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TMI Blog2024 (1) TMI 1318X X X X Extracts X X X X X X X X Extracts X X X X ..... ntentions of learned Senior Counsel, Sri S. Guru Krishna Kumar and Sri Chidambaresh are hence, rejected. Thus, Writ Petition (Crl.) No.491 of 2022 filed under Article 32 of the Constitution is clearly maintainable. Whether the writ petitions filed as Public Interest Litigation (PIL) assailing the impugned orders of remission dated 10.08.2022 are maintainable? - HELD THAT:- It is not 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 is held to be maintainable. The consideration of that petition on its merits would suffice in the instant case. Hence, the question of maintainability of the PILs challenging the orders of remission in the instant case would not call for an answer owing to the aforesaid reason. As a result, we hold that consideration of the point on the maintainability of the PILs has been rendered wholly academic and not requiring an answer in this case. Therefore, the question regarding maintainability of a PIL challenging orders of remission is kept open to be considered in any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Ms. Akanksha Bhatia, Adv. Mr. Anshuman Sharma, Adv. Mr. Pratik R. Bombarde, AOR Mr. Yogesh Yadav, Adv. Mr. Abhishek Kumar, Adv. Ms. Sumita Hazarika, AOR Ms. Vrinda Grover, Adv. Ms. Devika Tulsiani, Adv. Mr. Aakarsh Kamra, AOR Mr. Soutik Banerjee, Adv. Ms. Indira Jaising, Sr. Adv. Mr. Shadan Farasat, AOR Ms. Warisha Farasat, Adv. Mr. Paras Nath Singh, Adv. Mr. Rohin Bhatt, Adv. Mr. Harshit Anand, Adv. Mr. Aman Naqvi, Adv. Ms. Hrishika Jain, Adv. Ms. Natasha Maheshwari, Adv. Ms. Mriganka Kukreja, Adv. Mr. Abhishek Babbar, Adv. Ms. Aparna Bhat, AOR Ms. Karishma Maria, Adv. Mr. Tushar Mehta, SG Mr. S.V. Raju, A.S.G. Ms. Swati Ghildiyal, AOR Ms. Devyani Bhatt, Adv. Mr. Rajat Nair, Adv. Mr. Kanu Agarwal, Adv. Mr. Annam Venkatesh, Adv. Mr. Hitarth Raja, Adv. Ms. Madhumita Keshavan, Adv. Mr. Samrat Goswami, Adv. Mr. Harh Paul Singh, Adv. Ms. Sonali Sharma, Adv. contd.. - 3 - Mr. Tushar Mehta, SG Mr. S V Raju, A.S.G. Dr. Reeta Vasishta, Adv. Mr. Kanu Agrawal, Adv. Mrs. Shradha Deshmukh, Adv. Mr. Sanjay Kumar Tyagi, Adv. Mr. Annam Venkatesh, Adv. Mr. Siddharth Dharmadhikari, Adv. Mr. Arvind Kumar Sharma, AOR Mr. Rishi Malhotra, AOR Mr. Santosh Kumar, Adv. Mr. Shrey Sharawat, Adv. Mr. Sayoo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uance 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. 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 soc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ffences 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 been transferred from one State to another and such trial has been concluded and the prisoner has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led 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, (2006) 6 SCC 613 ( Rajiv Ranjan ); Gulzar Ahmed Azmi vs. Union of India, (2012) 10 SCC 731 ( Gulzar Ahmed ); Simranjit Singh Mann vs. Union of India, (1992) 4 SCC 653 ( Simranjit Singh ); and, Ashok Kumar Pandey vs. State of West Bengal, (2004) 3 SCC 349 ( Ashok Kumar ). It is submitted that a third party/stranger either under the provisions of the CrPC or under any other statute is precluded from questioning the correctness of grant or refusal of sanction for prosecution or the conviction and sentence imposed by the Court after a regular trial. Similarly, a third party stranger is precluded from questioning a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 consideration of the premature release application shall be guided by the Policy of 1992. A copy of the policy has been annexed as Annexure R-2. It is further submitted that the State Government considered the case of all the eleven convicts as per the Policy of 1992. Further, the remission in these cases was not granted under the Circular governing grant of remission to prisoners as part of celebration as Azadi Ka ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th law: 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relevant records qua the prisoner, Shaileshbhai Chimanlal Bhatt is annexed herewith as Annexure-RG-4. 31. I say that the relevant records pertaining to the application for remission qua the prisoner, Pradip Ramanlal Modhiya, is as under: Sl. No. Document Opinion of the concerned Authority 1. Premature release application dated 23.02.2021. - 2. Letter dated 11.03.2021 from the Superintendent of Police, CBI, SCB, Mumbai. Prisoner should not be released prematurely. 3. Letter dated 22.03.2021 from the Special Judge (CBI), City Civil Sessions Court, Gr. Bombay Considering the Govt. Resolution dated 11.04.2008, issued by the State of Maharashtra, prisoner should not be released prematurely. 4. Letter dated 07.03.2022 from the Superintendent of Police, Dahod, Gujarat. No objection to the premature release of the prisoner. 5. Letter dated 07.03.2022 from the Collector DM, Dahod, Gujarat No objection to the premature release of the prisoner. 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 premat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, Govt. of India Approved the premature release of the prisoner. Copy of the relevant records qua the prisoner, Mitesh Chimanlal Bhatt is annexed herewith as ANNEXURE RG-6. 33. I say that the relevant records pertaining to the application for remission qua the prisoner, Bipinchandra Kanaiyalal Joshi, is as under : Sl. No. Document Opinion of the concerned Authority 1. Premature release application dated 16.02.2021. - 2. Letter dated 10.03.2021 from the Superintendent of Police, CBI, SCB, Mumbai. Prisoner should not be released prematurely. 