, the applications of respondent Nos.3 to 13 for remission were considered and decided. 12.6. That the crime in the instant case was admittedly committed in the State of Gujarat and ordinarily, the trial was to be concluded in the same State and in terms of Section 432 (7) of the CrPC, the appropriate government in the ordinary course would be the State of Gujarat. However, the trial in the instant case was transferred under exceptional circumstances by this Court to the neighboring State of Maharashtra for the limited purpose of trial and disposal by an order dated 06.08.2004 but after the conclusion of trial and the prisoners being convicted, the matter stood transferred ....
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.... should collate various opinions from different quarters in order to arrive at a decision. 13.2. As regards the contention of learned counsel for the petitioner-victim to the effect that the Orders are illegal inasmuch as those were passed without consulting the Presiding Judge of the convicting court as required under Section 432(2) of the CrPC, it was submitted that the said provision categorically stipulates that the appropriate government 'may require' the Presiding Judge of the Trial Court to give his opinion, hence obtaining such an opinion is not mandatory; whereas, Section 435 of the CrPC uses the word 'shall' in respect to the State Government to act only after consultation with the Central Government. The legislature is conscious to use the words 'may' and 'shall' whenever it deems appropriate and necessary and that the said procedure has been followed in the instant case. 14. At the outset, learned senior counsel appearing for respondent No.13, Sri Sidharth Luthra contended that a writ petition does not lie against the final order of this Court, thus the petitioners could have only filed a Curative Petition. He further submitted as follow: i) In this regard reliance ....
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.... of release and without the possibility of having his life sentence reviewed, there is the risk that he can never atone for his offence: whatever the prisoner does in prison, however exceptional his progress towards rehabilitation, his punishment remains fixed and unreviewable." Learned senior counsel submitted that respondent No.13 had exhibited unblemished behaviour in prison and there was no criminality attached to his conduct in prison. iv) Sri Luthra refuted the argument of the petitioners that in the light of the grievous nature of the offence, the convicts herein do not deserve remission. At the stage of remission, the length of sentence or the gravity of the original crime cannot be the sole basis for refusing premature release as held in Satish vs. State of UP, (2021) 14 SCC 580 ("Satish"). Therefore, any argument regarding the factual nature of the crime or the impact it had on society are not relevant for consideration of remission was the submission of Sri Luthra. v) That it is open for the High Court as well as this Court to modify the punishment by providing for a specific period of incarceration without remission, considering the purported heinous nature of the....
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....atory or directory, it was submitted that as observed by this Court in Ram Chander the opinion so obtained is not to be mechanically followed and the government has the discretion to seek an opinion afresh. That the said view would demonstrate that the discretion vests with the concerned government as to whether or not to seek and rely upon the opinion of the Presiding Judge of the Trial Court. 15.3. As regards the contentions of the learned counsel for the petitioner-victim as to non-payment of fine, it was submitted that a fine of Rs.6,000/- was paid by respondent No.7 without any objection on 27.09.2019 before the Sessions Court, Greater Mumbai. However, without prejudice to the said payment, there is no provision in the Prison Manual of Gujarat, which bars remission from being granted if the fine is not paid. The grant of remission cannot be restricted just because a convict is not financially capable to bear the fine. The same would cause discrimination based on the economic and financial capacity of a convict to pay fine, resulting in the violation of Articles 14 and 21 of the Constitution. 15.4. We have heard learned counsel for the other respondents. With the aforesaid su....
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.... totally unaware of Writ Petition (Crl.) No.135 of 2022 filed by respondent No.3 seeking premature release before this Court. The petitioner learnt about the release, like the general public did, from the news and social media. That the petitioner had barely begun to recover from the shock of respondent Nos.3 to 13 being released when several PILs were filed, and this Court was already seized of the matter. This left the petitioner with no choice but to approach this Court. (v) that the petitioner had also filed a Review Petition seeking review of the order dated 13.05.2022, wherein this Court held the State of Gujarat to be the appropriate government to consider the grant of remission, being the State in which the crime took place. The said order was per incuriam and contrary to the judgements of this Court. On this aspect, reliance was again placed on V. Sriharan, Rattan Singh, M. T. Khan and Hanumant Dass. Hence, the petitioner was under the impression that the said Review Petition and this writ petition would be considered together by this Court. But the Review Petition has been dismissed. Hence, this writ petition has to be considered on its own merits. (vi) that the cha....
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....down by this Court in various cases, including V. Sriharan, no review petition was filed by the State challenging the 13.05.2022 order. 16.3. It was next submitted that the learned Additional SolicitorGeneral had placed on record the opinion of the CBI dated 09.07.2022 wherein, after an apparent change of mind, grant of remission to respondent Nos.3 to 13 was recommended. That neither of the documents, namely, the letter of the State of Gujarat and the changed opinion of the CBI find any mention in the counteraffidavit filed by the State on 17.10.2022. It was further submitted that these additional documents establish the rapid timeline of the process adopted by the Central Government in affirming the orders of remission, as the State Government's communication was received on 06.07.2022, the opinion of the CBI was sought and received on 09.07.2022 and the Central Government expressed its concurrence on 11.07.2022. 16.4. It was further contended that respondent No.3 produced a document dated 18.06.2022 during the course of his arguments, stating that the same was the opinion of the Presiding Judge of the Mumbai Special Court (CBI). However, the veracity of the said document canno....
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....ed nature of investigation. That the only reason the petitioner could get justice was because the investigation was conducted by the CBI. That this demonstrates the highly biased and partisan treatment of the petitioner by the State of Gujarat. That the State has been granting parole and furlough to the respondents in a liberal manner once they were transferred to the Godhra Jail. That in light of the highly diabolical and gruesome nature of the crimes, the treatment awarded to the respondents by the State indicates favouritism and leniency. 16.9. Learned counsel reiterated that the nature of the crimes committed by the respondent Nos.3 to 13 were unusual and egregious. That these crimes were very shocking to the society as a whole and the treatment of the respondents upon being granted remission invoked a common sense of pain in the nation. That in fact the Bombay High Court had described the brutal treatment of the victims by the respondent Nos.3 to 13, which was reflected in the condition of the dead bodies. These factors require that respondents Nos.3 to 13 be treated differently from other ordinary criminals. 17. Learned senior counsel, Ms. Indira Jaising, appearing for the ....
