As per the case facts, writ petitions challenged remission orders granted to convicts involved in severe crimes during riots, including gang rape and murder. The petitioner, a victim, sought to ...
2024 INSC 24 Writ Petition (Crl.) No.491 of 2022 Etc. Page 1 of 251
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL ORIGINAL JURISDICTION
WRIT PETITION (CRL.) NO.491 OF 2022
BILKIS YAKUB RASOOL ...PETITIONER
VERSUS
UNION OF INDIA & OTHERS …RESPONDENTS
WITH
WRIT PETITION (CRL.) NO.319 OF 2022
WRIT PETITION (CRL.) NO.326 OF 2022
WRIT PETITION (CRL.) NO.352 OF 2022
WRIT PETITION (CRL.) NO.403 OF 2022
WRIT PETITION (CRL.) NO.422 OF 2022
J U D G M E N T
NAGARATHNA, J.
Table of Contents
Sr.
No.
Particulars Page No(s).
1 Preface
3-5
2 Details of the writ petitioners
5-9
3 Factual Background 9-25
Writ Petition (Crl.) No.491 of 2022 Etc. Page 2 of 251
4 Counter affidavit of State of Gujarat
25-47
5 Submissions 47-87
6 Reply Arguments 87-101
7 Points for consideration 101-251
(A) Re: Point No.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?
102-106
(B) 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?
106-117
(i) Remission : Scope & Ambit 117-136
(C) Re: Point No.3: Whether the
Government of State of Gujarat was
competent to pass the impugned
orders of remission?
136-186
(D) Re: Point No.4 : Whether the impugned
orders of remission passed by the
respondent - State of Gujarat in favour
of respondent Nos.3 to 13 are in
accordance with law?
186-218
(i) Section 432(2) of the CrPC: Opinion
of the Presiding Judge of the
convicting court
218-227
(ii) Sentence in default of fine
227-237
(E) Summary of Conclusions
237-241
(F) Re: Point No.5: What Order?
241-251
8 Conclusion 251
Writ Petition (Crl.) No.491 of 2022 Etc. Page 3 of 251
Preface:
Plato, the Greek Philosopher in his treatise, The
Laws, underscores that punishment is to be inflicted, not for the
sake of vengeance, for what is done cannot be undone, but for the
sake of prevention and reformation (Thomas L. Pangle, The Laws
of Plato, Basic Book Publishers, 1980). In his treatise, Plato
reasons that the lawgiver, as far as he can, ought to imitate the
doctor who does not apply his drug with a view to pain only, but
to do the patient good. This curative theory of punishment likens
penalty to medicine, administered for the good of the one who is
being chastised (Trevor J. Saunders, Plato's Penal Code:
Tradition, Controversy, and Reform in Greek Penology, Oxford
University Press, 1991).
Thus, if a criminal is curable, he ought to be improved by
education and other suitable arts, and then set free again as a
better citizen and less of a burden to the state. This postulate lies
at the heart of the policy of remission. In addition, there are also
competing interests involved– the rights of the victim and the
victim’s family to justice vis-a-vis a convict’s claim to a second
chance by way of remission or reduction of his sentence for
reformation.
Writ Petition (Crl.) No.491 of 2022 Etc. Page 4 of 251
Over the years, this Court initially attached greater weight
to the former and has expressed scepticism over the latter,
particularly if the offence in question is a heinous one. This
sentiment can be gathered from the following observations of
Fazal Ali J. in Maru Ram vs. Union of India, AIR 1980 SC 2147
(“Maru Ram”):
“77. … It is true that there appears to be a modern trend
of giving punishment a colour of reformation so that stress
may be laid on the reformation of the criminal rather than
his confinement in jail which is an ideal objective. At the
same time, it cannot be gainsaid that such an
objective cannot be achieved without mustering the
necessary facilities, the requisite education and the
appropriate climate which must be created to foster a
sense of repentance and penitence in a criminal so that he
may undergo such a mental or psychological revolution
that he realises the consequences of playing with human
lives. In the world of today and particularly in our
country, this ideal is yet to be achieved and, in fact, with
all our efforts it will take us a long time to reach this
sacred goal.
xxx xxx xxx
79. The question, therefore, is — should the country take
the risk of innocent lives being lost at the hands of
criminals committing heinous crimes in the holy hope or
wishful thinking that one day or the other, a criminal,
however dangerous or callous he may be, will reform
himself. Valmikis are not born everyday and to expect that
our present generation, with the prevailing social and
economic environment, would produce Valmikis day after
day is to hope for the impossible.”
Writ Petition (Crl.) No.491 of 2022 Etc. Page 5 of 251
A woman deserves respect howsoever high or low she may be
otherwise considered in society or to whatever faith she may follow
or any creed she may belong to. Can heinous crimes, inter alia,
against women permit remission of the convicts by a reduction in
their sentence and by granting them liberty? These are the issues
which arise in these writ petitions.
With the aforesaid philosophical preface, we proceed to
consider these writ petitions, both on maintainability as well as
on merits purely from a legal perspective.
Details of the writ petitioners:
2. These writ petitions have been filed assailing the Orders
dated 10.08.2022, granting remission and early release of
respondent Nos.3 to 13 in Writ Petition (Crl.) No.491 of 2022 (which
petition shall be considered to be the lead petition), who were all
convicted, having been found guilty of committing heinous crimes
during the large-scale riots in Gujarat on 28.02.2002 and a few days
thereafter which occurred in the aftermath of the burning of the
train incident in Godhra in the State of Gujarat on 27.02.2002.
2.1. The grotesque and diabolical crime in question was driven by
communal hatred and resulted in twelve convicts, amongst many
Writ Petition (Crl.) No.491 of 2022 Etc. Page 6 of 251
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 challenging the
en-masse remission granted to respondent Nos.3 to 13. Bilkis Yakub
Rasool, being an unfortunate victim of the heinous crimes
hereinabove narrated, has filed the present writ petition under
Article 32 of the Constitution of India, seeking issuance of a writ,
order or direction quashing the Orders dated 10.08.2022 passed by
the State of Gujarat by which the convicts in Sessions Case No.634
Writ Petition (Crl.) No.491 of 2022 Etc. Page 7 of 251
of 2004, Mumbai (respondent Nos.3 to 13 herein), whose convictions
were upheld by a Division Bench of the Bombay High Court and
thereafter by this Court, have been released prematurely.
2.3. Writ Petition (Crl.) No.352 of 2022 titled Dr. Meeran Chadha
Borwankar vs. State of Gujarat has been preferred by a former
woman police officer, a woman bureaucrat who had served in the
Indian Foreign Service and an academic, seeking, inter alia, the
setting aside of the remission Orders dated 10.08.2022. The
petitioners by way of the writ petition have also sought a writ or
order in the nature of mandamus directing that the States must
endeavour to have a pluralistic composition in Jail Advisory
Committees, adequately representing the diverse nature of our
society.
2.4. Writ Petition (Crl.) No.319 of 2022 titled Subhashini Ali vs.
State of Gujarat being the first of the petitions filed in this batch
has been preferred under Article 32 by Subhashini Ali, a former
parliamentarian and presently the Vice-President of All India
Democratic Women’s Association; Revati Laul, an independent
journalist and Roop Rekha Verma, former Vice -Chancellor of
Lucknow University, challenging the Orders dated 10.08.2022.
Writ Petition (Crl.) No.491 of 2022 Etc. Page 8 of 251
2.5. Writ Petition (Crl.) No.326 of 2022 titled Mahua Moitra vs.
State of Gujarat has been preferred by Mahua Moitra, a Member
of Parliament from the Krishnanagar constituency in West Bengal,
seeking issuance of a writ, order, or direction, quashing the Orders
dated 10.08.2022. The petitioner in the said writ petition has also
sought the framing of guidelines and the equitable application of
existing guidelines by the State Government for the grant of
remission so as to channelise the exercise of discretion in granting
remission and to prevent the misuse of such discretion, if found
necessary upon an examination of the existing statutory framework.
2.6. Writ Petition (Crl.) No.403 of 2022 titled National
Federation of Indian Women (NFIW) vs. State of Gujarat has
been filed by the National Federation of Indian Women (NFIW) ,
which is a women centric organization that was established on
04.06.1954 for the purpose of securing women’s rights, seeking
appropriate directions in the form of a writ of mandamus to the
respondent to revoke the remission granted to respondent Nos.3 to
13 by the competent authority of the Government of Gujarat under
the remission policy dated 09.07.1992 and to re-arrest respondent
Nos.3 to 13 herein.
Writ Petition (Crl.) No.491 of 2022 Etc. Page 9 of 251
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 Information Report (“FIR” for short) was registered
against unknown accused, on 04.03.2002. The Investigation Agency
filed a closure report stating that the accused could not be traced
and the said closure report was accepted by the Judicial Magistrate
vide Order dated 25.03.2003. The closure report was challenged by
the petitioner-victim- Bilkis Yakub Rasool, before this Court in Writ
Petition (Crl.) No.118 of 2003. This Court directed the reopening of
Writ Petition (Crl.) No.491 of 2022 Etc. Page 10 of 251
the case and transferred the investigation of the same to the Central
Bureau of Investigation (“CBI” for short).
3.1. The CBI commenced a fresh investigation and submitted a
chargesheet on 19.04.2004 against twenty persons accused of the
crime. Charges of gang rape, murder and rioting armed with deadly
weapons with a common intention were framed against twelve
persons, six police personnel and two doctors
3.2. The petitioner-victim approached this Court by filing Transfer
Petition (Crl.) No.192 of 2004, seeking transfer of the trial from the
State of Gujarat to a neutral place. This Court in Transfer Petition
(Crl.) No.192 of 2004, by an Order dated 06.08.2004, in the peculiar
facts and circumstances of the case, considered it appropriate to
transfer Sessions Case No.161 of 2004 pending before the learned
Additional Sessions Judge, Dahod, Ahmedabad to the competent
Court in Mumbai for trial and disposal. Charges were framed on
13.01.2005 amongst others against the eleven convicts for the
commission of offences under Sections 143, 147, 302, 376(2)(e) and
(g) of the Indian Penal Code, 1860 (hereinafter referred to as the
“IPC” for the sake of brevity).
Writ Petition (Crl.) No.491 of 2022 Etc. Page 11 of 251
3.3. The Special Judge, Greater Mumbai, vide Judgment dated
21.01.2008 in Sessions Case No.634 of 2004 convicted the eleven
accused and sentenced them to life imprisonment for the
commission of the offences of, inter alia, gang rape and murder of
the petitioner’s mother; gang rape and murder of her cousin
Shamim; murder of twelve more victims including the three and a
half year old daughter of the petitioner, rioting, etc. and one police
personnel for deliberately recording the FIR incorrectly. However,
the Trial Court acquitted the remaining five police personnel and
the two doctors, against whom there were serious charges.
Respondent Nos.3 to 13 herein were convicted for the offences
punishable under Sections 143, 147, 148, 302 r/w 149 of the IPC
for the murder of fourteen people; Section 376 (2)(e) & (g) for having
committed gang-rape on the petitioner-victim; Section 376(2)(g) for
having committed gang rape on other women. The police officer,
Somabhai Gori was convicted of the offence punishable under
Sections 217 and 218 of the IPC.
3.4. On 05.08.2013, a Division Bench of the High Court of
Bombay passed an Order in Criminal Writ Petition No.305 of 2013
titled Ramesh Rupabhai Chandana vs. State of Maharashtra ,
preferred by respondent No.13 herein, holding that where a trial has
Writ Petition (Crl.) No.491 of 2022 Etc. Page 12 of 251
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 rioting armed with deadly
weapons, gang-rape and murder by judgment dated 04.05.2017 in
Criminal Appeal Nos.1020-1023 of 2009, 487 of 2010, 194 and 271
of 2011 titled Jaswantbhai Chaturbhai Nai vs. State of Gujarat .
The five police officials and the two doctors who were acquitted by
the Trial Court were also convicted by the High Court. The High
Court also observed that the investigation by the Gujarat police was
not proper and that the Gujarat police had taken the investigation
in the wrong direction from the beginning i.e., the day of registering
the FIR. That the investigation was not only unsatisfactory but it
also smacked of dishonest steps to shield the culprits. It was further
Writ Petition (Crl.) No.491 of 2022 Etc. Page 13 of 251
observed that the earlier investigation had played the role of a villain
in the case. The High Court while going through the evidence also
noted that “the truth and the falsehood are mixed up in such a
manner that at every stage of investigation the truth is hidden under
layers of intentional laxity, omissions, contradictions and falsehood
and the truth is required to be unearthed”.
3.6. All the persons convicted filed Special Leave Petitions against
the judgment of the High Court. This Court vide Order dated
10.07.2017 passed in SLP (Crl.) Nos.4290/2017, 4705/2017 and
4716/2017 and by Order dated 20.11.2017 passed in SLP (Crl.)
No.7831/2017 dismissed the Special Leave Petitions preferred by
the convicts and upheld the findings rendered by the High Court, as
well as the sentence awarded.
3.7. It is noteworthy that the petitioner-victim approached this
Court by way of Criminal Appeal Nos.727-733 of 2019 seeking just
and adequate compensation for her ordeals. This Court vide order
dated 23.04.2019 observed that the petitioner is a victim of riots
which occurred in the aftermath of the Godhra train burning. This
Court noted that the petitioner’s case had to be dealt with differently
as the loss she has suffered surpassed normal cases. That the
gruesome and horrific acts of violence had left an indelible imprint
Writ Petition (Crl.) No.491 of 2022 Etc. Page 14 of 251
on the mind of the petitioner, which will continue to torment and
cripple her. This Court therefore directed the State Government to
pay Rs. 50,00,000/- (Rupees Fifty Lakhs) to the petitioner within
two weeks noting that the petitioner had been coerced into living the
life of a nomad and an orphan and was barely sustaining herself on
the charity of NGOs, having lost her family members.
3.8. After undergoing 14 years 5 months and 6 days of his
sentence, respondent No.3 herein, namely, Radheshyam
Bhagwandas Shah, filed Criminal Application No.4573 of 2019
before the Gujarat High Court challenging the non-consideration of
his application for premature release under Sections 433 and 433A
of the Code of Criminal Procedure, 1973 (hereinafter, the “CrPC” for
the sake of brevity). The High Court after considering the
submissions observed that respondent No.3 herein had been tried
in the State of Maharashtra, hence, as per Section 432 (7), the
‘appropriate government’ for the purpose of Sections 432 and 433
of the CrPC would be the State of Maharashtra. The High Court
placed reliance on the dictum of this Court in Union of India vs. V.
Sriharan, (2016) 7 SCC 1 (“V. Sriharan”) and by Order dated
17.07.2019 directed the petitioner therein (respondent No.3 herein)
to pursue his remedy within the State of Maharashtra.
Writ Petition (Crl.) No.491 of 2022 Etc. Page 15 of 251
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 order
dated 17.07.2019 of the Gujarat High Court granting liberty to the
convict to approach the State of Maharashtra seeking premature
release.
3.10. As the case was investigated and prosecuted by the CBI, the
opinion of the said Agency was sought on the application for
premature release. The CBI submitted its report dated 14.08.2019
wherein it was recommended that respondent No.3 should serve his
sentence fully and no leniency should be given to him. The CBI
submitted that respondent No.3 had actively participated in the
heinous crime and that the offences committed by him and others
were serious in nature and thus, he should not be pardoned or the
sentence, suspended or remitted.
3.11. Further, on 03.01.2020, the Special CBI Court, Mumbai, also
gave a negative report and objected to the prayer for premature
release of respondent No.3 on the ground of seriousness of the
offence. It was observed that the offences committed by the accused
Writ Petition (Crl.) No.491 of 2022 Etc. Page 16 of 251
fell into category 5 (b) of the relevant State policy and were extremely
serious, thus, it would be improper to grant remission to respondent
No.3.
3.12. Similarly, on 03.02.2020, the Superintendent of Police,
Dahod, in his report submitted to the Collector and District
Magistrate, Dahod, gave a negative opinion against the pre-mature
release of respondent No.3 on the ground that the victim and her
family members apprehended serious crimes against them if
respondent No.3 was released prematurely. The Office of the
Collector and District Magistrate, Dahod, on 19.02.2020 also opined
against the pre-mature release of respondent No.3 by relying on the
opinion dated 03.02.2020 of the Superintendent of Police, Dahod.
3.13. Respondent No.3 again approached the High Court of
Gujarat by way of Criminal Miscellaneous Application No. 1 of 2019
in Criminal Application No.4573 of 2019 seeking remission under
Section 432 read with Section 433 of the CrPC. The High Court vide
Order dated 13.03.2020 rejected the application preferred by
respondent No.3 with a specific observation that the appropriate
government under Section 432(7)(b) to exercise the powers of
remission would be the State of Maharashtra and not the State of
Gujarat. It was further recorded in the said order that the counsel
Writ Petition (Crl.) No.491 of 2022 Etc. Page 17 of 251
for respondent No.3 had sought the permission of the Court to move
the High Court of Bombay for the same relief and therefore the
application was disposed of with liberty to the writ petitioner therein
in the aforesaid terms. It is pertinent to note that this order still
holds the field as it has neither been challenged nor recalled or set
aside in accordance with law.
3.14. On 20.07.2021, a meeting of the Jail Advisory Committee of
the State of Gujarat took place which comprised of four social
workers; two members of the State Legislative Assembly; the
Superintendent of Police, Godhra; the District and Sessions Judge,
Godhra; the Secretary, Jail Advisory Committee and
Superintendent, Godhra Sub -Jail and the District Magistrate,
Godhra (Chairman of the Jail Advisory Committee, Godhra Sub -
Jail).
3.15 The Sessions Judge, Godhra, being one of the ten members of
the Jail Advisory Committee, after going through the case papers
observed that the convict, respondent No.3 herein, had been
sentenced to undergo life imprisonment in a sensitive case and that
if he was released prematurely, it may create an adverse effect on
the society and there is a possibility of peace being disturbed. The
other Committee members recommended the grant of remission to
Writ Petition (Crl.) No.491 of 2022 Etc. Page 18 of 251
respondent No.3, on the ground that he had completed fifteen years
of imprisonment and that his conduct in prison had been good.
3.16. On 18.08.2021, the Additional Director General of Police,
Prisons and Correctional Administration, State of Gujarat, vide his
letter to the Additional Chief Secretary, Home Department, Gujarat,
after considering the opinion given by the Jail Advisory Committee,
concurred with the opinion given by the Superintendent of Police,
Dahod; CBI; the Special CBI Court, Mumbai and the District
Magistrate, Dahod and did not recommend the premature release of
the convict- respondent No.3.
3.17. In the interregnum, the rest of the convicts, respondent Nos.4
to 13 had applied for remission on varying dates in the month of
February 2021 to the Superintendent, Godhra Sub-Jail. The opinion
of the CBI was sought in this regard, and a negative opinion was
given, so also by the Special Judge (CBI), Greater Mumbai. By a
common opinion dated 22.03.2021, Special Judge (CBI), Greater
Mumbai stated that since all the accused were tried and convicted
in Mumbai, i.e., the State of Maharashtra, the Government
Resolution issued by the Home Department, Government of
Maharashtra would be applicable to them. The Special Judge after
perusing the guidelines issued by the Government of Maharashtra
Writ Petition (Crl.) No.491 of 2022 Etc. Page 19 of 251
on 16.11.1978 and 11.05.1992 and the Government Resolution
dated 11.04.2008 (Policy dated 11.04.2008), observed that the said
resolution dated 11.04.2008 would apply as it had superseded all
earlier orders and guidelines and would have been applicable in the
normal course to the convicts undergoing life imprisonment. The
Special Judge further noted that the case of the convicts mentioned
above would fall under categories 2(c), 2 (d) and 4(d) of the Policy
dated 11.04.2008, according to which the minimum period of
imprisonment to be undergone is 28 years (Category 2(d)). However,
the Superintendent of Police, Dahod, gave a positive opinion with
respect to the premature release of respondent Nos.3 to 13. His
opinion was seconded by the Collector and District Magistrate,
Dahod.
3.18. In the aforesaid backdrop, when various steps were in
progress at various stages, stealthily a writ petition, being Writ
Petition (Crl.) No.135 of 2022 titled Radheshyam Bhagwandas
Shah vs. State of Gujarat, (2022) 8 SCC 552 (“Radheshyam
Bhagwandas Shah”) , was filed before this Court by respondent
No.3 herein, seeking a direction in the nature of mandamus to the
State of Gujarat to consider his application for pre-mature release
Writ Petition (Crl.) No.491 of 2022 Etc. Page 20 of 251
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 trial would have been concluded in the same
Writ Petition (Crl.) No.491 of 2022 Etc. Page 21 of 251
State and in terms of Section 432(7) of the CrPC,
the appropriate Government in the ordinary course
would have been the State of Gujarat but in the
instant case, the case was transferred under
exceptional circumstances by this Court for the
limited purpose of trial and disposal to the State of
Maharashtra. However, after the conclusion of trial
and on conviction, the case stood transferred to the
State where the crime was committed and the State
of Gujarat remains the appropriate Government for
the purpose of Section 432(7) of the CrPC.
ii. This Court observed that once the crime was
committed in the State of Gujarat, after the trial
came to be concluded and judgment of conviction
came to be passed, all further proceedings would
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 stood transferred and concluded for
exceptional reasons under the orders of this Court.
Writ Petition (Crl.) No.491 of 2022 Etc. Page 22 of 251
iii. This Court directed the State of Gujarat to consider
the application of the petitioner therein for pre-
mature release in terms of its policy dated
09.07.1992 which was applicable on the date of
conviction.
3.20. Pursuant to the judgment of this Court dated 13.05.2022, a
meeting of the Jail Advisory Committee of the State of Gujarat took
place on 26.05.2022 and all the members recommended grant of
remission to respondent Nos.3 to 13.
3.21. The Sessions Judge, Godhra, also considered the
applications of respondent Nos.3 to 13 and upon going through the
particulars provided by the Jail Superintendent, Sub-Jail, Godhra
noted that the said report recorded that the convicts had
demonstrated good behavior and conduct during the period of
incarceration and that no adverse incident had been recorded
against the convicts even when they were on furlough or on parole,
except against one convict, namely, Mitesh Chimanlal Bhatt. That
all convicts, by and large, surrendered themselves within the time
after enjoying parole/furlough and participated in rehabilitation
and corrective programmes. That the convicts still had substantial
years of life remaining. Accordingly, the Sessions Judge applied the
Writ Petition (Crl.) No.491 of 2022 Etc. Page 23 of 251
policy dated 09.07.1992 and gave an ‘affirmative’ opinion as regards
the premature release of respondent Nos.3 to 13.
3.22. The Additional Director General of Police, Prisons and
Correctional Administration, State of Gujarat, addressed a letter
dated 09.06.2022 to the Additional Chief Secretary, Home
Department, Government of Gujarat, regarding the premature
release of accused Kesarbhai Khimabhai Vahoniya. In the said
letter, the details of the opinion given by the concerned authorities
regarding the premature release of the said convict were also
discussed. It was stated in the letter that the Superintendent of
Police, Dahod, had given a positive opinion regarding premature
release from jail; the Superintendent of Police, Special Crime
Branch, Mumbai, however, had given a negative opinion about
premature release from jail; the District Magistrate, Dahod, had
given a positive opinion about the premature release from jail; the
Sessions Court, Mumbai, which pronounced the sentence had given
a negative opinion about premature 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 General of Police, Prisons and
Writ Petition (Crl.) No.491 of 2022 Etc. Page 24 of 251
Correctional Administration, State of Gujarat gave a positive opinion
regarding the premature release of Kesarbhai Khimabhai Vahoniya
to the Additional Chief Secretary, Home Department, Government
of Gujarat. So also, as regards the other convicts, namely, Salesh
Chimanlal Bhatt, Pradip Ramanlal Modhhiya, Mitesh Chimanlal
Bhatt, Bipinchand Kanhaiyalal Joshi, Rajubhai Babulal Soni,
Bakabhai Khimabhai Vahoniya, Jaswantbhai Chaturbhai Nai
(Rawal) and Ramesh Rupabhai Chandana.
3.23. On 28.06.2022, the Department of Home Affairs,
Government of Gujarat, addressed a letter to the Secretary, Ministry
of Home Affairs, Government of India, seeking sanction from the
Government of India on the proposal for the premature release of
the prisoners, respondent Nos.3 to 13.
3.24. By letter dated 11.07.2022, the Ministry of Home Affairs,
Government of India conveyed its approval under Section 435 of the
CrPC for the premature release of all 11 convicts, respondent Nos.3
to 13.
3.25. Pursuant to the concurrence of the Central Government, the
State of Gujarat issued the impugned orders dated 10.08.2022.
Writ Petition (Crl.) No.491 of 2022 Etc. Page 25 of 251
3.26. In the above background, these writ petitions have been filed,
praying, inter-alia, for issuance of a writ, order, or direction,
quashing the Orders dated 10.08.2022.
Counter affidavit of State of Gujarat:
4. Under Secretary, Home Department, State of Gujarat (first
respondent) has filed his affidavit stating that he is acquainted with
the facts of the case as appearing from the official records of the
case. While denying every assertion, contention and statement
made by the petitioner in Writ Petition (Crl.) No.319 of 2022, which
was the first of the writ petitions filed before this Court, certain
preliminary submissions have been advanced at the outset.
4.1 It is contended that the public interest litigation (PIL) filed by
the petitioners (Subhashini Ali and others) is neither maintainable
in law nor tenable on facts. That a third party has no locus to
challenge the orders of remission passed by a competent authority
under the garb of a PIL. A PIL is not maintainable in a criminal
matter as the petitioners are in no way connected with the
proceedings with which the convicted persons have been granted
remission. Therefore, the writ petition may be dismissed on that
ground alone. In support of this submission, reliance has been
placed on Rajiv Ranjan Singh ‘Lalan’ (VIII) vs. Union of India,
Writ Petition (Crl.) No.491 of 2022 Etc. Page 26 of 251
(2006) 6 SCC 613 (“Rajiv Ranjan”); Gulzar Ahmed Azmi v s.
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 v s. 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 been abridged or
how they are aggrieved by the action of the State Government.
