Gujarat High Court
Sorathiya Hareshbhai Rameshbhai vs State Of Gujarat on 22 August, 2025
NEUTRAL CITATION
R/SCR.A/13245/2024 JUDGMENT DATED: 22/08/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION (DIRECTION) NO. 13245 of 2024
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
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Approved for Reporting Yes No
√
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SORATHIYA HARESHBHAI RAMESHBHAI
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MR BHARGAV BHATT with MR SUMIT B SIKARWAR(5991) for the Applicant(s) No. 1
MR IH SYED, SR. ADVOCATE with MR ASHISH M DAGLI(2203) for Respondent(s) No. 4
MS KRUTI M SHAH(2428) for the Respondent(s) No. 3
NOTICE SERVED for the Respondent(s) No. 2
MR HARDIK DAVE, PUBLIC PROSECUTOR with MS SHRUTI PATHAK, APP for the
Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
Date : 22/08/2025
ORAL JUDGMENT
Law is the king of kings, far more powerful and right than
they; nothing can be mightier than law, by whose aid, as by
that of the highest monarch, even the weak may prevail
over the strong.
— Brihadaranyakopanishad (1-4.14)
[1.0] RULE. Learned APP Ms. Shruti Pathak waives service of
notice of Rule on behalf of the respondent No.1 – State of
Gujarat. Learned advocate Ms. Kruti Shah waives service of
notice of Rule on behalf of respondent No.3 and learned
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advocate Mr. Ashish Dagli waives service of notice of Rule
on behalf of respondent No.4. Heard learned Counsel Mr.
Bhargav Bhatt assisted by learned advocate Mr. S.B.
Sikarwar for the petitioner, learned Public Prosecutor Mr.
Hardik Dave assisted by learned APP Ms. Shruti Pathak
appearing for respondent No.1 – State of Gujarat, learned
advocate Ms. Kruti Shah appearing for respondent No.3
and learned Senior Advocate Mr. I.H. Syed assisted by
learned advocate Mr. Ashish Dagli for respondent No.4.
PROLOGUE:
[2.0] By way of present petition under Article 226 of the
Constitution of India read with section 528 of the
Bharatiya Nagarik Suraksha Sanhita, 2023 (for short
“BNSS”), the petitioner, who is grandson of Popatbhai
Sorathiya, the then sitting MLA (now deceased) has sought
for the following reliefs:
“(a) Pass appropriate writ / order declaring that the direction
issued by Shri T.S. Bishth, the then Additional Director General of
Police, Jail and Administrative Reforms, State of Gujarat,
Ahmedabad (Now Retired) to the Superintendent, Junagadh
District Jail, Junagadh by letter dated 29.01.2018, being without
authority, does not have any force of law and is a nullity;
(b) Pass appropriate writ / order or Direction, delcaring the
premature release of Aniruddhsinh Mahipatsinh Jadeja, to be
illegal and without any authority of law and to immediately
arrest Aniruddhsinh Mahipatsinh Jadeja and confine him in the
prison, to serve remaining period of sentence; AND/OR
(c) Pass appropriate writ / order or Direction to the State to
initiate appropriate proceedings against Shri T.S. Bishth and
other officer, who has been instrumental in illegal release of
Aniruddhsinh Mahipatsinh Jadeja – Respondent No.4;”
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FACTUAL BACKGROUND:
[3.0] The brief facts of the present petition are as follows:
[3.1] During a flag unfurling ceremony at Sangramsinhji High
School in Gondal, Popatbhai Sorathiya, the then sitting
MLA and grandfather of the present petitioner was shot
dead by respondent No.4 herein at around 9.30 a.m. on
Independence Day during the Flag Hoisting Ceremony and
was apprehended on the spot pursuant to which an FIR
was registered, which culminated into Sessions Case No.23
of 1989 before the learned Special Judge, Rajkot
appointed under TADA Act. In view of the fact that 45
witnesses including government servant turned hostile,
the learned Special Court held that, there is no direct
evidence adduced inculpating respondent No.4 in the
crime and he was given the benefit of doubt and acquitted.
