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. … 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. 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. 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. 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. 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.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 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. 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. 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. 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.
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 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. 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. 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 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. 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. 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. 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 premature release of the convict- respondent No.3. The Special Judge after perusing the guidelines issued by the Government of Maharashtra 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. 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 under its policy dated 09.07.1992, which was existing at the time of commission of his crime and his conviction.
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. 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. Accordingly, the Sessions Judge applied the policy dated 09.07.1992 and gave an ‘affirmative’ opinion as regards the premature release of respondent Nos.3 to 13. 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. 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. 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. Similarly, a third party stranger is precluded from questioning a remission order passed by the State Government which is in accordance with law. On the scope and ambit of the expression “person aggrieved”, reliance has been placed on State of Maharashtra vs M.V. 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.
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. 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). 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. Letter dated 11.03.2021 from the Superintendent of Police, CBI, SCB, Mumbai. Letter dated 07.03.2022 from the Collector & DM, Dahod, Gujarat No objection to the premature release of the prisoner.
Letter dated 09.06.2022 to the Home Department, Govt. Letter dated 28.06.2022 to the Ministry of Home Affairs, Govt. Letter dated 11.03.2021 from the Superintendent of Police, CBI, SCB, Mumbai. Letter dated 07.03.2022 from the Collector & DM, Dahod, Gujarat No objection to the premature release of the prisoner. Letter dated 09.06.2022 to the Home Department, Govt. Letter dated 28.06.2022 to the Ministry of Home Affairs, Govt.
Letter dated 07.03.2022 from the Superintendent of Police, Dahod, Gujarat. Letter dated 07.03.2022 from the Collector & DM, Dahod, Gujarat No objection to the premature release of the prisoner. Letter dated 09.06.2022 to the Home Department, Govt. Letter dated 28.06.2022 to the Ministry of Home Affairs, Govt. Letter dated 11.07.2022 to the Home Department, Govt. Letter dated 25.05.2022 from the Superintendent of Police, Dahod, Gujarat. Letter dated 25.05.2022 from the Collector & DM, Dahod, Gujarat No objection to the premature release of the prisoner. Letter dated 28.06.2022 to the Ministry of Home Affairs, Govt. Letter dated 11.07.2022 to the Home Department, Govt. Letter dated 07.03.2022 from the Superintendent of Police, Dahod, Gujarat. Letter dated 09.06.2022 to the Home Department, Govt. Letter dated 28.06.2022 to the Ministry of Home Affairs, Govt.
Letter dated 11.07.2022 to the Home Department, Govt. Letter dated 11.03.2021 from the Superintendent of Police, CBI, SCB, Mumbai. Letter dated 11.04.2008, issued by the State of Maharashtra, prisoner should not be released prematurely. Letter dated 07.03.2022 from the Superintendent of Police, Dahod, Gujarat. Letter dated 09.06.2022 to the Home Department, Govt. Letter dated 28.06.2022 to the Ministry of Home Affairs, Govt. Letter dated 11.07.2022 to the Home Department, Govt. Letter dated 10.03.2021 from the Superintendent of Police, CBI, SCB, Mumbai. Letter dated 07.03.2022 from the Superintendent of Police, Dahod, Gujarat. Letter dated 09.06.2022 to the Home Department, Govt. Letter dated 28.06.2022 to the Ministry of Home Affairs, Govt. Letter dated 07.03.2022 from the Collector & DM, Dahod, Gujarat No objection to the premature release of the prisoner. Letter dated 28.06.2022 to the Ministry of Home Affairs, Govt. Letter dated 11.07.2022 to the Home Department, Govt. Letter dated 07.03.2022 from the Collector & DM, Dahod, Gujarat No objection to the premature release of the prisoner. Opinion of the Jail Superintendent, Godhra Sub-Jail, Gujarat No objection to the premature release of the prisoner.
