Madhya Pradesh High Court
The State Of Madhya Pradesh vs Shiv Kumar Dahle on 2 April, 2025
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NEUTRAL CITATION NO. 2025:MPHC
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IN THE HIGH COURT OF MADHYA PRADESH
AT JAB A L PUR
BEFORE
HON'BLE SHRI JUSTICE SURESH KUMAR KAIT,
CHIEF JUSTICE
&
HON'BLE SHRI JUSTICE VIVEK JAIN
WRIT APPEAL No. 1996 of 2024
ANIL @ PAPPU PORIKAR
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Brajesh Kumar Rajak and Shri Rajesh Awasthi - Advocates for the appellant.
Shri Abhijeet Awasthi - Deputy Advocate General for respondent/State.
WRIT APPEAL No. 100 of 2024
THE STATE OF MADHYA PRADESH AND OTHERS
Versus
SHIV KUMAR DAHLE
Appearance:
Shri Abhijeet Awasthi - Deputy Advocate General for appellant/State.
Shri Brajesh Kumar Rajak and Shri Rajesh Awasthi - Advocates for the respondent.
Reserved on - 19.02.2025
Pronounced on - 02.04.2025
Signature Not Verified
Signed by: CHRISTOPHER
PHILIP
Signing time: 03-04-2025
10:48:41
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ORDER
Per: Justice Suresh Kumar Kait, Chief Justice:
1. Writ Appeal No.1996/2024 has been filed by the appellant/writ
appellant/
petitioner namely Anil @ Pappu Porikar being aggrieved by the order
dated 30.05.2024 passed by the learned Single Judge dismissing the writ
petition i.e. W.P.No.30228/2023
No.30228/2023 filed by the petitioner,, wherein the
challenge was made to the order of the respondent-authorities
ies declining
to grant remission to the petitioner on the basis of remission policy dated
22.09.2022.
2. Writ Appeal No.100/2024 has been filed by the State being
aggrieved by the order dated 02.11.2023 passed by the learned Single
Judge allowing the writ petition i.e. W.P.No.21655/2023 whereby the
matter has been remitted to the authority to reconsider the petitioner’s
case afresh in light of the order
order/remission policy dated 10.01.2012
formulated by the State within a period of 30 days from the date of
receipt of the order.
3. As the issue regarding grant or refusal of remission involves in
both the appeals, the same are being disposed of by this common order.
4. The facts leading to petitioner Anil @ Pappu Porikar
Porikar are that he
was convicted for offence under section 302/34 of IPC and sentenced to
life imprisonment vide judgment dated 31.07.1999 passed by the T
Trial
Court in Special Case No.2/1999 and for the second time he was also
convicted vide judgment dated 29.05.2015
2015 passed in Sessions Trial
No.161/2008 for offences under Sections 148, 302/149 (two counts) and
325/149 (three counts) of the IPC and sentenced to life imprisonment.
Signature Not Verified
Signed by: CHRISTOPHER
PHILIP
Signing time: 03-04-2025
10:48:41
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Against his conviction in Special Case No.2/1999, he approached the
High Court in Criminal Appeal No.2122/1999, which was dismissed
vide judgment dated 112.05.2008
.05.2008 of this Court. The SLP bearing Diary
No.27990/2021 filed against this conviction, was also dismissed by the
Supreme Court by order dated 29.11.2021
29.11.2021, however the Supreme Court
considering the fact that petitioner has already undergone more than 23
years of his incarceration, directed that in case the petitioner files an
application for remission before the competent authority, then the same
shall be considered as expeditiously as possible and in accordance with
law. In
n pursuance thereof, the petitioner made representation for grant of
remission before the concerned authority. However, the petitioner was
informed that in the light of Circular dated 22.09.2022 the petitioner is
not entitled for remission as he has been convicted twice for commission
of offence of murder and he has been awarded life imprisonment by the
Trial Court.
5. Learned counsel for appellant Anil @ Pappu Porikar contended
that he was also convicted
con by the Trial Court in Sessions Trial
No.161/2008 for offences under Section 148, 302/149 (two counts) and
325/149 (three counts) vide judgment dated 29.05.2015 and sentenced to
life imprisonment. Against the said judgment, a criminal appeal i.e.