3. Letter dated 22.03.2021 from the Special Judge (CBI), City Civil Sessions Court, Gr. Bombay. Considering the Govt. Resolution dated 11.04.2008, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase of the prisoner. Sought approval/ suitable orders from the Govt. of India 10. Letter dated 11.07.2022 to the Home Department, Govt. of Gujarat from the Ministry of Home Affairs, Govt. of India. Approved the premature release of the prisoner. 37. Copy of the relevant records qua the prisoner, Govindbhai Akhambhai Nai (Raval) is annexed herewith as Annexure R-10. 38. I say that the relevant records pertaining to the application for remission qua the prisoner, Jashvantbhai Chaturbhai Nai (Raval), is as under: Sl. No. Document Opinion of the concerned Authority 1. Premature release application dated 15.02.2021 - 2. Letter dated 10.03.2021 from the Superintendent of Police, CBI, SCB, Mumbai. Prisoner should not be released prematurely. 3. Letter dated 22.03.2021 from the Special Judge (CBI), City Civil Sessions Court, Gr. Bombay Considering the Govt. Resolution dated 11.04.2008, issued by the State of Maharashtra, prisoner should not be released prematurely. 4. Letter 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Ministry of Home Affairs, Govt. of India from Home Department, Govt. of Gujarat Recommended premature release of the prisoner. Sought approval/ suitable orders from the Govt. of India 10. Letter dated 11.07.2022 to the Home Department, Govt. of Gujarat from the Ministry of Home Affairs, Govt. of India. Approved the premature release of the prisoner. Copy of the relevant records qua the prisoner, Rameshbhai Rupabhai Chandana is annexed herewith as Annexure R-12. 40. I say that the relevant records pertaining to the application for remission qua the prisoner, Radheshyam Bhagwandas Shah @ Lala Vakil, is as under: Sl. No. Document Opinion of the concerned Authority 1. Premature release application dated 01.08.2019 - 2. Letter dated 14.08.2019 from the Superintendent of Police, CBI, SCB, Mumbai. Prisoner should not be 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 respec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emission as they had not completed the minimum period of imprisonment as per the applicable remission policy. 7.5. It was further contended that the remission orders under challenge failed to meet the criteria laid down by this Court in Sangeet; and Ram Chander vs. State of Chhattisgarh, (2022) 12 SCC 52 ( Ram Chander ), wherein it has been stated that the appropriate government must obtain the opinion of the Presiding Judge of the convicting court before deciding the remission application. That the State of Gujarat granted remission to all the convicts by completely ignoring the negative opinions expressed by two major stakeholders i.e., the Presiding Judge of the convicting Court in Mumbai and the prosecuting agency (CBI). 7.6. Reliance was placed on the 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 ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his application for remission. The High Court vide Order dated 17.07.2019 dismissed the same in view of Section 432 of the CrPC. Respondent No.3 s second application was also dismissed vide Order dated 13.03.2020 passed by the Gujarat High Court. That in fact, within fourteen days of the First Order dated 17.07.2019, respondent No.3 had approached the Government of Maharashtra by way of an application dated 01.08.2019. Upon his application, opinion was sought from the (i) Investigating Agency (CBI) and the (ii) Presiding Officer of the convicting court (Special Judge, Sessions Court, Greater Mumbai), both of whom opined in the negative and against remission being granted to the said respondent. Further, the Superintendent of Police, Dahod, vide letter 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 13.05.2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idered 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 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-convi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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, wher ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se 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. 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 citiz ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the victim on the basis of her religion and gender. That these heinous crimes constitute crimes against humanity. It was submitted that the nature of the crime is important to consider while deciding whether to grant remission. The heinousness of the crimes committed by respondent Nos.3 to 13, the communal motivation of the crimes and the context in which those took place are contended to have not been considered by the State while granting remission. Reliance was placed on Sanaboina Satyanarayana vs. Government of Andhra Pradesh, (2003) 10 SCC 78 ( Sanaboina Satyanarayana ), wherein a certain Government Order issued by the State of Andhra Pradesh that excluded from the scope of remission those 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petrators 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 respondentconvicts 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mechanical and unreasoned blanket order of remission has been passed by the respondent-State, as remission is not stated to have been granted for all of the life sentences of each respondent-convict. (viii) that Section 435(1)(a) of the CrPC makes it mandatory for the State Government to consult the Central Government regarding the exercise of power to grant remission. But the en-masse and nonspeaking nature of the sanction granted by the Central Government, merely conveys approval of the premature release of the respondent-convicts, which do not meet the requirement of consultation . Reliance was again placed on Laxman Naskar. (ix) further, the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ission 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eas, 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 against an ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssion. At the stage of remission, the length of sentence or the gravity of the original crime cannot be the sole basis for refusing premature release as held in Satish vs. State of UP, (2021) 14 SCC 580 ( Satish ). Therefore, any argument regarding the factual nature of the crime or the impact it had on society are not relevant for consideration of remission was the submission of Sri Luthra. v) That it is open for the High Court as well as this Court to modify the punishment by providing for a specific period of incarceration without remission, considering the purported heinous nature of the 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 nonremittable. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore the Sessions Court, Greater Mumbai. However, without prejudice to the said payment, there is no provision in the Prison Manual of Gujarat, which bars remission from being granted if the fine is not paid. The grant of remission cannot be restricted just because a convict is not financially capable to bear the fine. The same would cause discrimination based on the economic and financial capacity of a convict to pay fine, resulting in the violation of Articles 14 and 21 of the Constitution. 15.4. We have heard learned counsel for the other respondents. With the aforesaid 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 u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 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, ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 nonapplication 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 nonpayment of fine. It was contended that they would ordinarily have had to undergo a further period of six years of imprisonment. That non-consideration of this fact further proves the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ual and egregious. That these crimes were very shocking to the society as a whole and the treatment of the respondents upon being granted remission invoked a common sense of pain in the nation. That in fact the Bombay High Court had described the brutal treatment of the victims by the respondent Nos.3 to 13, which was reflected in the condition of the dead bodies. These factors require that respondents Nos.3 to 13 be treated differently from other ordinary criminals. 17. Learned senior counsel, Ms. Indira Jaising, appearing for the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not considered the possibility of recidivism and whether there was any evidence of reformation of respondent Nos.3 to 13. That as per the record, respondent Nos.3 to 13 have not demonstrated any sign of reform and have not expressed any remorse for the crimes they have committed. That their applications for remission do not contain reference to feelings of remorse felt by them for their actions. The non-payment of fine is further indication of the absence of remorse. Also fresh cases have been registered against two of the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idered 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? 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 submission ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ting aside the unlawful action or enforcing the performance of public duty. (Vide B.P Singhal). 24.1. She asserted that the writ petition raises questions of great public importance in that, in a democracy based on the rule of law, no authority has any unfeterred and unreviewable discretion. All powers vested in an authority, are intended to be used only for public good. The exercise of executive power must be informed by the finer canons of constitutionalism, vide Maru Ram. That 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the matter refer to different stages of criminal proceedings, viz. petitions related to investigation, trial, sentencing or quashing of the FIR. However, the present petition is a challenge to the arbitrary and mala fide administrative action which has arisen after the criminal proceedings have attained finality in the eye of law. 25.3. Learned counsel submitted that it is trite that the exercise of executive discretion is subject to rule of law and fairness in 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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. 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 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 punis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here a sentence is for a definite term, the calculus of remissions may benefit the prisoner to instant release at the point where the subtraction results in zero . However, when it comes to life imprisonment, where the sentence is indeterminate and of an uncertain duration, the result of subtraction from an uncertain quantity is still an uncertain quantity and release of the prisoner cannot follow except on some fiction of 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 sca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he punitive exercise which means the length of the prison term is no reparation to the crippled or bereaved. (v) Fazal Ali, J. in his concurring judgment in Maru Ram observed that crime is rightly described as an act of warfare against the community touching new depths of lawlessness. According to him, the object of imposing deterrent sentence is three-fold. While holding that the deterrent form of punishment may not be a 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 a social 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 woul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me, 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 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. (4) The condition on which a sentence is suspended or remitted under this sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. (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 relat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection (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 Court at Mumbai. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Government under section 401 (1) of the erstwhile CrPC to exercise the discretion for remission of the sentence was the State of Madhya Pradesh. It was further observed that even under the new Code i.e. CrPC, 1973 as per sub-section (7) of Section 432 thereof, the phrase appropriate Government had 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ife 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- -vis respondent Nos.3 to 13 herein as they were sentenced by the Special Court, Mumbai. Hence the applications filed by respondent Nos.4 to 13 seeking remission had to be simply rejected by the State of Gujarat owing to lac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... applications for remission filed by respondents No.3 to 13 herein. Further, the consideration had to be made as per the 1992 Policy of Remission of the State of Gujarat. Hence, the appropriate Government in the case of respondent Nos.3 to 13 was the Government 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .07.1992 of the State of Gujarat which was existing at the time of his conviction. The relevant pleadings in the said writ petition are extracted as under: Question of Law: A. Whether the policy dated 9.7.92, which was existing 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 appr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... priate 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) Code of Criminal Procedure and placing reliance on the judgment of this Court in Union of India v. V. Sriharan alias Murugan and Ors. 2015:INSC:886 : (2016) 7 SCC 1, on the premise that since the trial has been concluded in the State of Maharashtra, the application for pre-mature release has to be filed in the State of Maharashtra and not in the State of Gujarat, as prayed by the Petitioner by judgment impugned dated 17th July 2019. xxx xxx xxx 10. Learned Counsel for the Respondents has placed reliance on the judgment of this Court in Union of India v. V. Sridharan alias Murugan and Ors. (supra) and submits that since the trial has been concluded in the State of Maharashtra, taking assistance of Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... State of Gujarat where the crime was committed and not the State where the trial stands transferred and concluded for exceptional reasons under the orders of this Court. 15. Consequently, the petition is allowed. The judgment impugned dated 17th 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 9th 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 guilt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder: (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 Code of Criminal Procedure and on the basis of the decision in V. Sriharan as the trial had been concluded in the State of Maharashtra; (iii) that Respondent No. 3 had not stated that the application for premature release had been filed by him in the State of Maharashtra and not in the State of Gujarat as directed by the judgment of the Gujarat High Court dated 17.07.2019; (iv) Respondent No. 3 herein who had filed the writ petition had not disclosed that he had acted upon the order dated 17.07.2019 passed by the Gujarat High Court inasmuch as- (a) he had approached the Government of Maharashtra vide application dated 01.08.2019; (b) the CBI had given a negative recommendation vide its letter dated 14.08.2019; (c) the Special Judge (CBI), Mumbai had given a negative recommendation vide his letter dated 03.01.2020; (d) the Superintendent of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ew 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. (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 Mahara ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, 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. Thus, the representation has to be made to the appropriate Government in terms of the provisions Under Section 432 of the Code of Criminal Procedure. It was further observed that the exercise of power by the appropriate Government Under Sub-section (1) of Section 432 of the Code of Criminal Procedure cannot be suo motu for the simple reason that this Sub-section is only an enabling provision. In other words, the appropriate Government is enabled to override a judicially pronounced sentence, subject to fulfillment of certain conditions. Those conditions are found either in the jail manual or in statutory rules. Therefore, Sub-section (1) of Section 432 of the Code of Criminal Procedure cannot be read to enable the appropriate Government to further override the judicial pronouncement over and above what is permitted by the jail manual or the statutory rules. On such an application being made, the appropriate Government is required to approach the Presiding Judge of the Court before or by which the conviction was made or conf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ners 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 judgment of this Court in Sangeet and the communication of Union of India issued to each of the states including the State of Gujarat? Does it mean that the said policy of 09.07.1992 had stood cancelled and therefore got effaced and erased from the statute book and substituted by a new policy of 2014 which had to be considered. There was no pleading or discussion to that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... body 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 v. State of Maharashtra AIR 1967 SC 1, which is binding on us. 39.1. When an oral order of the learned Judge passed in the original suit of the Bombay High Court was challenged by the Petitioner therein by way of a writ petition Under Article 226 of the Constitution of India before the Bombay High Court, the writ petition was dismissed by a division bench of the Bombay High Court on the ground that the impugned order was a judicial order of the High Court and was not amenable to writ jurisdiction Under Article 226. Thereafter, the Petitioner therein moved this Court Under Article 32 of the Constitution of India for enforcement of his fundamental rights Under Article 19(1)(a) and (g) of the Constitution of India. This Court observed that the impugned order was passed by the learned Judge in the course of trial of a suit before him after hearing the parties. This Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncerned, there was no direction of this Court or any court to the State of Gujarat to consider their pre-mature release. 