Letter dated 09.06.2022 to the Home Department, Govt. Letter dated 28.06.2022 to the Ministry of Home Affairs, Govt. Letter dated 11.07.2022 to the Home Department, Govt. Letter dated 07.03.2022 from the Collector & DM, Dahod, Gujarat No objection to the premature release of the prisoner. Opinion of the Jail Superintendent, Godhra Sub-Jail, Gujarat No objection to the premature release of the prisoner. Letter dated 28.06.2022 to the Ministry of Home Affairs, Govt. Letter dated 11.07.2022 to the Home Department, Govt. Letter dated 19.02.2020 from the Collector & DM, Dahod, Gujarat Objected to the premature release of the prisoner. Opinion of the Jail Superintendent, Godhra Sub-Jail, Gujarat No objection to the premature release of the prisoner. Letter dated 28.06.2022 to the Ministry of Home Affairs, Govt. Letter dated 11.07.2022 to the Home Department, Govt.
Shobha Gupta at the outset submitted that the en-masse remission granted to respondent Nos.3 to 13 by Orders dated 10.08.2022 has not only shattered the victim-petitioner and her family but has also shocked the collective conscience of the Indian society. 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. 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 court and that the remission shall not be granted in a wholesale manner, such as, on the occasion of Independence Day etc.
Relying on the opinion of the Special Judge, Sessions Court, Greater Mumbai, it was submitted 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. It was further contended that the remission orders under challenge failed to meet the criteria laid down by this Court in Sangeet ; and Ram Chander vs State of Chhattisgarh, (2022) 12 SCC 52 (“Ram Chander”), wherein it has been stated that the appropriate government must obtain the opinion of the Presiding Judge of the convicting court before deciding the remission application. 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. 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 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. 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 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. The remission Orders dated 10.08.2022 of respondent No.1 are in the teeth of the negative opinion of the Presiding Judge, Special Judge (CBI), Sessions Court, Greater Mumbai, dated 03.01.2020 and 22.03.2021, thereby, defeating the purpose of Section 432(2) of the CrPC. 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). 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. 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. 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 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 non-application of mind is evident in the non-speaking and stereotyped orders dated 10.08.2022 which are bereft of any reason. 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.
In this regard, reliance is placed on Maru Ram and S.P. Gupta vs Union of India, (1981) Supp SCC 87 (“S.P. (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. 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. (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, as well as crimes against women under Sections 376 and 354 of the IPC must not be permissible. As such, it is the 2014 Policy that would apply to the question of remission for respondent Nos.3 to 13. (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. 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. It was contended that the non-consideration of determinative factors has rendered the remission mechanical orders and arbitrary, with reliance placed on what is described as the untenable and unlawful en-masse approval of the Central Government. That a range of punishments were imposed on the respondent-convicts in prison hence, the possibility of recidivism cannot be entirely ruled out. 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. 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 conviction.
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”). 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. That this Court in Writ Petition (Crl.) No.135 of 2022 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. The State Government considered the cases of all eleven prisoners as per the policy of 1992 and remission was granted on 10.08.2022. Reliance was placed on the judgment of this Court in Jagdish wherein it was held that if a policy which is beneficial to the convict exists at the time of consideration of his application for premature release, then the convict cannot be deprived of such a beneficial policy. 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. 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. 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. As regards the contention of learned counsel for the petitioner-victim to the effect that the Orders are illegal inasmuch as those were passed without consulting the Presiding Judge of the convicting court as required under Section 432(2) of the CrPC, it was submitted that the said provision categorically stipulates that the appropriate government ‘may require’ the Presiding Judge of the Trial Court to give his opinion, hence obtaining such an opinion is not mandatory; whereas, Section 435 of the CrPC uses the word ‘shall’ in respect to the State Government to act only after consultation with the Central Government. 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. 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. 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. 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. 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.” 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. 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. 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.
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. Hence, the petitioner was under the impression that the said Review Petition and this writ petition would be considered together by this Court. (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.
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. 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- 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. 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. 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. Learned counsel reiterated that the nature of the crimes committed by the respondent Nos.3 to 13 were unusual and egregious.
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. 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 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. Reliance was placed on the judgements of this Court in Alister Anthony Pareira vs State of Maharashtra, (2012) 2 SCC 648 (“Alister Anthony Pareira”), Ravji vs State of Rajasthan, (1996) 2 SCC 175 (“Ravji”) and Soman vs State of Kerala, (2013) 11 SCC 382 (“Soman”).
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. 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. 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”). 2) Whether the writ petitions filed as Public Interest Litigation (PIL) assailing the impugned orders of remission dated 10.08.2022 are maintainable?