Criminal Appeal No.2306/2015 is still pending though the writ
petitioner was
as granted bail by this Court vide order dated 18.11.2016.
Hence he is on bail in connection with Sessions Trial No.161/2008.
6. Further the submission of the learned counsel for appellant
appellant/writ
petitioner is that the impugned order of the learned Single Judge
dismissing his petition
tion is illegal and arbitrary. He has placed reliance on
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PHILIP
Signing time: 03-04-2025
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the judgment of the Supreme Court in the case of Narayan Dutt and
others Vs. State of Pun
Punjab and another 2011 (2) RCR (Criminal) 140,
Maru Ram Vs. Union of India reported in (1981) 1 SCC 107 and Bilkis
Yakub Rasool Vs. Union of India and others in Writ Petition
(Criminal) No.491/2022, vide judgment dated 08.01.2024 [reported in
(2024) 5 SCC 481] to contend that premature release of a convict could
not be withheld only for the reason that an appeal against the conviction
is pending before the Appellate Court. The aaward
ward of sentence is a
judicial function
unction but the execution of the sentence,, after the
pronouncement of the Court, is ordinarily a matter for the executive
under the Code of Crimina
Criminal Procedure.
re. He further contended that
remission policy which is applicable at the time of conviction would
apply and only if for any reason the said policy could not be made
applicable, a more benevolent policy, if in vogue, would apply.
7. The case of the petitio
petitioner before the writ Court wass that as per
Clause 1(A)(5) of the remission policy dated 10.01.2012, the petitioner
is entitled for remission and pre
pre-mature release. However, remission
policy dated 22.09.2022
2022 provides that if a person has been convicted in
two or more cases of murder, then he is not entitled for remission. He
further contended that since the remission policy dated 22
22.09.2022 is
subsequent to his last conviction i.e. 29.05.2015,, therefore, the same is
not applicable and the remission policy which was in force in the year
2015 i.e. dated 10.01.
.01.2012 would apply.
8. Per contra, the learned counsel for State has supported the
rejection of the claim of the writ petitioner for remission.
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PHILIP
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9. The learned Single Judge while dismissing the writ petition
observed in paras 15, 16 and 17 as follows:-
“15. Since Criminal Appeal No.2306/2015 is still pending,
therefore, whether the petitioner would be convicted or
would be acquitted is not sure. But one
one thing is clear that
after the judgment by the High Court is passed, the judgment
and sentence passed by the trial court would merge in the
judgment and sentence passed by the High Court.
16. In the light of judgment passed by the Supreme Court
in the case
se of Writ Petition (Criminal) No.491/2022 ((Bilkis
Yakub Rasool Vs. Union of India and others)
others) the remission
policy, which is applicable at the time of conviction, would
apply and only if for any reason the said policy could not be
made applicable a more benevolent
benevolent policy, if in vogue,
would apply.
17. Since the judgment of the trial court passed in
S.T.No.161/2008 would merge in the order passed by this
Court in Criminal Appeal No.2306/2015, therefore, the date
of conviction would be the date on which the judgment
would be passed by the High Court.”
10. On perusing the said order in W.P.No.30228/2023,
W.P.No.30228/2023 it would
reveal that the learned Single Judge was of the view that against second
conviction, Criminal Appeal No.2306/2015 is still pending,
pending in which
whether the petitioner would be convicted or acquitted is not sure.
However, it is clear that after the judgment by the High Court is passed,
the judgment and sentence passed by the Trial Court
ourt would merge in the
judgment and sentence passed by th
thee High Court, therefore, the date of
conviction would be the date on which the judgment would be passed by
the High Court. Hence, the learned Single Judge while dismissing the
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PHILIP
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NEUTRAL CITATION NO. 2025:MPHC
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petition observed that the authorities did not commit any mistake by
relying uponn the policy in vogue since 2022.
11. The State has also filed Writ Appeal No.100/2024 being
b
aggrieved by the order dated 02.11.2023 passed by the learned Single
Judge in Writ Petition No.21655/2023 whereby the learned Single Judge
allowed the writ petition filed by the respondent
respondent/writ
/writ petitioner namely
Shiv Kumar Dahle. The learned Single Judge set aside the order dated
07.06.2023 and without commenting on merits, remitted the matter to
the authority to reconsider the petitioner’s case afresh in lig
light of the
provision of order/remission
/remission policy dated 10.01.2012 within a period of
30 days from the date of receipt of the order.
