Notes Raw Data

The judgment relates to the remission of convicted persons in grotesque and diabolical crime driven by communal hatred. Respondents 3 to 13 against whom the Special Judge, Greater Mumbai, vide judgment dated 21-1-2008 convicted them and sentenced to life imprisonment for the commission of the offences of gang rape and murder of petitioner’s relatives. Later on appeals before the High Court and Supreme Court were dismissed and the sentence awarded by the Special Judge was affirmed. Thereafter, Respondents 3 to 13 were allowed remission by the State of Gujarat through the impugned order dated 10-8-2022 and the writ petitions under Article 32 of the Constitution of India were filed seeking quashing of these remission orders before the Supreme Court. It was contended that in the present case, the remission was granted to the convicts without application of mind and examining the nature and gravity of the crime and the impact of the remission order upon the victim and her family, witnesses and society at large. The Bench after hearing all the contentions from both the sides formed following points of consideration:
(1) Whether the petition filed by one of the victims in criminal writ petition No. 491 of 202217 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 10-8-2022 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 Respondents 3 to 13 are in accordance with law?
(5) What further orders need to be passed in regard to Respondents 3 to 13?
Writ petition under Article 32 is maintainable
The judgment states that the object and purpose of Article 32 of the Constitution of India adheres to the expanded notion of access to justice which also includes speedy remedy, and the petition filed by the petitioner in the present writ petition cannot be dismissed on the ground of availability of any alternative remedy under Article 226 or on the ground of maintainability under Article 32 of the Constitution of India. Also, earlier one of the respondents, namely, Respondent 3 had preferred writ petition invoking Article 32 of the Constitution of India and sought direction for the State of Gujarat to consider his case for remission under the policy of 1992. With respect to that petition, the Bench issued a categorical direction to that effect which the respondent State understood as a command or a direction to grant remission within a period of 2 months. That being so, the High Court of Gujarat would not have been able to entertain the aforesaid contention in view of the categorical direction issued by the Supreme Court and therefore for this reason also, petition under Article 32 was maintainable.
Are PILs also maintainable
With regard to the issue of maintainability of PILs, the judgment stated that as one of the victims, Bilkis Bano had already filed a writ petition invoking Article 32 of the Constitution of India assailing the orders of remission, which have already been held to be maintainable and the consideration of that petition on its merits would suffice in the instant case. The question of the maintainability of PILs is wholly academic and does not require an answer in the present case and therefore must be kept open to be considered in any other appropriate case.
State of Gujarat is not the appropriate Government
The judgment took into consideration the definition of the expression “appropriate government” provided under Section 432(7)18 of the Criminal Procedure Code, 1973 (CrPC). It clearly states that where the sentence is for an offence against, or the order referred to in sub-section (6) is passed under, any law relating to a matter to which the executive power of the Union extends, the Central Government; in other cases, the Government of the State within which the offender is sentenced or the said order is passed. Therefore, it is apparent that the Government of the State within which the offender is sentenced, or the said order is passed is the appropriate Government and that the conviction and sentence of the Court which had tried the case assumes significance. The judgment further stated that the intention of the Parliament that the Government of the State within which the offender was tried and sentenced is the appropriate Government, is also clear from the language of the provision of Section 432(7) CrPC. Also, the combined reading of sub-sections (1) and (2) of Section 432 CrPC, it is clear that the appropriate Government may have to seek the opinion of the Presiding Judge of the Court before which the conviction took place, before passing an order of remission.
In the instant case, the investigation and the trial of Respondents 3 to 13 was transferred from the State of Gujarat to the State of Maharashtra and was conducted in the State of Maharashtra. The fact of transfer of proceedings, as per Section 432(7) would not be a relevant consideration when deciding as to which State has the competency to pass an order of remission. Thus, the definition also takes within its scope and ambit a circumstance wherein the trial is transferred by the Supreme Court. Therefore, it is still the State of Maharashtra within which the offender was sentenced, which is the appropriate Government having the jurisdiction as well as the competency to pass an order of remission under Section 432 CrPC.
Referring to the judgments of Laxman Naskar v. Union of India19 and State v. Nalini20 wherein it was observed that the phrase “appropriate Government” under Section 432(7)(a), allows discretion for remission to that State in whose jurisdiction the offender is sentenced or the sentence or order is passed, the judgment stated 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. The judgment further stated that when the State of Gujarat in the present case did not have the jurisdiction to deal with a matter or it was not within the powers of the authority to be the appropriate Government to pass orders of remission under Section 432 CrPC, the orders of remission would have no legs to stand.
Referring to the decision of Anisminic Ltd. v. Foreign Compensation Commission21, the Bench stated that just as an order passed by a Court without jurisdiction is a nullity, in the same vein, an order passed or action taken by an authority lacking in jurisdiction is a nullity and is non est in the eye of the law, and on this ground alone the orders of remission can be quashed as the Government of State of Gujarat lacked in the aspect of competency and authority to pass such orders, thus the orders of remission are nullity and non est in the eye of the law.