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. 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. 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. 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 226 of the Constitution or on the ground of its maintainability under Article 32 of the Constitution before this Court. That is because earlier, one of the respondents, namely, respondent 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. Thus, we hold that Writ Petition (Crl.) No.491 of 2022 filed under Article 32 of the Constitution is clearly maintainable.
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. 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.
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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 Constitution by the President of the Akali Dal (M), namely, Simranjit Singh Mann which was dismissed.
She asserted that the writ petition raises questions of great public importance in that, in a democracy based on the rule of law, no authority has any unfeterred and unreviewable discretion. 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. Vrinda Grover, learned counsel for the petitioner in Writ Petition (Crl.) 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.
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 remission. 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. 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. 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. Aparna Bhat submitted that the petitioner has locus standi to approach this Court against the remission orders dated 10.08.2022. 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”). 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. 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. 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.
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. ‘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. 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. 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. 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. Prisoners Probation Release on Act, 1938 within a period of two weeks.
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. 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. 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. Section 433-A does not permit parole or other related release within a span of fourteen years. 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.
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. 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. (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 sentence 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. (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.
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. 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. 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. Sub-section (3) deals with 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.
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 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. 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.
Whether the Government of State of Gujarat was competent to pass the impugned orders of remission? 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. However, when an application is made to the appropriate 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. 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. 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. 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. 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 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. … (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. (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.” Khan observed that the appropriate government on whose advice the Governor has to act while granting remission to such a prisoner was to be decided on the basis of the aid and advice of the Council of Ministers of the State which had convicted the accused and not the State where the accused/convict is transferred to be lodged in the jail.
In this case it was held that since the judgment of conviction had been passed in the States of Madhya Pradesh and Maharashtra and the convict was lodged in the State of Andhra Pradesh, the appropriate Governments were the States of Madhya Pradesh and Maharashtra even under Article 161 of the Constitution. 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-vis respondent Nos.3 to 13 herein as they were sentenced by the Special Court, Mumbai. 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. 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. 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. 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
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. 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? The Gujarat High Court vide its order dated 17.7.19 with great respect took a completely a diametrically opposite view as that of Bombay High Court and erroneously held that since the petitioner’s case was tried 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. 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. 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. 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.
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 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. The respondents are directed to consider the application of the petitioner for pre-mature release in terms of its policy dated 9 July, 1992 which is applicable on the date of conviction and may be decided within a period of two months. 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. 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. 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.
Sriharan as the trial had been concluded in the State of Maharashtra; (iii) that respondent No.3 had not stated that the application for premature release had been filed by him in the State of Maharashtra and not in the State of Gujarat as directed by the judgment of the Gujarat High Court dated 17.07.2019; (iv) Respondent No.3 herein who had filed the writ petition had not disclosed that he had acted upon the order dated 17.07.2019 passed by the Gujarat High Court inasmuch as– (a) he had approached the Government of Maharashtra vide application dated 01.08.2019; (b) the CBI had given a negative recommendation vide its letter dated 14.08.2019; (c) the Special Judge (CBI), Mumbai had given a negative recommendation vide his letter dated 03.01.2020; (d) the Superintendent of Police, Dahod, Gujarat had given a negative recommendation vide his letter dated 03.02.2020; and, (e) the District Magistrate, Dahod, Gujarat had given a negative recommendation vide his letter dated 19.02.2020. (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 (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. What was filed by the convict i.e., respondent No.3 before this Court was a writ petition under Article 32 of the Constitution seeking a direction to the State of Gujarat to consider his remission application; (xi) More significantly, while a reference has been made to Criminal Writ Petition No.305 of 2013 filed by one of the co-accused Ramesh Rupabhai in the year 2013 before the Bombay High Court seeking a direction for transfer of the convicts from Maharashtra Jail to Gujarat Jail, the reference to the Order of the Gujarat High Court dated 17.07.2019 dismissing the writ petition filed by respondent No.3 herein directing him to approach the Maharashtra State for remission was only in the context of the said order being “diametrically opposite” to the view of the Bombay High Court without explaining and by suppression of the backgrounds under which the two writ petitions were filed before the respective High Court.
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. 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 sentence, either by the convict or someone on his behalf. 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. 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. 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. (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.
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. 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. 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. 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. 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.