12. The facts relating to the writ petitioner Shiv Kumar Dahle are that
he was convicted vide judgment dated 27.01.1999 passed by the Second
Additional Sessions Ju
Judge, Balaghat in Sessions Trial No.51
51/1998 and
sentenced to life imprisonment
imprisonment,, against which Criminal Appeal
No.315/1999 filed by him was also dismissed by this Court vide
judgment dated 10.09.2007. He was also convicted by the Trial
rial Court in
Sessions Trial No.161/2008 for offences under Section 148, 302/149
(two counts) and 325/149 (three counts) vide judgment dated
29.05.2015 and sentenced to life imprisonment. Against the said
conviction and sentence
entence, a criminal appeal was preferred by him i.e.
Criminal Appeal No.
No.1863/2015, which is still pending before this Court
Court.
13. The submission of the writ petitioner/respondent
petitioner herein
in before the
writ Court wass that during the pendency of Sessions Trial No.161/2008,
No.161/20
he submitted various representations for grant of remission, but the
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authorities rejected th
the same. The further submission wass that he time
and again approached this Court by filing writ petitions and inspite of
direction of this Court, the authorities declined to grant the remission.
Ultimately representation of the petitioner was rejected on 07.06.2023
by the authorities on the basis of the remission policy/order dated
22.09.2022, against which the present Writ Petition No.21665/2023 was
filed, which has been allowed with certain direction to the authorities to
decide the case of the petitioner afresh with regard to grant of remission
in the light of order/remission policy dated 10.01.2012.
10.01.2012 Being aggrieved
by the said order, the State has filed present appeal.
14. Learned counsel for State has opposed the impugned order of the
learned Single Judge and contended that in view of the clause (2)(vii) of
the remission policy dated 22.09.2022, he cannot be granted remission,
according to which it is specifically provided that the person who has
committed two or more murders would not be entitled for remission.
Relying
elying on the judgment of the Supreme Court in the case of Union of
India Vs. V.Sriharan reported in (2016) 7 SCC 1, he contended that
remission cannot be claimed as a matter of right and the same vests with
the appropriate Government.
Government. Further submitted that the Division Bench
of this Court in W.P.No.4560/2015 vide order dated 31.07.2017
specifically held that a convict has no right to remission, but only has a
right to claim remission.
15. We have heard the learned counsel for the parties
parties and perused the
record.
Signature Not Verified
Signed by: CHRISTOPHER
PHILIP
Signing time: 03-04-2025
10:48:41
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16. It is not in dispute that both the accused have been convicted by
the Trial Court in Sessions Trial No.161/2008 on second time for
commission of offence of murder and sentenced to life imprisonment.
The date of second conviction
con in respect of both the accused is
29.05.2015,, against which separate criminal appeal has been filed by
each one of accused and the said criminal appeals are still pending
before the High Court.
17. On perusal of the record, it explicitly reveals that
that the State
Government in exercise of the power conferred under Sections 432 and
433 of the Cr.P.C. framed policies dated 10.01.2012 and 22.09.2022
making the provisions of remission. As per policy dated 10.01.2012,
clause 1(A)(5) provides that life convicts, those who have been
sentenced to undergo one or more life sentences in addition to that life
sentence, will be released from jail on completion of 20 years including
incl
the period of undertrial and on completion of 26 years including the
period of remission,
emission, whereas according to remission policy dated
22.09.2022, clause (2)(vii) provides that all such convicts falling within
the ambit of Section
Sections 433 and 433A of the Cr.P.C. and serving
punishment of life imprisonment for the offence of murder in two or
more cases, shall not be entitled for remission and premature release.