Order obtained through fraud is null and void
At this juncture, the Bench pointed out the fraud and misrepresentation played by Respondent 3 by misrepresenting the order of the Court. It observed that Respondent 3 had felt aggrieved by the order of the Gujarat High Court and it was open for him to challenge that order before the Supreme Court by filing a special leave petition (SLP), but instead of he complied with the order of the Gujarat High Court by filing remission application before the Government of Maharashtra where, not only the process for consideration of the remission prayer was initiated, but opinions of various authorities were also obtained. When the opinions were found to be negative, Respondent 3 filed a writ petition under Article 32 before the Court seeking a direction to the State of Gujarat to consider his remission application suppressing the above material facts. Referring to the decision in Naresh Shridhar Mirajkar v. State of Maharashtra22, the Bench stated that Respondent 3 misrepresented and suppressed relevant facts and played fraud on the Court. Therefore, neither the order of the Gujarat High Court could have been challenged or set aside in a proceeding under Article 32.
The judgment pointed out that only Respondent 3 had approached the Court by filing a writ petition under Article 32 of the Constitution of India seeking a direction to the State of Gujarat to consider his premature release and none of the other convicts i.e. Respondents 4 to 13 had approached the Court or any High Court seeking such a relief and with respect to the petition filed by Respondent 3. The Bench further stated that the writ proceedings before the Court is pursuant to suppression and misleading the Court, as a result of suppressio veri suggestio falsi and the said order dated 13-5-2022 was obtained by fraud played upon the Court and declared it as null and non est in law.
Vested powers must be exercised in accordance with law
The Bench observed that the appropriate Government had not only the jurisdiction and authority to exercise its powers, but it must be exercised in accordance with law i.e. not in an arbitrary or perverse manner without regard to the actual facts or which would lead the Court to believe that there has been an improper exercise of discretion. If there is an improper exercise of discretion, then it is an instance of an abuse of discretion. It will only happen where there is failure to apply discretion owing to mechanical exercise of power, non-application of mind, acting under dictation or by seeking assistance or advice or where there is an usurpation of power. Usurpation of power arises when a particular discretion vested in a particular authority is exercised by some other authority in whom such power does not lie.
The Bench observed that the above finding upon the impugned orders of remission in the case of Respondents 3 to 13 regarding the definition of “appropriate Government is an instance of usurpation of power. The Bench pointed out that the State of Gujarat had correctly submitted before this Court that the appropriate Government in the instant case was State of Maharashtra and not the State of Gujarat but it failed to file a review petition seeking correction of the order of the Court and complied with the said order thereby giving to an instance of usurpation of power when the provision clause (b) of sub-section (7) of Section 432 states otherwise.
Instead, the State of Gujarat acted in tandem and was complicit with what Respondent 3 herein had sought before the Court and misled the Court to issue directions contrary to law based on suppression and misstatements made by Respondent 3 herein. This being a classic case where the order of this Court has been used for violating the rule of law while the orders of remission were passed in the favour of Respondents 3 to 13 in the absence of any jurisdiction, by the State of Gujarat. Thus, without going into the manner in which the power of remission was exercised, the Bench struck down the orders of remission on the ground of usurpation of powers by the State of Gujarat.
Sentence in default of fine was ignored before remission
Referring to the decisions in Sharad Hiru Kolambe v. State of Maharashtra23 and Shahejadkhan Mahebubkhan Pathan v. State of Gujarat24 the Bench observed that the sentence of imprisonment awarded to a person for committing an offence is distinct from the imprisonment order which is to be undergone in default of payment of fine. Thus, the latter is not a substantive sentence for commission of the offence but is in the nature of penalty for default in payment of fine. The judgment on the basis of the arguments made before it, pointed out that Respondents 3 to 13 had not paid the fine and therefore, in the absence of payment of fine, the default sentence ought to have been undergone by the respondents and this aspect of the matter had been lost sight of or ignored before granting the orders of remission.
The Bench stated that the question whether the default sentence or penalty had to be undergone by the respondents, was a crucial consideration before recommending remission of the convicts to the State Government by the Jail Advisory Committee. In the instant case, this had not been taken into consideration by the State Government before passing the impugned orders for remission. Realising thereafter, the respondent convicts paid the fine amount while the writ petitions were pending before the Court. However, this fact did not alter the consideration of the case of Respondents 3 to 13, as the payment of fine ought to have been made prior to the passing of the impugned orders of remission, as there could be no relaxation in the sentence regarding payment of fine.
Remission of the sentence, which is for the 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 were contrary to law and were held liable to be quashed on this ground as well.
Factors to be taken into account while entertaining an application for remission under CrPC
The judgment outlined following factors, though not exhaustive, that must be taken into account before entertaining an application for remission under CrPC:
(a) The application for remission under Section 432 CrPC could be only before the Government of the State within whose territorial jurisdiction the applicant was convicted (appropriate Government) and not before any other Government within whose territorial jurisdiction the applicant may have been transferred on conviction or where the offence has occurred.
(b) A consideration for remission must be by way of an application under Section 432 CrPC which has to be made by the convict or on his behalf. In the first instance, whether there is compliance of Section 433-A25 CrPC must be noted in as much as a person serving a life sentence cannot seek remission unless fourteen years of imprisonment has been completed.