41. We are of the considered view that the writ proceedings before this Court is pursuant to suppression and misleading of this Court and a result of suppressio veri suggestio falsi. Hence, in our view, the said order was obtained by fraud played on this Court and hence, is a nullity and non est in law. In view of the aforesaid discussion, we hold that consequently the order dated 13.05.2022 passed by this Court in Writ Petition (Crl.) No. 135 of 2022 in the case of Radheshyam Bhagwandas Shah is hit by fraud and is a nullity and non est in the eye of law and therefore cannot be given effect to and hence, all proceedings pursuant to the said order are vitiated. 42. It is trite that fraud vitiates everything. It is a settled proposition of law that fraud avoids all judicial acts. In S.P. Chengalvaraya Naidu v. Jagannath (Dead) through LRs,(1994) 1 SCC 1 ( S.P. Chengalvaraya Naidu ), it has been observed that fraud avoids all judicial acts, ecclesiastical or temporal. Further, no judgment of a court, no order of a minister would be allowed to stand if it has been ob ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itution Bench in V. Sriharan vis- -vis the appropriate Government which is vested with the power to consider an application for remission as per Sub-section (7) of Section 432 of the Code of Criminal Procedure and that of the nine Judge Bench decision in Naresh Shridhar Mirajkar that an order of a High Court cannot be set aside in a proceeding Under Article 32 of the Constitution. 44.1. In State of U.P. v. Synthetics and Chemicals Ltd., (1991) 4 SCC 139 ( Synthetics and Chemicals Ltd. ), a two Judge Bench of this Court (speaking through Sahai J. who also wrote the concurring judgment along with Thommen, J.) observed that the expression per incuriam means per ignoratium. This principle is an exception to the Rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratium of a statute or other binding authority'. It would result in a judgment or order which is per incuriam. In the case of Synthetics and Chemicals Ltd., the High Court relied upon the observations in paragraph 86 of the judgment of the Constitution Bench in Synthetics and Chemicals Ltd., namely, sales tax cannot be charged on industrial alcohol in the present case, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ering this question, this Court categorically held that intoxicating liquor within the meaning of Entry 8 of List II was confined to potable liquor and did not include industrial liquor. This Court did not deal with the taxing power of the State under Entry 54 of List II which deals with 'taxes on the sale or purchase of goods other than newspapers, subject to the provisions of Entry 92-A of List I'. The power of the State to levy taxes on sale or purchase of goods under that entry was not the subject matter of discussion by this Court although in paragraph 86 of the leading judgment of this Court, there was a reference to sales tax. Therefore, the only question that was considered by the seven- judge bench of this Court was whether the State could levy excise duty or vend fee or transport fee and the like by recourse to Entry 51 or 8 in List II in respect of industrial alcohol. Entry 52 List II was not applicable to fee or charges in question. Entry 52 List II refers to Taxes on the entry of goods into a local area for consumption, use or sale therein . Further, the observation that sales tax cannot be charged by the State on industrial alcohol was an abrupt observation wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nclusion. It was not preceded by any discussion. No reason or rationale could be found in the judgment. Therefore, it was held by the two-Judge Bench that the same was per incuriam and was liable to be ignored in a subsequent matter between the same parties. The courts have taken recourse to this principle for relieving from injustice being perpetrated by unjust precedents. It was observed that uniformity and consistency are core of judicial discipline. But, if a decision proceeds contrary to the law declared, it cannot be a binding precedent. It was further observed that the seven-Judge Bench in Synthetics and Chemicals Ltd. did not discuss the matter and had observed that the State cannot levy sales tax on industrial alcohol. In the subsequent matter which arose from the High Court between the same parties, it was held by this Court that the conclusion of law by the Constitution Bench that no sales or purchase tax could be levied on industrial alcohol was per incuriam and also covered by the Rule of sub-silentio and therefore, was not a binding authority or precedent. Thus, although it is the ratio decidendi which is a precedent and not the final order in the judgment, however, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der dated 13.05.2022 passed by a coordinate Bench of this Court in Writ Petition No. 135 of 2022, we hold as follows: (i) that the Government of State of Gujarat (Respondent No. 1 herein) had no jurisdiction to entertain the applications for remission or pass the orders of remission on 10.08.2022 in favour of Respondent No. 3 to 13 herein as it was not the appropriate Government within the meaning of Sub-section (7) of Section 432 of the Code of Criminal Procedure; (ii) that this Court's order dated 13.05.2022 being vitiated and obtained by fraud is therefore a nullity and non est in law. All proceedings taken pursuant to the said order also stand vitiated and are non est in the eye of law. 47. Point No. 3 is accordingly answered. Point No. 4: Whether the impugned order of remission passed by the Respondent - State of Gujarat in favour of Respondent Nos. 3 to 13 are in accordance with law? 48. We have perused the original record which is the English translation from Gujrati language. 