Therefore, filing of the writ petition as Public Interest Litigation (in
short, ‘PIL’) is an abuse of PIL jurisdiction and is motivated by
Writ Petition (Crl.) No.491 of 2022 Etc. Page 27 of 251
political intrigues and machinations. In this regard, reliance has
been placed on Tehseen Poonawalla vs. Union of India, (2018)
6 SCC 72 (“Tehseen”); and Ashok Kumar.
4.3. It is further submitted that the petitioners not being aggrieved
persons have invoked the jurisdiction of this Court under Article 32
of the Constitution for extraneous purposes. As the petitioners are
not the “persons aggrieved”, the writ petition is not maintainable.
On the scope and ambit of the expression “person aggrieved”,
reliance has been placed on State of Maharashtra v s. M.V.
Dabholkar, (1975) 2 SCC 702 (“M.V. Dabholkar”); Jasbhai
Motibhai Desai vs. Roshan Kumar, Haji Bashir Ahmed, (1976)
1 SCC 671 (“Jasbhai Motibhai”); and Thammanna v s. K. Veera
Reddy, (1980) 4 SCC 62 (“Thammanna”) .
4.4. On merits, it is stated that one of the respondents/prisoners,
namely, Radheshyam Bhagwandas Shah had filed Writ Petition
(Crl.) No.135 of 2022, inter alia, praying to consider his remission
application. This Court by its order dated 13.05.2022 held that the
policy which will be applicable for deciding the remission
application is the one which was in vogue at the time of conviction
i.e. Premature Release of Convicts Policy of 1992. Further, this
Court held that for the purposes of Section 432 of the CrPC, the
Writ Petition (Crl.) No.491 of 2022 Etc. Page 28 of 251
“appropriate Government” for considering the remission application
is the State in which the offence was committed and not the State
in which the trial was conducted and therefore, directed the State
of Gujarat to consider the application of the prisoner within a period
of two months. Accordingly, the State of Gujarat considered the
application of the prisoners as per Section 432 read with Section
435 of the CrPC along with the Premature Release of Convicts Policy
of 1992. That, the State Government vide its Circular dated
09.07.1992 had issued a policy for early release of prisoners who
have completed fourteen years of imprisonment and who were
imposed punishment of life imprisonment. As per the aforesaid
Policy of 1992, the Inspector General of Jail is mandated to obtain
the opinion of the District Police Officer, District Magistrate, Jail
Superintendent and Advisory Board Committee for early release of
a convict. Thereafter, the Inspector General of Jail is mandated to
give his opinion with the copy of the nominal roll and copy of the
judgment and the recommendation of the Government. Further,
the Jail Advisory Board at the time of co nsideration 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
Writ Petition (Crl.) No.491 of 2022 Etc. Page 29 of 251
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 this Court. As laid down
in the abovementioned policy, the Department received the opinions
of the concerned District Police Officer, District Magistrate and
Chairman of Jail Advisory Board Committee. It is further stated that
the State Government has considered the opinions of the Inspector
General of Prisons, Gujarat State, Jail Superintendent, Jail
Advisory Committee, District Magistrate, Police Superintendent,
CBI, Special Crime Branch, Mumbai and Sessions Court, Mumbai
(CBI). Therefore, the opinions of seven authorities were considered.
Further, having regard to the provisions of Section 435 of the CrPC,
sanction of the Government of India was also necessary. As the CBI
Writ Petition (Crl.) No.491 of 2022 Etc. Page 30 of 251
was a central investigating agency, the State Government obtained
the approval/suitable orders of the Government of India. The
prisoners/convicts had completed fourteen years of imprisonment
and the opinions of the concerned authorities were obtained as per
Policy dated 09.07.1992. The same was submitted to the Ministry
of Home Affairs, Government of India vide letter dated 28.06.2022
and sought the approval/suitable orders of the Government of
India. The Government of India vide its letter dated 11.07.1992
conveyed its concurrence/approval. On considering all the
opinions, the State Government decided to relea se the eleven
convicts since they had completed fourteen years and above in jail
and their behaviour was found to be good.
4.6. Reliance has been placed on Jagdish and V. Sriharan to
contend that if a policy which is beneficial to the convict exists at
the time of consideration of the application of premature release
then the convict cannot be deprived of such beneficial policy and
that judicial review of the order of remission is not permissible in
law. The Under Secretary has further proceeded to place the
following facts to contend that the impugned orders are in
accordance with law:
Writ Petition (Crl.) No.491 of 2022 Etc. Page 31 of 251
“29. I say that the relevant records pertaining to the
application for remission qua the prisoner, Kesharbhai
Khimabhai Vahoniya, is as under:
Sl.
No.
Document Opinion of the concerned
Authority
1. Premature release
application dated
19.02.2021.
-
2. Letter dated 11.03.2021
from the Superintendent
of Police, CBI, SCB,
Mumbai.
Prisoner should not be
released prematurely.
3. Letter dated 22.03.2021
from the Special Judge
(CBI), City Civil &
Sessions Court, Gr.
Bombay
Considering the Govt.
Resolution dated
11.04.2008, issued by the
State of Maharashtra,
prisoner should not be
released prematurely.
4. Letter dated 07.03.2022
from the Superintendent
of Police, Dahod,
Gujarat.
No objection to the
premature release of the
prisoner.
5. Letter dated 07.03.2022
from the Collector & DM,
Dahod, Gujarat
No objection to the
premature release of the
prisoner.
6. Opinion of the Jail
Superintendent, Godhra
Sub-Jail, Gujarat.
No objection to the
premature release of the
prisoner.
7. Opinion of the Jail
Advisory Committee,
dated 26.05.2022.
The committee has
unanimously given the
opinion in favour of the
premature release of the
prisoner.
8. Letter dated 09.06.2022
to the Home
Department, Govt. of
Gujarat, from the Addl.
Director General of
Police, Prisons &
Correctional
No objection to the
premature release of the
prisoner.
Writ Petition (Crl.) No.491 of 2022 Etc. Page 32 of 251
Administration,
Ahmedabad.
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,
Kesharbhai Khimabhai Vahoniya is annexed herewith as
ANNEXURE R-3.
30. I say that the relevant records pertaining to the
application for remission qua the prisoner, Shaileshbhai
Chimanlal Bhatt, is as under:
Sl.
No.
Document Opinion of the concerned
Authority
1. Premature release
application dated
23.02.2021.
-
2. Letter dated 11.03.2021
from the Superintendent
of Police, CBI, SCB,
Mumbai.
Prisoner should not be
released prematurely.
3. Letter dated 22.03.2021
from the Special Judge
(CBI), City Civil &
Sessions Court, Gr.
Bombay
Considering the Govt.
Resolution dated
11.04.2008, issued by the
State of Maharashtra,
prisoner should not be
released prematurely.
4. Letter dated 07.03.2022
from the Superintendent
of Police, Dahod,
Gujarat.
No objection to the
premature release of the
prisoner.
Writ Petition (Crl.) No.491 of 2022 Etc. Page 33 of 251
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
Gujarat from the
Ministry of Home Affairs,
Govt. of India
Approved the premature
release of the prisoner.
Copy of the relevant records qua the prisoner,
Shaileshbhai Chimanlal Bhatt is annexed herewith as
Annexure-RG-4.
31. I say that the relevant records pertaining to the
application for remission qua the prisoner, Pradip Ramanlal
Modhiya, is as under:
Writ Petition (Crl.) No.491 of 2022 Etc. Page 34 of 251
Sl.
No.
Document Opinion of the concerned
Authority
1. Premature release
application dated
23.02.2021.
-
2. Letter dated 11.03.2021
from the Superintendent
of Police, CBI, SCB,
Mumbai.
Prisoner should not be
released prematurely.
3. Letter dated 22.03.2021
from the Special Judge
(CBI), City Civil &
Sessions Court, Gr.
Bombay
Considering the Govt.
Resolution dated
11.04.2008, issued by the
State of Maharashtra,
prisoner should not be
released prematurely.
4. Letter dated 07.03.2022
from the Superintendent
of Police, Dahod,
Gujarat.
No objection to the
premature release of the
prisoner.
5. Letter dated 07.03.2022
from the Collector & DM,
Dahod, Gujarat
No objection to the
premature release of the
prisoner.
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
Recommended premature
release of the prisoner.
Writ Petition (Crl.) No.491 of 2022 Etc. Page 35 of 251
from Home Department,
Govt. of Gujarat.
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, Pradip
Ramanlal Modhiya is annexed herewith as ANNEXURE RG -5.
32. I say that the relevant records pertaining to the
application for remission qua the prisoner, Mitesh Chimanlal
Bhatt, 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 25.05.2022
from the Superintendent
of Police, Dahod,
Gujarat.
No objection to the
premature release of the
prisoner.
5. Letter dated 25.05.2022
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.
Writ Petition (Crl.) No.491 of 2022 Etc. Page 36 of 251
7. Opinion of the Jail
Advisory Committee,
dated 26.05.2022.
The committee has
unanimously given the
opinion in favour of the
premature release of the
prisoner.
8. Letter dated 09.06.2022
to the Home Department,
Govt. of Gujarat, from
the Addl. Director
General of Police, Prisons
& Correctional
Administration,
Ahmedabad.
No objection to the
premature release of the
prisoner.
9. Letter dated 28.06.2022
to the Ministry of Home
Affairs, Govt. of India
from Home Department,
Govt. of Gujarat.
Recommended premature
release of the prisoner.
Sought approval/suitable
orders from the Govt. of
India.
10. Letter dated 11.07.2022
to the Home Department,
Govt. of Gujarat from the
Ministry of Home Affairs,
Govt. of India
Approved the premature
release of the prisoner.
Copy of the relevant records qua the prisoner, Mitesh
Chimanlal Bhatt is annexed herewith as ANNEXURE RG -6.
33. I say that the relevant records pertaining to the
application for remission qua the prisoner, Bipinchandra
Kanaiyalal Joshi, is as under:
Sl.
No.
Document Opinion of the concerned
Authority
1. Premature release
application dated
16.02.2021.
-
2. Letter dated 10.03.2021
from the Superintendent
of Police, CBI, SCB,
Mumbai.
Prisoner should not be
released prematurely.
Writ Petition (Crl.) No.491 of 2022 Etc. Page 37 of 251
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 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.
Writ Petition (Crl.) No.491 of 2022 Etc. Page 38 of 251
Copy of the relevant records qua the prisoner,
Bipinchandra Kanaiyalal Joshi is annexed herewith as
ANNEXURE RG -7.
34. I say that the relevant records pertaining to the
application for remission qua the prisoner, Rajubhai Babulal
Soni, is as under:
Sl.
No.
Document Opinion of the concerned
Authority
1. Premature release
application dated
15.02.2021.
-
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
No objection to the
premature release of the
prisoner.
Writ Petition (Crl.) No.491 of 2022 Etc. Page 39 of 251
General of Police, Prisons
& Correctional
Administration,
Ahmedabad.
9. Letter dated 28.06.2022
to the Ministry of Home
Affairs, Govt. of India
from Home Department,
Govt. of Gujarat.
Recommended premature
release of the prisoner.
Sought approval/suitable
orders from the Govt. of
India.
10. Letter dated 11.07.2022
to the Home Department,
Govt. of Gujarat from the
Ministry of Home Affairs,
Govt. of India
Approved the premature
release of the prisoner.
Copy of the relevant records qua the prisoner, Rajubhai
Babulal Soni is annexed herewith as ANNEXURE RG -8.
35. I say that the relevant records pertaining to the
application for remission qua the prisoner, Bakabhai
Khimabhai Vahoniya, is as under:
Sl.
No.
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.
Writ Petition (Crl.) No.491 of 2022 Etc. Page 40 of 251
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
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, Bakabhai
Khimabhai Vahoniya is annexed herewith as ANNEXURE R -
9.
36. I say that the relevant records pertaining to the
application for remission qua the prisoner, Govindbhai
Akhambhai Nai (Raval), is as under:
Writ Petition (Crl.) No.491 of 2022 Etc. Page 41 of 251
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 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
Recommended premature
release of the prisoner.
Writ Petition (Crl.) No.491 of 2022 Etc. Page 42 of 251
from Home Department,
Govt. of Gujarat.
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 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.
Writ Petition (Crl.) No.491 of 2022 Etc. Page 43 of 251
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
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,
Jashvantbhai Chturbhai Nai (Raval) is annexed herewith as
Annexure R-11.
39. I say that the relevant records pertaining to the
application for remission qua the prisoner, Rameshbhai
Rupabhai Chandana, is as under:
Writ Petition (Crl.) No.491 of 2022 Etc. Page 44 of 251
Sl.
No.
Document Opinion of the concerned
Authority
1. Premature release
application dated
25.02.2021
- 2. Letter dated 10.03.2021
from the Superintendent
of Police, CBI, SCB,
Mumbai.
Prisoner should not be
released prematurely.
3. Letter dated 22.03.2021
from the Special Judge
(CBI), City Civil &
Sessions Court, Gr.
Bombay
Considering the Govt.
Resolution dated
11.04.2008, issued by the
State of Maharashtra,
prisoner should not be
released prematurely.
4. Letter dated 07.03.2022
from the Superintendent
of Police, Dahod,
Gujarat.
No objection to the
premature release of the
prisoner.
5. Letter dated 07.03.2022
from the Collector & DM,
Dahod, Gujarat
No objection to the
premature release of the
prisoner.
6. Opinion of the Jail
Superintendent, Godhra
Sub-Jail, Gujarat
No objection to the
premature release of the
prisoner.
7. Opinion of the Jail
Advisory Committee,
dated 26.05.2022
The committee has
unanimously given the
opinion in favour of the
premature release of the
prisoner.
8. Letter dated 09.06.2022
to the Home
Department, 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
Recommended premature
release of the prisoner.
Writ Petition (Crl.) No.491 of 2022 Etc. Page 45 of 251
from Home Department,
Govt. of Gujarat.
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
released prematurely.
3. Letter dated 03.01.2020
from the Special Judge
(CBI), City Civil &
Sessions Court, Gr.
Bombay
Objected to the premature
release of the prisoner.
4. Letter dated 13.02.2020
from the Superintendent
of Police, Dahod,
Gujarat.
Objected to the premature
release of the prisoner.
5. Letter dated 19.02.2020
from the Collector & DM,
Dahod, Gujarat
Objected 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.
Writ Petition (Crl.) No.491 of 2022 Etc. Page 46 of 251
7. Opinion of the Jail
Advisory Committee,
dated 20.07.2021
9 out of 10 members of the
Committee has
recommended the
premature release of the
prisoner.
8. Letter dated 18.08.2021
to the Home
Department, Govt. of
Gujarat, from the Addl.
Director General of
Police, Prisons &
Correctional
Administration,
Ahmedabad.
Did not recommend 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,
Radheshyam Bhgwandas Shah @ Lala Vakil is annexed
herewith as Annexure R-13.”
4.7 Therefore, it has been contended that PIL is not maintainable
as it is misconceived and devoid of any merit and as such is liable
to be dismissed.
Writ Petition (Crl.) No.491 of 2022 Etc. Page 47 of 251
5. Respondent No.2 has not filed any pleading in this matter.
Even though respondent Nos.3 to 13 have filed their counter
affidavits, we do not find it necessary to advert to the same as they
would be replicating the stand of the State of Gujarat.
Submissions:
6. We have heard learned counsel Ms. Shobha Gupta for the
petitioner in Writ Petition (Crl.) No.491 of 2022; learned ASG, Sri
S.V. Raju appearing on behalf of the State of Gujarat and Union of
India; and learned senior counsel Mr. Sidharth Luthra and other
counsel for respondent Nos.3 to 13 and perused the material on
record.
6.1 We have also heard learned senior counsel and learned
counsel Ms. Indira Jaising, Ms. Vrinda Grover and Ms. Aparna Bhat,
for the petitioners in the public interest litigations.
6.2 We have perused the material on record as well 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
Writ Petition (Crl.) No.491 of 2022 Etc. Page 48 of 251
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 SCC 470 (“Ratan
Singh”); Government of A.P. vs. M.T. Khan, (2004) 1 SCC 616
(“M.T. Khan”); Hanumant Dass vs. Vinay Kumar, (1982) 2 SCC
177 (“Hanumant Dass”) and V. Sriharan.
7.2. According to learned counsel, once a competent Court in the
State of Maharashtra had tried and convicted the accused then that
State is the ‘appropriate Government’. Therefore, the Orders of
remission passed by the State of Gujarat in respect of respondent
Writ Petition (Crl.) No.491 of 2022 Etc. Page 49 of 251
Nos.3 to 13 is without jurisdiction and a nullity and thus, are liable
to be quashed.
7.3. As regards the applicability of the relevant remission policy,
learned counsel for the petitioner submitted that since the
‘appropriate government’ in the instant case is the State of
Maharashtra, the remission policy of the State of Maharashtra
would be applicable. Thus, the remission policy of the State of
Gujarat dated 09.07.1992 would be wholly inapplicable. It was
contended that the remission policy dated 09.07.1992 of the State
of Gujarat was not even in existence as on the date for consideration
of the remission applications as it was scrapped by way of a Circular
dated 08.05.2014 pursuant to the letter of the Central Government
circulated to all the States/UTs requiring the implementation of the
judgment of this Court in Sangeet vs. State of Haryana, (2013) 2
SCC 452 (“Sangeet”), wherein this Court held that before actually
exercising the power of remission under Section 432 of the CrPC,
the appropriate government must obtain the opinion of the
Presiding Judge of the convicting or confirming court and that the
remission shall not be granted in a wholesale manner, such as, on
the occasion of Independence Day etc . That pursuant to the
cancellation of the policy dated 09.07.1992, the State of Gujarat
Writ Petition (Crl.) No.491 of 2022 Etc. Page 50 of 251
came up with a new remission policy dated 23.01.2014, and even
this policy would not entitle remission of the accused herein, for two
reasons: firstly, because the remission policy of the State of
Maharashtra would be applicable as it is the ‘appropriate
government’, and secondly, the 2014 policy of the State of Gujarat
bars the grant of remission to convicts of heinous crimes.
7.4. Relying on the opinion of the Special Judge, Sessions Court,
Greater Mumbai, it was submitted that the Special Judge had
rightly stated that the remission policy applicable in the present
case would be the Policy dated 11.04.2008 of the State of
Maharashtra in respect of which the 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
Writ Petition (Crl.) No.491 of 2022 Etc. Page 51 of 251
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 decisions of this Court in State
of Haryana vs. Mohinder Singh , (2000) 3 SCC 394 (“Mohinder
Singh”); Sangeet; Ratan Singh, and Laxman Naskar vs. State
of West Bengal, (2000) 2 SCC 595 (“Laxman Naskar”) to
emphasize that a convict cannot claim remission as a matter of
right. The remission policies only give a right to the convict to be
considered and do not provide an indefeasible right to remission.
7.7. Further, reference was made to the dicta of this Court in
Mohinder Singh; Epuru Sudhakar vs. State of A.P., (2006) 8
SCC 161 (“Epuru Sudhakar”); Maru Ram; Sangeet; Ratan
Singh and Laxman Naskar to contend that the decision to grant
remission should be well informed, reasonable and fair and that the
power cannot be exercised arbitrarily.
Writ Petition (Crl.) No.491 of 2022 Etc. Page 52 of 251
7.8. Emphasizing the gravity of the offences in this case and the
grotesque nature of the crimes committed by the accused, learned
counsel Ms. Shobha Gupta submitted that while considering the
application for remission, the appropriate government was required
to bear in mind the effect of its decision on the victim and the family
of the victims, the society as a whole and the precedent it would set
for the future. To buttress the said submission, she relied on Epuru
Sudhakar, Swamy Shraddhananda (2) vs. State of Karnataka,
(2008) 13 SCC 767, (“Shraddhananda ”), and Jagdish. Reliance
was also placed on the decision in Laxman Naskar wherein this
Court had discussed the factors to be considered before granting
remission.
7.9. It was urged that the prerogative power of remission is not
immune from judicial review, vide Epuru Sudhakar wherein it was
observed that judicial review of the order of remission is available
on the following grounds: (i) non-application of mind; (ii) order is
mala fide; (iii) order has been passed on extraneous or wholly
irrelevant considerations; (iv) relevant materials kept out of
consideration; (v) order suffers from arbitrariness.
Writ Petition (Crl.) No.491 of 2022 Etc. Page 53 of 251
7.10. It was contended that in the present case, remission was
granted to all the convicts mechanically and without application of
mind to each of the cases and that the relevant factors were not
considered. That the State Government failed to consider the
relevant material and make an objective assessment while
considering the applications of the convicts for remission. The
nature and gravity of the crime, the impact of the remission orders
on the victim and her family, witnesses and 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
Writ Petition (Crl.) No.491 of 2022 Etc. Page 54 of 251
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 dated 03.02.2020 gave a negative opinion by noting that the
victim and her relatives stated that respondent No.3 should not be
released. The District Magistrate, Dahod, also gave a negative
opinion vide letter dated 19.02.2020, so also the Jail Advisory
Committee at its meeting held on 20.07.2021. That it was thereafter
that respondent No.3 approached this Court by filing Writ Petition
(Crl.) No.135 of 2022 and by Order dated 13.05.2022 this Court
directed the State of Gujarat to consider respondent No.3’s
application within a period of two months from the date of the order.
7.12. Further adverting to the sequence of events, it was stated that
in the meanwhile, the rest of the convicts had also applied
separately for remission in February 2021. The Presiding Officer
(Special Judge, Greater Mumbai) vide a common letter dated
22.03.2021 gave a negative opinion against the premature release
of the remaining ten convicts, respondent Nos.4 to 13 herein. That
thereafter, for one good year, their case was kept pending and only
Writ Petition (Crl.) No.491 of 2022 Etc. Page 55 of 251
after 07.03.2022 the new Superintendent of Police, Dahod, gave a
‘no objection’ for the premature release of all the convicts by
separate letters of the same date. The District Magistrate, Dahod,
also gave a positive opinion in favour of the premature release of all
the convicts. On 26.05.2022, a meeting of the Jail Advisory
Committee of Gujarat was held and this time, all the members of
the Committee gave a positive opinion. The Additional Director
General of Police, Prisons and Correctional Administration vide
letter dated 09.06.2022 this time gave a positive opinion and did not
raise any objection for the release of the ten convicts.
7.13. That although the reference by the Jail Advisory Committee to
the State Government, was only qua respondent Nos.4 to 13, the
State Government erroneously recommended the name of
respondent No.3 also, to the Central Government for remission even
in the absence of any application pending before the State
Government.
7.14. Learned counsel for the petitioner next submitted that the
Presiding Judge’s reasoned negative opinion opposing the
premature release was disregarded and this was contrary to the
mandate of Section 432(2) of the CrPC. The remission Orders dated
10.08.2022 of respondent No.1 are in the teeth of the negative
Writ Petition (Crl.) No.491 of 2022 Etc. Page 56 of 251
opinion of the Presiding Judge, Special Judge (CBI), Sessions Court,
Greater Mumbai, 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 imprisonment in default for the non-payment
Writ Petition (Crl.) No.491 of 2022 Etc. Page 57 of 251
of fine was not served. The Trial Court while sentencing the
respondents-convicts had also imposed a fine of Rs. 2,000/- on each
of them, for each of the fourteen counts of murder and three counts
of rape and in the event of default in payment of said fine, sentenced
them to suffer rigorous imprisonment for a further period of two
years each for each count. The total fine payable by the
respondents-convicts amounted to Rs.34,000/ - each and, in
default, they were liable to serve rigorous imprisonment for a period
of thirty-four years (two years each for each count). The Trial Court
had further directed that the ‘substantive sentences’ shall run
concurrently and that the period of detention, if any, undergone by
the respondents-convicts during the investigation, enquiry, trial,
shall be set off against the terms of imprisonment, not being
imprisonment in default of payment of fine imposed on the accused.
That as per the nominal roll of respondent Nos.3 to 13, none of them
had paid the fine sentenced by the Trial Court, making them liable
to serve the penalty of rigorous imprisonment for default in payment
of fine. But the respondents have neither paid the fine of Rs.
34,000/- to which each of them was sentenced, nor have they served
any sentence in default of the non-payment of fine. It was submitted
that the penalty of imprisonment ordered for default in payment of
fine stands on a completely different footing from the substantive
Writ Petition (Crl.) No.491 of 2022 Etc. Page 58 of 251
sentence of imprisonment to be undergone for an offence. While
under Section 432 of the CrPC, the Government has the power to
remit ‘punishment for offence’, the executive discretion does not
extend to waiving off the penalty of imprisonment for default in
payment of fine under Section 64 of the IPC. In this regard, reliance
was placed on Sharad Hiru Kolambe vs. State of Maharashtra ,
(2018) 18 SCC 718 (“Sharad Kolambe”) and Shantilal vs. State
of M.P., (2007) 11 SCC 243 (“Shantilal”).
7.16. It was asserted that respondent No.1 while granting
premature release failed to apply its mind and address the
determinative factors outlined by this Court in Laxman Naskar .
Thus, the orders of remission are vitiated by the vice of arbitrariness
for non-consideration of relevant facts and factors. According to
learned counsel for the petitioners, a bare perusal of the Orders
dated 10.08.2022 would make it clear 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,
Writ Petition (Crl.) No.491 of 2022 Etc. Page 59 of 251
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 only
a generic and blanket order, making the release of the convicts
illegal and arbitrary.
7.18. That respondent No.3 approached this Court in Writ Petition
(Crl.) No.135 of 2022, without disclosing that he had already acted
Writ Petition (Crl.) No.491 of 2022 Etc. Page 60 of 251
on the judgment of the Gujarat High Court dated 17.07.2019 and
had submitted his application to the Home Department, State of
Maharashtra, and that his application had already been considered
by the authorities concerned, whereby, the major stakeholders had
written against the grant of remission to him. Further, when the
matter was listed before this Court, no notice was issued to the
petitioner – victim and neither was she heard by this Court in the
matter.
7.19. That the Orders dated 10.08.2022 have blatantly ignored the
grave and real apprehension regarding the safety and security of the
victims-survivors raised by public functionaries whose opinions are
required to be taken into account by respondent No.1 State before
granting premature release as per the 1992 policy. That this Court
in a catena of judgments, such as, Epuru Sudhakar and Rajan vs.