For ready reference, relevant portions of said remission policies are
reproduced as follows:
follows:-
Clause 1(A)(5)(iii) of order/remission policy dated 10.01.2012
provides as under:-
“1( अ) आजीवन कारावास की सजा से द त बंिदयों की सजा म छू ट
ट-
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NEUTRAL CITATION NO. 2025:MPHC
2025:MPHC-JBP:15865(5)— आजीवन कारावास से द डा
डािद ट ऐसे बंिदयों को, आजीवन
कारावास की सजा के अित र त एक या अिधक आजीवन कारावास की
सजा से द त हो तथा िज हो
होने
ने िवचारणाधीन कालाविध को सिममिलतकरते ए 20 वष का द डा
डादे
दे श भुगत िलया हो तथा प रहार को स िलत
करते ए द डादे
दे श को 26 वष पूण कर ले ने पर मु त िकया जाएगा ।
पर ुक :-
*** *** ***
(iii) ऐसे सभी बंदी,
ी िज होंने जेल के अ दरर रहते ए ऐसा अपराध िकया
हो, िजसम उ ह आजीवन कारावास की सजा से द त िकया गया हो
हो, तो
ऐसे बंदी को 25 वष का द डा
डादे
दे श िवचारणाधीन कालाविध को स िलत
करते ए भुगत लेने पर प रहार को स िलत करते ए द डादे
दे श के 31
वष पूण कर लेने पर मु त िकया जाएगा ।"
Clause (2)(vii) of order/remission policy dated 22.09.2022
stipulates as under:-
“(2) द ड ि या संिहता
हता, 1973 की धारा 433 एवं 433 ए की प रिध मआने वाले आजीवन कारावास की सजा ात िनि िल खत
अिधिनयमों/धाराओं से द त बंिदयों की समयपूव रहाई नही ं होगी
होगी-
*** *** ***
(vii) दो या दो से अिधक करणों म ह या के दोषी।”
18. The learned Single Judge dismissed the writ petition preferred by
petitioner Anil @ Pappu Porikar observing that since a criminal appeal
against his second conviction for offence of murder is pending before
the High Court,, the date of conviction for the pu
purpose of applicability
pplicability of
remission policy would be the date on which the judgment would be
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passed by the High Court, therefore, the authorities did not commit any
error in relying upon the remission policy dated 22.09.2022, according
to which the petition
petitioner
er would not be entitled for remission or premature
release.
19. We may note that the issue of grant of remission is involved in
both the cases and appropriate State Government is empowered to
consider the said issue in view of Sections 433 and 433
433A of the
Cr.P.C./474 and 475 of the BNSS. On bare reading of Section 433 and
433A of the Cr.P.C.,, the same provides as follows:-
“433. Power to commute sentence.–The
sentence appropriate
Government may, without the consent of the person
sentenced, commute
commute–
(a) a sentence of death, for any other punishment provided
by the Penal Code, 1860;
(b)) a sentence of imprisonment for life, for imprisonment
for a term not exceeding fourteen years or for fine;
(c)) a sentence of rigorous imprisonment, for simple
imprisonment fo forr any term to which that person might have
been sentenced, or for fine;
(d)) a sentence of simple imprisonment, for fine.
433-A. Restriction on powers of remission or
commutation in certain cases.–Notwithstanding
cases Notwithstanding anything
contained in Section 432, where a sentence of imprisonment
for life is imposed on conviction of a person for an offence for
which death is one of the punishments provided by law, or
where a sentence of death imposed on a person has been
commuted under Section 433 into one of imprisonment ffor
life, such person shall not be released from prison unless he
had served at least fourteen years of imprisonment.”
20. Section 433 and 433A of the Cr.P.C/474
Cr.P.C/474 and 475 of the BNSS
distinctively confers power to the appropriate Government i.e. State
Government to frame remission policy. But the controversy
ntroversy in the case
cases
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in hand is that which of the remission policy would be applicable either
dated 10.01.2012 or 22.09.2022. The Apex Court
C in the Bilki
Bilkis Yakub
Rasool Vs. Union of India and others reported in (2024) 4 SCC 481
held as under:-
“182. In Jagdish [State of Haryana v. Jagdish, (2010) 4 SCC
216 : (2010) 2 SCC (Cri) 806] , a three-Judge
three Judge Bench of this
Court considered the conflicting opinions expressed in State
of Haryana v. Balwan [State of Haryana v. Balwan, (1999) 7
SCC 355 : 1999 SCC (Cri) 1193] (“Balwan”) on the one
hand and Mahender Singh [State of Haryana v. Mahender
Singh, (2007) 13 SCC 606 : (2009) 1 SCC (Cri) 221] ,
and State of Haryana v. Bhup Singh [State of
Haryana v. Bhup Singh, (2009) 2 SCC 268 : (2009) 1 SCC
(Cri) 710] (“Bhup Singh”) on the other. The question
considered by the three
three-Judge
Judge Bench was, whether, the policy
which provides for remission and sentensentence
ce 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 [Gopal Vinayak Godse v. State of Maharashtra, 1961
SCC OnLine SC 70 : (1961) 3 SCR 440 : AIR 1961 SC 600]
and Ashok Kumar [Ashok Kumar Pandey v. State ate of W.B.,
(2004) 3 SCC 349 : (2011) 1 SCC (Cri) 865], 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 sociall reconstruction of a life convict, as an objective of
punishment become a paramount importance in a welfare
State. The State has to achieve the goal of protecting the
society from the convict and also rehabilitate the offender.