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....ioner in Writ Petition (Crl.) No.352 of 2022 reiterated the contentions as to the centrality and non-optional nature of seeking the opinion of the Presiding Judge under Section 432(2) of the CrPC, the non-serving of the concurrent sentences for the non-payment of fine by the respondent Nos.3 to 13 as well as the need to consider the nature of the crimes and the impact on public welfare while considering the grant of remission. Reliance was placed on the judgment of this Court in Ram Chander, Sharad Kolambe, Devendra Kumar vs. State of Uttaranchal, (2013) 9 SCC 363 ("Devendra Kumar") and Abdul Gani. 18.1. It was further submitted that the State of Gujarat has not considered the possibility of recidivism and whether there was any evidence of reformation of respondent Nos.3 to 13. That as per the record, respondent Nos.3 to 13 have not demonstrated any sign of reform and have not expressed any remorse for the crimes they have committed. That their applications for remission do not contain reference to feelings of remorse felt by them for their actions. The non-payment of fine is further indication of the absence of remorse. Also fresh cases have been registered against two of the res....
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.... Reliance was placed on the decision of this Court in OPTO Circuit India Ltd. vs. Axis Bank, (2021) 6 SCC 707 ("OPTO Circuit"). That contrary to the submission of the learned ASG, the State has to consider the gravity of the offence while deciding whether to grant remission or not. That in cases, where the crimes are of a much less serious nature, remission has not been granted owing to the perceived seriousness of the offences by the State but in these cases of gruesome crime, remission has been simply granted. Further, there is a need to consider the fact that the victim and the convicts live in close proximity while granting remission, which fact has been considered in other cases but not in the impugned remission orders. Points for consideration: 21. Having heard learned senior counsel and learned counsel for the respective petitioners as well as learned ASG, learned senior counsel and learned counsel for the respondents, the following points would arise for our consideration:- 1) Whether the petition filed by one of the victims in Writ Petition (Crl.) No.491 of 2022 under Article 32 of the Constitution is maintainable? 2) Whether the writ petitions filed as Public Inte....
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....an Article 32 of the Constitution, the petition filed by the writ petitioner in Writ Petition (Crl.) No.491 of 2022 must be dismissed reserving liberty to her to approach the High Court, if so advised. Similar arguments were made by learned senior counsel Sri Chidambaresh. 22.2. At the outset, we state that Article 32 of the Constitution is a part of Part-III of the Constitution of India which deals with Fundamental Rights. The right to file a petition under Article 32 of the Constitution is also a Fundamental Right. In the instant case, the petitioner - Bilkis Bano has filed her writ petition under Article 32 of the Constitution in order to enforce her Fundamental Rights under Article 21 of the Constitution which speaks of right to life and liberty and Article 14 which deals with right to equality and equal protection of the laws. The object and purpose of Article 32 of the Constitution which is also recognised to be the "soul of the Constitution" and which is a Fundamental Right in itself is for the enforcement of other Fundamental Rights in Part-III of the Constitution. We think that the aforesaid constitutional remedy is also to enforce the goals enshrined in the Preamble of ....
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....contentions of learned Senior Counsel, Sri S. Guru Krishna Kumar and Sri Chidambaresh are hence, rejected. Thus, we hold that Writ Petition (Crl.) No.491 of 2022 filed under Article 32 of the Constitution is clearly maintainable. Re: Point No.2: "Whether the writ petitions filed as Public Interest Litigation (PIL) assailing the impugned orders of remission dated 10.08.2022 are maintainable?" 23. We now record the submissions made with regard to maintainability of the Public Interest Litigation (PIL) assailing the orders of remission in favour of respondent Nos.3 to 13 herein. 23.1. Learned ASG appearing for the State of Gujarat as well as Union of India submitted that the writ petitions filed as public interest litigations are not maintainable as the petitioners are strangers to the impugned orders of remission and they are in no way connected with the matter. In this context, reliance was placed on certain decisions referred to above including Rajiv Ranjan, Simranjit Singh, and, Ashok Kumar, to contend that there can be no third party interference in criminal matters in the garb of filing public interest litigations. It was also contended that the petitioners who have filed t....
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....his fundamental rights nor did he complain that any of his fundamental rights were being violated. This Court was of the view that a total stranger in a criminal case cannot be permitted to question the correctness of a decision. 24. Per contra, learned senior counsel, Ms. Indira Jaising, has made her submissions on the issue of locus standi of the petitioner in Writ Petition (Crl.) No.326 of 2022. According to her, even when no specific legal injury is caused to a person or to a determinate class or group of persons by an act or omission of the State or any public authority but when an injury is caused to public interest, a concerned citizen can maintain an action for vindicating the rule of law and setting aside the unlawful action or enforcing the performance of public duty. (Vide B.P Singhal). 24.1. She asserted that the writ petition raises questions of great public importance in that, in a democracy based on the rule of law, no authority has any unfeterred and unreviewable discretion. All powers vested in an authority, are intended to be used only for public good. The exercise of executive power must be informed by the finer canons of constitutionalism, vide Maru Ram. That ....
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....arned counsel contended that the petition does not constitute an intervention into criminal proceedings but is rather a challenge to arbitrary executive action, which is amenable to judicial review. That it is settled law that the exercise of power under Section 432 of the CrPC is an administrative act which neither retracts from a judicial order nor does it wipe out the conviction of the accused and is merely an executive prerogative exercised after the judicial function in a criminal proceeding has come to an end vide Epuru Sudhakar and Ashok Kumar. 25.2. It was further submitted that all the judgments cited by the respondents-convicts as also the respondent-State to argue that the petitioners have no locus standi in the matter refer to different stages of criminal proceedings, viz. petitions related to investigation, trial, sentencing or quashing of the FIR. However, the present petition is a challenge to the arbitrary and mala fide administrative action which has arisen after the criminal proceedings have attained finality in the eye of law. 25.3. Learned counsel submitted that it is trite that the exercise of executive discretion is subject to rule of law and fairness in Sta....