Home Secretary, Home Department of Tamil Nadu (2019) 14
SCC 114 (“Rajan”) has highlighted the importance of considering
the impact of premature release on the victims in particular and the
society in general. That even the Superintendent of Police, Dahod,
on 03.02.2020 had recommended against the release of
Radheyshyam Bhagwandas Shah as he had cited the possibility of
peace being disturbed. The Sessions Judge, Panchmahal at Godhra
Writ Petition (Crl.) No.491 of 2022 Etc. Page 61 of 251
also raised questions regarding the security of the victim – petitioner
herein.
7.20. Learned counsel next asserted that the en-masse and non-
speaking “sanction” of the Central Government dated 11.07.2022
under Section 435(1)(a) of the CrPC does not meet the statutory
requirement of “consultation”. The said sanction conveys its
approval for the premature release of eleven convicts sans any
reason as to why the case of each respondent-convict is deemed fit
for grant of remission. Thus, the approval was granted without
considering the relevant factors outlined in Laxman Naskar.
7.21. That non-application of mind is evident in the non-speaking
and stereotyped orders dated 10.08.2022 which are bereft of any
reason. The Orders are devoid of reasons or grounds as to why the
respondents-convicts were found fit for the grant of remission. All of
the eleven orders are a verbatim replication of each other, having
only substituted the name and personal details of the respondents-
convicts. 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
Writ Petition (Crl.) No.491 of 2022 Etc. Page 62 of 251
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 under Article
51A(e) of the Constitution of India, seeking to promote harmony and
the spirit of brotherhood amongst the people of India, as well as to
denounce the derogation of the dignity of women. That the
petitioner seeks to uphold the rule of law and thus is not a mere
busybody.
Writ Petition (Crl.) No.491 of 2022 Etc. Page 63 of 251
8.1. The following submissions were made to contest the orders of
remission:
(i) that when the actions of the State cause some harm
to the general public, an action by a concerned
citizen would be maintainable and reliance was
placed on B.P Singhal vs. Union of India, (2010)
6 SCC 331 (“B.P Singhal”) in this regard.
(ii) that the impugned decisions of remission is
characterized by arbitrariness and mala fides and
bear no consideration of relevant factors That the
power of the executive must be exercised in line with
constitutional ideals and must be for the benefit of
the public. In this regard, reliance is placed on
Maru Ram and S.P. Gupta vs. Union of India,
(1981) Supp SCC 87 (“S.P. Gupta”).
(iii) that there exists no statutory right of appeal against
an order of remission. The only avenue available to
assail an order of remission is either under Article
32 or Article 226. Reliance was placed on Epuru
Sudhakar and Ram Chander. Further, the
jurisdiction of this Court is not ousted by the
existence of alternative legal remedies. Reliance was
Writ Petition (Crl.) No.491 of 2022 Etc. Page 64 of 251
placed on a Constitution Bench decision of this
Court in Kavalappara Kottarathil Kochuni vs.
States of Madras and Kerala, (1960) 3 SCR 887
(“Kochuni”).
(iv) that the present proceedings pertain to
administrative law and not criminal law and as a
result, the principle of being a stranger to the
criminal proceeding does not apply to the case at
hand. Nevertheless, this Court has entertained
petitions filed by ‘strangers’ in criminal matters in
the past, as in the case of K. Anbazhagan vs.
Superintendent of Police, (2004) 3 SCC 767 (“K.
Anbazhagan”).
(v) that such exercises of executive power may be
challenged on the basis of the grounds laid down in
Epuru Sudhakar and Maru Ram.
(vi) that an important question of law arises in the
present proceedings, namely , whether it is
appropriate to grant remission after a period of
fourteen years to convicts of heinous crimes. That a
further question arises, as to whether, the victims
of such crimes must be heard and due
Writ Petition (Crl.) No.491 of 2022 Etc. Page 65 of 251
consideration given to their vulnerability prior to the
grant of remission. 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
Writ Petition (Crl.) No.491 of 2022 Etc. Page 66 of 251
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
prisoners who had committed crimes against
women and were sentenced to life imprisonment
was upheld by this Court considering the nature of
the offences.
(viii) that the Executive is bound not merely by
provisions of the CrPC but also by the overarching
spirit of the Constitution that seeks to promote the
upliftment of women, children, and minorities and
to protect these groups from further vulnerability
and marginalization. That the policies and actions
of the State must be guided by this vision.
(ix) that, in accordance with the aforementioned
constitutional principles, grant of remission to
those persons sentenced to life imprisonment and
accused of crimes under the Scheduled Castes and
Schedules Tribes (Prevention of Atrocities) Act, the
Explosive Substances Act and the Indian Arms Act,
Writ Petition (Crl.) No.491 of 2022 Etc. Page 67 of 251
as well as crimes against women under Sections
376 and 354 of the IPC must not be permissible.
Factors such as the opinion of the Presiding Judge,
public interest, potential for recidivism, impact on
the victims and on society and the nature of the
offence must be borne in mind by the State, as held
in Epuru Sudhakar, Sanaboina Satyanarayana
and Zahid Hussain vs. State of West Bengal,
2001 (3) SCC 750 (“Zahid Hussain”). That the
non-consideration of these factors proves the mala
fide, arbitrary and unreasonable manner in which
the impugned orders were passed.
(x) that the 1992 Policy of remission of the State of
Gujarat does not contain any substantive
guidelines pertaining to remission and merely deals
with procedural formalities. That the 2014 Policy is
thus the first instance at which categories of crimes
for which remission may not be granted was
outlined. As such, it is the 2014 Policy that would
apply to the question of remission for respondent
Nos.3 to 13.
Writ Petition (Crl.) No.491 of 2022 Etc. Page 68 of 251
(xi) that the grant of remission to the respondent Nos.3
to 13 is in violation of India’s obligations under
international law, specifically instruments such as
the International Covenant on Civil and Political
Rights and the Convention on the Elimination of All
Forms of Discrimination Against Women. That rape
was used as a tool of oppression by the perpetrators
and the victim in the instant case experienced
significant trauma as a consequence.
(xii) that the grant of remission in the instant case is in
violation of the obligation to prevent crimes against
humanity, which itself forms a part of the norm 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
Writ Petition (Crl.) No.491 of 2022 Etc. Page 69 of 251
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 of the relevant factors, but this was
completely disregarded by the respondent -State.
(ii) that a fine was imposed on each of the respondent-
convicts as a part of their sentence, amounting to
Rs. 34,000/- per person. That they had defaulted in
paying these fines and thus would be required to
undergo rigorous imprisonment for a further period
Writ Petition (Crl.) No.491 of 2022 Etc. Page 70 of 251
of 34 years. The Trial Court had clarified that these
sentences were substantive in nature and would
run concurrently. In this context, reliance was
placed on Sharad Kolambe and Shantilal.
(iii) reiterating the submissions regarding the remission
orders being arbitrary by virtue of non -
consideration of relevant factors, it was urged that
the criteria outlined in the decision of this Court in
Laxman Naskar were not considered at all.
Reliance was further placed on the decision of this
Court in Mohinder Singh, wherein it was held that
the decision to grant remission must be reasonable,
well-informed and fair. That non-application of
mind and the mechanical nature of the remission
orders utterly belie these principles.
(iv) that reference has only been made to four
documents, namely (1) the order of this Court dated
13.05.2022, (2) the letter of the Additional Director
General of Police and Inspector General of Prisons,
State of Gujarat at Ahmedabad, (3) the Department
Circular dated 09.07.1992 and (4) the letter of the
Ministry of Home Affairs, Government of India in the
Writ Petition (Crl.) No.491 of 2022 Etc. Page 71 of 251
impugned orders of remission. It was contended
that the non-consideration of determinative factors
has rendered the remission orders mechanical and
arbitrary, with reliance placed on what is described
as the untenable and unlawful en-masse approval
of the Central Government.
(v) that one of the criteria that is required to be
considered which was highlighted in Laxman
Naskar is the possibility of reformation and
recidivism. That these factors have been given no
consideration as there is no mention of the
respondent-convicts’ behavior while in prison, as
well as offences committed while out on
parole/furlough. That a case has been registered
against one of the respondent-convicts under
Sections 304, 306 and 354 IPC while on parole.
That a range of punishments were imposed on the
respondent-convicts in prison hence, the possibility
of recidivism cannot be entirely ruled out.
(vi) that there is a real and grave apprehension of
danger to the victim if the respondent-convicts are
released into society. This has been reflected in the
Writ Petition (Crl.) No.491 of 2022 Etc. Page 72 of 251
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 non-
speaking nature of the sanction granted by the
Central Government, merely conveys approval of
the premature release of the respondent-convicts,
Writ Petition (Crl.) No.491 of 2022 Etc. Page 73 of 251
which do not meet the requirement of ‘consultation’.
Reliance was again placed on Laxman Naskar.
(ix) further, the opinion of the Sessions Judge,
Panchmahal, Godhra is of a casual and perfunctory
character, that doesn’t pay heed to the heinous
nature of the crimes committed.
(x) it was further submitted that the remission orders
having thus been established as unreasoned,
untenable and vitiated by arbitrariness and mala
fides, there is a need for judicial intervention in the
same.
10. Learned counsel for the petitioner in Writ Petition (Crl.)
No.319 of 2022, Ms. Aparna Bhat submitted that the aforesaid writ
petition has been filed purely in the interest of the general public
and out of concern for the impact on society if the respondents-
convicts were released. That there is no political agenda behind the
filing of this writ petition by the petitioner, who is a member of a
national political party and an advocate for women’s rights.
11. Sri Mohammad Nizamuddin Pasha, learned counsel
appearing on behalf of the petitioner in Writ Petition (Crl.) No.403
of 2022 submitted that the cases which are at stages prior to
Writ Petition (Crl.) No.491 of 2022 Etc. Page 74 of 251
conviction. i.e., investigation and trial must be treated as being on
a different footing as guilt would not have been established and the
fair trial rights of the accused still subsisted. However, there is no
right to remission post-conviction as held in V. Sriharan. That it is
only upon conviction that the need for the accused to remain in
prison becomes a concern of the society. That all theories of
punishment, including those of retributivism and utilitarianism,
emphasize the impact on society as being of primary importance.
Reliance was placed on T.K. Gopal vs. State of Karnataka,
(2000) 6 SCC 168 (“T.K. Gopal”), Narinder Singh vs. State of
Punjab, (2014) 6 SCC 466 (“Narinder Singh”), Shailesh
Jasvantbhai vs. State of Gujarat, (2006) 2 SCC 359 (“Shailesh
Jasvantbhai”) and Ahmed Hussain Vali Mohammed Saiyed vs.
State of Gujarat, (2009) 7 SCC 254 (“Mohammed Saiyed”) .
12. Sri. S.V. Raju, learned Additional Solicitor General of India,
appearing on behalf of the State of Gujarat and Union of India, at
the outset submitted that the writ petitions filed by persons other
than the victim are not maintainable. That the said persons are
strangers and have no locus-standi to challenge the remission
orders passed by the State of Gujarat. The said petitioners are in no
way connected with the proceedings which convicted the
Writ Petition (Crl.) No.491 of 2022 Etc. Page 75 of 251
respondents herein nor the proceedings which culminated 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 Kuma r 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 in Writ Petition (Crl.) No.135 of 2022
Writ Petition (Crl.) No.491 of 2022 Etc. Page 76 of 251
vide judgment dated 13.05.2022 had held that the policy which
would be applicable for deciding the remission application was the
one which was in vogue at the time of conviction i.e., the premature
release policy of 1992 and that for the purposes of Section 432 of
the CrPC, the ‘appropriate government’ for considering the
remission application is that State in which the offence was
committed and not the State in which the trial was conducted and
therefore, had directed the State of Gujarat to consider the
application of respondent No.3, Radheshyam Bhagwandas Shah.
Accordingly, the respondent-State of Gujarat had considered the
application of the convict as per the procedure prescribed under
Section 432 of the CrPC read with Section 435 of the CrPC, along
with the Premature Release of Convicts Policy of 1992. The State
Government considered the cases of all eleven prisoners as per the
policy of 1992 and remission was granted on 10.08.2022.
12.3. That further, the Order(s) dated 10.08.2022 were passed
after duly considering the opinions expressed by Inspector General
of Prisons, Gujarat State; Jail Superintendent; Jail Advisory
Committee, District Magistrate; Superintendent of Police, CBI,
Special Crime Branch, Mumbai; and the Special Court, Mum bai
(CBI). That as per Section 435 of the CrPC, it is indispensable to
Writ Petition (Crl.) No.491 of 2022 Etc. Page 77 of 251
obtain the sanction of the Government of India in cases in which
the investigation of the offence was carried out by a central
investigation agency. In the present case, the investigation was
carried out by CBI, hence, the State Government obtained the
approval of Government of India.
12.4. It was next submitted that respondent Nos.3 to 13 had
completed more than fourteen years in custody, that their behaviour
had been good and the opinions of the concerned authorities had
been obtained as per the policy of 09.07.1992. The State
Government submitted the opinions of the concerned authorities to
the Ministry of Home Affairs, Government of India vide letter dated
28.06.2022 and sought the approval of the Government of India
which conveyed its concurrence/approval under Section 435 of the
CrPC for the premature release of eleven convicts vide letter dated
11.07.2022. Hence, after following the due procedure, Orders were
issued on 10.08.2022 to release the convicts which would not call
for any interference by this Court.
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
Writ Petition (Crl.) No.491 of 2022 Etc. Page 78 of 251
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 to the State
where the crime was committed and thus, the State of Gujarat was
the appropriate government for the purpose of Section 432(7) of the
CrPC.
12.7 It was submitted that the Orders dated 10.08.2022 were
passed by the Government of Gujarat after following the due
procedure laid down in this regard and on an application of mind.
Writ Petition (Crl.) No.491 of 2022 Etc. Page 79 of 251
Therefore, the same do not call for any interference by this Court in
these petitions.
13. Learned Counsel for respondent No.3, Sri Rishi Malhotra at
the outset attacked the maintainability of the writ petitions on the
ground that in substance, the petitions seek to challenge the
judgment of this Court dated 13.05.2022 in Writ Petition (Crl.)
No.135 of 2022; that the same is impermissible and is in the teeth
of the judgment of a Constitution Bench of this Court in Rupa
Ashok Hurra vs. Ashok Hurra , (2002) 4 SCC 388, (“Rupa Ashok
Hurra”) wherein it has been held that a writ petition assailing the
judgment or order of this Court after the dismissal of the Review
Petition is not maintainable. Thus, the only remedy, if any, available
to the petitioner-victim herein against the dismissal of the Review
Petition, is to file a Curative Petition as propounded by this Court in
the case of Rupa Ashok Hurra.
13.1. Sri Rishi Malhotra further submitted that in this proceeding
this Court cannot sit over the judgment passed by another co -
ordinate bench. It was further submitted that this Court by its
judgment dated 13.05.2022 was right in categorically directing the
State of Gujarat to consider the application for premature release of
respondent No.3 in terms of the policy dated 09.07.1992 which was
Writ Petition (Crl.) No.491 of 2022 Etc. Page 80 of 251
applicable on the date of conviction. That after duly taking into
account the fact that respondent No.3 had undergone over fifteen
years of imprisonment and that no objections were received from
the Jail Superintendent, Godhra and that nine out of ten members
of the Jail Advisory Committee had recommended his premature
release. That coupled with the aforesaid facts the Home Department
of the State of Gujarat as well as the Union Government had
recommended and approved the premature release of respondent
No.3. This clearly demonstrates that the remission order was
correct. Further, it is nowhere mentioned in the 1992 policy that all
stakeholders must give a unanimous opinion for the release of the
convict. All it says is that the State Government 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
Writ Petition (Crl.) No.491 of 2022 Etc. Page 81 of 251
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 was placed on the decision of this Court
in Rupa Ashok Hurra, wherein it was held that a writ petition
under Article 32 assailing a final judgment of this Court is not
maintainable. That since the Review Petition against the Order
dated 13.05.2022 has been dismissed by this Court, similar
contentions cannot be re-agitated in the guise of the present
writ petition. Reliance was also placed on the decision of this
Court in Naresh Shridhar Mirajkar vs. State of
Maharashtra, AIR 1967 SC 1 (“Naresh Shridhar
Mirajkar”), wherein it has been held that a writ shall not lie
Writ Petition (Crl.) No.491 of 2022 Etc. Page 82 of 251
against an order of a Constitutional Court. It was thus
submitted that the order dated 13.05.2022 has attained finality
and cannot be questioned by way of a writ petition under
Article 32. Furthermore, in view of the Rules framed by this
Court, Order XLVIII thereof lays down how an order of this
Court can be questioned by means of a Curative Petition and
thus, a natural corollary is that the same cannot be done
through a writ petition.
ii) As regards the issue of appropriate government and
appropriate policy, learned senior counsel Sri Luthra
submitted that the said issues stood settled in view of this
Court’s Order dated 13.05.2022. The judgments of this Court
in Rashidul Jafar vs. State of U.P., 2022 SCC OnLine SC
1201 (“Rashidul Jafar”); State of Haryana vs. Raj Kumar,
(2021) 9 SCC 292 (“Raj Kumar”) and Hitesh vs. State of
Gujarat (Writ Petition (Crl.) No.467/2022) (“Hitesh”) were
pressed into service wherein it had been held that the policy as
on the date of conviction would apply, and therefore, the 1992
Policy of the State of Gujarat will apply for the grant of
remission in the present case.
iii) Learned senior counsel thereafter raised the plea that in India,
a reformative/rehabilitative and penal sentencing policy is
Writ Petition (Crl.) No.491 of 2022 Etc. Page 83 of 251
followed and not one which is punitive in nature. The same was
reiterated when the Model Prison Act, 2023 was finalized which
aims at “reforming prison management and ensuring the
transformation of inmates into law-abiding citizens and their
rehabilitation in society.” Furthermore, in the case of Vinter vs.
The United Kingdom (Applications Nos.66069/09, 130/10
and 3896/10), (2016) III ECHR 317 (“Vinter “) in the context
of rehabilitation and reformation it was held by the European
Court of Human Rights that, “Moreover, if such a person is
incarcerated without any prospect 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.
Writ Petition (Crl.) No.491 of 2022 Etc. Page 84 of 251
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 offence but neither the High Court nor
this Court chose to exercise the said power to incarcerate the
private respondents herein for a duration which was non-
remittable. This shows that the aforesaid argument advanced
by the petitioner is only a red herring.
vi) It was emphasized that an order of remission passed by an
authority merely affects the execution of the sentence, without
interfering with the sentence passed by the Court. Therefore,
since the matter has already attained finality, it is not possible
to question the validity of such an order on factual grounds
alone, such as, the nature of crime, impact on society and
society’s cry for justice.
vii) Learned senior counsel submitted that the mere fact that fine
had not been paid or that there was a default in payment of the
fine imposed does not impact the exercise of the power of
Writ Petition (Crl.) No.491 of 2022 Etc. Page 85 of 251
remission. The sentence is something which an offender must
undergo unless it is set aside or remitted in part or in whole
either in appeal, or in revision, or in other appropriate judicial
proceedings or ‘otherwise’, whereas, a term of imprisonment
ordered in default of payment of fine stands on a different
footing vide Shantilal; Abdul Gani vs. State of Madhya
Pradesh, (1950) SCC OnLine MP 119 (“Abdul Gani”) and
Shahejadkham Mahebubkham Pathan vs. State of
Gujarat, (2013) 1 SCC 570 (“Shahejadkham
Mahebubkham Pathan”) . Further, reliance was placed on
Sharad Kolambe, wherein it was observed by this Court that,
“If the term of imprisonment in default of payment of fine is a
penalty which a person incurs on account of non-payment of fine
and is not a sentence in strict sense, imposition of such default
sentence is completely different and qualitatively distinct from a
substantive sentence.”
15. Learned senior counsel appearing for respondent No.7 Mrs.
Sonia Mathur, while adopting the submissions of other senior
counsel further contended as under:
Writ Petition (Crl.) No.491 of 2022 Etc. Page 86 of 251
15.1. That as per Section 432 (7)(b) of the CrPC and the judicial
precedent set in Radheshyam Bhagwandas Shah , the
appropriate government would be the State of Gujarat. The said
judgment has attained finality as the Review Petition filed against
the said judgment was dismissed by this Court on 13.12.2022.
Thus, the said judgment must be followed for the sake of judicial
propriety.
15.2. As to the nature of the requirement under Section 432 (2) of
the CrPC, i.e., whether mandatory 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
Writ Petition (Crl.) No.491 of 2022 Etc. Page 87 of 251
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 submissions, it was prayed that these writ
petitions be dismissed.
Reply Arguments:
16. Ms. Shobha Gupta, learned counsel for the petitioner-victim
submitted in her rejoinder on the point that the writ petition was
maintainable under Article 32 of the Constitution as follows:
(i) that the order of grant of remission being an
administrative order, there was neither a statutory
nor substantive right of appeal available to the
aggrieved parties. The only remedy available was to
file a writ petition under Article 226 of the
Constitution before the High Court of Gujarat, or to
file a writ petition before this Court under Article 32
of the Constitution.
Writ Petition (Crl.) No.491 of 2022 Etc. Page 88 of 251
(ii) that this Court has on multiple occasions entertained
writ petitions under Article 32 of the Constitution in
those cases where there existed a “gross violation of
fundamental rights”, or when an executive or
administrative decision “shocked the conscience of
the public, the nation or of this Court”. In this context,
reliance was placed on the judgments of this Court in
Epuru Sudhakar ; Satpal vs. State of Haryana,
(2000) 5 SCC 170 (“Satpal”) and Mohammed Ishaq
vs. S. Kazam Pasha, (2009) 12 SCC 748
(“Mohammed Ishaq”). It was submitted that a similar
issue of maintainability arose in Mohammed Ishaq ,
wherein this Court observed that the mere existence
of an alternative remedy in the form of Article 226 does
not preclude an aggrieved person from approaching
this Court directly under Article 32. The rule requiring
the exhaustion of alternative remedies was described
as being one of “convenience and discretion” as
opposed to being absolute or inflexible in nature.
(iii) that this Court had in the past entertained writ
petitions under Article 32 filed by convicts seeking
intervention in matters of premature release or the
Writ Petition (Crl.) No.491 of 2022 Etc. Page 89 of 251
issuance of appropriate directions. Reliance was
placed on the judgments in Ram Chander, Laxman
Naskar and Rajan.
(iv) that this Court had earlier entertained a writ petition
filed by none other than respondent No.3 himself and
no question was raised as to the maintainability of
that writ petition. All of the other private respondents
are beneficiaries of the order dated 13.05.2022 passed
by this Court in the aforesaid writ petition. It is thus
incongruous to raise the objection of maintainability
only against the writ petition filed by the petitioner-
victim. That the petitioner-victim was 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.
Writ Petition (Crl.) No.491 of 2022 Etc. Page 90 of 251
(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 challenge to the maintainability of this writ
petition is fallacious in the context of the specific
argument raised by respondent Nos.1 and 2, namely,
that the direction given by this Court as on
13.05.2022 was a mandate that was merely being
adhered to in the remission order and therefore the
same would not be open to challenge. That this further
exemplifies non-application of mind and a hasty and
Writ Petition (Crl.) No.491 of 2022 Etc. Page 91 of 251
mechanical manner of granting remission by
misrepresenting about the order dated 13.05.2022.
(vii) It was submitted that the ‘right to justice’ was
recognized as an indispensable human and
fundamental right in Anita Kushwaha vs. Pushap
Sudan, (2016) 8 SCC 509 (“Anita Kushwaha”), and
that this writ petition was maintainable on that basis
also.
In light of the aforementioned submissions, learned counsel
contended that the filing of a writ petition under Article 32 before
this Court is the most efficacious remedy available to the petitioner.
16.1. Reiterating her submissions regarding the non-consideration
of the negative opinions of the investigating agency, namely the CBI
as well as the Judge of the Special CBI Court, Mumbai, learned
counsel went on to refute the claim of the learned Additional
Solicitor-General that the relevant opinion would be that of the
Presiding Judge of the Godhra Court who was convinced of the
merits of grant of remission. That this contention of learned ASG
would contradict the plain language of Section 432(2) which
specifies that the Presiding Judge should have been the one who
awarded or confirmed the sentence. Reliance was again placed on
Writ Petition (Crl.) No.491 of 2022 Etc. Page 92 of 251
the judgments of this Court in Sangeet, Ram Chander and V.
Sriharan. Learned counsel further contended that the submission
of the learned ASG that the use of the word ‘may’ in Section 432(2)
would imply that there is no necessary requirement to seek the
opinion of the Presiding Judge is erroneous in light of the dictum of
this Court in V. Sriharan.
16.2. It was next contended that a letter dated 17.11.2021 was filed
along with the application dated 10.08.2022. The said letter by the
State of Gujarat addressed to the State of Maharashtra detailed that
the State of Gujarat possessed no powers of remission with respect
to respondent No.3 and that the appropriate government in this
respect would be the State of Maharashtra. Despite taking this view,
which is in accordance with the position of law laid 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 Solicitor-
General 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 counter-
Writ Petition (Crl.) No.491 of 2022 Etc. Page 93 of 251
affidavit 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 cannot be established as the State claimed to be not in
possession of and is entirely unaware of the same.
16.5. Learned counsel reiterated that the above facts reveal non-
application of mind and the mechanical manner in which the orders
of remission were passed in the instant case.
16.6. Learned counsel for the petitioners next submitted that on
30.08.2023, the fine amounts owed were deposited by respondent
Nos.3 to 13. That this is as an admission on their part of the non-
payment of fine. It was contended that they would ordinarily have
Writ Petition (Crl.) No.491 of 2022 Etc. Page 94 of 251
had to undergo a further period of six years of imprisonment. That
non-consideration of this fact further proves the non-application of
mind and a mechanical exercise of power by the State of Gujarat
and Union of India in granting remission.
16.7. Learned counsel went on to submit that in Writ Petition (Crl.)
No.135 of 2022 filed by respondent No.3, there was no mention of
material particulars, such as, the name of the petitioner-victim and
the nature of the crimes in question, i.e., gang rape and mass
murder in the petition. Also the fact that his application for grant
of remission before the State of Maharashtra had been negatively
opined by all the concerned authorities. That respondent No.3 did
not place on record the judgements and orders of the Trial Court,
High Court, and this Court that had upheld his conviction. That he
made “incorrect and misleading” statements with reference to the
orders of the Bombay High Court dated 05.08.2013 and Gujarat
High Court dated 17.07.2019, namely, that the two courts had
given differing opinions, and this fact played a role in this Court’s
decision-making while passing the order dated 13.05.2022.