The remission policy manife
manifests
sts a process of reshaping a
person who, under certain circumstances, has indulged in
criminal activities and is required to be rehabilitated. Thus,
punishment should not be regarded as the end but only a
means to an end. Relevancy of circumstances to an ooffenceffence
such as the state of mind of the convict when the offence was
committed, are factors to be taken note of.
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183. It was further observed as under: (Jagdish case [State of
Haryana v. Jagdish, (2010) 4 SCC 216 : (2010) 2 SCC (Cri)
806] , SCC p. 237, papara 46)
“46. At the time of considering the case of premature
release of a life convict, the authorities may require to
consider his case mainly taking into consideration whether
the offence was an individual act of crime without affecting
the society at la
large;
rge; whether there was any chance of future
recurrence of committing a crime; whether the convict had
lost his potentiality in committing the crime; whether there
was any fruitful purpose of confining the convict any more;
the socio-economic
economic condition of the
the convict’s family and other
similar circumstances.”
That the executive power of clemency gives an opportunity to
the convict to reintegrate into the society. However, the power
of clemency must be pressed into service only in appropriate
cases. Ultimately, it was held that the case for remission has
to be considered on the strength of the policy that was existing
on the date of conviction of the accused. It was further
observed that in case no (sic a) [Ed. : See para 54 of Jagdish,
(2010) 4 SCC 2216.]
16.] liberal policy prevails on the date of
consideration of the case of a convict under life imprisonment
for premature release, he should be given the benefit thereof
subject of course to Section 433-A
433 CrPC.
*** *** ***
222.4. 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 an
anyy reason, the said
policy cannot be made applicable a more benevolent policy, if
in vogue, could apply.
apply.”
21. The Supreme Court in the case of Union of India v. V. Sriharan,
Sriharan
(2016) 7 SCC 1,, considering the issue of remission held as follows:
follows:-
“110. While stoutly resisting the said submission made on behalf
of the Union of India, Mr Dwivedi, learned Senior Counsel, whoSignature Not Verified
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NEUTRAL CITATION NO. 2025:MPHC
2025:MPHC-JBP:15865appeared for the State of Tamil Nadu contended that in the case on
hand, this Court while commuting the death sentence of some of the
convicts did not exercise the Executive Power of the State, and that
it only exercised its judicial power in the context of breach of
Article 21 of the Constitution. It was further contended that if the
stand of the Union of India is accepted then in every case where
this Court thought it fit to commute sentence for breach of Article
21 of the Constitution, that would foreclose even the right of a
convict to seek for further commutation or remission before the
appropriate Government irrespective of any prec precarious
arious situation of
the convict i.e. even if the physical condition of the convict may be
such that he may be vegetable by virtue of his old age or terminal
illness. It was also pointed out that in V. Sriharan v. Union of
India [V. Sriharan v. Union of India,ia, (2014) 4 SCC 242 : (2014) 2
SCC (Cri) 282], order dated 18 18-2-2014,
2014, this Court while
commuting the sentence of death into one of life also specifically
observed that such commutation was independent of the power of
remission under the Constitution, as well well as, the statute. In this
context, when we refer to the power of commutation/remission as
provided under the Criminal Procedure Code, namely, Sections
432, 433, 433-A,A, 434 and 435, it is quite apparent that the exercise
of power under Article 32 of the Constitution by this Court is
independent of the Executive Power of the State under the statute.