[3.2] Against said acquittal of respondent No.4, the State had
preferred appeal under Section 19 of the TADA Act before
the Hon’ble Supreme Court, which was partly allowed by
the judgment dated 10.07.1997 and respondent No.4 was
convicted for the offence punishable under Section 302 of
the Indian Penal Code, 1860 (for short “IPC“) and awarded
sentence of life imprisonment and also convicted for
offence under Section 5 of TADA and sentenced to
undergo RI for 3 years. However, respondent No.4 was
absconding even after conviction by the Hon’ble Supreme
Court and only on 28.04.2000 i.e. after almost about 3Page 3 of 92
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years, respondent No.4 was taken in custody.
[3.3] The State Government soon thereafter on 25.10.2000
passed an order in exercise of powers under Section 268(1)
of the CrPC directing that, respondent No.4 should not be
removed from Sabarmati Central Jail. The request of
respondent No.4 seeking parole was rejected by the State
which was challenged by respondent No.4 before this
Court and the learned Single Judge of coordinate Bench
vide order 14.08.2001 was pleased to grant custody parole
to respondent No.4 for 5 days only to attend the family by
imposing strict conditions. However, said order was
challenged by the State and the Division Bench set aside
the parole order emphasizing the serious implications of
granting parole to a convict of such a grave nature
concerning public safety.
[3.4] Respondent No.4 thereafter filed Special Criminal
Application No.503 of 2001 which upheld the State’s order
under Section 268 of the CrPC though respondent No.4
somehow managed to get himself shifted to Sub-Jail,
Junagadh and thereafter by manipulating the executive
State machinery to his advantage on the pretext of
medical treatment and conducting and attending political
rallies for assembly elections in the year 2017. The said
issued was raised in petition being Special Criminal
Application No.9552 of 2017 seeking enquiry as to how a
TADA convict though in jail was addressing political rallies.
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The cooridnate Bench found the matter quite serious one
and it was noted that, a TADA convict was present in a
public meeting held at Jetpur on 04.12.2017 and
therefore, the coordinate Bench directed the learned PDJ,
Rajkot to conduct a detailed enquiry and file report within
three months considering the conduct of the concerned
Medical Officer and jail staff.
[3.5] A report was submitted by the then learned PDJ, Rajkot
considering the contents of report a copy of which was
provided to the learned Public Prosecutor to bring to the
notice of the Government. The then learned Public
Prosecutor reported to the coordinate Bench that, the
State had reviewed the inquiry report wherein some
evidence was overlooked by the learned Judicial Officer
and the State would reassess the report alongside other
evidence from the jail authorities and make a decision in
accordance with law and therefore, the coordinate Bench
closed the proceedings while allowing the petitioner to
seek appropriate remedy, if needed but till date no action
been taken.
[3.6] Thereafter, the State Government issued a resolution
dated 25.01.2017 in exercise of power under Article 161 of
the Constitution granting remission to certain convicts,
including those serving life sentences who had completed
12 years. The resolution contained conditions for grant of
remission, as per the directives of the Hon’ble SupremePage 5 of 92
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Court in Criminal Appeal No.566 of 2010 and Criminal
Appeal No.490-491 of 2011 and one of the condition was
that the remission was one-time and cannot be extended
further.
[3.7] Under the said policy, case of respondent No.4 was not
considered at relevant point of time and benefit of
remission was not granted. Thereafter, son of respondent
No.4 submitted an application on 29.01.2018 to
respondent No.3 requesting to grant remission for
respondent No.4 and on the same day, vide the impugned
communication at Annexure-A, respondent No.3 directed
the respondent No.2 to grant remission to respondent
No.4, citing reason that respondent No.4 has completed 18
years of sentence.
[3.8] Further, the said illegal release of respondent No.4 by
respondent No.3 was challenged by one Kantilal Ramjibhai
Solanki by way of SCR.A No.3499/2018 and by another
person namely Sanjay Pandit by way of Writ Petition (PIL)
No.182 of 2019 and SCR.A No.3499/2018 was dismissed for
want of prosecution and Writ Petition (PIL) No.182/2019
came to be withdrawn, suggesting undue influence of
respondent No.4. It is pertinent to note that aforesaid
both persons were not kith and kins of the deceased.
[3.9] It is further the case that after release of respondent No.4
on 29.01.2018, three FIRs are registered against
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respondent No.4 subsequently. Thereafter, petitioner filed
a Writ Petition (Cri.) No.339 of 2024 before the Hon’ble
Supreme Court challenging the premature release of
respondent No.4, which was withdrawn with liberty to file
fresh petition before this Court. Hence, present petition is
filed.