Respondent No.3 made it seem like both High Courts were sending
him to the other State and that there was a contradiction. However,
the aforesaid order of the Bombay High Court was dealing with the
Writ Petition (Crl.) No.491 of 2022 Etc. Page 95 of 251
transfer of convicts to another jail in their parent State and did not
discuss the issue of remission, which could not have arisen in the
year 2013.
16.8. It was reiterated that the investigating agency of the State of
Gujarat had filed a closure report stating that the accused persons
were not traceable. That the FIR contained erroneous recording of
facts merely to hinder the investigative process. That the case was
transferred by this Court to the State of Maharashtra as a
consequence of the tainted 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
Writ Petition (Crl.) No.491 of 2022 Etc. Page 96 of 251
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
petitioner in Writ Petition (Crl.) No.326 of 2022 in her rejoinder at
the outset submitted that the State of Gujarat does not have a policy
of any kind for the release of prisoners under Section 432 of the
CrPC. That the 1992 Policy merely outlines the procedure to be
followed when releasing convicts on remission. That the State must
abide by the law laid down by this Court as well as the
constitutional mandate to protect the fundamental rights of women,
particularly when they are victims of sexual violence in relation to
ethnic conflict.
17.1 Further, it was contended that the State of Gujarat is not the
appropriate government and therefore the order of this Court dated
13.05.2022 is per incuriam by virtue of failing to follow the binding
precedent in V. Sriharan. That the impugning of the order of the
Gujarat High Court that held the State of Maharashtra to be the
Writ Petition (Crl.) No.491 of 2022 Etc. Page 97 of 251
appropriate Government in Writ Petition (Crl.) No.135 of 2022, filed
by respondent No.3, is completely contrary to the position of law
laid down in Naresh Shridhar Mirajkar, wherein it was held that
no writ petition alleging the violation of fundamental rights would
lie against the judgement or order of a court. That the respondent
No.3 committed fraud on this Court by misrepresenting the order
of the Bombay High Court dated 05.08.2013 in Writ Petition (Crl.)
No.135 of 2022. That the question of two High C ourts taking
“dramatically different views” did not arise as the issue of
appropriate Government was not in question before the Bombay
High Court at all. That this amounts to suppressio veri, expression
falsi. That this Court in Union of India vs. Ramesh Gandhi ,
(2012) 1 SCC 476 (“Ramesh Gandhi”), has held that any
judgement that is a consequence of misrepresentation of necessary
facts would constitute fraud and would be treated as a nullity. That
this error of the Court cannot lead to the deprivation of justice to
the victims. While the criminal justice system must strive to adopt
a reformative approach, proportionality of sentence must be treated
as an equally important ideal. Reliance was placed on the
judgements of this Court in Alister Anthony Pareira vs. State of
Maharashtra, (2012) 2 SCC 648 (“Alister Anthony Pareira”),
Writ Petition (Crl.) No.491 of 2022 Etc. Page 98 of 251
Ravji vs. State of Rajasthan, (1996) 2 SCC 175 (“Ravji”) and
Soman vs. State of Kerala, (2013) 11 SCC 382 (“Soman”).
18. Ms. Vrinda Grover, learned counsel for the petitioner 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.
Writ Petition (Crl.) No.491 of 2022 Etc. Page 99 of 251
Also fresh cases have been registered against two of the
respondents, and this serves as proof of their non-reformation.
18.2. It was also contended that reliance cannot be placed on
documents, such as, letter dated 09.07.2022 of the C.B.I, wherein
an affirmative opinion on remission was expressed as well as a letter
produced by respondent No.3 containing the affirmative opinion of
the Special Judge (C.B.I), Civil and Sessions Court, Mumbai as
these documents have not been listed among the documents relied
upon by the State of Gujarat while granting remission to the
respondent Nos.3 to 13.
19. Ms. Aparna Bhat, learned counsel for the petitioner in Writ
Petition (Crl.) No.319 of 2022 in her rejoinder submitted that the
remission granted by the State of Gujarat to respondent Nos.3 to
13 was violative of Article 14 of the Constitution of India. That
prison statistics from the year 2021 reveal that 66.7% of the
convicts in Gujarat are undergoing life imprisonment, at least a
fraction of whom have completed fourteen years of incarceration.
That no special case has been made out either by the State of
Gujarat or the Union of India as to why respondent Nos.3 to 13 are
singularly entitled to remission over all of the other convicts.
Reliance was placed on judgements in S. G. Jaisinghani vs. Union
Writ Petition (Crl.) No.491 of 2022 Etc. Page 100 of 251
of India, AIR 1967 SC 1427 (“S. G. Jaisinghani”) and E.P.
Royappa vs. State of T.N., (1974) 4 SCC 3 (“E.P. Royappa”),
wherein this Court held that arbitrary and mala fide exercise of
power by the State would constitute a violation of Article 14 of the
Constitution. That discretionary and en-masse remission on festive
occasions was held to be impermissible in the case of Sangeet.
19.1. It was further submitted that there is no right to remission
that a convict can necessarily avail. That remission must be an
exercise of discretion judiciously by the concerned authorities.
Reliance was placed on the judgments of this Court in Sangeet, V.
Sriharan, State of Haryana vs. Mahender Singh, (2007) 13 SCC
606 (“Mahender Singh”); Mohinder Singh, Maru Ram and Shri
Bhagwan vs. State of Rajasthan, (2001) 6 SCC 296 (“Shri
Bhagwan”).
20. Mr. Mohammad Nizamuddin Pasha, learned counsel for the
petitioner in Writ Petition (Crl.) No.403 of 2022 reiterated the
contention that materials not relied upon by the State of Gujarat
while deciding on the question of remission for respondent Nos.3 to
13 cannot be used to justify the decision retrospectively. Reliance
was placed on the decision of this Court in OPTO Circuit India
Ltd. vs. Axis Bank, (2021) 6 SCC 707 (“OPTO Circuit”). That
Writ Petition (Crl.) No.491 of 2022 Etc. Page 101 of 251
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 Interest
Litigation (PIL) assailing the impugned orders of
remission dated 10.08.2022 are maintainable?
Writ Petition (Crl.) No.491 of 2022 Etc. Page 102 of 251
3) Whether the Government of the State of Gujarat was
competent to pass the impugned orders of remission?
4) Whether the impugned orders of remission passed by
the respondent-State of Gujarat in favour of
respondent Nos.3 to 13 are in accordance with law?
5) What Order?
The aforesaid points shall be considered in seriatim.
A detailed narration of facts and contentions would not call for
reiteration at this stage.
Re: Point No.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?”
22. Sri Rishi Malhotra, learned counsel for respondent No.3, while
placing reliance on the decisions of this Court, made a specific plea
regarding maintainability of Writ Petition (Crl.) No.491 of 2022 filed
by the victim by contending that the said petitioner had filed a
review petition challenging the order dated 13.05.2022 passed in
Writ Petition (Crl.) No.135 of 2022 and the same was dismissed.
Therefore, the only remedy open to the petitioner was to file a
curative petition in terms of the judgment of this Court in Rupa
Ashok Hurrah and not challenging the remission orders by filing a
Writ Petition (Crl.) No.491 of 2022 Etc. Page 103 of 251
fresh writ petition. We shall answer this contention in detail while
considering point No.3.
22.1. One of the contentions raised by learned Senior Counsel, Sri
S. Guru Krishna Kumar appearing for one of the private
respondents was that the petitioner in Writ Petition (Crl.) No.491 of
2022, Bilkis Bano, ought to have challenged the orders of remission
before the Gujarat High Court by filing a petition under Article 226
of the Constitution rather than invoking Article 32 of the
Constitution before this Court. In this regard, it was submitted that
by straightaway filing a petition under Article 32 of the Constitution
a right of approaching this Court by way of an appeal by an
aggrieved party has been lost. It was submitted that if victims file
petitions under Article 32 of the Constitution before this Court
challenging orders of remission, floodgates would be opened and
persons such as the petitioner would straightaway file writ petitions
before this Court. That when an alternative remedy of filing a writ
petition under Article 226 of the Constitution is available which is
also a wider remedy than 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.
Writ Petition (Crl.) No.491 of 2022 Etc. Page 104 of 251
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 the
Constitution, which speak of justice, liberty, equality and fraternity.
Bearing in mind the expanded notion of access to justice which also
includes speedy remedy, we think that the petition filed by the
petitioner in Writ Petition (Crl.) No.491 of 2022 cannot be dismissed
on the ground of availability of an alternative remedy under Article
Writ Petition (Crl.) No.491 of 2022 Etc. Page 105 of 251
226 of the Constitution or on the ground of its maintainability
under Article 32 of the Constitution before this Court.
22.3. There is another stronger reason as to why the said petitioner
has approached this Court by filing a petition under Article 32 of
the Constitution rather than invoking Article 226 of the
Constitution before the High Court. That is because earlier, one of
the respondents, namely, r espondent No.3 Radheshyam
Bhagwandas Shah had preferred Writ Petition (Crl.) No.135 of 2022
invoking Article 32 of the Constitution before this Court by seeking
a direction to the State of Gujarat to consider his case for remission
under the Policy of 1992. This Court issued a categorical direction
to that effect. In fact, the respondent-State has understood the said
direction as if it was a command or a direction to grant remission
within a period of two months. But, before this Court in the said
proceedings, one of the serious contentions raised by the State of
Gujarat was that it was not the appropriate Government to grant
remission which contention was negatived by the order dated
13.05.2022. In fact, that is one of the grounds raised by the
petitioner victim to assail the orders of remission granted to
respondent Nos.3 to 13. That being so, the High Court of Gujarat
would not have been in a position to entertain the aforesaid
Writ Petition (Crl.) No.491 of 2022 Etc. Page 106 of 251
contention in view of the categorical direction issued by this Court
in Writ Petition (Crl.) No.491 of 2022 disposed on 13.05.2022. In
the teeth of the aforesaid order of this Court, the contention
regarding the State of Gujarat not being the competent State to
consider the validity of the orders of remission in a petition filed
under Article 226 of the Constitution, particularly, when the
question of competency was raised, could not have been dealt with
by the Gujarat High Court on the principle of judicial propriety.
Therefore, for this reason also the petitioner in Writ Petition (Crl.)
No.135 of 2022 has, in our view, rightly approached this Court
challenging the orders of remission. The 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.
Writ Petition (Crl.) No.491 of 2022 Etc. Page 107 of 251
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 the public interest litigation are
interlopers and busybodies and are not persons who are aggrieved.
In the aforesaid context, reliance was placed on M.V. Dabholkar
and Jasbhai Motibhai.
23.2. Shri Sidharth Luthra, learned senior counsel has also voiced
the arguments of the respondents by referring to certain decisions
of this Court while contending that the grant of remission is in the
exclusive domain of the State and although no convict can seek
remission as a matter of fundamental right has nevertheless the
right to be considered for remission. That remission is a matter
between the convict and the State and, therefore, there can be no
third party inference in such a matter. The detailed submissions of
Writ Petition (Crl.) No.491 of 2022 Etc. Page 108 of 251
the learned counsel have already been adverted to above and,
therefore, it is unnecessary to reproduce the same once again.
23.3. Respondent No.3 has challenged the locus of the petitioners
in Writ Petition (Crl.) No.319 of 2022 and connected writ petitions
and contended that the petitioners therein are not related to the
said case and are third-party/strangers to the case. If petitions filed
by third- party strangers are entertained by this Court, then it
would unsettle the settled position of law and would open floodgates
for litigation. Learned counsel for respondent No.3 Sri Rishi
Malhotra placed reliance on the decision of this Court in Janata
Dal vs. H.S. Chowdhary, (1992) 4 SCC 305 (“Janata Dal”) which
was reiterated and followed in Simranjit Singh and in
Subramanian Swamy vs. Raju, (2013) 10 SCC 465
(“Subramanian Swamy ”) where it has consistently been held that
a third party, who is a total stranger to the prosecution has no 'locus
standi' in criminal matters and has no right whatsoever to file a
petition under Article 32.
23.4. In Simranjit Singh, this Court was faced with the situation
where a conviction of some of the accused persons by this Court
under the Terrorist and Disruptive Activities (Prevention) Act,
(TADA Act) was sought to be challenged under Article 32 of the
Writ Petition (Crl.) No.491 of 2022 Etc. Page 109 of 251
Constitution by the President of the Akali Dal (M), namely, Simranjit
Singh Mann which was dismissed. In paragraph 5 of the judgment
in Simranjit Singh, this Court categorically dealt with the said
issue and held that the petition under Article 32 of the Constitution
was not maintainable for the simple reason that the petitioner
therein did not seek to enforce any of 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,
Writ Petition (Crl.) No.491 of 2022 Etc. Page 110 of 251
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 the
impugned decision of granting remission to the convicts violates
rule of law, is arbitrary and not based on any relevant
consideration. Therefore, the writ petition filed by the petitioner in
public interest is maintainable. In this regard reliance was placed
on S.P. Gupta.
24.2. As regards respondents’ contention that by entertaining the
petition under Article 32 of the Constitution the convicts have been
denied the right of appeal, it was submitted that there exists no
statutory right of appeal against an order denying or permitting
remission. Such an order can only be challenged under Article 226
or Article 32 of the Constitution. Further, a Constitution Bench of
this Court in Kochuni observed that, “…the mere existence of an
adequate alternative remedy cannot per se be a good and sufficient
ground for throwing out a petition under Article 32, if the existence
of a fundamental right and a breach, actual or threatened, of such
right is alleged and is prima facie established on the petition.”
Writ Petition (Crl.) No.491 of 2022 Etc. Page 111 of 251
24.3. As regards the respondents’ submission that a stranger to the
criminal proceedings under any circumstance cannot file a petition
under Article 32, it was contended that the instant proceedings are
not criminal in nature, they fall within the realm of administrative
law as they seek to challenge orders of remission which are
administrative decisions. Learned senior counsel brought to our
notice the fact that this Court had entertained a petition filed by a
DMK leader under Section 406 of the CrPC seeking the transfer of
a pending criminal trial against his political opponent, J.
Jayalalithaa, from the State of Tamil Nadu to the State of Karnataka
vide K. Anbazhagan.
25. Ms. Vrinda Grover, learned counsel for the petitioner in Writ
Petition (Crl.) No.352 of 2022, at the outset, submitted that the said
petition has been filed in the larger public interest by the petitioners
who have vast knowledge and practical expertise on issues of public
policy, governance and upholding the rule of law. Their petition
challenges not only the arbitrary and mala fide exercise of executive
prerogative under Section 432 of the CrPC, but also prays for a shift
in practices related to the grant of remission by bringing in more
accountability and transparency to the process of grant of
Writ Petition (Crl.) No.491 of 2022 Etc. Page 112 of 251
remission. Thus, the writ petition is maintainable as a Public
Interest Litigation.
25.1. Learned 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.
Writ Petition (Crl.) No.491 of 2022 Etc. Page 113 of 251
25.3. Learned counsel submitted that it is trite that the exercise of
executive discretion is subject to rule of law and fairness in State
action as embodied in Article 14 of the Constitution. The exercise of
such discretion under Section 432 of the CrPC which is arbitrary or
mala fide amounts to State action in violation of constitutional and
statutory obligations and is detrimental to public interest. Learned
counsel placed reliance on the decision of this Court in S. P. Gupta
to submit that this Court has in many cases held that in case of
public injury caused by an act or omission of the State which is
contrary to the rule of law, any member of the public acting bona
fide can maintain an action for redressal of a public wrong. In the
case at hand, the mala fide and arbitrary grant of premature release
to the respondents-convicts by State action is de hors constitutional
mandate and abets immunity for violence against women. ( Vide
Sheonandan Paswan vs. State of Bihar, (1987) 1 SCC 288
(“Sheonandan Paswan”) and Abdul Wahab K. vs. State of
Kerala, (2018) 18 SCC 448 (“Abdul Wahab”).
25.4. Learned counsel next submitted that this Court in
Subramanian Swamy, while adjudicating on the locus of a public-
spirited intervenor in a case requiring interpretation of the Juvenile
Justice (Care and Protection of Children) Act, 2015, held that the
Writ Petition (Crl.) No.491 of 2022 Etc. Page 114 of 251
intervenor had sought an interpretation of criminal law which
would have a wide implication beyond the scope of the parties in
that case and hence, allowed the same. Thus, when larger questions
of law are involved, which include interpretation of statutory
provisions for the purpose of grant of premature release/remission,
public-spirited persons who approach the Court in a bona fide
manner, ought not to be prevented from assisting the Court to
arrive at a just and fair outcome.
25.5. Learned counsel Ms. Grover further submitted that in cases
where offences have shocked the conscience of the society, spread
fear and alarm amongst citizens and have impugned on the secular
fabric of society, like in the instant case, this Court has allowed
interventions by members of the public seeking to bring to the
attention of the Court the inaction and apathy on the part of the
State in discharging its duty within the criminal justice system. It
has been held in some cases that the technical rule of locus cannot
shield the arbitrary and illegal exercise of executive discretion in
violation of constitutional and statutory principles, once the same
have been brought to the attention of this Court.
26. Learned counsel for the petitioner in Writ Petition (Crl.)
No.319 of 2022, Smt. Aparna Bhat submitted that the petitioner
Writ Petition (Crl.) No.491 of 2022 Etc. Page 115 of 251
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 held that if a citizen can set the
machinery of criminal law in motion, she is also entitled to oppose
the unwarranted withdrawal of prosecution in an offence against
society.
Writ Petition (Crl.) No.491 of 2022 Etc. Page 116 of 251
26.2. Learned counsel further placed reliance on the dictum of this
Court in Manohar Lal vs. Vinesh Anand, (2001) 5 SCC 407 ,
wherein it was held that the doctrine of locus standi is totally foreign
to criminal jurisprudence and that society cannot afford to have a
criminal escape his liability. Also, in Ratanlal vs. Prahlad Jat,
(2017) 9 SCC 340, this Court held that a crime is not merely an
offence committed in relation to an individual but is also an offence
against society at large and it is the duty of the State to punish the
offender.
27. Although, we have recorded the detailed submissions made
on behalf of the respective parties, we do not think it is necessary
to answer the point regarding maintainability of the PILs in this case
inasmuch as one of the victims, namely, Bilkis Bano has also filed
a writ petition invoking Article 32 of the Constitution assailing the
orders of remission which we have held to be maintainable. The
consideration of that petition on its merits would suffice in the
instant case. Hence, we are of the view that the question of
maintainability of the PILs challenging the orders of remission in
the instant case would not call for an answer from us owing to the
aforesaid reason. As a result, we hold that consideration of the point
on the maintainability of the PILs has been rendered wholly
academic and not requiring an answer in this case. Therefore, the
Writ Petition (Crl.) No.491 of 2022 Etc. Page 117 of 251
question regarding maintainability of a PIL challenging orders of
remission is kept open to be considered in any other appropriate
case.
28. Before we consider point No.3, we shall deal with the concept
of remission.
Remission : Scope & Ambit
29. Krishna Iyer, J. in Mohammad Giasuddin vs. State of A.P.,
(1997) 3 SCC 287 , quoted George Bernard Shaw the famous
satirist who said, “If you are to punish a man retributively, you must
injure him. If you are to reform him, you must improve him and, men
are not improved by injuries.” According to him, humanity today
views sentencing as a process of reshaping a person who has
deteriorated into criminality and the modern community has a
primary stake in the rehabilitation of the offender as a means of
social defence.
29.1. Further, quoting a British Buddhist-Christian 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
Writ Petition (Crl.) No.491 of 2022 Etc. Page 118 of 251
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. Article 161
states that the Government of a State shall have the power to grant
pardons, reprieves, respites or remissions of punishment or to
suspend, remit or commute the sentence of any person convicted of
any offence against any law relating to a matter to which the
executive power of the State extends. It was observed in the said
judgment that the powers under Articles 72 and 161 of the
Writ Petition (Crl.) No.491 of 2022 Etc. Page 119 of 251
Constitution of India are absolute and cannot be fettered by any
statutory provision, such as, Sections 432, 433 or 433-A of the
CrPC or by any prison rule.
30.1. It was further observed that a pardon is an act of grace,
proceeding from the power entrusted with the execution of the law,
which exempts the individual on whom it is bestowed from the
punishment the law inflicts for a crime he has committed. It affects
both the punishment prescribed for the offence and the guilt of the
offender. But pardon has to be distinguished from “amnesty” which
is defined as a “general pardon of political prisoners; an act of
oblivion”. An amnesty would result in the release of the convict but
does not affect disqualification incurred, if any. ‘Reprieve’ means a
stay of execution of a sentence, a postponement of a capital
sentence. Respite means awarding a lesser sentence instead of the
penalty prescribed in view of the fact that the accused has had no
previous conviction. It is something like a release on probation for
good conduct under Section 360 of the CrPC. On the other hand,
remission is reduction of a sentence without changing its character.
In the case of a remission, the guilt of the offender is not affected,
nor is the sentence of the court, except in the sense that the person
concerned does not suffer incarceration for the entire period of the
Writ Petition (Crl.) No.491 of 2022 Etc. Page 120 of 251
sentence, but is relieved from serving out a part of it. Commutation
is change of a sentence to a lighter sentence of a different kind.
Section 432 empowers the appropriate Government to suspend or
remit sentences.
30.2. Further, a remission of sentence does not mean acquittal and
an aggrieved party has every right to vindicate himself or herself.
In this context, reliance was placed on Sarat Chandra Rabha vs.
Khagendranath Nath, AIR 1961 SC 334 (“Sarat Chandra
Rabha”), wherein a Constitution Bench of this Court while
distinguishing between a pardon and a remission observed that an
order of remission does not wipe out the offence; it also 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.
Writ Petition (Crl.) No.491 of 2022 Etc. Page 121 of 251
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 Mahender Singh, to urge that a right
to be considered for remission, keeping in view the constitutional
safeguards of a convict under Articles 20 and 21 of the Constitution
of India, must be held to be a legal one. Such a legal right emanates
from not only the Prisons Act but also from the Rules framed
thereunder. Although no convict can be said to have any
constitutional right for obtaining remission in his sentence, the
policy decision itself must be held to have conferred a right to be
considered therefor. Whether by reason of a statutory rule or
otherwise if a policy decision has been laid down, the persons who
come within the purview thereof are entitled to be treated equally,
vide State of Mysore vs. H. Srinivasmurthy, (1976) 1 SCC 817
(“H. Srinivasmurthy”).
Writ Petition (Crl.) No.491 of 2022 Etc. Page 122 of 251
30.4. In Mahender Singh , this Court was considering the
correctness of a judgment of the Punjab and Haryana High Court
in which a circular/letter issued by the State of Haryana laying
down criteria for premature release of the prisoners had been
declared to be unconstitutional. In the above context, this Court
considered the right of the convict to be considered for remission
and not on what should be the criteria when the matter was taken
up for grant thereof.
30.5. Satish was pressed into service to contend that the length of
the sentence or the gravity of the original crime cannot be the sole
basis for refusing premature release. Any assessment regarding a
predilection to commit crime upon release must be based on
antecedents as well as conduct of the prisoner while in jail, and not
merely on his age or apprehensions of the victims and witnesses. It
was observed that although, a convict cannot claim remission as a
matter of right, once a law has been made by the appropriat e
legislature, it is not open for the executive authorities to
surreptitiously subvert its mandate. It was further observed that
where the authorities are found to have failed to discharge their
statutory obligations despite judicial directions, it would then not
be inappropriate for a constitutional court while exercising its
Writ Petition (Crl.) No.491 of 2022 Etc. Page 123 of 251
powers of judicial review to assume such task onto itself and direct
compliance through a writ of mandamus. Considering that the
petitioners therein had served nearly two decades of incarceration
and had thus suffered the consequences of their actions, a balance
between individual and societal welfare was 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 prisoner s 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
Writ Petition (Crl.) No.491 of 2022 Etc. Page 124 of 251
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 quantification of a sentence of uncertain
duration.
(i) Referring to Gopal Vinayak Godse vs. State of
Maharashtra, (1961) 3 SCR 440 , it was observed that the
said judgment is an authority for the proposition that a
sentence of imprisonment for life is one of “imprisonment for
the whole of the remaining period of the convicted person’s
natural life”, unless the said sentence is committed or remitted
by an appropriate authority under the relevant provisions of
law.
(ii) In Gopal Vinayak Godse , a distinction was drawn between
remission, sentence and life sentence. Remission limited a
time, helps computation but does not ipso jure operate as
release of the prisoner. But, when the sentence awarded by the
Judge is for a fixed term, the effect of remissions may be to
scale down the term to be endured and reduce it to nil, while
leaving the factum and quantum of sentence intact. However,
when the sentence is a life sentence, remissions, quantified in
Writ Petition (Crl.) No.491 of 2022 Etc. Page 125 of 251
time, cannot reach a point of zero. Since Section 433-A deals
only with life sentences, remissions cannot entitle a prisoner to
release. It was further observed that remission, in the case of
life imprisonment, ripens into a reduction of sentence of the
entire balance only when a final release order is made. If
this is not done, the prisoner will continue in custody. The
reason is, that life sentence is nothing less than life long
imprisonment and remission vests no right to release when the
sentence is life imprisonment. Nor is any vested right to
remission cancelled by compulsory fourteen years jail life as a
life sentence is a sentence for whole life.
(iii) Interpreting Section 433-A it was observed that there are three
components in it which is in the nature of saving clause.
Firstly, the CrPC generally governs matters covered by it.
Secondly, if a special or local law exists covering the same area,
the latter law will be saved and will prevail, such as short
sentencing measures and remission schemes promulgated by
various States. The third component is, if there is a specific
provision to the contrary then, whether it would override the
special or local law. It was held that Section 433-A picks out
of a mass of imprisonment cases a specific class of life
imprisonment cases and subjects it explicitly to a
Writ Petition (Crl.) No.491 of 2022 Etc. Page 126 of 251
particularized treatment. Therefore, Section 433-A applies in
preference to any special or local law. This is because 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 433-
A 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.