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....tention of this Court. 26. Learned counsel for the petitioner in Writ Petition (Crl.) No.319 of 2022, Smt. Aparna Bhat submitted that the petitioner has locus standi to approach this Court against the remission orders dated 10.08.2022. It was submitted that upholding the constitutional values and protection of all citizens is the responsibility of the State and there is a legitimate expectation that the State conducts all its actions in accordance with constitutional values. That the aforesaid petition has been filed in public interest as the premature release of respondent Nos.3 to 13 cannot be permitted since the convicts pose a danger to society. That the petitioners in the connected matters fulfil the wide ambit of the expression "person aggrieved" as envisaged under PIL jurisdiction since they are challenging the release of convicts who have committed heinous and grave offences against society. 26.1. On the issue of locus standi of the petitioners to approach this Court, the learned counsel relied on para 6 of A.R Antulay vs. Ramdas Sriniwas Nayak, (1984) 2 SCC 500 ("A.R Antulay"). Further, it was submitted that in Sheonandan Paswan, this Court relied on A. R. Antulay and he....
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....an Judge, it was observed that in the context of karuna (compassion) and punishment for karma (bad deeds), 'The two things are not incompatible. While an accused is punished for what he has done, a quality of what is sometimes called mercy, rather than an emotional hate against the man for doing something harmful must be deserved. This is what compassion is about.' 30. Learned senior counsel Sri Sidharth Luthra, drew our attention to the principles covering grant of remission and distinguished it from concepts, such as commutation, pardon, and reprieve, with reference to a judgment of this Court in State (Govt. of NCT of Delhi) vs. Prem Raj, (2003) 7 SCC 121 ("Prem Raj"). Articles 72 and 161 deal with clemency powers of the President of India and the Governor of a State, and also include the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentences in certain cases. The power under Article 72 inter alia extends to all cases where the punishment or sentence is for an offence against any law relating to a matter to which the executive power of the Union extends and in all cases where the sentence is a sentence of death. Art....
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....so does not wipe out the conviction. All that it does is to have an effect on the execution of the sentence; though ordinarily a convicted person would have to serve out the full sentence imposed by a court, he need not do so with respect to that part of the sentence which has been ordered to be remitted. An order of remission thus, does not in any way interfere with the order of the court; it affects only the execution of the sentence passed by the court and frees the convicted person from his liability to undergo the full term of imprisonment inflicted by the court even though the order of conviction and sentence passed by the court still stands as it is. The power to grant remission is an executive power and cannot have the effect which the order of an appellate or revisional court would have of reducing the sentence passed by the trial court and substituting in its place the reduced sentence adjudged by the appellate or revisional court. According to Weater's Constitutional Law, to cut short a sentence by an act of clemency is an exercise of executive power which abridges the enforcement of the judgment but does not alter it qua the judgment. 30.3. Reliance was placed on M....
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....s struck by granting the petitioners therein conditional premature release, subject to their continuing good conduct. In the said case, a direction was issued to the State Government to release the prisoners therein on probation in terms of Section 2 of the U.P. Prisoners Release on Probation Act, 1938 within a period of two weeks. The respondent State was reserved liberty with the overriding condition that the said direction could be reversed or recalled in favour of any party or as per the petitioner therein. 31. The following judgments of this Court are apposite to the concept of remission: (a) In Maru Ram, a Constitution Bench considered the validity of Section 433-A of the CrPC. Krishna Iyer, J. speaking for the Bench observed, "Ordinarily, where a sentence is for a definite term, the calculus of remissions may benefit the prisoner to instant release at the point where the subtraction results in zero". However, "when it comes to life imprisonment, where the sentence is indeterminate and of an uncertain duration, the result of subtraction from an uncertain quantity is still an uncertain quantity and release of the prisoner cannot follow except on some fiction of quantificatio....
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.... Section 5 of the CrPC expressly declares that specific provision, if any, to the contrary will prevail over any special or local law. Therefore, Section 433-A would prevail and escape exclusion of Section 5. The Constitution Bench concluded that Section 433A is supreme over the remission rules and short-sentencing statutes made by various States. Section 433-A does not permit parole or other related release within a span of fourteen years. (iv) It was further observed that criminology must include victimology as a major component of its concerns. When a murder or other grievous offence is committed the victims or other aggrieved persons must receive reparation and social responsibility of the criminal to restore the loss or heal the injury which is part of the punitive exercise which means the length of the prison term is no reparation to the crippled or bereaved. (v) Fazal Ali, J. in his concurring judgment in Maru Ram observed that crime is rightly described as an act of warfare against the community touching new depths of lawlessness. According to him, the object of imposing deterrent sentence is three-fold. While holding that the deterrent form of punishment may not be a....
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....on parole or furlough his position is not similar to a convict who is on bail. This is because a convict on bail is not entitled to the benefit of the remission system. In other words, a prisoner is not eligible for remission of sentence during the period he is on bail or his sentence is temporarily suspended. Therefore, such a prisoner who is on bail is not entitled to get remission earned during the period he is on bail. 32. Apart from the constitutional provisions, there are also provisions of the CrPC which deal with remission of convicts. Sections 432, 433, 433A and 435 of the CrPC are relevant and read as under: "432. Power to suspend or remit sentences.- (1) When any person has been sentenced to punishment for an offence, the appropriate Government may, at any time, without conditions or upon any conditions 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. (2) Whenever an application is made to the appropriate Government for the suspension or remission of a sentence, the appropriate Government may require the presiding Judge of the Court before or by which the convi....
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....ithout the consent of the person sentenced, commute- (a) a sentence of death, for any other punishment provided by the Indian Penal Code (45 of 1860); (b) a sentence of imprisonment for life, for imprisonment for a term not exceeding fourteen years or for fine; (c) a sentence of rigorous imprisonment, for simple imprisonment for any term to which that person might have been sentenced, or for fine; (d) a sentence of simple imprisonment, for fine. 433A. Restriction on powers of remission or commutation in certain cases.- 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. 435. State Government to act after consultation with Central Government in certain cases.- (1) The powers conferred by Sections 432 and 433 upon the State Government to remit or commute a sentence, in any case where the sente....