SUBMISSIONS ON BEHALF OF THE PETITIONER
[4.0] Learned Advocate Mr. Bhargav Bhatt assisted by learned
advocate Mr. S.B. Sikarwar appearing for the petitioner has
reiterated the facts and manner in which the incident took
place and further submitted that, respondent No.4 shot
and killed the grandfather of the present petitioner,
namely Popatbhai Sorathiya, the then sitting Member of
Legislative Assembly on 15.08.1988 in the flag hoisting
ceremony on Independency Day. In trail proceedings of
Sessions Case No.23 of 1989, some government officers
who were cited as witnesses turned hostile, which shows
fear and dominance of respondent No.4 and respondent
No.4 was acquitted in the year 1989. In July, 1997, in an
appeal filed by the State before the Hon’ble Apex Court,
respondent No.4 was convicted by the Apex Court and for
the offence of murder, he was sentenced for life
imprisonment and for the offence punishable under TADA,
he was sentenced to undergo 3 years’ RI. After the
pronouncement of judgment, respondent No.4 was
absconding and on 28.04.2000, respondent No.4 was
arrested and taken into custody almost after three years
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of conviction. Thereafter, the State has invoked powers
under Section 268(1) of the Code of Criminal Procedure,
1973 (for short “CrPC“) and ordered that respondent No.4
not to be removed from Sabarmati Central Jail.
[4.1] Further, on 14.08.2001, the learned Single Judge of this
Court granted 5 days parole to respondent No.4. The said
order was set aside by the Division Bench on 11.09.2001 in
the proceedings of Letters Patent Appeal No.807 of 2001.
On 22.11.2002, High Court has upheld the State’s order
passed under Section 268 of the CrPC restricting
movement of respondent No.4 from Sabarmati Central Jail
though respondent No.4, was shifted from Sabarmati
Central Jail to Sub-Jail, Junagadh in suspicious
circumstances. Thereafter, one petition being SCR.A
No.9552/2017 was filed on 07.12.2017 during election by
one of the candidate of election with allegation that
respondent No.4 attended political rallies while in jail
custody wherein the coordinate Bench observed that
allegations against respondent No.4 were “shocking” and
an order was passed directing enquiry by the then learned
PDJ, Rajkot against responsible officers and
Superintendent of Police, Junagadh, Rajkot Civil Hospital
Officer, Jailor of Junagadh Jail were ordered to remain
present before the Court on 19.12.2017 though State has
not taken any action or not paid any heed to the said
judicial observation / directions and protected the
respondent No.4.
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[4.2] Further he has submitted that, it clearly reveals that State
Authority is acting in tandem and collusion with
respondent No.4 or else respondent No.4 is having the
power or political influence in getting favor from the
respondent – State Government. As the State Government
issued resolution under Article 161 of the Constitution
granting remission to certain convicts including life
imprisonment convicts, who completed 14 years of
sentence, with certain conditions, without considering the
said condition or without authority, respondent No.3 has
passed an order on 29.01.2018 as respondent No.4’s son
applied for remission of his father. Though SCR.A
No.9552/2017 was pending, without considering any
observations made by the Court in the said proceedings,
respondent No.3 without having any authority passed an
order on the same day in writing on one simple letter to
the Jail Superintendent, Junagadh to release respondent
No.4 on the same day. The High Court was compelled to
close the proceeding which was going on pursuant to the
order passed by the High Court and inquiry was initiated by
the learned PDJ, Rajkot and though report was submitted
in the sealed cover on 14.12.2018 wherein clearly revealed
from jail in pretext of treatment he came out of jail and
attended political rallies and also share dias. However, as
respondent No.4 was released and matter was closed and
State has also not taken up the issue in its true letter and
spirit and reached at logical end.
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[4.3] Even, under the threat and influence of respondent No.4,
SCR.A No.3499/2018 which was filed by one Kantilal
Ramjibhai Solanki challenging the premature release of
respondent No.4 and one another petition being Writ
Petition (PIL) No.182 of 2019 filed by one Sanjay Pandit
were respectively dismissed for non-prosecution and upon
being withdrawn. Considering the high-handedness and
dominance of respondent No.4, no one was ready to take
up the issue as other proceedings were going on and even
in said petition unholy attempts been made. The present
petitioner was waiting for the outcome but under one or
another pretext, respondent No.4 was able to manipulate
and to create the atmosphere of fear and terror, on
20.08.2024, initially the petitioner approached the Hon’ble
Supreme Court by way of Writ Petition (Cri.) No.339/2024
and challenged respondent No.4’s premature release
which came to be withdrawn with liberty to approach this
Court and hence, present petition is filed.