Writ Petition (Crl.) No.491 of 2022 Etc. Page 127 of 251
While holding that the deterrent form of punishment may
not be a most suitable or ideal form of punishment yet, the fact
remains that the deterrent punishment prevents occurrence of
offence. He further observed that Section 433-A is actually
asocial piece of legislation which by one stroke seeks to
prevent dangerous criminals from repeating offences and on
the other hand protects the society from harm and distress
caused to innocent persons. While opining that where section
433-A applies, no question of reduction of sentence arises at
all unless the President of India or the Governor of a State
choose to exercise their wide powers under Article 72 or Article
161 of the Constitution respectively which also have to be
exercised according to sound legal principles as, any reduction
or modification in the deterrent punishment would, far from
reforming the criminal, be counter-productive.
(b) Mohinder Singh is a case which arose under Section 432 on
remission of sentence in which the difference between the terms
`bail’, `furlough’ and `parole’ having different connotations were
discussed. It was observed that furloughs are variously known as
temporary leaves, home visits or temporary community release and
are usually granted when a convict is suddenly faced with a severe
Writ Petition (Crl.) No.491 of 2022 Etc. Page 128 of 251
family crisis such as death or grave illness in the immediate family
and often the convict/inmate is accompanied by an officer as part
of the terms of temporary release of special leave which is granted
to a prisoner facing a family crisis. Parole is a release of a prisoner
temporarily for a special purpose or completely before the expiry of
the sentence or on promise of good behaviour. Conditional release
from imprisonment is to entitle a convict to serve remainder of his
term outside the confines of an institution on his satisfactorily
complying all terms and conditions provided in the parole order.
(c) In Poonam Latha vs. M.L. Wadhwan, (1987) 3 SCC 347
(“Poonam Latha”), it was observed that parole is a professional
release from confinement but it is deemed to be part of
imprisonment. Release on parole is a wing of reformative process
and is expected to provide opportunity to the prisoner to transform
himself into a useful citizen. Parole is thus, a grant of partial liberty
or lessening of restrictions to a convict prisoner but release on
parole does not change the status of the prisoner. When a prisoner
is undergoing sentence and confined in jail or is 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
Writ Petition (Crl.) No.491 of 2022 Etc. Page 129 of 251
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 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.
(3) If any condition on which a sentence has been
suspended or remitted is, in the opinion of the appropriate
Government, not fulfilled, the appropriate Government
may cancel the suspension or remission, and thereupon
the person in whose favour the sentenc e has been
suspended or remitted may, if at large, be arrested by any
police officer, without warrant and remanded to undergo
the unexpired portion of the sentence.
Writ Petition (Crl.) No.491 of 2022 Etc. Page 130 of 251
(4) The condition on which a sentence is suspended or
remitted under this section may be one to be fulfilled by
the person in whose favour the sentence is suspended or
remitted, or one independent of his will.
(5) The appropriate Government may, by general rules
or special orders, give directions as to the suspension of
sentences and the conditions on which petitions should be
presented and dealt with:
Provided that in the case of any sentence (other than a
sentence of fine) passed on a male person above the age of
eighteen years, no such petition by the person sentenced
or by any other person on his behalf shall be entertained,
unless the person sentenced is in jail, and—
(a) where such petition is made by the person sentenced,
it is presented through the officer in charge of the jail;
or
(b) where such petition is made by any other person, it
contains a declaration that the person sentenced is
in jail.
(6) The provisions of the above sub-sections shall also
apply to any order passed by a Criminal Court under any
section of this Code or of any other law which restricts the
liberty of any person or imposes any liability upon him or
his property.
(7) In this section and in Section 433, the expression
“appropriate Government” means,—
(a) in cases where the sentence is for an offence against,
or the order referred to in sub-section (6) is passed
under, any law relating to a matter to which the
executive power of the Union extends, the Central
Government;
(b) in other cases, the Government of the State within
which the offender is sentenced or the said order is
passed.
433. Power to commute sentence .— The appropriate
Government may, without the consent of the person
sentenced, commute—
Writ Petition (Crl.) No.491 of 2022 Etc. Page 131 of 251
(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 sentence is for an offence—
(a) which was investigated by the Delhi Special Police
Establishment constituted under the Delhi Special
Police Establishment Act, 1946 (25 of 1946), or by
any other agency empowered to make investigation
into an offence under any Central Act other than this
Code, or
(b) which involved the misappropriation or destruction
of, or damage to, any property belonging to the
Central Government, or
(c) which was committed by a person in the service of
the Central Government while acting or purporting
to act in the discharge of his official duty,
shall not be exercised by the State Government except
after consultation with the Central Government.
Writ Petition (Crl.) No.491 of 2022 Etc. Page 132 of 251
(2) No order of suspension, remission or commutation
of sentences passed by the State Government in relation
to a person, who has been convicted of offences, some of
which relate to matters to which the executive power of the
Union extends, and who has been sentenced to separate
terms of imprisonment which are to run concurrently,
shall have effect unless an order for the suspension,
remission or commutation, as the case may be, of such
sentences has also been made by the Central Government
in relation to the offences committed by such person with
regard to matters to which the executive power of the
Union extends.”
32.1. Sub-section (1) of Section 432 is an enabling provision which
states that when any person has been sentenced to punishment for
an offence, the appropriate Government may, at any time, without
conditions or upon any condition which the person sentenced
accepts, suspend the execution of his sentence or remit the whole
or any part of the punishment to which he has been sentenced. The
pertinent provision involved in this case is sub-section (2) which
deals with an application made to the appropriate Government for
the suspension or remission of a sentence and 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. Sub-section (3) deals with
Writ Petition (Crl.) No.491 of 2022 Etc. Page 133 of 251
cancellation of the suspension or remission in the event of there
being any non-fulfilment of any condition 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. Sub-
section (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 sentenced is in jail. Sub-section (6) of Section 432 states
that the provisions of this Section would apply to any order passed
Writ Petition (Crl.) No.491 of 2022 Etc. Page 134 of 251
by a Criminal Court under any section of the CrPC or of any other
law which restricts the liberty of any person or imposes any liability
upon him or his property.
32.2. The expression “appropriate Government” used in Section 432
as well as in Section 433, is defined in sub-section (7) of Section
432. It expresses that in cases where the sentence is for an offence
against, or the order referred to in sub-section (6) is passed under,
any law relating to a matter to which the executive power of the
Union extends, the Central Government; and in other cases, the
Government of the State within which the offender is sentenced or
the said order is passed.
32.3. Section 433-A is a restriction on the powers of remission or
commutation in certain cases. It begins with a non-obstante clause
and states that notwithstanding anything contained in Section 432,
where a sentence of imprisonment for life is imposed on conviction
of a person for an offence for which death is one of the punishments
provided by law, or where a sentence of death imposed on a person
has been commuted under Section 433 into one of imprisonment
for life, such person shall not be released from prison unless he had
served at least fourteen years of imprisonment.
Writ Petition (Crl.) No.491 of 2022 Etc. Page 135 of 251
32.4. Section 434 states that the powers conferred by Sections 432
and 433 upon the State Government may in case of sentences of
death also be exercised by the Central Government concurrently.
32.5. The necessity for the State Government to act in consultation
with the Central Government in certain cases is mandated in
Section 435. The powers conferred by Sections 432 and 433 upon
the State Government to remit or commute a sentence, in any case
where the sentence is for an offence (a) which was investigated by
the Delhi Special Police Establishment constituted under the Delhi
Special Police Establishment Act, 1946, or by any other agency
empowered to make investigation into an offence under any Central
Act other than the CrPC, or (b) which involved the misappropriation
or destruction of, or damage to, any property belonging to the
Central Government, or (c) which was committed by a person in the
service of the Central Government while acting or purporting to act
in the discharge of his official duty, shall 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
Writ Petition (Crl.) No.491 of 2022 Etc. Page 136 of 251
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 herein is
the question. The meaning and import of the expression
“appropriate Government” has to be discerned from the judgments
of this Court in the light of sub-section (7) of Section 432 of the
CrPC.
33.1. The contentions raised by the learned counsel for the
petitioner in Writ Petition (Crl.) No.491 of 2022 as well as the
Writ Petition (Crl.) No.491 of 2022 Etc. Page 137 of 251
arguments of learned ASG appearing for Union of India as well as
State of Gujarat on this aspect need not be reiterated.
33.2. The expression “appropriate Government” no doubt has been
defined in sub-section (7) of Section 432 to mean that in cases
where the sentence is for an offence against, or the order referred
to in sub-section (6) is passed under, any law relating to a matter
to which the executive power of the Union extends, the Central
Government; in other cases, the Government of the State within
which the offender is sentenced or the said order is passed. The
expression “appropriate Government” also finds place in sub -
section (1) of Section 432 which, as already discussed above, states
that when any person has been sentenced to punishment for an
offence, the appropriate Government may, at any time, without
conditions or upon any condition which the person sentenced
accepts, suspend the execution of his sentence or remit the whole
or any part of the punishment to which he has been sentenced.
33.3. Sub-section (1) of Section 432 of the CrPC deals with a power
vested with the appropriate Government which is an enabling
power. The discretion vested with the appropriate Government has
to be exercised judiciously in an appropriate case and not to abuse
the same. However, when an application is made to the appropriate
Writ Petition (Crl.) No.491 of 2022 Etc. Page 138 of 251
Government for the suspension or remission of a sentence such as
in the instant case by a convict, the appropriate Government may
seek the opinion of the Presiding Judge of the Court before or by
which the conviction was had or confirmed and on considering the
reasons for such opinion, may consider the application for
remission vide sub-section (2) of Section 432 of the CrPC.
33.4. On a combined reading of sub-sections (1) and (2) of Section
432, it is apparent that the conviction and sentence of the Court
which had tried the case assumes significance and the appropriate
Government may have to seek the opinion of the Presiding Judge of
the Court before which the conviction took place, before passing an
order of remission. 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.
Writ Petition (Crl.) No.491 of 2022 Etc. Page 139 of 251
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 imprisoned, the same would have
been indicated by the definition. On the contrary, the definition of
appropriate Government is otherwise. The intention of the
Parliament is that the Government of the State within which the
offender was tried and sentenced, is the appropriate Government to
consider either under sub-section (1) of Section 432 of the CrPC or
on an application made by the convict for remission of the sentence
under sub-section (2) of Section 432 of the CrPC. This places
emphasis on the place of trial and sentence of the offender rather
than the place or location where the crime was committed. Such an
interpretation would also include a situation, such as in the present
case, where not only the investigation but also the trial of
respondents No.3 to 13 herein was transferred from the State of
Gujarat to the State of Maharashtra and particularly to the Special
Writ Petition (Crl.) No.491 of 2022 Etc. Page 140 of 251
Court at Mumbai. Thus, the aforesaid definition also takes within
its scope and ambit a circumstance wherein the trial is transferred
by this Court for reasons to be recorded and which is in the interest
of justice from one State to another State.
33.5. There may be various reasons for transferring of a trial from
a competent Court within the territorial jurisdiction of one State to
a Court of equivalent jurisdiction in another State, as has been done
in the instant case. But what is certain is that the transfer of the
trial to a court in another State would be a relevant consideration
while considering as to which State has the competency to pass an
order of remission. Thus, the definition of appropriate Government
in sub-section (7) of Section 432 clearly indicates that the
Government of the State within which the offender is sentenced, is
the appropriate Government to pass an order of remission.
33.6. In almost all cases, the court before which the offender was
sentenced is located within the territory of a State Government
wherein the offence occurred and, therefore, in such a case, there
can be no further doubt about the meaning of the expression
appropriate Government. But according to us, even in a case where
the trial has been transferred by this Court from a court of
competent jurisdiction of a State to a court in another State, it is
Writ Petition (Crl.) No.491 of 2022 Etc. Page 141 of 251
still the Government of the State within which the offender was
sentenced which is the appropriate Government which has the
jurisdiction as well as competency 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
Writ Petition (Crl.) No.491 of 2022 Etc. Page 142 of 251
thereof, the phrase appropriate Government had the same meaning
as the latter provision had been bodily lifted from Section 402(3) of
the erstwhile CrPC. On a review of the case law and the statutory
provisions of the CrPC the following propositions were culled out:
“9. …(1) that a sentence of imprisonment for life does
not automatically expire at the end of 20 years including
the remissions, because the administrative rules framed
under the various Jail Manuals or under the Prisons Act
cannot supersede the statutory provisions of the Indian
Penal Code. A sentence of imprisonment for life means a
sentence for the entire life of the prisoner unless the
appropriate Government chooses to exercise its discretion
to remit either the whole or a part of the sentence under
Section 401 of the Code of Criminal Procedure;
(2) that the appropriate Government has the
undoubted discretion to remit or refuse to remit the
sentence and where it refuses to remit the sentence no writ
can be issued directing the State Government to release
the prisoner.
(3) that the appropriate Government which is
empowered to grant remission under Section 401 of the
Code of Criminal Procedure is the Government of the State
where the prisoner has been convicted and sentenced, that
is to say, the transferor State and not the transferee State
where the prisoner may have been transferred at his
instance under the Transfer of Prisoners Act; and
(4) that where the transferee State feels that the
accused has completed a period of 20 years it has merely
to forward the request of the prisoner to the concerned
State Government, that is to say, the Government of the
State where the prisoner was convicted and sentenced and
even if this request is rejected by the State Government the
order of the government cannot be interfered with by a
High Court in its writ jurisdiction.”
Writ Petition (Crl.) No.491 of 2022 Etc. Page 143 of 251
(b) The aforesaid decision was reiterated in Hanumant Dass. In
the said case, the incident had occurred in Dharmshala and when
the matter was pending before the Sessions Court, Dharmshala in
Himachal Pradesh at the instance of the complainant, on an
application moved before this Court, the case was transferred
from Himachal Pradesh to the Sessions Court at Gurdaspur in
Punjab.
(c) Insofar as clemency power of a Governor of a State under
Article 161 of the Constitution to grant remission to prisoners
convicted by courts outside the State but undergoing sentences in
jails 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
Writ Petition (Crl.) No.491 of 2022 Etc. Page 144 of 251
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 falling under
Section 432(7)(a), in all other cases where the offender is sentenced
or the sentence or order is passed within the territorial jurisdiction
of the State concerned, that State Government would be the
appropriate Government. Following the earlier decisions it was
observed that even if an offence is committed in State-A, but, the
trial takes place and the sentence is passed in State-B, it is the
latter State which shall be the appropriate Government.
33.8. In our view, on a plain reading of sub-section (7) of Section
432 of the CrPC and considering the judgments of this Court, it is
the State of Maharashtra, which had the jurisdiction to consider
the application for remission vis-à-vis respondent Nos.3 to 13
herein as they were sentenced by the Special Court, Mumbai .
Writ Petition (Crl.) No.491 of 2022 Etc. Page 145 of 251
Hence the applications filed by respondent Nos.4 to 13 seeking
remission had to be simply rejected by the State of Gujarat owing
to lack of jurisdiction to consider them. This is because
Government of Gujarat is not the appropriate Government within
the meaning of the aforesaid provision. The High Court of Gujarat
was therefore right in its order dated 17.07.2019.
33.9. When an authority does not have the jurisdiction to deal with
a matter or it is not within the powers of the authority i.e. the State
of Gujarat in the instant case, to be the appropriate Government
to pass orders of remission under Section 432 of the CrPC, the
orders of remission would have no legs to stand. On the aspect of
jurisdiction and nullity of orders passed by an authority, the
decision of the House of Lords in Anisminic vs. Foreign
Compensation Commission, (1969) 2 WLR 163 : (1969) 1 All
ER 208 (“Anisminic”), is of significance and the same can be cited
by way of analogy. The House of Lords in the said case held that
the Foreign Compensation Commission had committed an error
which was a jurisdictional error as its decision was based on a
matter which it had no right to take into account and so its decision
was a nullity and subject to judicial review. Although in
Anisminic, the scope and ambit of the concept of “jurisdictional
Writ Petition (Crl.) No.491 of 2022 Etc. Page 146 of 251
error” or “error of jurisdiction” was very much extended, and of a
very broad connotation, in the instant case we are primarily dealing
with a narrower concept i.e. when an authority, which is the
Government of State of Gujarat in the instant case, was lacking
jurisdiction to consider 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
Writ Petition (Crl.) No.491 of 2022 Etc. Page 147 of 251
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 of Gujarat in terms of the order of this Court dated
13.05.2022. It was further contended that the offences had also
occurred within the State of Gujarat. Therefore, the first respondent
– State of Gujarat had no option but to consider the applications
filed by respondent Nos.3 to 13 herein and pass the orders dated
10.08.2022 granting remission to them.
35. Learned counsel for the petitioner in Writ Petition (Crl.)
No.491 of 2022 has countered the above submission contending
that one of the convicts-Radheshyam Bhagwandas Shah ,
respondent No.3 herein, had initially approached the High Court of
Gujarat by filing Criminal Application No.4573 of 2019 for a
direction to consider his application for remission by the State of
Gujarat. By order dated 17.07.2019 the High Court disposed of
Criminal Application No.4573 of 2019 by observing that he should
approach the appropriate Government being the State of
Maharashtra. His second such application before the Gujarat High
Court was also dismissed vide order dated 13.03.2020. That when
the said prisoner filed Writ Petition (Crl.) No.135 of 2022 before this
Court, he did not disclose the following facts:
Writ Petition (Crl.) No.491 of 2022 Etc. Page 148 of 251
(i) that within fourteen days of the order dated
17.07.2019, he had approached the Government of
Maharashtra vide application dated 01.08.2019;
(ii) that the CBI had given a negative recommendation
vide its letter dated 14.08.2019;
(iii) that the Special Judge (CBI), Mumbai had given a
negative recommendation vide his letter dated
03.01.2020;
(iv) that the Superintendent of Police, Dahod, Gujarat
had given a negative recommendation vide his letter
dated 03.02.2020; and,
(v) that the District Magistrate, Dahod, Gujarat had
given a negative recommendation vide his letter
dated 19.02.2020.
35.1. Further, the writ petitioner also made a misleading statement
by referring to the order dated 05.08.2013 of the Bombay High
Court in juxtaposition to the order of the Gujarat High Court dated
17.07.2019 to contend that there was a divergent opinion between
the two High Courts, which aspect constrained him to file Writ
Petition (Crl.) No.135 of 2022 before this Court. That the order
dated 05.08.2013 passed by the Bombay High Court was dealing
with transfer of the convicts in Maharashtra jail to their parent
Writ Petition (Crl.) No.491 of 2022 Etc. Page 149 of 251
State (State of Gujarat) that too, in the year 2013, when the issue
of remission did not arise at all. But 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:
Writ Petition (Crl.) No.491 of 2022 Etc. Page 150 of 251
“Question of Law:
A. Whether the policy dated 9.7.92, which was existing at
the time of the conviction will prevail for considering
the case of the petitioner for premature release?
B. Whether in view of ‘State of Haryana Vs. Jagdish,
(2010) 4 SCC 216’, a policy which is more liberal and
prevailing would be given preference as compared to
the policy which is sought to be made applicable at the
time of consideration of the cases of premature
release?
x x x
FACTS OF THE CASE :
x x x
That at this juncture it would be pertinent to mention
herein that one of the co-accused Ramesh Rupabhai
had approached the Bombay High Court by way of Crl.
W.P. No.305/2013. In the said order, the Bombay
High Court clarified that the undertrials in this case
were lodged in Maharashtra Jail only because of the
fact that at that time the Trial was pending in the State
of Maharashtra (transferred from Gujarat to
Maharashtra by the Supreme Court). The High Court
further clarified that once the Trial has concluded and
the prisoner has been convicted, the appropriate
prison would be the State of Gujarat and accordingly,
the said prisoners were transferred to the State of
Gujarat from the State of Maharashtra...
At this juncture, the petitioner had approached the
Gujarat High Court on the ground that despite he
having undergone more than actual sentence of 14
years, his case was not being considered by the
respondent/authorities for premature release. The
Gujarat High Court vide its order dated 17.7.19 with
great respect took a completely a diametrically opposite
view as that of Bombay High Court and erroneously
Writ Petition (Crl.) No.491 of 2022 Etc. Page 151 of 251
held that since the petitioner’s case was tried in the
State of Maharashtra, therefore, his case for premature
release has to be considered by the State of
Maharashtra and not by the State of Gujarat.
Hence the instant Writ Petition under Article 32 of the
Constitution issuing a writ of Mandamus or any other
similar direction to the State of Gujarat praying inter
alia that the case of the petitioner may be considered
as per the policy dated 9.7.92 (i.e. policy existing at the
time of conviction of the petitioner) in the light of
settled decision in “State of Haryana Vs. Jagdish,
(2010) 4 SC 216”.
x x x
PRAYER:
In the light of the above -mentioned facts and
circumstances, the petitioner through this instant writ
petition prays before this Hon’ble Court as under:
A. Issue a writ, order or direction in the nature 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,
Writ Petition (Crl.) No.491 of 2022 Etc. Page 152 of 251
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 his petition for pre-mature
release under Sections 433 and 433A of the Code of
Criminal Procedure, 1973 (hereinafter being referred to as
the “CrPC”) stating that he had undergone more than 15
years 4 months of custody but his petition filed in the High
Court of Gujarat came to be dismissed taking note of
Section 432(7) CrPC and placing reliance on the judgment
of this Court in Union of India vs. V. Sriharan alias
Murugan and Others , (2016) 7 SCC 1, on the premise
that since the trial has been concluded in the State of
Maharashtra, the application for pre-mature release has
to be filed in the State of Maharashtra and not in the State
of Gujarat, as prayed by the petitioner by judgment
impugned dated 17
th July 2019.
xxx xxx xxx
10. Learned counsel for the respondents has placed
reliance on the judgment of this Court in Union of India
vs. V. Sridharan alias Murugan and Others (supra) and
submits that since the trial has been concluded in the
State of Maharashtra, taking assistance of Section 432(7)
CrPC, the expression ‘appropriate government as referred
to under Section 433 CrPC in the instant case, would be
the State of Maharashtra and accordingly no error has
been committed by the High Court in the order impugned.
Writ Petition (Crl.) No.491 of 2022 Etc. Page 153 of 251
11. In our considered view, the submission made by
learned counsel for the respondents is not sustainable for
the reason that the crime in the instant case was
admittedly committed in the State of Gujarat and
ordinarily, the trial was to be concluded in the same State
and in terms of Section 432(7) CrPC, the appropriate
Government in the ordinary course would be the State of
Gujarat but the instant case was transferred in exceptional
circumstances by this Court for limited purpose for trial
and disposal to the neighbouring State (State of
Maharashtra) by an order dated 06
th August, 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) CrPC.
12. Indisputedly, in the instant case, the crime was
committed in the State of Gujarat which is the appropriate
Government competent to examine the application filed for
pre-mature release and that is the reason for which the
High Court of Bombay in Criminal Writ Petition No.305 of
2013 filed at the instance of co-accused Ramesh Rupabhai
under its Order dated 5
th 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) CrPC,
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) CrPC.
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
Writ Petition (Crl.) No.491 of 2022 Etc. Page 154 of 251
crime was committed and not the State where the trial
stands transferred and concluded for exceptional reasons
under the orders of this Court.
15. Consequently, the petition is allowed. The judgment
impugned dated 17
th July, 2019 is set aside.
16. The respondents are directed to consider the
application of the petitioner for pre-mature release in
terms of its policy dated 9
th July, 1992 which is applicable
on the date of conviction and may be decided within a
period of two months. If any adverse order is passed, the
petitioner is at liberty to seek remedy available to him
under the law.”
36.3. The following aspects are noted by this Court in the order
dated 13.05.2022:
(i) that the crime was committed in the State of Gujarat
but this Court in Transfer Petition (Crl.) No.192 of
2004 had considered it appropriate to transfer
Sessions Case No.161 of 2004 pending before the
learned Additional Sessions Judge, Dahod,
Ahmedabad to the competent court in Mumbai for
trial and disposal by order dated 06.08.2004.
(ii) that the trial court, Mumbai in Sessions Case No.634
of 2004, on completion of the trial held the said
respondent as well as the other accused guilty and
sentenced them to undergo rigorous imprisonment for
life by judgment and order dated 21.01.2008.
Writ Petition (Crl.) No.491 of 2022 Etc. Page 155 of 251
(iii) that one of the co-accused Ramesh Rupabhai had
approached the Bombay High Court by filing Writ
Petition (Crl.) No.305 of 2013 seeking premature
release but his application was dismissed by order
05.08.2013 on the premise that the crime was
committed in the state of Gujarat and his trial was
transferred to the competent court in Maharashtra
and once the trial had concluded and sentence has
been passed, the appropriate Government would be
the State of Gujarat and accordingly, the application
filed by the said co-accused for premature release was
to be examined as per the policy applicable in the
State of Gujarat.
(iv) that the judgment on which learned counsel for the
State of Gujarat had placed reliance (V. Sriharan)
was not of any assistance for the reason that under
Section 432 (7) of the CrPC, the appropriate
Government can be either Central or State
Government but there cannot be a concurrent
jurisdiction of two State Governments under the said
provision.
Writ Petition (Crl.) No.491 of 2022 Etc. Page 156 of 251
(v) that once the crime was committed in the State of
Gujarat, after the trial has been concluded and the
judgment of conviction came to be passed, all further
proceedings had 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 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-
Writ Petition (Crl.) No.491 of 2022 Etc. Page 157 of 251
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 had undergone about 15
years 4 months of custody;
(ii) that respondent No.3 herein had not stated that his
writ petition filed in the High Court of Gujarat had
been dismissed by taking note of Section 432 (7) of the
CrPC and on the basis of the decision in V. Sriharan
as the trial had been concluded in the State of
Maharashtra;
(iii) that respondent No.3 had not stated that the
application for premature release had been filed by
him in the State of Maharashtra and not in the State
of Gujarat as directed by the judgment of the Gujarat
High Court dated 17.07.2019;
Writ Petition (Crl.) No.491 of 2022 Etc. Page 158 of 251
(iv) Respondent No.3 herein who had filed the writ petition
had not disclosed that he had acted upon the order
dated 17.07.2019 passed by the Gujarat High Court
inasmuch as–
(a) he had approached the Government of
Maharashtra vide application dated 01.08.2019;
(b) the CBI had given a negative recommendation
vide its letter dated 14.08.2019;
(c) the Special Judge (CBI), Mumbai had given a
negative recommendation vide his letter dated
03.01.2020;
(d) the Superintendent of Police, Dahod, Gujarat had
given a negative recommendation vide his letter
dated 03.02.2020; and,
(e) the District Magistrate, Dahod, Gujarat had given
a negative recommendation vide his letter dated
19.02.2020.