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....on imposed by the appropriate Government whereupon the person in whose favour the sentence has been suspended or remitted, may be arrested by the police officer, without warrant and remanded to undergo the unexpired portion of the sentence, if such a person is at large. Subsection (4) states that 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. 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 vide sub-section (5) of Section 432 of the CrPC. The proviso to sub-section (5) states 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 it is presented through the officer in-charge of the jail; or where such petition is made by any other person, it contains a declaration that the person....
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....not be exercised by the State Government except after consultation with the Central Government. Sub-section (2) of Section 435 states that 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. With the above backdrop of provisions, we move to consider Point No.3. Point No.3 : Whether the Government of State of Gujarat was competent to pass the impugned orders of remission? 33. The point for consideration revolves around the definition of the expression "appropriate Government". In other words, whether the first respondent - State of Gujarat was competent to pass the orders of remission in the case of respondent Nos.3 to 13....
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....ssion. This is particularly so when an application is filed by or on behalf of a convict seeking remission. Therefore, logically the expression appropriate Government in clause (b) of sub-section (7) of Section 432 also states that the Government of the State within which the offender is sentenced or the said order is passed which is the appropriate Government. The aforesaid consistency is significant inasmuch as the intent of the Parliament is, it is only the Government of the State within which the offender was sentenced which is competent to consider an application for remission and pass an order remitting the sentence of a convict. This clearly means that the place of occurrence of the incident or place of imprisonment of the convict are not relevant considerations and the same have been excluded from the definition of the expression appropriate Government in clause (b) of sub-section (7) of Section 432. If the intention of the Parliament was that irrespective of the Court before which the trial and conviction had taken place, the order of remission can be considered by the Government within whose territorial jurisdiction the offence has been committed or the offender is impris....
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....ency to pass an order of remission under Section 432 of the CrPC. Therefore, it is not the Government of the State within whose territory the offence occurred or the convict is imprisoned which can assume the power of remission. 33.7. In this regard, the following judgments of this Court may be relied upon: (a) In Ratan Singh, on discussing Section 401 of the erstwhile CrPC (corresponding to Section 432 of the present CrPC) it was observed that the test to determine the appropriate Government is to locate the State where the accused was convicted and sentenced and the Government of that State would be the appropriate Government within the meaning of Section 401 of the CrPC. In the said case, it was observed that the accused was convicted and sentenced in the State of Madhya Pradesh and though he was discharging his sentence in a jail in Amritsar in the State of Punjab, the appropriate Government under section 401 (1) of the erstwhile CrPC to exercise the discretion for remission of the sentence was the State of Madhya Pradesh. It was further observed that even under the new Code i.e. CrPC, 1973 as per sub-section (7) of Section 432 thereof, the phrase appropriate Government had t....
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....ils in the State is concerned, this Court in M.T. Khan observed that the appropriate government on whose advice the Governor has to act while granting remission to such a prisoner was to be decided on the basis of the aid and advice of the Council of Ministers of the State which had convicted the accused and not the State where the accused/convict is transferred to be lodged in the jail. In this case it was held that since the judgment of conviction had been passed in the States of Madhya Pradesh and Maharashtra and the convict was lodged in the State of Andhra Pradesh, the appropriate Governments were the States of Madhya Pradesh and Maharashtra even under Article 161 of the Constitution. Hence, the appeals filed by the Government of Andhra Pradesh were allowed. (d) V. Sriharan is a judgment of a Constitution Bench of this Court wherein the Government of Tamil Nadu had proposed to remit the sentence of life imprisonment to release seven convicts who were convicted in the Rajiv Gandhi assassination case - State, through Superintendent of Police, CBI vs. Nalini, (1999) 5 SCC 253 ("Nalini"). While discussing the phrase "appropriate Government", it was observed that barring cases fal....
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....nsider the applications for remission. Just as an order passed by a Court without jurisdiction is a nullity, in the same vein, an order passed or action taken by an authority lacking in jurisdiction is a nullity and is non est in the eye of law. 33.10. On that short ground alone the orders of remission have to be quashed. This aspect of competency of the Government of State of Gujarat to pass the impugned orders of remission goes to the root of the matter and the impugned orders of remission are lacking in competency and hence a nullity. The writ petition filed by the victim would have to succeed on this reasoning. But the matter does not rest at that. 34. Learned ASG appearing for respondent Nos.1 and 2, has placed strong reliance on the order of this Court dated 13.05.2022 to contend that in view of the directions issued by this Court in Writ Petition No.135 of 2022, respondent No.1 - State of Gujarat had to consider the applications for remission filed by respondents No.3 to 13 herein. Further, the consideration had to be made as per the 1992 Policy of Remission of the State of Gujarat. Hence, the appropriate Government in the case of respondent Nos.3 to 13 was the Government ....
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....ut the said writ petitioner projected as if the two High Courts had contradicted themselves in their orders and, therefore, he was constrained to file the writ petition invoking the jurisdiction of this Court under Article 32 of the Constitution. 35.2. It was contended that on account of the suppression of facts as well as misleading this Court with erroneous facts, the order dated 13.05.2022 is vitiated by fraud and is hence a nullity and the same cannot be binding on the parties to the said order or to the petitioner Bilkis Bano who, in any case, was not arrayed as a party in the said writ petition. 36. It is necessary to highlight the salient aspects of the order passed by this Court in the case of Radheshyam Bhagwandas Shah dated 13.05.2022 in Writ Petition (Crl.) No.135 of 2022. That was a petition filed by one of the convicts, respondent No.3 herein, seeking a direction to consider his application for premature release under the policy dated 09.07.1992 of the State of Gujarat which was existing at the time of his conviction. The relevant pleadings in the said writ petition are extracted as under: "Question of Law: A. Whether the policy dated 9.7.92, which was existing ....