(c) The guidelines under Section 432(2) with regard to the opinion to be sought from the Presiding Judge of the Court which had convicted the applicant must be complied with mandatorily. While doing so it is necessary to follow the requirements as stated in the said provision.
(d) The policy of remission applicable would therefore be the policy of the State which is the appropriate Government, and which has the jurisdiction to consider that application. The policy of remission applicable at the time of the conviction could apply and only if for any reason, the said policy cannot be made applicable a more benevolent policy, if in vogue, could apply.
(e) While exercising discretion in an application for remission, the aspects as mentioned in Laxman Naskar case26, are necessary to bear in mind.
(f) There has also to be consultation in accordance with Section 43527 CrPC wherever the same is necessitated.
(g) The Jail Advisory Committee which has to consider the application for remission may not have the District Judge as a Member inasmuch as the District Judge, being a judicial officer may coincidently be the very Judge who may have to render an opinion independently in terms of sub-section (2) of Section 432 CrPC.
(h) Reasons for grant or refusal of remission should be clearly delineated in the order by passing a speaking order:
(i) When an application for remission is granted under the provisions of the Constitution, the following among other tests may apply to consider its legality by way of judicial review of the same:
(i) that the order has been passed without application of mind;
(ii) that the order is mala fide;
(iii) that the order has been passed on extraneous or wholly irrelevant considerations;
(iv) that relevant materials have been kept out of consideration; and
(v) that the order suffers from arbitrariness.
Summary of conclusions
The judgment after discussing all the above contentions at length concluded as follows:
(a) We hold that the WP (Crl.) No. 491 of 202228 filed under Article 32 of the Constitution before this Court is maintainable and that it was not mandatory for the petitioner therein to have filed a writ petition under Article 226 of the Constitution of India before the Gujarat High Court.
(b) In view of Section 432(7) read with Sections 432(1) and (2) CrPC, we hold that the Government of the State of Gujarat had no jurisdiction to entertain the prayers seeking remission of Respondents 3 to 13 herein as it was not the appropriate Government within the meaning of the aforesaid provisions. Hence, the orders of remission dated 10-8-2022 made in favour of Respondent 3 to 13 herein are illegal, vitiated and therefore, quashed.
(c) While holding as above, the Bench also held that the judgment dated 13-5-2022 passed by the Court is a nullity and is non est in law since the said order was sought by suppression of material facts. In addition to the above, the said order, being contrary to the larger Bench decisions of the Court, is per incuriam and is not a binding precedent. Hence, the impugned orders of remission dated 10-8-2022 are quashed on the above grounds.
(d) Without prejudice to the aforesaid conclusions, the Bench further held that the impugned orders of remission dated 10-8-2022 passed by the respondent State of Gujarat in favour of Respondents 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) That while considering the applications seeking remission, the Jail Advisory Committee, Dahod and the other authorities had lost sight of the fact that Respondents 3 to 13 herein had not yet paid the fine ordered by the Special Court, Mumbai which had been confirmed by the Bombay High Court. Ignoring this relevant consideration also vitiated exercise of discretion in the instant case.
Rule of law will prevail over right to liberty
The Bench, after setting aside the orders of remission faced a question that whether Respondents 3 to 13 be sent back to the prison. The Bench observed that the principle of justice is an inbuilt requirement of the justice delivery system and laxity on the part of the courts would be an unauthorised exercise of jurisdiction and would affect the faith of the people in the efficacy of law as a saviour and succour for the sustenance of the rule of law.
The Bench stated that it would not be appropriate to ignore the rule of law and instead aid persons who are beneficiaries of orders which are null and void and therefore non est in the eye of the law. Further, it was stated that it could not be unseen that the process of law and the Court have also been abused in obtaining order of remission. Therefore, in complying with the principles of rule of law which encompasses the principle of equal protection of law as enshrined under Article 1429 of the Constitution of India, the Bench held that the “deprivation of liberty” vis-à-vis Respondents 3 to 13, is justified as the respondents had, erroneously and contrary to law, been set to liberty.
The Bench passed an order to maintain status quo ante and that Respondents 3 to 13 have to report to the jail authorities concerned within 2 weeks from the date of order, as also they have to be inside the jail to further seek remission from the State of Maharashtra. Ultimately, the Bench observed that the rule of law will prevail over the impugned orders of remission and therefore the orders of remission were quashed.
17. (2024) 5 SCC 481.
18. Criminal Procedure Code, 1973, S. 432(7).
19. (2000) 2 SCC 595.
20. (1999) 5 SCC 253.
21. (1969) 2 WLR 163 : (1969) 1 All ER 208.
22. 1966 SCC OnLine SC 10.
23. (2018) 18 SCC 718.
24. (2013) 1 SCC 570.
25. Criminal Procedure Code, 1973, S. 433-A.
26. (2000) 2 SCC 595.
27. Criminal Procedure Code, 1973, S. 435.
28. (2024) 5 SCC 481.
29. Constitution of India, Art. 14.