(v) that the respondent No.3 had not assailed the order
dated 17.07.2019 passed by the Gujarat High Court
as there is a bar in law to assail an order passed by
High Court under Article 226, under Article 32 of the
Constitution.
Writ Petition (Crl.) No.491 of 2022 Etc. Page 159 of 251
(vi) Interestingly, in the writ petition, the respondent State
of Gujarat placed reliance on the judgment in V.
Sriharan and contended that the trial had been
concluded in the State of Maharashtra and therefore
the expression appropriate government under section
432 of the CrPC would be the State of Maharashtra
and that no error had been committed by the High
Court in its order dated 17.07.2019.
(vii) Strangely, this Court held that the aforesaid
submission on behalf of the State of Gujarat was not
sustainable as the crime had been 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 Code of Criminal Procedure, the
appropriate Government in the ordinary course would
be the State of Gujarat but the instant case, was
transferred in exceptional circumstances 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
Writ Petition (Crl.) No.491 of 2022 Etc. Page 160 of 251
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 seeking a review of the said order but the
victim – petitioner in Writ Petition (Crl.) No.491 of
2022 – had filed a review petition which has been
rejected by this Court.
Writ Petition (Crl.) No.491 of 2022 Etc. Page 161 of 251
(x) that although the respondent No.3 who approached
this Court as well as the State of Gujarat had termed
the order of the Gujarat High Court dated 17.07.2019
as “impugned Order”, the said order was not at all
impugned or assailed in the proceedings before this
Court. What was filed by the convict i.e., respondent
No.3 before this Court was a writ petition under
Article 32 of the Constitution seeking a direction to
the State of Gujarat to consider his remission
application;
(xi) More significantly, while a reference has been made to
Criminal Writ Petition No.305 of 2013 filed by one of
the co-accused Ramesh Rupabhai in the year 2013
before the Bombay High Court seeking a direction for
transfer of the convicts from Maharashtra Jail to
Gujarat Jail, the reference to the Order of the Gujarat
High Court dated 17.07.2019 dismissing the writ
petition filed by respondent No.3 herein directing him
to approach the Maharashtra State for remission was
only in the context of the said order being
“diametrically opposite” to the view of the Bombay
High Court without explaining and by suppression of
Writ Petition (Crl.) No.491 of 2022 Etc. Page 162 of 251
the backgrounds under which the two writ petitions
were filed before the respective High Court.
(xii) In fact, there was no pleading or prayer for seeking
setting aside of the Gujarat High Court Order dated
17.07.2019 nor was there any challenge to the said
Order. That said Order had attained finality as no
Special Leave Petition as against the said Order was
filed by the writ petitioner, Radheshyam Bhagwan das
Shah respondent No.3 herein before this Court; rather
he had acted upon it. Curiously, in the writ petition
filed under Article 32 of the Constitution, the Order
dated 17.07.2019 has been set aside even in the
absence of there being any prayer thereto nor any
discussion of the same.
(xiii) Further, contrary to Section 432 (7) and the
judgements of the Constitution Bench and other
benches of this Court, a writ of mandamus was issued
to the State of Gujarat to consider the prayer of the
writ petitioner for premature release in terms of its
policy dated 09.07.1992. It was not brought to the
notice of this Court by any party that the said policy
had been cancelled and had been substituted by
Writ Petition (Crl.) No.491 of 2022 Etc. Page 163 of 251
another policy 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 & Another vs. 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 CrPC.
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 CrPC,
it was stated that sub-section (2) to sub-section (5) of
Section 432 of the CrPC lay down the basic procedure,
which is making of an application to the appropriate
Government for the suspension or remission of a
Writ Petition (Crl.) No.491 of 2022 Etc. Page 164 of 251
sentence, either by the convict or someone on his
behalf. Thus, the representation has to be made to
the appropriate Government in terms of the provisions
under Section 432 of the CrPC. It was further
observed that the exercise of power by the appropriate
Government under sub-section (1) of Section 432 of
the CrPC cannot be suo motu for the simple reason
that this sub-section is only an enabling provision. In
other words, the appropriate Government is enabled
to “override” a judicially pronounced sentence, subject
to fulfillment of certain conditions. Those conditions
are found either in the jail manual or in statutory
rules. Therefore, sub-section (1) of Section 432 of the
CrPC cannot be read to enable the appropriate
Government to “further override” the judicial
pronouncement over and above what is permitted by
the jail manual or the statutory rules. On such an
application being made, the appropriate Government
is required to approach the Presiding Judge of the
Court before or by which the conviction was made or
confirmed to opine (with reasons) whether the
application should be granted or refused. Thereafter,
Writ Petition (Crl.) No.491 of 2022 Etc. Page 165 of 251
the appropriate Government may take a decision on
the remission application and pass orders granting
remission subject to some conditions, or refusing
remission. There has to be an application of mind to
the issue of grant of remission and the power of
remission cannot be exercised arbitrarily. It was
further observed that a convict undergoing life
imprisonment is expected to remain in custody till the
end of his life, subject to any remission granted by the
appropriate Government under Section 432 of the
CrPC which in turn is subject to the procedural
checks in that Section and the substantive check in
Section 433-A of the CrPC.
Pursuant to the judgment in Sangeet, the
Government of India vide its communication dated
01.02.2013 made to all the Home Secretaries of the
States and Union Territories, stated that there is a
need to relook at the manner in which remissions of
sentence are made with reference to Section 432 read
with Section 433-A of the CrPC and hence requested
that there should be scrupulous compliance of the
aforesaid provisions and not to grant remission in a
Writ Petition (Crl.) No.491 of 2022 Etc. Page 166 of 251
wholesale manner. Thereafter, on 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
Writ Petition (Crl.) No.491 of 2022 Etc. Page 167 of 251
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. Clause IV (a) and (d)
read as follows:
(a) A prisoner or prisoners sentenced for group
murder of two or more persons.
x x x
(d) Prisoners convicted for murder with rape or gang
rape.
(xv) Realising that respondent Nos.3 to 13 would not be
released under the Remission Policy dated
23.01.2014, which had substituted the earlier
Policy dated 09.07.1992, which had been cancelled,
the writ petition was filed by respondent No.3
herein before this Court seeking a specific direction
to the State of Gujarat to consider his case as per
the Policy dated 09.07.1992 which had by then
been cancelled and substituted by another Policy
dated 23.01.2014.
(xvi) What is the effect of cancellation of the said policy
by the State of Gujarat in light of the judgement of
this Court in Sangeet and the communication of
Writ Petition (Crl.) No.491 of 2022 Etc. Page 168 of 251
Union of India issued to each of the states including
the State of Gujarat? Does it mean that the said
policy of 09.07.1992 had stood cancelled and
therefore got effaced and erased from the statute
book and substituted by a new policy of 2014 which
had to be considered. There was no pleading or
discussion to that effect.
36.5 Thus, by suppressing material aspects and by misleading this
Court, a direction was sought and issued to the respondent State
of Gujarat to consider the premature release or remission of the writ
petitioner, i.e., respondent No.3 on the basis of the policy dated
09.07.1992.
37. More pertinently, respondent No.3 had suppressed the fact
that on the basis of the judgment of the Gujarat High Court in the
writ petition that he had filed, the convict had acted upon it and
had made an application to the State of Maharashtra for remission
on 01.08.2019 and the said application was being processed
inasmuch as the stakeholders had given their opinion on the
application, such as, the Presiding Judge of the court which had
convicted the accused; the Director - CBI as well as the Director
General and Inspector General of Police, State of Maharashtra who
Writ Petition (Crl.) No.491 of 2022 Etc. Page 169 of 251
were all unanimous in their opinion inasmuch as they had all
negatived grant of remission to the convict – Radheshyam Bhagwan
Das. Suppressing all this, the writ petition was filed by respondent
No.3 invoking Article 32 of the Constitution and the same was
allowed by also setting aside the Order of the Gujarat High Court
dated 17.07.2019 and thereby setting at naught the steps taken
pursuant to the 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
Writ Petition (Crl.) No.491 of 2022 Etc. Page 170 of 251
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 of the Constitution of
India nor the said order of the High Court could have been set aside
in a proceeding under Article 32 thereof. This proposition of law has
been settled long ago by a nine-Judge bench decision of this Court
in Naresh Shridhar Mirajkar vs. State of Maharashtra, AIR
1967 SC 1, which is binding on us.
39.1. When an oral order of the learned Judge passed in the original
suit of the Bombay High Court was challenged by the petitioner
therein by way of a writ petition under Article 226 of the
Constitution of India before the Bombay High Court, the writ
petition was dismissed by a division bench of the Bombay High
Court on the ground that the impugned order was a judicial order
of the High Court and was not amenable to writ jurisdiction under
Article 226. Thereafter, the petitioner therein moved this Court
under Article 32 of the Constitution of India for enforcement of his
fundamental rights under Article 19(1)(a) and (g) of the Constitution
Writ Petition (Crl.) No.491 of 2022 Etc. Page 171 of 251
of India. This Court observed that the impugned order was passed
by the learned Judge in the course of trial of a suit before him after
hearing the parties. This Court took the view that the restraint order
was passed to prohibit publication of evidence in the media during
the progress of the trial and could not be construed as imposing a
permanent ban on the publication of the said evidence.
39.2. The question which fell for consideration before this Court
was whether a judicial order passed by the High Court prohibiting
the publication in newspapers of evidence given by a witness
pending the hearing of the suit, was amenable to be corrected by a
Writ of Certiorari of this Court under Article 32 of the Constitution
of India. In the above context, this Court first held that a judicial
verdict pronounced by a court in a matter brought before it for its
decision cannot be said to affect the fundamental rights of citizens
under Article 19(1) of the Constitution of India. Thereafter, this
Court proceeded to hold that if any judicial order was sought to be
attacked on the ground that it was inconsistent with Article 14 or
any other fundamental rights, the proper remedy to challenge such
an order would be by way of an appeal or revision as may be
provided by law. It would not be open to the aggrieved person to
invoke the jurisdiction of this Court under Article 32 of the
Writ Petition (Crl.) No.491 of 2022 Etc. Page 172 of 251
Constitution and to contend that a Writ of 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 the State of Gujarat to consider their pre-mature
release.
Writ Petition (Crl.) No.491 of 2022 Etc. Page 173 of 251
41. We are of the considered view that the writ proceedings before
this Court is pursuant to suppression and misleading of this Court
and a result of suppressio veri suggestio falsi. Hence, in our view,
the said order was obtained by fraud played on this Court and
hence, is a nullity and non est in law. In view of the aforesaid
discussion, we hold that consequently the order dated 13.05.2022
passed by this Court in Writ Petition (Crl.) No.135 of 2022 in the
case of Radheshyam Bhagwandas Shah is hit by fraud and is a
nullity and non est in the eye of law and therefore cannot be given
effect to and hence, all proceedings pursuant to the said order are
vitiated.
42. It is trite that fraud vitiates everything. It is a settled
proposition of law that fraud avoids all judicial acts. In S.P.
Chengalvaraya Naidu v s. Jagannath (Dead) through LRs,
(1994) 1 SCC 1 (“S.P. Chengalvaraya Naidu”) , it has been
observed that “fraud avoids all judicial acts, ecclesiastical or
temporal.” Further, “no judgment of a court, no order of a minister
would be allowed to stand if it has been obtained by fraud. Fraud
unravels everything” vide Lazarus Estates Ltd. vs. Beasley,
(1956) 1 ALL ER 341 (“Lazarus Estates Ltd.”).
Writ Petition (Crl.) No.491 of 2022 Etc. Page 174 of 251
43. It is well-settled that writ jurisdiction is discretionary in
nature and that the discretion must be exercised equitably for
promotion of good faith vide State of Maharashtra vs. Prabhu,
(1994) 2 SCC 481 (“Prabhu”). This Court has further emphasized
that fraud and collusion vitiate the most solemn precedent in any
civilized jurisprudence; and that fraud and justice never dwell
together (fraus et jus nunquam cohabitant). This maxim has never
lost its lustre over the centuries. Thus, any litigant who is guilty of
inhibition before the Court should not bear the fruit and benefit of
the court’s orders. This Court has also held that fraud is an act of
deliberation with a desire to secure something which is otherwise
not due. Fraud is practiced with an intention to secure undue
advantage. Thus, an act of fraud on courts must be viewed
seriously.
43.1. Further, fraud can be established when a false representation
has been made (i) knowingly, or (ii) without belief in its truth, or (iii),
recklessly, being careless about whether it be true or false. While
suppression of a material document would amount to a fraud 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
Writ Petition (Crl.) No.491 of 2022 Etc. Page 175 of 251
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 vs. 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 system also. As per settled law, the party who
invokes the extraordinary jurisdiction of this Court
Under Article 32 or of a High Court Under Article 226 of
the Constitution is supposed to be truthful, frank and
open. He must disclose all material facts without any
reservation even if they are against him. He cannot be
allowed to play "hide and seek" or to "pick and choose"
the facts he likes to disclose and to suppress (keep back)
or not to disclose (conceal) other facts. The very basis of
Writ Petition (Crl.) No.491 of 2022 Etc. Page 176 of 251
the writ jurisdiction rests in disclosure of true and
complete (correct) facts. If material facts are suppressed
or distorted, the very functioning of writ courts and
exercise would become impossible. The Petitioner must
disclose all the facts having a bearing on the relief
sought without any qualification. This is because "the
court knows law but not facts".
39. … Suppression or concealment of material facts is
not an advocacy. It is a jugglery, manipulation,
maneuvering or misrepresentation, which has no place
in equitable and prerogative jurisdiction. If the applicant
does not disclose all the material facts fairly and truly
but states them in a distorted manner and misleads the
court, the court has inherent power in order to protect
itself and to prevent an abuse of its process to discharge
the Rule nisi and refuse to proceed further with the
examination of the case on merits. If the court does not
reject the petition on that ground, the court would be
failing in its duty. In fact, such an applicant requires to
be dealt with for contempt of court for abusing the
process of the court.”
43.3. In K. Jayaram vs. Bangalore Development Authority,
2021 SCC OnLine SC 1194 (“K. Jayaram”), a bench of this Court
headed by Sri Nazeer, J. noticed that the appellants therein had not
come to the Court with clean hands. The appellants in the said case
had not disclosed the filing of a suit and its dismissal and also the
dismissal of the appeal against the judgment of the Civil Court. This
Court stressed that the parties have to disclose the details of all
legal proceedings and litigations either past or present concerning
any part of the subject matter of dispute which is within their
knowledge in order to check multiplicity of proceedings pertaining
Writ Petition (Crl.) No.491 of 2022 Etc. Page 177 of 251
to the same subject-matter and more importantly to stop the
menace of soliciting inconsistent orders through different judicial
forums by suppressing 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 vs. State of Uttar
Pradesh, 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-à-vis
Writ Petition (Crl.) No.491 of 2022 Etc. Page 178 of 251
the appropriate Government which is vested with the power to
consider an application for remission as per sub-section (7) of
Section 432 of the CrPC and that of the nine Judge Bench decision
in Naresh Shridhar Mirajkar that an order of a High Court cannot
be set aside in a proceeding under Article 32 of the Constitution.
44.1. In State of U.P. vs. Synthetics and Chemicals Ltd., (1991)
4 SCC 139 (“Synthetics and Chemicals Ltd.”), a two Judge
Bench of this Court (speaking through Sahai J. who also wrote the
concurring judgment along with Thommen, J.) observed that the
expression per incuriam means per ignoratium. This principle is an
exception to the rule of stare decisis. The ‘quotable in law’ is avoided
and ignored if it is rendered, ‘in ignoratium of a statute or other
binding authority’. It would result in a judgment or order which is
per incuriam. In the case of Synthetics and Chemicals Ltd ., the
High Court relied upon the observations in paragraph 86 of the
judgment of the Constitution Bench in Synthetics and Chemicals
Ltd., namely, “sales tax cannot be charged on industrial alcohol in
the present case, because under the Ethyl Alcohol (Price Control)
Orders, sales tax cannot be charged by the State on industrial
alcohol” and struck down the levy.
Writ Petition (Crl.) No.491 of 2022 Etc. Page 179 of 251
In Synthetics and Chemicals Ltd ., before the two-judge
bench, it was categorically argued by the learned Advocate General
appearing for the appellant State of Uttar Pradesh that the reference
to “sales tax” in the judgment of this Court in the earlier round of
the litigation was accidental and did not arise from the judgment.
This was because the levy of sales tax was not in question at any
stage of the arguments nor was the question considered as it was
not in issue. The Court gave no reason whatever for abruptly stating
that “sales tax was not leviable by the State by reason of the Ethyl
Alcohol (Price Control) Orders.” In fact, the question which arose
for consideration in the earlier litigation was in regard to the validity
of “vend fee and other fees” charged by the States. The argument
was that such impost, to the extent that it fell on industrial alcohol,
encroached upon the legislative field reserved for Parliament in
respect of a controlled industry coming under Entry 52 of List I
(read with Entry 33 of List III). Vend fee or transport fee and similar
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
Writ Petition (Crl.) No.491 of 2022 Etc. Page 180 of 251
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.
vs. State of U.P.) was “whether intoxicating liquor in Entry 8 in List
II was confined to potable liquor or includes all liquors.” Answering
this question, this Court categorically held that intoxicating liquor
within the meaning of Entry 8 of List II was confined to potable
liquor and did not include industrial liquor. This Court did not deal
with the taxing power of the State under Entry 54 of List II which
deals with ‘taxes on the sale or purchase of goods other than
newspapers, subject to the provisions of Entry 92-A of List I’. The
power of the State to levy taxes on sale or purchase of goods under
that entry was not the subject matter of discussion by this Court
Writ Petition (Crl.) No.491 of 2022 Etc. Page 181 of 251
although in paragraph 86 of the leading judgment of this Court,
there was a reference to sales tax.
Therefore, the only question that was considered by the seven-
judge bench of this Court was whether the State could levy “excise
duty” or “vend fee” or “transport fee” and the like by recourse to
Entry 51 or 8 in List II in respect of industrial alcohol. Entry 52 List
II was not applicable to fee or charges in question. Entry 52 List II
refers to “Taxes on the entry of goods into a local area for
consumption, use or sale therein”. Further, the observation that
sales tax cannot be charged by the State on industrial alcohol was
an abrupt observation without a preceding discussion, and
inconsistent with the reasoning adopted by this Court in earlier
decisions from which no dissent was expressed on the point.
However, the aforesaid observation with reference to Entry 52 of
List II in connection with excise duty and sales tax when neither
falls under that entry, was held to be per incuriam.
This was because this Court by a detailed discussion in the
seven-judge bench decision had observed that the impugned
statutory provisions purportedly levying fees or enforcing
restrictions in respect of industrial alcohol were impermissible in
view of the control assumed by the Central Government in exercise
of its power under Section 18-G of the IDR Act in respect of a
Writ Petition (Crl.) No.491 of 2022 Etc. Page 182 of 251
declared industry falling under Entry 52 of List I, read with Entry
33 of List III.
It was in the above background that this Court considered the
question whether or not the power of the State to levy tax on the
sale or purchase of goods falling under Entry 54 of List II would
comprehend industrial alcohol. This was because the taxing power
under Entry 54 of List II was subject to taxing power of the
Parliament under Entry 92-A of List I. Therefore, it was observed
that 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.
Writ Petition (Crl.) No.491 of 2022 Etc. Page 183 of 251
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 the above
conclusion. It was not preceded by any discussion. No reason or
rationale could be found in the judgment. Therefore, it was held by
the two-Judge Bench that the same was per incuriam and was liable
to be ignored in a subsequent matter between the same parties. The
courts have taken recourse to this principle for relieving from
injustice being perpetrated by unjust precedents. It was observed
that uniformity and consistency are core of judicial discipline. But,
if a decision proceeds contrary to the law declared, it cannot be a
binding precedent. It was further observed that the seven-Judge
Bench in Synthetics and Chemicals Ltd. did not discuss the
matter and had observed that the State cannot levy sales tax on
industrial alcohol. In the subsequent matter which arose from the
High Court between the same parties, it was held by this Court that
the conclusion of law by the Constitution Bench that no sales or
purchase tax could be levied on industrial alcohol was per incuriam
Writ Petition (Crl.) No.491 of 2022 Etc. Page 184 of 251
and also covered by the rule of sub-silentio and therefore, was not a
binding authority or precedent.
Thus, although it is the ratio decidendi which is a precedent
and not the final order in the judgment, however, there are certain
exceptions to the rule of precedents which are expressed by the
doctrines of per incurium and sub silentio. Incuria legally means
carelessness and per incurium may be equated with per ignorantium.
If a judgment is rendered in ignorantium of a statute or a binding
authority, it becomes a decision per incurium. Thus, a decision
rendered by ignorance of a previous binding decision of its own or
of a court of coordinate or higher jurisdiction or in ignorance of the
terms of a statute or of a rule having the force of law is per incurium.
Such a per incurium decision would not have a precedential value.
If a decision has been rendered per in curium, it cannot be said that
it lays down good law, even if it has not been expressly overruled
vide Mukesh K. Tripathi vs. Senior Divisional Manager, LIC ,
(2004) 8 SCC 387 (para 23). Thus, a decision per incurium is not
binding.
44.2. Another exception to the rule of precedents is the rule of sub-
silentio. A decision is passed sub-silentio when the particular point
of law in a decision is not perceived by the court or not present to
Writ Petition (Crl.) No.491 of 2022 Etc. Page 185 of 251
its mind or is not consciously determined by the court and it does
not form part of the ratio decidendi it is not binding vide Amrit Das
vs. 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 CrPC, the judgments of this Court and our own
understanding of the order dated 13.05.2022 passed by a
Writ Petition (Crl.) No.491 of 2022 Etc. Page 186 of 251
coordinate Bench of this Court in Writ Petition No.135 of 2022, we
hold as follows:
(i) that the Government of State of Gujarat (respondent
No.1 herein) had no jurisdiction to entertain the
applications for remission or pass the orders of
remission on 10.08.2022 in favour of respondent No.3
to 13 herein as it was not the appropriate Government
within the meaning of sub-section (7) of Section 432
of the CrPC;
(ii) that this Court’s order dated 13.05.2022 being
vitiated and obtained by fraud is therefore a nullity
and non est in law. All proceedings taken pursuant to
the said order also stand vitiated and are non est in
the eye of law.
47. Point No.3 is accordingly answered.
Point No.4 : Whether the impugned order of remission
passed by the respondent - State of Gujarat in favour
of respondent Nos.3 to 13 are in accordance with
law?
48. We have perused the original record which is the English
translation from Gujrati language.
Writ Petition (Crl.) No.491 of 2022 Etc. Page 187 of 251
48.1. Even according to the respondent State of Gujarat
Radheshyam Bhagwandas Shah has not made any application
seeking remission before the Superintendent, Godhra Sub-Jail or
the State of Gujarat on 01.08.2019.
48.2. All the other applications were made even prior to the order of
this Court made in Writ Petition (Crl.) No.135 of 2022 on
13.05.2022. Within next few days i.e. on 26.05.2022, the Jail
Advisory Committee gave its opinion recommending grant of
remission. The recommendation of ADG and IG of Jails was
received in almost cases on 09.06.2022. In two cases, (i) the
recommendation of the ADG and IG was received on 18.08.2021
and 09.06.2021 [in the case of Govind Bhai Akham Bhai Nai
(Raval)] and (ii) on 18.08.2021 [in the case of Radheyshyam
Bhagwandas Shah ].
48.3. The communication of the State Government to the Central
Government was made on 28.06.2022; the second respondent
Union of India gave its concurrence on 11.07.2022; and, the order
of remission was made on 10.08.2022.
48.4. We extract one of the orders of remission dated 10.08.2022
in the case of respondent No.3 as under:
Writ Petition (Crl.) No.491 of 2022 Etc. Page 188 of 251
“GOVERNMENT OF GUJARAT
Order Number JLK/83202/2978/J
Secretariat House, Gandhinagar,
Dated: 10/08/2022.
Reference:
(1) Order of the Hon’ble Supreme Court date:13/05/2022,
Writ Petition (Criminal) No.135/2022.
(2) The Additional Director General of Police 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 CrPC
the State Government has power for pre-mature release,
however provision under Section 435(1)(A) of CrPC.
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 Government of Gujarat in consultance with Central
Government letter dated 28/06/2022. Pursuant to which
the Ministry of Home Affairs of the Government of India
has given a positive opinion regarding the release of the
prisoner from the letter reference (4), considering all the
details, the release of Mr. Radheshyam Bhagwandas Shah
was under consideration.
Writ Petition (Crl.) No.491 of 2022 Etc. Page 189 of 251
::ORDER::
Provision under Criminal Procedure Code, 1973
Section 443(A), power given to State Government under
Section 432 of Criminal Procedure Code, 1973, the convict
prisoner Radheshyam Bhagwandas Shah’s life sentence
remitted under the following conditions and taken decision
by Government to release him from immediate effect.
::CONDITIONS::
(1) He shall to furnish surety of two gentlemen about after
releasing him, he will behave good up to two years and also
given undertaking he will not breach public peace and
harass parties and witnesses.
(2) After being released from prison if he commits cognizable
offense causing grievous hurt to anyone or property then
he may be re-arrested and shall serve the remaining of his
sentence.
(3) After released from jail he must give his attendance in
nearest police station, once in a month till one year.
The jail authority shall read and explain above
conditions to him and before releasing him, prior to his
release from prison, the jail authority must keep a written
record indicating that he has understood the said
conditions and that he agrees to these conditions of release
from prison.
By order of the Governor of Gujarat and in his name.
---sd---
(Mayursinh Vaghela)
Under Secretary
Home Department.”
Writ Petition (Crl.) No.491 of 2022 Etc. Page 190 of 251
48.5. Though we have extracted one of the remission orders, we
observe that having given our categorical finding on Point No.3, it
may not be necessary to dilate on certain aspects of Point No.4,
though it is quite evident that the said order is a non-speaking one
reflecting complete non-application of mind. All orders dated
10.08.2022 are a stereotyped and cyclostyled orders.