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....e of Mandamus to the Respondent/State of Gujarat to consider the case of the petitioner for premature release under the policy dated 9.7.92 i.e. the policy which was existing at the time of conviction. B. Or in the alternative, issue a writ, order or direction in the nature of Mandamus to the respondent/Union of India to consider the case of the petitioner in light of "UOI Vs. V. Sriharan, (2016) 7 SCC 1." and C. Pass any such further Order(s)/direction(s) as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case." 36.1. The aforesaid pleadings do not indicate that State of Gujarat had no jurisdiction to consider his application for remission. Also, there was no pleading that he had filed any application before the Government of Gujarat. Thirdly, there is no mention that the policy of 09.07.1992 had been cancelled. Moreover, the said policy was not at all applicable as the writ Petitioner was convicted in Maharashtra State and therefore, Government of Gujarat was not the appropriate Government. 36.2. On the above basis, this Court passed the order dated 13.05.2022, the relevant portion of which reads as under: 6. The present Petitioner filed....
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.... of Bombay in Criminal Writ Petition No. 305 of 2013 filed at the instance of co-Accused Ramesh Rupabhai under its Order dated 5th August, 2013 declined his request to consider the application for pre-mature release and left the application to be examined according to the policy applicable in the State of Gujarat by the concerned authorities. 13. The judgment on which the learned Counsel for the Respondents has placed reliance may not be of any assistance for the reason that Under Section 432(7) Code of Criminal Procedure, the appropriate Government can be either the Central or the State Government but there cannot be a concurrent jurisdiction of two State Governments Under Section 432(7) Code of Criminal Procedure. 14. In the instant case, once the crime was committed in the State of Gujarat, after the trial been concluded and judgment of conviction came to be passed, all further proceedings have to be considered including remission or pre-mature release, as the case may be, in terms of the policy which is applicable in the State of Gujarat where the crime was committed and not the State where the trial stands transferred and concluded for exceptional reasons under the orders ....
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....as the case may be, in terms of the policy which is applicable in the State of Gujarat where the crime was committed and not the State where the trial stood transferred and concluded for exceptional reasons under the order of this Court. (vi) Consequently, the writ petition was allowed. Further even in the absence of there being any challenge, the order dated 17.07.2019 passed by the Gujarat High Court in a petition filed by the same Petitioner (Respondent No. 3) Under Article 226 of the Constitution was set aside by this Court in the writ petition filed by him Under Article 32 of the Constitution. (vii) Further, it was not brought to the notice of this Court that the policy dated 09.07.1992 had been cancelled and was no more effective. In the absence of the same, direction was issued to the State of Gujarat to consider the case of the Petitioner therein for pre-mature release in terms of the said policy within a period of two months. 36.4. Our inferences on the Order of this Court dated 13.05.2022 passed on the aforesaid writ petition are as under: (i) that the convict who approached this Court, namely, Radheshyam Bhagwandas Shah Respondent No. 3 herein had stated that he h....
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....s by this Court for limited purpose for trial and disposal to the neighbouring State (State of Maharashtra) by an order dated 06.08.2004 but after the conclusion of trial and the prisoner being convicted, stood transferred to the State where the crime was committed remain the appropriate Government for the purpose of Section 432(7) Code of Criminal Procedure." This portion of the order of this Court is contrary to the judgments of this Court discussed above. This implies that the said order is per se per incuriam. (viii) This Court went on to hold that the High Court of Bombay had declined to interfere in Criminal Writ Petition No. 305 of 2013 filed by the co-Accused Ramesh Rupabhai by its order dated 05.08.2013 without realising what the prayer in the said writ petition was, which was filed in the year 2013, as at that point of time, the issue of remission had not arisen at all. The Bombay High Court had declined to entertain the Writ Petition filed by one of the convicts by holding to consider his plea for transfer to a jail in State of Gujarat. (ix) Interestingly, no review petition was filed against the order of this Court dated 13.05.2022 by the State of Gujarat for seekin....
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....olicy in the year 2014. What was the effect of cancellation of the policy dated 09.07.1992 was not brought to the notice of this Court either by the writ Petitioner or by the State of Gujarat. (xiv) In Sangeet and Anr. v. State of Haryana, (2013) 2 SCC 452, this Court speaking through Lokur, J., observed that a convict undergoing a sentence does not have right to get a remission of sentence but he certainly does have a right to have his case considered for the grant of remission. The term of sentence spanning the life of the convict can be curtailed by the appropriate Government for good and valid reasons in exercise of its powers Under Section 432 of the Code of Criminal Procedure. The said Section provides for some procedural and substantive checks on the arbitrary exercise of this power. While observing that there is no decision of this Court detailing the procedure to be followed for the exercise of power Under Section 432 of the Code of Criminal Procedure, it was stated that Sub-section (2) to Sub-section (5) of Section 432 of the Code of Criminal Procedure lay down the basic procedure, which is making of an application to the appropriate Government for the suspension or rem....
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....08.05.2013, the Home Department, Government of Gujarat issued a Circular referring to the decision of this Court dated 20.11.2012 in Sangeet and in order to implement the same and also taking note of the communication of the Government of India dated 01.02.2013, the Circular dated 09.07.1992 was cancelled in following manner: ... Therefore, the provisions of circular No. JLK/3390/CM/16/part/2/J dated 09.07.1992 of the Home Department hereinabove referred to in Srl. No. 1, hereby stand cancelled. Thereafter, on 23.01.2014, the State Government constituted a Committee headed by the Additional Chief Secretary (Home) for considering the policy and guidelines to be followed for the purpose of remission and pre-mature release of the prisoners. After careful consideration, the State Government issued guidelines/policy for consideration of cases of remission and premature release of the prisoners. In the said policy, it was categorically mentioned that "the prisoners who are convicted for the crimes" as mentioned in Annexure-I, shall not be considered for remission. Annexure-I contained the classes of prisoners who shall not be granted state remission as well as for premature release. ....
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....he said Order of the Gujarat High Court. 38. At this stage, we may point out that if Respondent No. 3 had felt aggrieved by the order of the Gujarat High Court dated 17.07.2019, it was open to him to have challenged the said order before this Court by filing a special leave petition, but he did not do so. Rather, he complied with the order of the Gujarat High Court by filing remission application dated 01.08.2019 before the Government of Maharashtra where, not only the process for consideration of the remission prayer was initiated, but opinions of various authorities were also obtained. When the opinions were found to be negative, Respondent No. 3 filed Writ Petition (Crl.) No. 135 of 2022 before this Court seeking a direction to the State of Gujarat to consider his remission application suppressing the above material facts. This he could not have done, thereby misrepresenting and suppressing relevant facts, thus playing fraud on this Court. 39. We have no hesitation in holding that neither the order of the Gujarat High Court dated 17.07.2019 could have been challenged by Respondent No. 3 or for that matter by anybody else before this Court in a writ proceeding Under Article 32 ....