48.1. Even according to the Respondent State of Gujarat Radheshyam Bhagwandas Shah has not made any application seeking remission before the Superintendent, Godhra Sub-Jail or the State of Gujarat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tral Government letter dated 28/06/2022. Pursuant to which the Ministry of Home Affairs of the Government of India has given a positive opinion regarding the release of the prisoner from the letter reference (4), considering all the details, the release of Mr. Radheshyam Bhagwandas Shah was under consideration. ::ORDER:: Provision under Code of Criminal Procedure, 1973 Section 443(A), power given to State Government Under Section 432 of Code of Criminal Procedure, 1973, the convict prisoner Radheshyam Bhagwandas Shah's life sentence remitted under the following conditions and taken decision by Government to release him from immediate effect. ::CONDITIONS:: (1) He shall to furnish surety of two gentlemen about after releasing him, he will behave good up to two years and also given undertaking he will not breach public peace and harass parties and witnesses. (2) After being released from prison if he commits cognizable offense causing grievous hurt to anyone 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in Sangeet was approved. (b) In Sangeet, it was observed that a convict undergoing a sentence does not have a right to get remission of sentence, however, he certainly does have a right to have his case considered for the grant of remission as held in Mahender Singh and Jagdish. It was further observed in the said case that there does not seem to be any decision of this Court detailing the procedure to be followed for the exercise of power Under Section 432 of the Code of Criminal Procedure which only lays down the basic procedure i.e. by making an application to the appropriate Government for the suspension or remission of a sentence, either by the convict or someone on his behalf. It was observed that Sub-section (1) of Section 432 of the Code of Criminal Procedure is only an enabling provision to override a judicially pronounced sentence, 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The grant of remissions is statutory. However, to prevent its arbitrary exercise, the legislature has built in some procedural and substantive checks in the statute. These need to be faithfully enforced. 77.6. Remission can be granted Under Section 432 Code of Criminal Procedure in the case of a definite term of sentence. The power under this Section is available only for granting additional remission, that is, for a period over and above the remission granted or awarded to a convict under the Jail Manual or other statutory rules. If the term of sentence is indefinite (as in life imprisonment), the power Under Section 432 Code of Criminal Procedure can certainly be exercised but not on the basis that life imprisonment is an arbitrary or notional figure of twenty years of imprisonment. 77.7. Before actually exercising the power of remission Under Section 432 Code of Criminal Procedure 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 U ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was filed by the son of the murdered persons while the convict was on bail in the murder case of Petitioner No. 1's father therein. In the writ petition it was alleged, inter alia, that the grant of remission was illegal as relevant materials were not placed before the Governor and the impugned order was made without application of mind and based on irrelevant and extraneous materials and therefore, liable to be set aside. That was a case where remission or grant of pardon was Under Article 161 of the Constitution by the Governor of the State of Andhra Pradesh. This Court, while considering the philosophy underlining the power of pardon or the power of clemency observed that the said power exercised by a department or functionary of the Government is in the context of its political morality. Reliance was placed on Biddle, Warden v. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the decision-making process, thereby vitiating it. The order granting remission impugned in the writ petitions was set aside being unsustainable and directed to be reconsidered and the writ petition was allowed to that extent. Kapadia, J., as the learned Chief Justice then was, in his concurring opinion observed that, exercise of executive clemency is a matter of discretion and yet subject to certain standards. The discretion has to be exercised or public considerations allowed. Therefore, the principle of exclusive cognizance would not apply when the decision impugned is in derogation of a constitutional provision. It was further stated that granting of pardon has the effect of eliminating conviction without 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 v. State of Gujarat, (1997) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng all the life sentences awarded to the convict on each count which is a matter to be considered by the competent authority. 