48.6. Be that as it may, it would be useful to refer to the following
judgments in the context of passing an order of remission in terms
of Section 432 read with Section 435 of the CrPC.
(a) V. Sriharan is a judgment of this Court wherein the
Constitution Bench answered seven questions out of which the
following questions are relevant for the purposes of this case:
“xxx xxx xxx
8.3. (iii) Whether the power under Sections 432 and 433 of
the Criminal Procedure Code 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 Criminal
Procedure Code?
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)?
Writ Petition (Crl.) No.491 of 2022 Etc. Page 191 of 251
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 Presiding Officer of the Court
concerned. In this case the earlier judgement of this court in
Sangeet was approved.
(b) In Sangeet, it was observed that a convict undergoing a
sentence does not have a right to get remission of sentence,
however, he certainly does have a right to have his case
considered for the grant of remission as held in Mahender Singh
and Jagdish. It was further observed in the said case that there
does not seem to be any decision of this Court detailing the
procedure to be followed for the exercise of power under Section 432
of the CrPC which only lays down the basic procedure i.e. by making
an application to the appropriate Government for the suspension or
remission of a sentence, either by the convict or someone on his
Writ Petition (Crl.) No.491 of 2022 Etc. Page 192 of 251
behalf. It was observed that sub-section (1) of Section 432 of the
CrPC is only an enabling provision to override a judicially
pronounced sentence, subject to the fulfilment of certain
conditions. These conditions are found either in the Jail Manual or
in statutory rules. It was pertinently observed that when an
application for remission is made the appropriate Government may
take a decision on the remission application and pass orders
granting remission subject to certain conditions or , refuse
remission. But there has to be an application of mind on the
remission application so as to eliminate discretionary en-masse
release of convicts on “festive” occasions, since each release
requires a case by case scrutiny. It was observed that the power
of remission cannot be exercised arbitrarily and the decision to
grant remission has to be well informed, reasonable and fair to all
concerned. The statutory procedure under Section 432 of the CrPC
provides a check on the possible misuse of power of the appropriate
Government.
(i) It was further observed that there is a misconception that a
prisoner serving a life sentence has an indefeasible right to be
released on completion of fourteen years or twenty years of
imprisonment; however, in reality, the prisoner has no such
Writ Petition (Crl.) No.491 of 2022 Etc. Page 193 of 251
right. A convict undergoing life imprisonment is expected to
remain in custody till the end of his life, subject to any
remission granted by the appropriate Government under
Section 432 of the CrPC which, in turn, is subject to the
procedural checks in that section and the substantive check
in Section 433-A of the CrPC. That the application of Section
432 of the CrPC 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 CrPC 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 CrPC reduces the period of
incarceration by an order passed by an appropriate
Writ Petition (Crl.) No.491 of 2022 Etc. Page 194 of 251
Government which cannot be reduced to less than fourteen
years as per Section 433-A of the CrPC. This Court after a
detailed discussion came to the following conclusions on
the aspect of grant of remissions:
“77.5. The grant of remissions is statutory. However,
to prevent its arbitrary exercise, the legislature has
built in some procedural and substantive checks in
the statute. These need to be faithfully enforced.
77.6. Remission can be granted under Section 432
Cr.P.C. in the case of a definite term of sentence. The
power under this section is available only for granting
“additional” remission, that is, for a period over and
above the remission granted or awarded to a convict
under the Jail Manual or other statutory rules. If the
term of sentence is indefinite (as in life imprisonment),
the power under Section 432 Cr.P.C. can certainly be
exercised but not on the basis that life imprisonment
is an arbitrary or notional figure of twenty years of
imprisonment.
77.7. Before actually exercising the power of
remission under Section 432 Cr.P.C. the appropriate
Government must obtain the opinion (with reasons) of
the Presiding Judge of the convicting or confirming
Court. Remissions can, therefore, be given only on a
case-by-case basis and not in a wholesale manner.”
(c) Ram Chander was a case of a writ petition being filed before
this Court under Article 32 of Constitution seeking a direction to the
respondent-State therein to grant him premature release. This
Court speaking through Dr. D.Y. Chandrachud., J., (presently the
learned Chief Justice) considered the aspect of judicial review of
Writ Petition (Crl.) No.491 of 2022 Etc. Page 195 of 251
power of remission and referred to Mohinder Singh to observe that
the power of remission cannot be exercised arbitrarily and the
decision to grant remission should be informed, reasonable and fair.
In this context, reliance was placed on Laxman Naskar wherein
this Court, stipulated the factors that govern the grant of remission
namely:
i. Whether the offence is an individual act of crime
without affecting the society at large?
ii. Whether there is any chance of future recurrence
of committing crime?
iii. Whether the convict has lost his potentiality in
committing crime?
iv. Whether there is any fruitful purpose of confining
this convict any more?
v. Socio-economic condition of the convict’s family.”
(i) That while grant of remission is the exclusive prerogative of the
executive, the Court cannot supplant its view. The Court 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
Writ Petition (Crl.) No.491 of 2022 Etc. Page 196 of 251
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 (respondent No.2
therein) was granted remission of unexpired period of about seven
years’ imprisonment. The petition was filed by the son of the
murdered persons while the convict was on bail in the murder case
of petitioner No.1’s father therein. In the writ petition it was alleged,
inter alia, that the grant of remission was illegal as relevant
Writ Petition (Crl.) No.491 of 2022 Etc. Page 197 of 251
materials were not placed before the Governor and the impugned
order was made without application of mind and based on irrelevant
and extraneous materials and therefore, liable to be set aside. That
was a case where remission or grant of pardon was under Article
161 of the Constitution by the Governor of the State of Andhra
Pradesh. This Court, while considering the philosophy underlining
the power of pardon or the power of clemency observed that the said
power exercised by a department or functionary of the Government
is in the context of its political morality. Reliance was placed on
Biddle, Warden vs. Perovich, 274 US 480 (1927) (“Biddle”) in
which case, Holmes, J of the United States Supreme Court had
observed on the rationale of pardon in the following words:
“…a pardon in our days is not a private act of grace
from an individual happening to possess power. It is
a part of the constitutional scheme. When granted, it
is the determination of the ultimate authority that the
public welfare will be better served by inflicting less
than what the judgment fixed…”
(i) It was observed that the prerogative of mercy exercised by a
State as a prerogative power of a Crown as in England (U.K.) or
of the President of India or Governor of a State in India is
reviewable as an administrative action in case there is an abuse
in the exercise of the prerogative power. That the prerogative
power to pardon or grant clemency or for that matter remission
Writ Petition (Crl.) No.491 of 2022 Etc. Page 198 of 251
of sentence being a discretionary power, it must be exercised
for the public good and the same can be examined by the Courts
just as any other discretionary power which is vested with the
executive. Therefore, judicial review of the exercise or non-
exercise of the power of pardon by the President or Governor is
available in law. That any exercise of public power, including
constitutional power, shall not be exercised arbitrarily or
mala fide vide Maru Ram. It was observed in the said case that,
considerations of religion, caste, colour or political loyalty are
totally irrelevant 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 vs. 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
Writ Petition (Crl.) No.491 of 2022 Etc. Page 199 of 251
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) On a consideration of the facts of the said case, it was observed
that, irrelevant and extraneous materials had entered into the
decision-making process, thereby vitiating it. The order
granting remission impugned in the writ petitions was set aside
being unsustainable and directed to be reconsidered and the
writ petition was allowed to that extent. Kapadia, J., as the
learned Chief Justice then was, in his concurring opinion
observed that, exercise of executive clemency is a matter of
discretion and yet subject to certain standards. The discretion
has to be exercised or public considerations allowed. Therefore,
the principle of exclusive cognizance would not apply when the
decision impugned is in derogation of a constitutional
provision. It was further stated that granting of pardon has the
Writ Petition (Crl.) No.491 of 2022 Etc. Page 200 of 251
effect of eliminating conviction without addressing the
defendant’s guilt or innocence.
(iv) The exercise of the prerogative power is subject to judicial
review and rule of law which is the basis for evaluation of all
decisions. Rule of law cannot be compromised on the grounds
of political expediency as “to go by such consideration would be
subversive of the fundamental principles of rule of law and it
would amount to setting a dangerous precedent.”
(e) In Mansukhlal Vithaldas Chauhan vs. State of Gujarat,
(1997) 7 SCC 622, the basis on which the legality of an
administrative decision could be reviewed was stated. It could be
on whether, a decision making authority exceeding its powers
committed an error of law; committed a breach of rules of natural
justice; reached a decision which no reasonable tribunal would have
reached or abused its powers. In other words, the judicial review of
the order of the President or the Governor under Article 72 or Article
161 of the Constitution, as the case may, is available and such
orders can be impugned on the following grounds:
i. that the order has been passed without application
of mind;
Writ Petition (Crl.) No.491 of 2022 Etc. Page 201 of 251
ii. that the order is mala fide;
iii. that the order has been passed on extraneous or
wholly irrelevant considerations;
iv. that relevant materials have been kept out of
consideration;
v. that the order suffers from arbitrariness.
(f) Further, in Swamy Shraddananda , it was observed that
judicial notice has to be taken of the fact that remission, if allowed
to life convicts in a mechanical manner without any sociological or
psychiatric 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
Writ Petition (Crl.) No.491 of 2022 Etc. Page 202 of 251
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 has been granted, the convict may succeed in
being released prematurely only if the competent authority passes
an order of remission concerning all the life sentences awarded to
the convict on each count which is a matter to be considered by
the competent authority.
48.7. With regard to the remission policy applicable in a given case,
the following judgments are of relevance:
(a) In Jagdish, a three Judge Bench of this Court considered the
conflicting opinions expressed in State of Haryana vs. Balwan,
(1999) 7 SCC 355 (“Balwan”) on the one hand and Mahendar
Singh, and State of Haryana vs. Bhup Singh, (2009) 2 SCC 268
(“Bhup Singh”) on the other. The question considered by the three-
Judge bench was, whether, the policy which provides for remission
and sentence should be that which was existing on the date of the
conviction of the accused or should it be the policy that existed on
Writ Petition (Crl.) No.491 of 2022 Etc. Page 203 of 251
date of consideration of his case for premature release by the
appropriate authority. Noting that remission policy would be
changed from time to time and after referring to the various
decisions of this Court, including Gopal Vinayak Godse and
Ashok Kumar, this Court observed that, liberty is one of the most
precious and cherished possessions of a human being and he would
resist forcefully any attempt to diminish it. Similarly, rehabilitation
and social reconstruction of a life convict, as an objective of
punishment become a paramount importance in a welfare State.
The State has to achieve the goal of protecting the society from the
convict and also rehabilitate the offender. The remission policy
manifests a process of reshaping a person who, under certain
circumstances, has indulged in criminal activities and is required to
be rehabilitated. Thus, punishment should not be regarded as the
end but only a means to an end. Relevancy of circumstances to an
offence such as the state of mind of the convict when the offence
was committed, are factors to be taken note of. It was further
observed as under:
“46. At the time of considering the case of premature
release of a life convict, the authorities may require to
consider his case mainly taking into consideration whether
the offence was an individual act of crime without affecting
the society at large; whether there was any chance of
future recurrence of committing a crime; whether the
convict had lost his potentiality in committing the crime;
Writ Petition (Crl.) No.491 of 2022 Etc. Page 204 of 251
whether there was any fruitful purpose of confining the
convict any more; 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 CrPC.
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 vs. State of Uttar Pradesh, (1998) 4 SCC
75, a three-Judge Bench of this Court considered the question as
to scope of judicial review of an order of a Governor under Article
161 of the Constitution of India. In the said case, a Member of the
Legislative Assembly of the State of Uttar Pradesh had been
convicted of the offence of murder and within a period of less than
Writ Petition (Crl.) No.491 of 2022 Etc. Page 205 of 251
two years, he was granted remission from the remaining long period
of his life sentence. The son of the deceased moved the Allahabad
High Court challenging the aforesaid action of the Governor and the
same having been dismissed, the matter had been brought to this
Court. This Court noticed that the Governor exercised the power to
grant remission, without being appraised of material facts
concerning the prisoner, such as, his involvement in five other
criminal cases of serious nature, the rejection of his e arlier
clemency petition and the report of the jail authority that his
conduct inside the jail was far from satisfactory and that out of the
two years and five months he was supposed to have been in jail, he
was in fact out on parole during the substantial part thereof. The
Court further held that when the Governor was not in the know of
material facts, the Governor was deprived of the opportunity to
exercise the power to grant remission in a fair and just manner and
that the order granting remission fringe d on arbitrariness.
Therefore, the order of the Governor granting remission, was
quashed, with a direction to re-consider the petition of the prisoner
in light of the materials which the Governor had no occasion to
know earlier. As regards the question as to the power of judicial
review over an order passed by the Governor under Article 161 of
the Constitution, the following observations were made:
Writ Petition (Crl.) No.491 of 2022 Etc. Page 206 of 251
“10. A Constitution Bench of this Court has considered the
scope of judicial review of exercise of powers under Articles
72 and 161 of the Constitution of India in Kehar Singh v.
Union of India (1989) 1 SSC 204 . The bench after
observing that the Constitution of India is a constitutive
document which is fundamental to the governance of the
country under which people of India have provided a
constitutional polity consisting of certain primary organs,
institutions and functionaries to exercise the powers
provided in the Constitution, proceeded to add thus:
"All power belongs to the people and it is
entrusted by them to specified institutions and
functionaries with the intention of working out,
maintaining and operating a constitutional
order."
The Constitution Bench laid down that judicial 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 was exercised arbitrarily, mala
fide or in absolute disregard of the finer canons of the
Writ Petition (Crl.) No.491 of 2022 Etc. Page 207 of 251
constitutionalism, the by-product order cannot get the
approval of law and in such cases, the judicial hand must
be stretched to it.”
(underlining by us)
(b) In Joginder Singh vs. State of Punjab, (2001) 8 SCC 306
the facts were that the respondents-convicts therein were convicted
for offences punishable under Sections 324, 325 and 326 read
with Section 34 of the IPC and had been awarded a sentence of one
year and six months which was challenged upto the High Court of
Punjab and Haryana and was confirmed. On the dismissal of the
Revision Petition by the High Court, the convicts surrendered before
the Superintendent of the concerned jail and on the same day were
released by the jail authorities on being granted the benefit of
remission. It is of importance to note that during the period of trial
ending with confirmation of conviction in the Revision Petition by
the High Court, the convicts (earlier accused) were almost all at the
time out on bail except for a period of about 2 months and 25 days
when they were in jail, serving part of their sentence. The appellant
before this Court, who was the complainant, unsuccessfully
challenged the remission order before the High Court and thereafter
approached this Court by way of a Special Leave Petition. The
primary ground of challenge before this Court was that the periods
of remission permissible under successive notifications issued
Writ Petition (Crl.) No.491 of 2022 Etc. Page 208 of 251
between 13.07.1988 and 29.07.1998 (period between date of
conviction by the Chief Judicial Magistrate and the date on which
the conviction and sentence was upheld by the High Court) were
cumulatively allowed to the convicts. That is to say that the
maximum period of remission permissible under each of the seven
notifications issued between the said dates was to be cumulatively
taken into account to grant a total remission of 17 and a half
months. It was contended before this Court that the said approach
was erroneous in construing successive policies of remission. It was
further contended that while applying the period of remission
granted by the Government under any remission notification, the
period during which an accused person was out on bail cannot be
taken into account.
(i) This Court while allowing the appeal of the appellant therein-
complainant held that the High Court fell 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
Writ Petition (Crl.) No.491 of 2022 Etc. Page 209 of 251
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 remission would be arbitrary and irrational if passed
without knowledge or consideration of material facts.
49. On a reading of the aforesaid judgments what emerges is that
the power to grant remission on an application filed by the convict
or on his behalf, is ultimately an exercise of discretion by the
appropriate Government. It is trite that where there is exercise of
legal power coupled with discretion by administrative authorities,
the test is, whether, the authority concerned was acting within the
scope of its powers. This would not only mean that the concerned
authority and in the instant case, the appropriate Government had
Writ Petition (Crl.) No.491 of 2022 Etc. Page 210 of 251
not only the jurisdiction and authority vested to exercise its powers
but it exercised its powers in accordance with law i.e., not in an
arbitrary or perverse manner without regard to the actual facts or
unreasonably or which would lead to a conclusion in the mind of
the Court that there has been an improper exercise of discretion. If
there is improper exercise of discretion, it is an instance of an abuse
of discretion. There can be abuse of discretion when the
administrative order or exercise of discretion smacks of mala fides
or when it is for any purpose based on irrelevant consideration by
ignoring relevant consideration or it is due to a colourable exercise
of power; it is unreasonable and there is absence of proportionality.
There could also be an abuse of discretion where there is failure to
apply discretion owing to mechanical exercise of power, non -
application of mind, acting under dictation or by seeking assistance
or advice or there is any usurpation of power.
49.1. It is not necessary to dilate upon each of the aforesaid aspects
of abuse of discretion in the instant case, as we have observed that
the consideration of the impugned orders or manner of exercise of
powers is unnecessary, having regard to the answer given by us to
Point No.3.
Writ Petition (Crl.) No.491 of 2022 Etc. Page 211 of 251
50. However, it would be relevant to refer to one aspect of abuse
of discretion, namely, usurpation of power. Usurpation of power
arises when a particular discretion vested in a particular authority
is exercised by some other authority in whom such power does not
lie. In such a case, the question whether the authority which
exercised discretion was competent to do so arises.
50.1. Applying the said principle to the instant case, we note that
having regard to the definition of “appropriate 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 o f
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 app ropriate
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-
Writ Petition (Crl.) No.491 of 2022 Etc. Page 212 of 251
section (7) of Section 432 of the CrPC. However, the said contention
was rejected by this Court contrary to several judgments of this
Court including that of the Constitution Bench in V. Sriharan. But
the State of Gujarat failed to file a review petition seeking correction
of the order of this Court dated 13.05.2022, (particularly when we
have now held that the said order is a nullity). Complying with the
said order can also be said to be an instance of usurpation of power
when the provision, namely, clause (b) of sub-section (7) of Section
432 states otherwise.
50.2. We fail to understand as to, why, the State of Gujarat, first
respondent herein, did not file a review petition seeking correction
of the order dated 13.05.2022 passed by this Court in Writ Petition
No.135 of 2022 in the case of respondent No.3 herein. Had the
State of Gujarat filed an application seeking review of the said order
and impressed upon this Court that it was not the “appropriate
Government” but the State of Maharashtra was the “appropriate
Government”, ensuing litigation would not have arisen at all. On
the other hand, in the absence of filing any review petition seeking
a correction of the order passed by this Court dated 13.05.2022,
the first respondent-State of Gujarat herein has usurped the power
of the State of Maharashtra and has passed the impugned orders of
Writ Petition (Crl.) No.491 of 2022 Etc. Page 213 of 251
remission on the basis of an order of this Court dated 13.05.2022
which, in our view, is a nullity in law.
50.3. In this regard it is necessary to dilate on the background to
this case and refer to the previous orders passed by this Court as
under:-
The first order is dated 16.12.2003, referring the matter to the
CBI for investigation; the second is an order of transfer of the trial
from the competent Court in Gujarat to the Special Court at
Mumbai and the third is an order passed by this Court granting
compensation to the petitioner in Writ Petition (Crl.) No.491 of
2022. The relevant portions of the aforesaid orders read as under:-
W.P.(Crl.) No.118 of 2003, dated 16.12.2003 –
referring matter to the CBI for investigation;
“ORDER
“Considering the nature of the allegations made, Shri
Mukul Rohtagi learned Additional Solicitor General
appearing for the respondents accepts that further
investigation in this case may be done by the CBI, though
he does not concede that the Gujarat Police is incompetent
to investigate the matter. Hence, we direct the CBI to take
over further investigation of this case and report to this
Court from time to time.
Let a report be filed by the CBI within eight weeks.
List after report is filed.”
Writ Petition (Crl.) No.491 of 2022 Etc. Page 214 of 251
Transfer Petition (Crl.) No.192 of 2004, dated
06.08.2004 – transfer of the trial from the
competent 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 vs. Jaswantbhai
Chaturbhai & Others 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 of 2019, order
dated 23.04.2019 - compensation
ORDER
“The appellant, Bilkis Yakub Rasool, is a victim of
riots which occurred in the aftermath of the Godhra
train burning incident in the State of Gujarat on
February 27, 2002. While eventually, the perpetrators of
the crime including the police personnel stan d
Writ Petition (Crl.) No.491 of 2022 Etc. Page 215 of 251
punished, the appellant, who was aged twenty-one years
and pregnant at that time, having lost all members of
her family in the diabolical and brutal attacks needs to
be adequately compensated. Additional facts which we
must note are that the appellant was repeatedly
gangraped and was a mute and helpless witness to her
three-and-a-half-year-old daughter being butchered to
death. This factual position is undisputed and
unchallenged in light of the findings of the trial court
upheld by the High Court and this Court.
The appellant, we are informed, is presently about
forty years of age and is without any home and lives with
her daughter who was born after the incident. She has
been coerced to live life of a nomad and as an orphan,
and is barely sustaining herself on the charity of NGOs,
having lost company of her family members. The
gruesome and horrific acts of violence have left an
indelible imprint on her mind which will continue to
torment and cripple her.
We do not have to search and elaborate upon
principles of law to come to the conclusion that the
appellant deserves to be adequately compensated. It is
only the quantum of compensation that needs to be
worked out by the Court. Time and again this Court has
held that the compensation so awarded must be just and
fair, and the criteria objective. However, this case has to
be dealt with differently as the loss and suffering evident
from the facts stated above surpass normal cases.
Taking into account the totality of the facts of the case,
we are of the view that compensation of Rs.50,00,000/-
(Rupees fifty lakh only) to be paid by the State
Government within two weeks from today, on proper
identification, would meet the ends of justice. Coupled
with the aforesaid relief, we deem it proper to further
direct the State Government to provide the appellant
with an employment under the State, if she wishes so
and is inclined, and also to offer her government
accommodation at a place of her choice, if she is willing
to live in such accommodation.
Writ Petition (Crl.) No.491 of 2022 Etc. Page 216 of 251
With the aforesaid direction, the appeals relating to
compensation 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-à-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 CrPC, in the
guise of consideration for remission on the basis of the 09.07.1992
policy, which had also stood cancelled in the year 2013. Taking
advantage of this Court’s order dated 13.05.2022, all other convicts
also sought consideration of their case by the Government of
Gujarat for remission even in the absence of any such direction in
their cases by this Court. Thus, the State of Gujarat has acted on
the basis of the direction issued by this Court but contrary to the
Writ Petition (Crl.) No.491 of 2022 Etc. Page 217 of 251
letter and spirit of law. We have already said that the State of
Gujarat never sought for the review of the order of this Court dated
13.05.2022 by bringing to the notice of this Court that it was
contrary to Section 432 (7) and judgments of this Court.
50.5. Instead, the State of Gujarat has acted in tandem and was
complicit with what the petitioner-respondent No.3 herein had
sought before this Court. This is exactly what this Court had
apprehended at the previous stages of this case and had intervened
on three earlier occasions in the interest of truth and justice by
transferring the investigation of the case to the CBI and the trial to
the Special Court at Mumbai . But, in our view, when no
intervention was called for in the writ petition filed by one of the
convicts /respondent No.3 herein, this Court was misled to issue
directions contrary to law and on the basis of suppression and
misstatements made by respondent No.3 herein. We have held that
order of this Court dated 13.05.2022 to be a nullity and non est in
the eye of law. Consequently, exercise of discretion by the State of
Gujarat is nothing but an instance of usurpation of jurisdiction and
an instance of abuse of discretion. If really State of Gujarat had in
mind the provisions of law and the judgments of this Court, and
had adhered to the rule of law, it would have filed a review petition
Writ Petition (Crl.) No.491 of 2022 Etc. Page 218 of 251
before this Court by contending that it was not the appropriate
Government. By failing to do so, not only are the earlier orders of
this Court in the matter have been vindicated but more importantly,
rule of law has been breached in usurping power not vested in it
and thereby aiding respondent Nos.3 to 13. This is a classic case
where the order of this Court dated 13.05.2022 has been used for
violating the rule of law while passing orders of remission in favour
of respondent Nos.3 to13 in the absence of any jurisdiction by
respondents – State of Gujarat. Therefore, without going into the
manner in which the power of remission has been exercised, we
strike down the orders of remission on the ground of usurpation of
powers by the State of Gujarat not vested in it. The orders of
remission are hence quashed on this ground also.
Section 432(2) of the CrPC : Opinion of the Presiding Judge of
the convicting court:
51. Sub-section (2) of Section 432 of the CrPC 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
Writ Petition (Crl.) No.491 of 2022 Etc. Page 219 of 251
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 and there was a
positive opinion for grant of remission to respondent Nos.3 to 13
herein.
52.1. This contention was however refuted by the learned counsel
Ms. Shobha Gupta by reiterating her submission that the
expression “may require” in sub-section (2) of Section 432 of the
CrPC ought to be read as “shall require”. This is evident from the
dicta of this Court. In this regard, reliance was placed on certain
judgments of this Court which we shall advert to in the first
instance as under:
Writ Petition (Crl.) No.491 of 2022 Etc. Page 220 of 251
(i) In Sangeet, it was observed that before actually exercising
the power of remission under Section 432 of the CrPC, the
appropriate Government must obtain the opinion (with reasons) of
the Presiding Judge of the convicting or confirming Court.
Remissions can, therefore, be given only on a case-by-case basis
and not in a wholesale manner.
(ii) Further, in V. Sriharan, it was observed that the declaration
of law made by this Court in Sangeet referred to above, is correct
and further the procedure to be followed under Section 432(2) of
the CrPC is mandatory. The manner in which the opinion is to be
rendered by the Presiding Judge can always be regulated and
settled by the concerned High Court and the Supreme Court by
stipulating the required procedure to be followed as and when any
such application is forwarded by the appropriate Government.
Therefore, it was observed that the suo motu power of remission
cannot be exercised under Section 432(1) of the CrPC and it can
only be initiated based on an application of the person convicted
under Section 432(2) of the CrPC and the ultimate order of
remission should be guided by the opinion to be rendered by the
Presiding Officer of the Court concerned.