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....f Certiorari should be issued to quash such an order. This Court observed that it would be inappropriate to allow the Petitioners to raise the question about the jurisdiction of the High Court to pass the impugned order in a proceeding Under Article 32. Rejecting the argument of the Petitioners, this Court held that judicial orders passed by High Courts in or in relation to proceedings pending before the High Courts are not amenable to be corrected by this Court exercising jurisdiction Under Article 32 of the Constitution of India. This being the law of the land, it is binding on all the courts including benches of lesser coram of this Court. 40. Before proceeding further, it may also be mentioned that it was only Respondent No. 3 who had approached this Court by filing a writ petition Under Article 32 of the Constitution of India being Writ Petition (Crl.) No. 135 of 2022, seeking a direction to the State of Gujarat to consider his pre-mature release. None of the other convicts, i.e. Respondent Nos. 4 to 13 had approached this Court or any High Court seeking such a relief. Therefore, in so far these Respondents are concerned, there was no direction of this Court or any court to t....
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....d on the Court, suppression of material facts vital to the decision to be rendered by a court of law is equally serious. Thus, once it is held that there was a fraud in judicial proceedings all advantages gained as a result of it have to be withdrawn. In such an eventuality, doctrine of res judicata or doctrine of binding precedent would not be attracted since an order obtained by fraud is non est in the eye of law. 43.2. In K.D. Sharma v. Steel Authority of India Limited, (2008) 12 SCC 481 ("K.D. Sharma"), this Court held that the jurisdiction of the Supreme Court Under Article 32 and of the High Court Under Article 226 of the Constitution is extraordinary, equitable and discretionary and it is imperative that the Petitioner approaching the Writ Court must come with clean hands and put forward all the facts before the Court without concealing or suppressing anything and seek an appropriate relief. If there is no candid disclosure of relevant and material facts or the Petitioner is guilty of misleading the Court, his petition may be dismissed at the threshold without considering the merits of the claim. It was held thus: 38. The above principles have been accepted in our legal s....
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....essing material facts either by remaining silent or by making misleading statements in the pleadings in order to escape the liability of making a false statement. This Court observed that since the Appellants therein had not disclosed the filing of the suit and its dismissal and also the dismissal of the appeal against the judgment of the civil court, the Appellants had to be non-suited on the ground of suppression of material facts. They had not come to the court with clean hands and they had also abused the process of law, therefore, they were not entitled to the extraordinary, equitable and discretionary relief. 43.4. A Division Bench of this Court comprising Justice B.R. Gavai and Justice C.T. Ravikumar placing reliance on the dictum in S.P. Chengalvaraya Naidu, held in Ram Kumar v. State of Uttar Pradesh 2022:INSC:1034 : AIR 2022 SC 4705, that a judgment or decree obtained by fraud is to be treated as a nullity. 44. We wish to consider the case from another angle. The order of this Court dated 13.05.2022 is also per incuriam for the reason that it fails to follow the earlier binding judgments of this Court including that of the Constitution Bench in V. Sriharan vis-ï&iq....
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....milar fees, unless supported by quid pro quo, this Court held, interfered with the control exercised by the Central Government under the Industries (Development and Regulation) Act, 1951 (for short "IDR Act, 1951") and the various orders made thereunder with respect to prices, licences, permits, distribution, transport, disposal, acquisition, possession, use, consumption, etc., of articles related to a controlled industry, industrial alcohol being one of them. But none of the observations in the judgment warranted the abrupt conclusion, to which the court came, that the power to levy taxes on sale or purchase of goods referable to Entry 54 of List II was curtailed by the control exercised by the Central Government under the IDR Act. The casual reference to sales tax in the concluding portion of the judgment was accidental and per incuriam was the submission. While considering the said plea, this Court observed that "the only question which had to be determined between the same parties reported in (1990) 1 SCC 109 (Synthetics and Chemicals Ltd. v. State of U.P.) was "whether intoxicating liquor in Entry 8 in List II was confined to potable liquor or includes all liquors." Answerin....
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.... the provisions in question by which sales tax could be levied within the scope and ambit of Entry 54 List II was contrary to what had been stated (in paragraph 86) by the seven-judge bench decision between the same parties. It was observed that the aforesaid decision of this Court was not an authority for the proposition canvassed by the Assessee in challenging the provision. This Court could not have intended to say that the Price Control Orders made by the Central Government under the IDR Act imposed a fetter on the legislative power of the State under Entry 54 of List II to levy taxes on the sale or purchase of goods. The reference to sales tax in paragraph 86 of that judgment was merely accidental or per incuriam and therefore, had no effect. In the earlier litigation of Synthetics and Chemicals Ltd., the question was whether the State Legislature could levy vend fee or excise duty on industrial alcohol. The seven-Judge Bench answered in the negative as industrial alcohol being unfit for human consumption, the State legislature was incompetent to levy any duty of excise either under Entry 51 or Entry 8 of List II of the Seventh Schedule. While doing so, the Bench recorded th....
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.... ratio decidendi it is not binding vide Amrit Das v. State of Bihar, (2000) 5 SCC 488. 45. One of the contentions raised in the present case was that since this Court in the order dated 13.05.2022 had directed that the State of Gujarat was the appropriate Government, the same was binding on the parties even though it may be contrary to the earlier decisions of this Court. We cannot accept such a submission having regard to what has been observed above in the case of Synthetics and Chemicals Ltd. which was also with regard to the application of the same doctrine between the very same parties inasmuch as when a judgment has been delivered per incuriam or passed sub-silentio, the same cannot bind either the parties to the judgment or be a binding precedent for the future even between the same parties. Therefore, for this reason also, the order dated 13.05.2022 would not bind the parties thereto and particularly, to the Petitioner in Writ Petition (Crl.) No. 491 of 2022 who was in any case not a party to the said writ proceeding. 46. Having regard to the above discussion and in light of the provisions of the Code of Criminal Procedure, the judgments of this Court and our own understa....