As rightly pointed out by Mr Dwivedi, learned Senior Counsel in
his submissions made earlier, such exercise of power was in the
context of breach of Article 21 of the Constitution. In the present
case, it was so exercised to commute the sentence of death into one
of life imprisonment. It may also arise while considering wrongful
exercise or perverted exercise of power of remission by the
statutory or constitutio
constitutional
nal authority. Certainly there would have
been no scope for this Court to consider a case of claim for
remission to be ordered under Article 32 of the Constitution. In
other words, it has been consistently held by this Court that when it
comes to the quest
question
ion of reviewing an order of remission passed
which is patently illegal or fraught with stark illegality on
constitutional violation or rejection of a claim for remission,
without any justification or colourful exercise of power, in either
case by the exec
executive
utive authority of the State, there may be scope for
reviewing such orders passed by adducing adequate reasons.
Barring such exceptional circumstances, this Court has noted in
numerous occasions, the power of remission always vests with the
State executive and this Court at best can only give a direction to
consider any claim for remission and cannot grant any remissionSignature Not Verified
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NEUTRAL CITATION NO. 2025:MPHC
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that the power of commutation exclusively rests with the
appropriate Government
vernment
*** *** ***
114. Therefore, it must be held that there is every scope and ambit
for the appropriate Government to consider and grant remission
under Sections 432 and 433 of the Criminal Procedure Code even if
such consideration was earlier m made
ade and exercised under Article
72 by the President and under Article 161 by the Governor. As far
as the implication of Article 32 of the Constitution by this Court is
concerned, we have already held that the power under Sections 432
and 433 is to be exerc exercised
ised by the appropriate Government
statutorily, it is not for this Court to exercise the said power and it
is always left to be decided by the appropriate Government, even if
someone approaches this Court under Article 32 of the
Constitution. We answer the said question on the above terms.
*** *** ***
259. The convict undergoing the life imprisonment can always apply to
the authority concerned for obtaining remission either under Articles 72
or 161 of the Constitution or under Section 432 CrPC and the authority
would be obliged to consider the same reasonably. This was settled
in Godse [Gopal Vinayak Godse v. State of Maharashtra, AIR 1961 SC
600 : (1961) 1 Cri LJ 736 : (1961) 3 SCR 440] which view has since then
been followed consistently in State of Haryana v. Mahender Singh [State
of Haryana v. Mahender Singh, (2007) 13 SCC 606 : (2009) 1 SCC (Cri)
221] , State of Haryana v. Jagdish [State of Haryana v. Jagdish, (2010) 4
SCC 216 : (2010) 2 SCC (Cri) 806], Sangeet v. State of
Haryana [Sangeet v. State of Haryana, (2013) 2 SCC 452 : (2013) 2 SCC
(Cri) 611] and Laxman Naskar v. Union of India [Laxman
Naskar v. Union of India, (2000) 2 SCC 595 : 2000 SCC (Cri) 509] . The
right to apply and invoke the powers under these provisions does not
mean that he can claim such benefit as a matter of right based on any
arithmetical calculation as ruled in Godse [Gopal Vinayak
Godse v. State of Maharashtra, AIR 1961 SC 600 : (1961) 1 Cri LJ 736 :
(1961) 3 SCR 440] . All that he can claim is a right that his case be
considered.
sidered. The decision whether remissions be granted or not is entirely
left to the discretion of the authorities concerned, which discretion ought
to be exercised in a manner known to law. The convict only has right to
apply to competent authority and have his case considered in a fair and
reasonable manner.
manner.”
22. The Supreme Court in the recent judgment rendered in the case of
Rajkumar v. State of U.P.
U.P., (2024) 9 SCC 598 held that the case of a
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convict for premature release is governed by the applicable policy on the
date of conviction. The State having formulated Rules and a Standing
Policy for deciding cases of premature release, it is bound by its own
formulation of law. The relevant paras are reproduced as under:
under:-
“5. In several decisions of this Court, it has been held that the
case of a convict for premature release is governed by the
applicable policy on the date of conviction [State of Haryana v.
Jagdish [State of Haryana v. Jagdish, (2010) 4 SCC 216 : (2010) 2
SCC (Cri) 806] and State of Haryana
Haryana v. Raj Kumar [State of
Haryana v. Raj Kumar, (2021) 9 SCC 292 292 : (2021) 3 SCC (Cri)
426] ].