48.7. With regard to the remission policy applicable in a given case, the following judgments are of relevance: (a) In Jagdish, a three Judge Bench of this Court considered the conflicting opinions expressed in State of Haryana v. Balwan, (1999) 7 SCC 355 ( Balwan ) on the one hand and Mahendar Singh, and State of Haryana v. Bhup Singh, (2009) 2 SCC 268 ( Bhup Singh ) on the other. The question considered by the three- Judge bench was, whether, the policy which provides for remission and sentence should be that which 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd within a period of less than two years, he was granted remission from the remaining long period of his life sentence. The son of the deceased moved the Allahabad High Court challenging the aforesaid action of the Governor and the same having been dismissed, the matter had been brought to this Court. This Court noticed that the Governor exercised the power to grant remission, without being appraised of material facts concerning the prisoner, such as, his involvement in five other criminal cases of serious nature, the rejection of his earlier clemency petition and the report of the jail authority that his conduct 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 fringed on arbitrariness. Therefore, the order of the Governor granting remission, was quashed, with a direction to re-consider the petition of the pri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and in such cases, the judicial hand must be stretched to it. (underlining by us) (b) In Joginder Singh v. State of Punjab, (2001) 8 SCC 306 the facts were that the Respondents-convicts therein were convicted for offences punishable Under Sections 324, 325 and 326 read with Section 34 of the Indian Penal Code and had been awarded a sentence of one year and six months which was challenged upto the High Court of Punjab and Haryana and was confirmed. On the dismissal of the Revision Petition by the High Court, the convicts surrendered before the Superintendent of 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 Peti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the power to grant remission on an application filed by the convict or on his behalf, is ultimately an exercise of discretion by the appropriate Government. It is trite that where there is exercise of legal power coupled with discretion by administrative authorities, the test is, whether, the authority concerned was acting within the scope of its powers. This would not only mean that the concerned authority and in the instant case, the appropriate Government had not only the jurisdiction and authority vested to exercise its powers but it 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 proporti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... jarat on February 27, 2002. While eventually, the perpetrators of the crime including the police personnel stand punished, the Appellant, who was aged twenty-one years and pregnant at that time, having lost all members of her family in the diabolical and brutal attacks needs to be adequately compensated. Additional facts which we must note are that the Appellant was repeatedly gangraped and was a mute and helpless witness to her 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 22 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 wo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sub-section (2) of Section 432 of the Code of Criminal Procedure ought to be read as shall require . This is evident from the dicta of this Court. In this regard, reliance was placed on certain judgments of this Court which we shall advert to in the first instance as under: (i) In Sangeet, it was observed that before actually exercising the power of remission Under Section 432 of the Code of Criminal Procedure, 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 Code of Criminal Procedure 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Code of Criminal Procedure. 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) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing remission which is a mandatory requirement as per the requirements of Sub-section (2) of Section 432. In the instant case, the opinion given by the District Sessions Judge at Dahod is vitiated for two reasons: firstly, because he was not the 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 rele ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave now on their own tendered the fine and the same has been accepted by the Special Court at Mumbai. 54.2. In this regard, following judgments were referred to at the bar: (a) In Shantilal v. State of Madhya Pradesh, (2007) 11 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. 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 consideration ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... posit 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 v. State of Gujarat, (2013) 1 SCC 570 ( Shahejadkhan Mahebubkhan 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 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. 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 Code of Criminal Procedure, which are however not exhaustive of the tests which we have discussed above. They can be adumbrated as und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Code of Criminal Procedure 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 Code of Criminal Procedure. (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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m 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: 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 sam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 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 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 subjecte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 v. State of U.P., (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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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