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....lice and Inspector General of Prisons, State of Gujarat, Ahmedabad/letter dated:17/06/2022 No: JUD/14 Year/2/4754/2022. (3) Department Circular Date: 09/7/1992, No. JLK/3390/CM/16/Part-2/J. (4) Ministry of Home, The Government of India, Letter dated: 11/07/2022, No. 15/05/2022/JC-II ::FORWARD:: Mr. Radheshyam Bhagwandas Shah, From Godhra Sub Jail filed Writ Petition in the Hon'ble Supreme Court as per reference No. 1 and Hon'ble Supreme Court passed order to take decision as per policy mentioned in reference No. 3 within two months regarding Pre-mature release application of Mr. Shah. The premature release proposal was prepared and sent by the Additional Director General of Police and Inspector General of Prisons as per the letter of reference No. 2. The provision Under Section 432 of Code of Criminal Procedure the State Government has power for pre-mature release, however provision Under Section 435(1)(A) of Code of Criminal Procedure. Indicates that any case investigated by any agency which is established by Union Government Rules, in those cases it is need to be consulted with Central Government is required. This case was investigated by CBI, therefore the State ....
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....poses of this case: xxx xxx xxx 8.3. (iii) Whether the power Under Sections 432 and 433 of the Code of Criminal Procedure by the appropriate Government would be available even after the constitutional power Under Articles 72 and 161 by the President and the Governor is exercised as well as the power exercised by this Court Under Article 32? 8.4. (iv) Whether the State or the Central Government have the primacy Under Section 432(7) of the Code of Criminal Procedure? 8.5. (v) Whether there can be two appropriate Governments Under Section 432(7)? 8.6. (vi) Whether power Under Section 432(1) can be exercised suo motu without following the procedure prescribed Under Section 432(2)? 8.7. (vii) Whether the expression "consultation" stipulated in Section 435(1) really means "concurrence"? (i) This Court observed that the procedure to be followed Under Section 432(2) is mandatory and that suo moto power of remission cannot be exercised 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 Pres....
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....ntive check in Section 433-A of the Code of Criminal Procedure. That the application of Section 432 of the Code of Criminal Procedure to a convict is limited inasmuch as, a convict serving a definite term of imprisonment is entitled to earn a period of remission under a statutory Rule framed by the appropriate Government or under the Jail Manual. The said period is then offset against the term of punishment given to him. Thus, upon completion of the requisite period of incarceration, a prisoner's release is automatic. However, Section 432 of the Code of Criminal Procedure will apply only when a convict is to be given an "additional" period of remission for his release i.e., the period to what he has earned as per the Jail Manual or the statutory rules. That in the case of convict undergoing life imprisonment, the period of custody is indeterminate. Remissions earned or awarded to such a life convict are only notional and 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 deta....
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....urt can direct the authorities to reconsider the representation of the convict vide Rajan. Therefore, while there can be no direction to release a prisoner forthwith or to remit the remaining sentence, at best there can only be a direction issued to the State to consider the representation made for remission expeditiously on its own merits and in accordance with law. In this case, reliance was placed on Halsbury's Law of India (Administrative Law) to observe that sufficiency of reasons, in a particular case, depends on the facts of each case while considering an application for remission. It was further observed that mechanical or stereo typed reasons are not adequate as also, a mere repetition of the statutory language in the order will not make the order a reasoned one. In the aforesaid case, the application for remission was directed to be reconsidered with 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 (Respon....
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....nt and fraught with discrimination. The function of determining whether the act of a constitutional or statutory functionary falls within the constitutional or legislative conferment of power or is vitiated by self-denial or an erroneous appreciation of the full amplitude of the power, is a matter for the Court to decide vide Kehar Singh v. Union of India, (1989) 1 SCC 204 ("Kehar Singh"). (ii) In Epuru Sudhakar, two other aspects were also considered: one relating to the desirability of indicating reasons in the order granting pardon/remission and the other, relating to the power to withdraw the order of granting pardon/remission, if subsequently, materials are placed to show that certain relevant materials were not considered or certain materials of extensive value were kept out of consideration. It was observed that the affected party 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) ....
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....ric appraisal of the convict and without any proper assessment as to the effect of early release of a particular convict on the society. It was further observed that, the power of executive clemency is not only for the benefit of the convict but what has to be borne in mind is the effect of the decision on the family of the victims, society as a whole and the precedent which it sets for the future. Thus, the exercise of power depends upon the facts and circumstances of each case and has to be judged from case to case. Therefore, one cannot draw the guidelines for regulating exercise of power. Further, the exercise or non-exercise of power of pardon or remission is subject to judicial review and a pardon obtained by fraud or granted by mistake or granted for improper reasons would invite 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 ha....
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....ime; whether there was any fruitful purpose of confining the convict anymore; the socio-economic condition of the convict's family and other similar circumstances. (i) That the executive power of clemency gives an opportunity to the convict to reintegrate into the society. However, the power of clemency must be pressed into service only in appropriate cases. Ultimately, it was held that the case for remission has to be considered on the strength of the policy that was existing on the date of conviction of the Accused. It was further observed that in case no liberal policy prevails on the date of consideration of the case of a convict under life imprisonment for premature release, he should be given the benefit thereof subject of course to Section 433-A of the Code 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 Consti....
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....icial review of the Presidential order cannot be exercised on the merits except within the strict limitations defined in Maru Ram v. Union of India (1981) 1 SCC 107. The limitations of judicial review over exercise of powers Under Articles 72 and 161 of the Constitution have been delineated in the said decision by the constitution Bench. It has been observed that "all public power, including constitutional power, shall never be exercisable arbitrarily or mala fide, and ordinarily guidelines for fair and equal execution are guarantors of valid play of power." The bench stressed the point that the power being of the greatest moment, cannot be a law unto itself but it must be informed by the finer canons of constitutionalism. 11. It was 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 w....