[4.4] As respondent No.3 has exercised the power without any
authority and/or without following the condition of
circular dated 25.01.2017 at Annexure-I, which was
implemented only for one year only at the eve of Republic
Day on 26.01.2017 and that too following certain criteria
though under the garb of said policy, son of respondent
No.4 approached after one year to respondent No.3 on
29.01.2018 and on the same day, respondent No.3 has
directed the respondent No.3 to release respondent No.4
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without any power, authority or imposing any condition as
stated under Section 432 of the CrPC. Said communication
was not only arbitrary but ab initio void.
[4.5] He has further submitted that, the said order is not passed
by the State and has been passed by respondent No.3
illegally in his personal capacity exercising his powers and
without any authority and without following section 432(5)
of the CrPC though he was incompetent to pass any such
order. Further, circular dated 25.01.2017 (Annexure-I) was
for extending special remission and was time bound i.e.
limited only for one year though after one year, relying on
said circular dated 25.01.2017, order was passed with
ulterior motive. Not only that, no condition was imposed
and even it was not considered that, earlier remission
request was not considered or granted by the State under
Section 432 of the CrPC, which was pending before the
authority though without verifying anything or taking into
consideration any material, with oblique motive,
respondent No.3 has addressed a letter (Annexure-A) to
respondent No.2 – Jail Superintendent, Junagadh and
respondent No.3 having no such authority to erase any
judicial observation or to by-pass any procedure prescribed
under the law and Rules. The circular dated 25.01.2017 is
passed exercising power under Article 161 of the
Constitution of India with specific conditions of Section
432 of the CrPC however, it does not mean that
respondent No.3 is competent and without following any
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provision of section 432 of the CrPC, respondent No.3 has
released the respondent No.4. To buttress his argument,
learned advocate for the petitioner has relied on the
decision of Hon’ble Supreme Court in the case of Bilkis
Yakub Rasool vs. Union of India reported in (2024) 5 SCC
481 and submitted that impugned order is nothing but
nullity on two counts namely (1) order is without authority
and (2) circular does not permit to consider the application
with future effect as the said circular was for a particular
time period and thereafter it was not in existence on
29.01.2018.
[4.6] Further, he has submitted that, even though there was a
specific direction to exercise the power and jurisdiction
based on the circular with condition to follow the earlier
resolution dated 23.01.2014 which clearly mentions that IG
Prison will send the proposal for a premature release of a
prisoner after receiving the recommendation of the Jail
Advisory Board Committee only and prescribed the check-
list. Herein, without undertaking such exercise,
straightway respondent No.3 has exercised the power on
his own. Even if for the sake of argument it is accpeted
that respondent No.3 has jumped to the conclusion that
Superintendent of Police, Junagadh has not properly
follow or considered the provisions of circular dated
25.01.2017, in that event also, remedy was available to the
son of respondent No.4 or respondent No.4 himself to file
appropriate proceeding to consider his case but he ought
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not to have approached respondent No.3 as he was not an
appellate authority or competent also.
[4.7] Further, even after release of respondent No.4, he has
continued to engage in illegal activities like administering
threats to people, creating atmosphere of terror and even
thereafter, three offences are registered against
respondent No.4 and in recent past in May, 2025 one more
offence is registered and till date, respondent No.4 is
absconding. In view of above, learned advocate for the
petitioner has requested to allow the present petition.
[4.8] He has further submitted that as per Rule 15(1)(i) of the
Rules of Business of Government of Gujarat and Circular
dated 01.11.1996 issued by the GAD, under Article 161 of
the Constitution, prior to passing any order the matter is
required to be placed before the Hon’ble Chief Minister
and thereafter upon advise of the Minister of Council, the
Government has to issue circular and said subject falls in
the domain and purview of the Home Department and
such order could not have been passed by-passing the
mandatory requirement which is already mentioned in the
circular and that too in light of a specific embargo and
conditions stated in the Circular dated 25.01.2017.