Writ Petition (Crl.) No.491 of 2022 Etc. Page 221 of 251
(iii) This Court, in Ram Chander, has specifically dealt with the
value of the opinion of the Presiding Judge with reference to
paragraph 61 of Sangeet and paragraphs 148 and 149 of V.
Sriharan referred to above and observed in paragraphs 25 and 26
as under:
“25. In Sriharan (supra), the Court observed that the
opinion of the presiding judge shines a light on the nature
of the crime that has been committed, the record of the
convict, their background and other relevant fact ors.
Crucially, the Court observed that the opinion of the
presiding judge would enable the government 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 CrPC 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 account the factors which
have been laid down in Laxman Naskar and that the opinion was
Writ Petition (Crl.) No.491 of 2022 Etc. Page 222 of 251
a mechanical one bereft of reasons and therefore, inadequate and
not in accordance with law. Consequently, the petitioner’s
application for remission was directed to be considered afresh with
a direction to the Special Judge, Durg to provide an opinion on the
application afresh accompanied with adequate reasoning, taking
into account all the relevant factors that govern the grant of
remission as laid down in Laxman Naskar. A direction was issued
to State of Chhattisgarh in the said case to take a final decision on
the application for remission afresh within a month after receiving
the opinion of the Special Judge, Durg. Consequently, the petition
filed under Article 32 was allowed in the aforesaid terms.
52.2. Thus, the consistent view of this Court which emerges is that
the expression “may” has to be interpreted as “shall” and as a
mandatory requirement under sub-section (2) of Section 432 of the
CrPC. The said provision has sufficient guidelines as to how the
opinion must be provided by the Presiding Judge of the Court which
has convicted the accused inasmuch as –
(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;
Writ Petition (Crl.) No.491 of 2022 Etc. Page 223 of 251
(ii) naturally, the reasons must have a bearing on the
facts and circumstances of the case;
(iii) the reasons must be in tandem with 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.
52.3. Having regard to the requirements which the Presiding Judge
must comply with while stating his opinion to the appropriate
Government on an application for remission of sentence made by a
convict, it cannot be held that the expression “may” in the said
provision is not mandatory nor can it be left to the whims and
fancies of the appropriate Government either to seek or not to seek
the opinion of the Presiding Judge or the Court before which the
conviction had taken place.
52.4. In the instant case, what is interesting is that when
respondent No.3 - Radheshyam 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
Writ Petition (Crl.) No.491 of 2022 Etc. Page 224 of 251
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 CrPC inasmuch as the opinion was not forwarded along with
reasons having regard to the record of the trial as no trial had taken
place before the Sessions Court, Dahod. Further, the Presiding
Judge of the Sessions Court, Dahod also did not forward any
certified copy of the record of the trial. Moreover, learned Sessions
Judge at Dahod was also a member of the Jail Advisory Committee.
52.5. We further observe that the Presiding Judge of the Court
before which the conviction happens can never be a Member of the
Jail Advisory Committee, inasmuch he is an independent authority
who should give his opinion on the application seeking remission
which is a mandatory requirement as per the requirements of sub-
Writ Petition (Crl.) No.491 of 2022 Etc. Page 225 of 251
section (2) of Section 432. In the instant case, the opinion given by
the District & Sessions Judge at Dahod is vitiated for two reasons:
firstly, because he was not the Presiding Judge before which the
conviction of respondent Nos.3 to 13 took place; and, secondly, if
the Presiding Judge of the Court where the conviction occurred is
an independent authority which must be consulted by the
appropriate Government then he could not have been a Member of
the Jail Advisory Committee as in the instant case.
52.6. On perusal of the counter affidavit of the respondent-State of
Gujarat, it is noted that pursuant to the applications filed by
respondent Nos.4 to 13 (respondent No.3 had filed his application
before State of Maharashtra on 01.08.2019) seeking pre-mature
release or remission, opinion of the Special Judge (CBI), City Civil &
Sessions Court, Greater Mumbai was taken by the State of Gujarat
and in respect of all the respondent Nos.3 to 13 the categorical
opinion was that having regard to the Government’s Resolution
dated 11.04.2008, issued by the State of Maharashtra, said
prisoners should not be released pre-maturely. Had the State of
Maharashtra considered the applications of respondent Nos.3 to 13
for remission, this vital opinion of the Presiding Judge of the Court
which had convicted them would have carried weight in the mind of
Writ Petition (Crl.) No.491 of 2022 Etc. Page 226 of 251
the Government of the State of Maharashtra as well as the terms of
the Government’s Resolution dated 1 1.04.2008 which was the
applicable policy for remission. In fact, the first respondent, namely,
the Government of the State of Gujarat, which usurped the power
of the Government of the State of Maharashtra, simply brushed
aside the opinion of the Special Judge (CBI), Greater Mumbai.
Instead the opinion of the Sessions Judge, Godhra, District
Panchmahal within whose jurisdiction the offences had occurred
and who was a member of the Jail Advisory Committee was
highlighted by Sri S.V. Raju, learned ASG appearing for the State of
Gujarat. Although this opinion is also a negative opinion, the same
is not in accordance with sub-section (2) of Section 432 of the CrPC
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 CrPC in the
instant case in as much as the said opinion was not considered by
Writ Petition (Crl.) No.491 of 2022 Etc. Page 227 of 251
the appropriate Government. On that score also, the orders of
remission dated 10.08.2022 are vitiated.
Sentence in default of fine:
54. Learned counsel Mrs. Shobha Gupta contended that
respondent Nos.3 to 13 had not paid the fine and therefore, in the
absence of payment of fine, the default sentence ought to have been
undergone by the said respondents. This aspect of the matter has
been lost sight of or ignored while granting the orders of remission
and therefore, the orders of remission are vitiated on that score.
54.1. In response to the above arguments, learned senior counsel,
Sri Sidharth Luthra, at the outset, submitted that although
applications for payment of fine have been filed and are pending
consideration before this Court, nevertheless respondent Nos.3 to
13 have now on their own tendered the fine and the same has been
accepted by the Special Court at Mumbai.
54.2. In this regard, following judgments were referred to at the bar:
(a) In Shantilal vs. State of Madhya Pradesh, (2007) 11 SCC
243 (“Shantilal”), the contention was that the term of
imprisonment in default of payment of fine is not a sentence. It is
a penalty which a person incurs on account of non-payment of fine.
Writ Petition (Crl.) No.491 of 2022 Etc. Page 228 of 251
This sentence must be undergone by the offender unless it is set-
aside or remitted in part or in whole, either in appeal or in revision
or in other appropriate judicial proceedings or otherwise. However,
a term of imprisonment ordered in default of payment of fine stands
on a different footing. A person is required to undergo imprisonment
for default in payment of fine either because he is unable to pay the
amount of fine or refuses to pay such amount. He, therefore, can
always avoid to undergo imprisonment in default of payment of fine
by paying such amount. It is, therefore, not only the power, but the
duty of the Court to keep in view the nature of offence, and
circumstances under which it was committed, the position of the
offender and other relevant considerations before ordering the
offender to suffer imprisonment in default of payment of fine.
(i) The further question considered was, whether, a Court of law
can order a convict to remain in jail in default of payment of
fine. It was observed that even in the absence of a specific
provision in the law empowering a Court to order imprisonment
in default of payment of fine, such power is implicit and is
possessed by a Court administering criminal justice. In this
regard, reference was made to Sections 40 to 42 and Sections
63 to 70 IPC as well as Section 30 of the CrPC which deals with
a sentence of imprisonment in default of payment of fine and
Writ Petition (Crl.) No.491 of 2022 Etc. Page 229 of 251
Section 25 of the General Clauses Act, 1897 which deals with
recovery of fine. It was observed that even in the absence of a
provision to the contrary viz. that no order of imprisonment can
be passed in default of payment of fine, such power is explicit
and can always be exercised by a court having regard to Section
30 of the CrPC.
(b) In Sharad Hiru Kolambe vs. State of Maharashtra, (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
Writ Petition (Crl.) No.491 of 2022 Etc. Page 230 of 251
strict sense, imposition of such default sentence is completely
different and qualitatively distinct from a substantive sentence.
Theoretically, if the default sentences awarded in respect of
imposition of fine in connection with two or more offences are
to be clubbed or directed to run concurrently, there would not
be any occasion for the persons so sentenced to deposit the fine
in respect of the second or further offences. It would effectively
mean imposition of one single or combined sentence of fine.
Such an exercise would render the very idea of imposition of
fine with a deterrent stipulation while awarding sentence in
default of payment of fine to be meaningless. If imposition of
fine and prescription of mandatory minimum is designed to
achieve a specific purpose, the very objective will get defeated
if the default sentences were directed to run concurrently.
Therefore, the contention regarding concurrent running of
default sentences was rejected. It was observed that there is
no power of the Court to order the default sentences to run
concurrently but if a prisoner does not pay the fine or refuses
to pay the fine then he must undergo the default sentences so
imposed.
(c) In Shahejadkhan Mahebubkhan Pathan vs. State of
Gujarat, (2013) 1 SCC 570 (“Shahejadkhan Mahebubkhan
Writ Petition (Crl.) No.491 of 2022 Etc. Page 231 of 251
Pathan”), this Court speaking through Sathasivam, J. (as the
learned Chief Justice then was) held that the term of imprisonment
in connection with a fine is not a sentence but a penalty which a
person incurs on account of non-payment of fine. But on the other
hand, if a sentence is imposed, an offender must undergo the same
unless it is modified or varied in part or whole in the judicial
proceedings or by way of remission. But the imprisonment order in
default of fine stands on different footing. When such a sentence
on default of payment of fine is imposed, the person is required to
undergo imprisonment either because he is unable to pay the fine
or refuses to do so. The only way he can avoid to undergo
imprisonment in default of payment of fine is by paying such
amount.
54.3. The aforesaid dicta would therefore clearly indicate that the
sentence of imprisonment awarded to a person for committing an
offence is distinct than the imprisonment ordered to be undergone
in default of payment of fine. The latter is not a substantive
sentence for commission of the offence but is in the nature of
penalty for default in payment of fine.
54.4. In the instant case, while considering the applications for
remission, the Jail Advisory Committee did not take into
Writ Petition (Crl.) No.491 of 2022 Etc. Page 232 of 251
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, applications were filed seeking permission to
tender the fine amount. However, even before the said applications
could be considered and orders passed thereon, the respondents
convicts have paid the fine amount and have produced receipts in
that regard. This fact would not alter the consideration of the case
Writ Petition (Crl.) No.491 of 2022 Etc. Page 233 of 251
of respondent Nos.3 to 13 herein inasmuch the fact of payment of
fine ought to have been a point which had to be taken into
consideration prior to the passing of the orders of remission as there
could be no relaxation in the sentence with regard to payment of
fine. There can only be reduction in the substantive sentence to be
undergone by way of imprisonment for which the application
seeking remission is filed. Remission of sentence, which is for
reduction of the period of imprisonment, cannot however relate to
the payment of fine at all. Since there was non-application of mind
in this regard, the impugned orders of remission are contrary to law
and are liable to be quashed on this count as well.
In view of the above, the other contentions based on
Wednesbury principles do not require consideration in the present
case and hence all contentions on the said aspect are left open.
55. We however would like to indicate the factors that must be
taken into account while entertaining an application for remission
under the provisions of the CrPC, which are however not exhaustive
of the tests which we have discussed above. They can be
adumbrated as under:
Writ Petition (Crl.) No.491 of 2022 Etc. Page 234 of 251
(a) The application for remission under Section 432 of the
CrPC could be only before the Government of the State
within whose territorial jurisdiction the applicant was
convicted (appropriate Government) and not before
any other Government within whose territorial
jurisdiction the applicant may have been transferred
on conviction or where the offence has occurred.
(b) A consideration for remission must be by way of an
application under Section 432 of the CrPC which has
to be made by the convict or on his behalf. In the first
instance whether there is compliance of Section 433A
of the CrPC must be noted inasmuch as a person
serving a life sentence cannot seek remission unless
fourteen years of imprisonment has been completed.
(c) The guidelines under Section 432(2) with regard to the
opinion to be sought from the Presiding 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
Writ Petition (Crl.) No.491 of 2022 Etc. Page 235 of 251
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 apply.
(e) While considering an application for remission, there
cannot be any abuse of discretion. In this regard, it is
Writ Petition (Crl.) No.491 of 2022 Etc. Page 236 of 251
necessary to bear in mind the following aspects as
mentioned in Laxman Naskar, namely, -
(i) Whether the offence is an individual act of crime
without affecting the society at large?
(ii) Whether there is any chance of future
recurrence of committing crime?
(iii) Whether the convict has lost his potentiality in
committing crime?
(iv) Whether there is any fruitful purpose of
confining this convict any more?
(v) Socio-economic condition of the convict’s family.
(f) There has also to be consultation in accordance with
Section 435 of the CrPC wherever the same is
necessitated.
(g) The Jail Advisory Committee which has to consider
the application for remission may not have the District
Judge as a Member inasmuch as the District Judge,
being a Judicial Officer may coincidently be the very
judge who may have to render an opinion
independently in terms of sub-section (2) of Section
432 of the CrPC.
Writ Petition (Crl.) No.491 of 2022 Etc. Page 237 of 251
(h) Reasons for grant or refusal of remission should be
clearly delineated in the order by passing a speaking
order.
(i) When an application for remission is granted under
the provisions of the Constitution, the following
among other tests may apply to consider its legality by
way of judicial review of the same.
(i) that the order has been passed without
application of mind;
(ii) that the order is mala fide;
(iii) that the order has been passed on extraneous or
wholly irrelevant considerations;
(iv) that relevant materials have been kept out of
consideration;
(v) that the order suffers from arbitrariness.
Summary of Conclusions:
56. On the basis of the aforesaid discussion, we arrive at the
following summary of conclusions:
a) We hold that the Writ Petition (Crl.) No.491 of 2022 filed under
Article 32 of the Constitution before this Court is maintainable
and that it was not mandatory for the petitioner therein to have
Writ Petition (Crl.) No.491 of 2022 Etc. Page 238 of 251
filed a writ petition under Article 226 of the Constitution before
the Gujarat High Court.
b) Since Writ Petition (Crl.) No.491 of 2022 has been filed by one
of the victims invoking Article 32 of the Constitution before this
Court which has been entertained by us , the question,
whether, the writ petitions filed as public interest litigation
assailing the impugned 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 CrPC, 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,
Writ Petition (Crl.) No.491 of 2022 Etc. Page 239 of 251
suggestio falsi) and therefore, fraudulently obtained at the
hands of this Court.
i) Further, the petitioner in Writ Petition (Crl.) No.491 of
2022 not being a party to the said writ proceeding, the
same is not binding on her and she is entitled in law to
question the orders of remission dated 10.08.2022 from all
angles including the correctness of the order dated
13.05.2022.
ii) In addition to the above, the said order, being contrary to
the larger bench decisions of this Court, (holding that it is
the Government of the State within which the offender is
sentenced which is the appropriate Government which can
consider an application seeking remission of a sentence) is
per incuriam and is not a binding precedent. Hence, the
impugned orders of remission dated 10.08.2022 are
quashed on the above grounds.
e) Without prejudice to the aforesaid conclusions, we further hold
that the impugned orders of remission dated 10.08.2022
passed by the respondent -State of Gujarat in favour of
respondent Nos.3 to 13 are not in accordance with law for the
following reasons:
Writ Petition (Crl.) No.491 of 2022 Etc. Page 240 of 251
i) That the Government of the State of Gujarat
had usurped the powers of the State of
Maharashtra which only could have considered
the applications seeking remission. Hence, the
doctrine of usurpation of powers applies in the
instant case.
ii) Consequently, the Policy dated 09.07.1992 of
the State of Gujarat was not applicable to the
case of respondent Nos.3 to 13 herein.
iii) That opinion of the Presiding Judge of the Court
before which the conviction of respondent Nos.3
to 13 was made in the instant case i.e. Special
Court, Mumbai (Maharashtra) was rendered
ineffective by the Government of the State of
Gujarat which in any case had no jurisdiction
to entertain the plea for remission of
respondent Nos.3 to 13 herein. The opinion of
the Sessions Judge at Dahod was wholly
without jurisdiction as the same was in breach
of sub-section (2) of the Section 432 of the
CrPC.
Writ Petition (Crl.) No.491 of 2022 Etc. Page 241 of 251
iv) That while considering the applications seeking
remission, the Jail Advisory Committee, Dahod
and the other authorities had lost sight of the
fact that respondent Nos.3 to 13 herein had not
yet paid the fine ordered by the Special Court,
Mumbai which had been confirmed by the
Bombay High Court. Ignoring this relevant
consideration also vitiated exercise of discretion
in the instant case.
56.1. Having declared and held as such, we now move to point No.5.
Point No.5: What Order?
57. Respondent Nos.4 to 13, who had made applications to the
first respondent-State of Gujarat seeking remission of their
sentences, have been granted remission by the impugned orders
dated 10.08.2022, while it is not known whether respondent No.3
had made any 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 to13
have been released pursuant to the orders of remission dated
Writ Petition (Crl.) No.491 of 2022 Etc. Page 242 of 251
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
CrPC. So long as the said orders impugned were not set-aside, they
had carried the stamp of validity and hence till date the impugned
orders of remission were deemed to have been valid. Respondent
Nos.3 to 13 are out of jail. Since we have quashed the orders of
remission, what follows?
58. In our view, the most important constitutional value is
personal liberty which is a fundamental right enshrined in Article
21 of our Constitution. It is in fact an inalienable right of man and
which can be deprived of or taken away only in accordance with
law. That is the quintessence of Article 21. But, this is a case where
respondent Nos.3 to 13 have been granted liberty and have been
released from imprisonment by virtue of the impugned orders of
remission dated 10.08.2022 which we have declared and quashed
as wholly without jurisdiction and non est. Having quashed the
orders of remission made in favour of respondent Nos.3 to 13,
should they be sent back to prison? Whether respondent No.3 to 13
Writ Petition (Crl.) No.491 of 2022 Etc. Page 243 of 251
must have the benefit of their liberty despite obtaining the same
from an incompetent authority with the aid of an order of this Court
obtained fraudulently and therefore, the same being illegal and
carry a stamp of being a nullity and non est in the eye of law? This
has been a delicate question for consideration before us.
59. Learned counsel for the petitioner in Writ Petition (Crl.)
No.491 of 2022 has vehemently contended that there being failure
of rule of law in the instant case, justice would be done by this Court
only when respondent Nos.3 to 13 are returned to the prison. They
can be granted remission only in accordance with law. On the other
hand, respective learned senior counsel and counsel for the
respondents Nos.3 to 13 who have appeared have pleaded that they
have been enjoying liberty since 10.08.2022 and in spite of there
being any error in the orders of remission, although the orders of
remission may be quashed, by exercising jurisdiction under Article
142 of the Constitution, these respondents may not be subjected to
imprisonment once again and they may remain out of jail as free
persons. In other words, their liberty may be protected.
60. We have given our anxious thought to the aforesaid divergent
contentions. The primary question that now arises for our
consideration is this: when is liberty of a person protected? Article
Writ Petition (Crl.) No.491 of 2022 Etc. Page 244 of 251
21 of the Constitution states that no person shall be deprived of his
liberty except in accordance with law. Conversely, we think that a
person is entitled to protection of his liberty only in accordance with
law. When a person’s liberty cannot be violated in breach of a law,
can a person’s liberty be protected even in the face of a breach or
violation of law? In other words, should rule of law prevail over
personal liberty of a person or vice-versa? Further, should this
Court weigh in favour of a person’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?
Writ Petition (Crl.) No.491 of 2022 Etc. Page 245 of 251
61. Before we proceed further, we wish to reiterate what this
Court has spoken on the concept of rule of law through its various
judgments.
62. Rule of law means wherever and whenever the State fails to
perform its duties, the Court would step in to ensure that the rule
of law prevails over the abuse of the process of law. Such abuse may
result from, inter alia, inaction or even arbitrary action of protecting
the true offenders or failure by different authorities in discharging
statutory or other obligations in consonance with the procedural
and penal statutes. Breach of the rule of law, amounts to negation
of equality under Article 14 of the Constitution.
63. More importantly, rule of law means, no one, howsoever high
or low, is above the law; it is the basic rule of governance and
democratic polity. It is only through the courts that rule of law
unfolds its contours and establishes its concept. The concept of rule
of law is closely intertwined with adjudication by courts of law and
also with the consequences of decisions taken by courts. Therefore,
the judiciary has to carry out its obligations effectively and true to
the spirit with which it is sacredly entrusted the task and always in
favour of rule of law. There can be no rule of law if there is no
equality before the law; and rule of law and equality before the law
Writ Petition (Crl.) No.491 of 2022 Etc. Page 246 of 251
would be empty words if their violation is not a matter of judicial
scrutiny or judicial review and relief and all these features would
lose their significance if the courts don’t step in to enforce the rule
of law. Thus, the judiciary is the guardian of the rule of law and the
central pillar of a democratic State. Therefore, the judiciary has to
perform its duties and function effectively and remain true to the
spirit with which they are sacredly entrusted to it.
In our view, this Court must be a beacon in upholding rule of
law failing which it would give rise to an impression that this Court
is not serious about rule of law and, therefore, all Courts in the
country could apply it selectively and thereby lead to a situation
where the judiciary is unmindful of rule of law. This would result in
a dangerous state of affairs in our democracy and democratic polity.
64. Further, in a democracy where rule of law is its essence, it has
to be preserved and enforced particularly by courts of law.
Compassion and sympathy have no role to play where rule of law is
required to be enforced. If the rule of law has to be preserved as the
essence of democracy, it is the duty of the courts to enforce the
same without fear or favour, affection or ill-will.
Writ Petition (Crl.) No.491 of 2022 Etc. Page 247 of 251
65. The manner of functioning of the court in accord with the rule
of law has to be dispassionate, objective and analytical. 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 vs. Shivakant Shukla , H.R. Khanna, J. in his
dissenting judgment said, “rule of law is the antithesis of
arbitrariness”.
66. In this context, it would also be useful to refer to the notion of
justice in the present case. It is said that justice should remain loyal
to the rule of law. In our view, justice cannot be done without
Writ Petition (Crl.) No.491 of 2022 Etc. Page 248 of 251
adherence to rule of law. This Court has observed “the concept of
“justice” encompasses not just the rights of the convict, but also of
the victims of crime as well as of the law abiding section of society
who look towards the courts as vital instruments for preservation
of peace and the curtailment or containment of crime by punishing
those who transgress the law. If the convicts can circumvent the
consequences of their conviction, peace, tranquility and harmony
in society will be reduced to chimera.” (vide Surya Baksh Singh
vs. State of UP, (2014) 14 SCC 222)
67. This Court has further observed that the principle of justice
is an inbuilt requirement of the justice delivery system and
indulgence and laxity on the part of the law courts would be an
unauthorized exercise of jurisdiction and thereby, put a premium
on illegal acts. Courts have to be mindful of not only the spelling of
the word “justice” but also the content of the concept. Courts have
to dispense justice and not justice being dispensed with. In fact, the
strength and authority of courts in India are because they are
involved in dispensing justice. It should be their life aim.
68. The faith of the people in the efficacy of law is the saviour and
succour for the sustenance of the rule of law. Justice is supreme
and justice ought to be beneficial for the society. Law courts exist
Writ Petition (Crl.) No.491 of 2022 Etc. Page 249 of 251
for the society and ought to rise to the occasion to do the needful in
the matter. Respect for law is one of the cardinal principles for an
effective operation of the Constitution, law and the popular
Government. The faith of the people is the source to invigorate
justice intertwined with the efficacy of law. Therefore, it is the
primary duty and the highest responsibility of this Court to correct
arbitrary orders at the earliest and maintain the confidence of the
litigant public in the purity of the fountain of justice and thereby
respect rule of law.
69. In the same vein, we say that Article 142 of the Constitution
cannot be invoked by us in favour of respondent Nos.3 to 13 to allow
them to remain out of jail as that would be an instance of this
Court’s imprimatur to ignore rule of law and instead aid persons
who are beneficiaries of orders which in our view, are null and void
and therefore non est in the eye of law. Further, we cannot be
unmindful of the conduct of respondent Nos.3 to 13, particularly
respondent No.3 who has abused the process of law and the court
in obtaining remission. In such a situation, arguments with an
emotional appeal though may sound attractive become hollow and
without substance when placed in juxtaposition with our reasoning
on the facts and circumstances of this case. Therefore, in complying
Writ Petition (Crl.) No.491 of 2022 Etc. Page 250 of 251
with the principles of rule of law which encompasses the principle
of equal protection of law as enshrined in Article 14 of the
Constitution, we hold that ‘deprivation of liberty’ vis-à-vis
respondent Nos.3 to 13 herein is justified in as much as the said
respondents have erroneously and contrary to law been set at
liberty. One cannot lose sight of the fact that the said respondents
were all in prison for a little over fourteen years (with liberal paroles
and furloughs granted to them from time to time). They had lost
their right to liberty once they were convicted and were imprisoned.
But, they were released pursuant to the impugned remission orders
which have been quashed by us. Consequently, the status quo ante
must be restored. We say so for another reason in the event
respondent Nos.3 to 13 are inclined to seek remission in accordance
with law, they have to be in prison as they cannot seek remission
when on bail or outside the jail. Therefore, for these reasons we hold
that the plea of ‘protection of the liberty’ of respondent Nos.3 to 13
cannot be accepted by us.
70. We wish to emphasize that in the instant case rule of law must
prevail. If ultimately rule of law is to prevail and the impugned
orders of remission are set-aside by us, then the natural
consequences must follow. Therefore, respondent Nos.3 to 13 are
Writ Petition (Crl.) No.491 of 2022 Etc. Page 251 of 251
directed to report to the concerned jail authorities within two weeks
from today.
Conclusion:
71. Consequently, we pass the following orders:
a. Writ Petition (Crl.) No.491 of 2022 is allowed in the
aforesaid terms.
b. Other Writ Petitions stand disposed of.
c. Pending applications, if any, stand disposed of.
72. Before parting, we place on record our appreciation of all
learned senior counsel, learned ASG and learned counsel appearing
for the respective parties for their effective assistance in the matter.
……………………………….J.
(B.V. NAGARATHNA)
……………………………….J.
(UJJAL BHUYAN)
New Delhi;
January 08, 2024.
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