*** *** ***
13. The State having formulated Rules and a Standing Policy
for deciding cases of premature release, it is bound by its own
formulations of law. Since there are legal provisions which hold the
field, it is not open to the State to adopt an arbitrary yardstick for
picking up cases for premature release. It must strictly abide by the
terms of its policies bearing in mind the fundamental principle of
law that each case for premature release has to be decided on the
basis of the legal position as it stands on the date of the conviction
subject to a more beneficial regime being provided in terms of a
subsequent policy determination. The provisions of th thee law must be
applied equally to all persons. Moreover, those provisions have to
be applied efficiently and transparently so as to obviate the
grievance that the policy is being applied unevenly to similarly
circumstanced persons. An arbitrary method adopted
adopted by the State is
liable to grave abuse and is liable to lead to a situation where
persons lacking resources, education and awareness suffer the
most.”
23. In view of the above discussion and well settled legal position as
mentioned hereinabove, we are of the considered view that the
determination for grant or refusal of remission in respect of convict of
life imprisonment would be based on the remission po
policy
licy which is
prevalent on the date of conviction
conviction. In the case of writ petitioners, the
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date of conviction is 29.05.2015 and the remission policy of 10.01.2012
would be applicable as manifestly held by the Apex Court in the case of
Rajkumar (supra). The Supreme Court specifically further held in the
said case, the
he State having formulated Rules and a Standing Policy for
deciding cases of remission and premature release, it is bound by its
own formulation of law. Since there are legal provisions which hold the
field, it is not open to the State to adopt an arbitrary yardstick for
picking up cases for premature release. It must strictly abide by the
terms of its policies bearing in mind the fundamental prin
principle
ciple of law
that each case for premature release has to be decided on the basis of the
legal position as it stands on the date of the conviction.
conviction. The provisions
of the law must be applied equally to all persons. Moreover, those
provisions have to be appli
applied
ed efficiently and transparently so as to
obviate the grievance that the policy is being applied unevenly to
similarly circumstanced persons.
24. On analysis of the said proposition of law as laid down by the
Supreme Court, itt is obvious that the decision as to whether remission
be granted or not is entirely left to the discretion of the authorities
concerned, which discretion ought to be exercised in a manner known to
law. The convict only has right to apply to competent authority and have
his case considered in a fair and reasonable manner. The
he power of
remission always vests with the State executive and the
th Court at best can
only give a direction to consider any claim for remission and cannot
grant any remission and provide for premature release. IItt was time and
again reiterated by the Apex Court that the power of commutation
exclusively rests with the appropriate Government. Hence, w
we are of the
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considered view that it is the appropriate Government i.e. State
Government in the case of tthe writ petitioners
tioners to determine remission
with regard to life convict based on the legal provisions,
provisions background and
other relevant material relating to the life convicts,
convicts, as per the policy
applicable on the date of conviction and it is exclusively within the
domain of the State Government for determination of remission either to
reject or grant the same.
25. Consequently, Writ Appeal No.1996/2024 filed by the writ
petitioner Anil @ Pappu Porikar is allowed. The order of the learned
Single Judge and order of the authority declining to grant remission to
the petitioner on the basis of remission policy dated 22.09.2022
2022 are set
aside.
26 So far as Writ Appeal No.100/2024 filed by the State is
concerned, we do not find any illegality or perversity in the impugned
order of the learned Single Judge that calls for any interference. Hence,
the writ appeal filed by the State is dismissed.
27. In view of the settled position of law that State Government is
competent to determin
determine the remission and premature release on the basis
of the applicable remission policy either
her to grant or reject the same, we
deem it appropriate to remit the matter to the competent authority to
reconsider the case of the petitioners namely Anil @ Pappu Porikar and
Shiv Kumar Dahle afresh in light of the order/remission policy dated
10.01.2012.. It is needless to mention that the competent authority while
considering the case of the petitioners shall also consider the legal
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provisions, background and other relevant material relating to them, as
expeditiously as possible.
28. Accordingly both the writ appeals stand disposed of.
(SURESH KUMAR KAIT) (VIVEK JAIN)
CHIEF JUSTICE JUDGE
C.
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