SUBMISSIONS ON BEHALF OF STATE:
[5.0] Learned Public Prosecutor Mr. Hardik Dave assisted by
learned APP Ms. Shruti Pathak appearing for respondentPage 13 of 92
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No.1 – State of Gujarat has submitted that the circular
dated 25.01.2017 at Annexure-I to the petition was for
special remission for a specific period of one year only
wherein, future benefit was not permissible and ought not
to be extended any further and said circular was also .
[6.0] Further, learned Public Prosecutor has submitted that
there is no dispute that powers under Article 72 or 161 of
the Constitution are constitutional powers and are
different from powers under Sections 432 and 433 of the
CrPC. Herein, there is no normalcy in exercise of powers
but only the circular is issued based on the advise of the
Council of Ministers and specific case details and criteria
collecting the said data only matter was placed before the
Governor and at the eve of Republic Day in 2017 by
conducting one time exercise said circular was issued to
extend the benefit which clearly mentioned that prior to
exercising such power, provision to be followed the
circulars specifically mentioned in the said circular which is
nothing but embargo but respondent No.3 having no any
authority except to communicate or forward the proposals
to the Department. The said circular was issued only for
2017 which was not to be extended for future as it was a
special remission and herein Advisory Board Committee
report also is not sought for and straightway he has
communicated the letter at Annexure-A.[6.1] As earlier affidavit filed by the State Authority was silent
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on this aspect, vide order dated 17.07.2025 this Court has
passed an order and directed respondent Nos.1 and 2 to
make clarification in this regard and pursuant to the same,
further affidavit is also filed and submitted that matter
was not referred to Jail Advisory Board Committee while
making communication to the Jail Superintendent,
Junagadh by respondent No.3 and without referring the
matter to the Jail Advisory Board Committee or
considering any circular or without any condition,
respondent No.3 has made the impugned order /
addressed the letter to the respondent No.2. Hence,
learned Public Prosecutor requests to pass appropriate
order.
SUBMISSIONS ON BEHALF OF RESPONDENT NO.3:
[7.0] Learned advocate Ms. Kruti Shah appearing for respondent
No.3 has opposed the present petition on the ground that
respondent No.3 has performed his official duty as per his
power, having nothing to do with the release of
respondent No.4 and having no any personal interest in
the issue and respondent No.3 having a blotless career and
even otherwise now he is retired and till date the State has
not initiated any action also in this regard and eight
prisoners including respondent No.4 were released
extending the benefit of said circular which is also
confirmed and nothing remains to be decided further as
earlier one note for speaking to minutes was filed being
CR.MA No.1 of 2018 in SCR.A No.3499/2018 to arraignPage 15 of 92
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respondent No.3 herein as respondent No.4, which was not
acceded to by the coordinate Bench at earlier point of time
and there was no reason to implead respondent No.3 in his
personal capacity and pursuant to the order dated
17.07.2025, respondent No.3 has filed additional affidavit
wherein, he has justified his stand stating that, following
the guideline he has released respondent No.4. It was the
duty and responsibility of the respondent No.2 to take into
consideration the opinion of Jail Advisory Board
Committee or to comply with conditions enumerated in
the Circular and it was not the function of respondent No.3
and respondent No.3 has only made a recommendation to
release respondent No.4 – prisoner and except this no role
played by respondent No.3. Hence, she has requested to
dismiss the present petition qua respondent No.3 with cost
as the petitioner has joined respondent No.3 in his
personal capacity with ulterior motive though he only
performed his duty in his official capacity and without
there being any malafide.
SUBMISSIONS ON BEHALF OF RESPONDENT NO.4:
[8.0] Learned Senior Advocate Mr. I.H. Syed assisted by learned
advocate Mr. Ashish M. Dagli for respondent No.4 has
vehemently opposed the present petition and argued at
length. The sum and substance of the argument on behalf
of respondent No.4 is as under:
(i) Petitioner has filed the present petition with ulterior
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motive to settle the political score and even the
petitioner is not having any locus and he is not in any
manner affected with the benefit of remission
extended to respondent No.4. Even otherwise also,
the respondent No.4 is entitled for remission.
(ii) Earlier on the same ground, one Kantilal Ramjibhai
Solanki filed petition being SCR.A No.3499/2018 and
one Sanjay Pandit filed Writ Petition (PIL) No.182 of
2019, which were respectively dismissed for non-
prosecution and upon being withdrawn and hence,
after release of respondent No.4 in the year 2018,
there is no ground to entertain the present petition at
belated stage.