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.... in error in holding that the convicts were entitled to the benefit of the period of remission given by the various notifications cumulatively to be counted against the period during which they were out on bail. (c) In Satpal, the order of the Governor granting remission to convicts therein, in the exercise of power conferred by Article 161 of the Constitution of India read with Section 132 of the Code of Criminal Procedure was assailed by the brother and widow of the deceased. The primary ground raised before this Court was that the power to grant remission was exercised without application of mind, and that the said power was exercised by the Governor having regard to extraneous considerations and even without 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 remissi....
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....e Government" and the answer given by us to Point No. 3, the exercise of discretion and the passing of the impugned orders of remission in the case of Respondent Nos. 3 to 13 herein was an instance of usurpation of power. It may be that this Court by its order dated 13.05.2022 passed in Writ Petition No. 135 of 2022 had directed the first Respondent State of Gujarat to consider the case of Respondent No. 3 under the 1992 Policy of the State of Gujarat, by setting aside the order of the High Court of Gujarat dated 17.07.2019. What is interesting is that in the said writ petition, the State of Gujarat had correctly submitted before this Court that the appropriate Government in the instant case was State of 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 13.05.2....
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....nt Court in Gujarat to the Special Court at Mumbai; ORDER We are of the view that on account of the nature and the allegations of the case, session case No. 161 of 2004 before the Additional Sessions Judge, Dahod now transferred to Additional Sessions Judge of IVth Court of the City Civil Sessions Court Ahmedabad (CBI Case No. RCZ/S/2004, SCB Mumbai) title CBI v. Jaswantbhai Chaturbhai and Ors. be transferred to any competent Court in Mumbai for trial and disposal. This order be placed before the Chief Justice of Bombay High Court who shall designate the competent Court as he may deem fit. The transfer petition is accordingly allowed. This order is based 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 o....
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....pensation are disposed of. The aforesaid orders clearly indicate why this Court had transferred the investigation and trial to the CBI and to the State of Maharashtra respectively. 50.4. Such being the case, it was the State of Maharashtra which was the appropriate Government which had to consider the Appellant for remission vis-�-vis Respondent Nos. 3 to 13 herein. Instead, being unsuccessful before the High Court of Gujarat, Respondent No. 3 surreptitiously filed the writ petition before this Court seeking a direction to consider his case for remission without disclosing the full 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 Gu....
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.... court: 51. Sub-section (2) of Section 432 of the Code of Criminal Procedure states that when an application is made to the appropriate Government, inter alia, for remission of a sentence, the appropriate Government may require the Presiding Judge of the Court before or by which the conviction was had or confirmed, to state his opinion, as to, whether, the application should be granted or refused, together with his reasons for such opinion and also to forward with the statement of such opinion a certified copy of the record of the trial or of such record thereof as exists. 52. Learned ASG Sri 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 an....
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....nt to take the 'right' decision as to whether or not the sentence should be remitted. Hence, it cannot be said that the opinion of the presiding judge is only a relevant factor, which does not have any determinative effect on the application for remission. The purpose of the procedural safeguard Under Section 432(2) of the Code of Criminal Procedure would stand defeated if the opinion of the presiding judge becomes just another factor that may be taken into consideration by the government while deciding the application for remission. It is possible then that 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 acco....
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.... Bhagwandas Shah filed his application for remission before the State of Maharashtra pursuant to the order of the Gujarat High Court dated 17.07.2019, the State of Maharashtra sought the opinion of the Special Judge at Mumbai who gave a negative opinion. This was one of the reasons for Respondent No. 3 to file the Writ Petition (Crl.) No. 135 of 2022 before this Court. However, subsequently, when a direction was issued by this Court to the first Respondent State of Gujarat to consider the application for remission, the 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 ....
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....e opinion, the same is not in accordance with Sub-section (2) of Section 432 of the Code of Criminal Procedure and, therefore, is of no consequence except when viewed from the prism of being an opinion of one of the members of the Jail Advisory Committee, Dahod Jail. 53. As we have held, in the first place, the first Respondent State of Gujarat was not at all the appropriate Government, therefore, the proceedings of the Jail Advisory Committee of Dahod Jail, which had recommended remission is itself vitiated and 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....
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....wer is explicit and can always be exercised by a court having regard to Section 30 of the Code of Criminal Procedure. (b) In Sharad Hiru Kolambe v. State of Maharashtra, 2018:INSC:852 : (2018) 18 SCC 718 ("Sharad Hiru Kolambe"), the point for consideration was regarding quantum of fine that was imposed by way of a default sentence in case of non-payment of fine. It was contended that though the substantive sentence stood remitted and the Appellant was directed to be released on completion of fourteen 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 quali....
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....idering the applications for remission, the Jail Advisory Committee did not take into consideration whether Respondent Nos. 3 to 13 convicts had tendered the fine which was imposed by the Special Court and affirmed by the High Court as well as by this Court. Therefore, this is an instance of leaving out of a relevant consideration from the gamut of facts which ought to have been considered by the Jail Advisory Committee. Had the Respondent State of Gujarat considered the opinion from 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, appli....
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....Judge of the Court which had convicted the applicant must be complied with mandatorily. While doing so it is necessary to follow the requirements of the said Section which are highlighted by us, namely, (i) the opinion must state as to whether the application for remission should be granted or refused and for either of the said opinions, the reasons must be stated; (ii) the reasons must have a bearing on the facts and circumstances of the 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 appl....
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....ugned orders of remission dated 10.08.2022 are maintainable, is kept open to be raised in any other appropriate case. c) In view of Section 432(7) read with Section 432(1) and (2) of the Code of Criminal Procedure, we hold that the Government of the State of Gujarat had no jurisdiction to entertain 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 correc....
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....ny application to seek remission to the State of Gujarat as the same is not adverted to in the counter affidavit. The application seeking remission by Respondent No. 3 before the State of Gujarat has not been brought on record as he had 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 wh....
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....n's freedom and liberty even when it has been established that the same was granted in violation of law? Should the scales of justice tilt against Rule of law? In upholding Rule of law are we depriving Respondent Nos. 3 to 13 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 ab....
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..... Thus, everyone within the framework of the Rule of law must accept the system, render due obedience to orders made and in the event of failure of compliance, the rod of justice must descend down to punish. It is mainly 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 ....