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. 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. Chengalvaraya Naidu vs Jagannath (Dead) through LRs, (1994) 1 SCC 1 (“S.P. This Court has also held that fraud is an act of deliberation with a desire to secure something which is otherwise not due.
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 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. Jayaram vs Bangalore Development Authority, 2021 SCC OnLine SC 1194 (“K.
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. 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. 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. 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. 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’. 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. 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. 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. 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. 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 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. 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 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 inasmuch 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.
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? We extract one of the orders of remission dated 10.08.2022 in the case of respondent No.3 as under: “GOVERNMENT OF GUJARAT Order Number JLK/83202/2978/J Secretariat House, Gandhinagar, Dated: 10/08/2022. This case was investigated by CBI, therefore the State Government of Gujarat in consultance with Central Government letter dated 28/06/2022. 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. 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. Whether the expression “consultation” stipulated in Section 435(1) really means “concurrence”?”
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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.
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. 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. 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. If the term of sentence is indefinite (as in life imprisonment), the power under Section 432 Cr.P.C. Before actually exercising the power of remission under Section 432 Cr.P.C. In this context, reliance was placed on Laxman Naskar wherein this Court, stipulated the factors that govern the grant of remission namely: i. 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. (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.
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. That any exercise of public power, including constitutional power, shall not be exercised arbitrarily or mala fide vide Maru Ram. In Epuru Sudhakar, two other aspects were also considered: one relating to the desirability of indicating reasons in the order granting pardon/remission and the other, relating to the power to withdraw the order of granting pardon/remission, if subsequently, materials are placed to show that certain relevant materials were not considered or certain materials of extensive value were kept out of consideration. The exercise of the prerogative power is subject to judicial review and rule of law which is the basis for evaluation of all decisions. that the order has been passed without application of mind; ii. that the order has been passed on extraneous or wholly irrelevant considerations; iv. Further, the exercise or non-exercise of power of pardon or remission is subject to judicial review and a pardon obtained by fraud or granted by mistake or granted for improper reasons would invite judicial review and the vindication of the rule of law being the main object of judicial review, the mechanism for giving effect to that justification varies. 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 date of consideration of his case for premature release by the appropriate authority. Similarly, rehabilitation and social reconstruction of a life convict, as an objective of punishment become a paramount importance in a welfare State.
However, the power of clemency must be pressed into service only in appropriate cases. 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. 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 fringed on arbitrariness. 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. 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.
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. 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. 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 would not only mean that the concerned authority and in the instant case, the appropriate Government had not only the jurisdiction and authority vested to exercise its powers but it 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. 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. What is interesting is that in the said writ petition, the State of Gujarat had correctly submitted before this Court that the appropriate Government in the instant case was State of Maharashtra and not the State of Gujarat. 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). 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.
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. 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. Time and again this Court has held that the compensation so awarded must be just and fair, and the criteria objective. 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. 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. 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.
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. 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. 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. 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. 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. 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; (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. 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. 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.
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 the Government of the State of Maharashtra as well as the terms of the Government’s Resolution dated 11.04.2008 which was the applicable policy for remission. 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 the appropriate Government. 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. 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. 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. 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 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. 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 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 fact would not alter the consideration of the case of respondent Nos.3 to 13 herein inasmuch the fact of payment of fine ought to have been a point which had to be taken into consideration prior to the passing of the orders of remission as there could be no relaxation in the sentence with regard to payment of fine. (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. While doing so it is necessary to follow the requirements of the said Section which are highlighted by us, namely, (i) the opinion must state as to whether the application for remission should be granted or refused and for either of the said opinions, the reasons must be stated; (ii) the reasons must have a bearing on the facts and circumstances of the case; (iii) the opinion must have a nexus to the record of the trial or of such record thereof as exists; (iv) the Presiding Judge of the Court before or by which the conviction was had or confirmed, must also forward along with the statement of such opinion granting or refusing remission, a certified copy of the record of the trial or of such record thereof as exists. (iii) Whether the convict has lost his potentiality in committing crime? (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.
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 filed a writ petition under Article 226 of the Constitution before the Gujarat High 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.
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 directed to report to the concerned jail authorities within two weeks from today.
Case Title: BILKIS YAKUB RASOOL Vs. UNION OF INDIA (2024 INSC 24)
Case Number: W.P.(Crl.) No.-000491 / 2022