(iii) Respondent No.4 was convicted and sentenced for
life imprisonment by the Hon’ble Supreme Court and
he has served sentence for 18 years and thereafter,
his son approached respondent No.3 and respondent
No.3 exercised his administrative power. Hence,
question of any malafide or colorable exercise of
power does not arise as respondent No.3 was
competent and appropriate authority to consider the
application filed by the son of respondent No.4.
(iv) Referred to Articles 72 and 161 of the Constitution of
India and discussing the powers of Hon’ble The
President and Hon’ble Governor, he has argued that
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powers exercised under both the articles are
constitutional powers but exercising the powers
under Section 433 of the CrPC are statutory powers
and both operate in distinct field. While exercising the
power under Article 161 of the Constitution, there is
no necessity to follow any statutory provisions or
Rules as constitutional powers are higher than
statutory powers. Hence, question does not arise to
impose any type of condition while exercising the
power under Article 161 of the Constitution. Herein,
impugned order is passed based on Circular dated
25.01.2017.
(v) Herein, the petitioner has not challenged the circular
dated 25.01.2017 passed under Article 161 of the
Constitution. Hence, question does not arise to grant
any relief as order is passed based on Article 161 of
the Constitution of India and as respondent No.3 has
acted and exercised his power based on the said
circular, nothing remains to be reconsidered or
powers under Article 161 of the Constitution of India,
Hence, question does not arise to follow or to sought
for any opinion of the Jail Advisory Board.
(vi) The circular dated 25.01.2017 provides special
remission powers based on Article 161 of the
Constitution on the occasion of Republic Day. Hence,
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once the power exercised under Article 161 of the
Constitution and criteria was fixed to extend the
benefit of remission, respondent No.4 fell in that
category and as the Jail Superintendent, Junagadh
failed to consider the case, son of respondent No.4
approached respondent No.3, who had been pleased
to pass suitable direction and passed an order and
pursuant to the said circular, respondent No.4 was
released and benefit of remission was given. Henec,
there was nothing wrong as respondent No.4 had
already undergone 18 years of sentence under the
TADA wherein he was sentenced to undergo 3 years
and “life imprisonment” does not mean the entire life
as held by Hon’ble Supreme Court in number of
judgments after the decision in the case of Sangeet &
Another vs. State of Haryana reported in (2013) 2
SCC 452, wherein the Hon’ble Supreme Court
interpreted the term “life imprisonment” but “life
imprisonment” means 14 years and respondent No.4
has served more than 14 years i.e. 18 years. His jail
conduct was also good. After his release, no untoward
incident took place. Even, his jail conduct was good.
At earlier point of time, to extend the benefit of
remission, opinion of learned Additional Sessions
Judge and respected citizens who are local residents
including son of deceased namely Lalitbhai has also
made a statement before the police and jail authority
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that he has no objection if the benefit of remission is
extended to respondent No.4. Hence, considering the
aforesaid reports and also the jail conduct of
respondent No.4, this is not a case to entertain the
present petition as the petitioner is not having any
locus and that too after release of respondent No.4 in
the year 2018.
[8.1] Further, to buttress his arguments, learned Senior
Advocate Mr. Syed has relied on and read over the decision
of Hon’ble Supreme Court in the case of (1) Maru Ram vs.
Union of India reported in (1981)1 SCC 107 (Paras 60 and
94); (2) Union of India vs. V. Sriharan @ Murugan & Ors.
reported in (2016)7 SCC 1 and submitted that in the said
decision the Hon’ble Apex Court has interpreted the term
“life imprisonment” and entitlement of grant of remission
and that appropriate government has a right to exercise
the power of remission under Sections 432 and 433 of the
CrPC and parallel power has been exercised by the
constitutional authority under Articles 72 and 161 of the
Constitution of India. Herein, powers under Articles 72 and
161 of the Constitution of India and both operate in
distinct fields. Merely sentence of “life imprisonment” is
imposed, does not mean that respondent No.4 is not
entitled for getting the benefit of remission. He has also
relied on and read over the decision of the Hon’ble
Supreme Court in the case of Pyare Lal vs. State of
Haryana reported in (2020)8 SCC 680 and submitted that,
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powers under Article 161 of the Constitution of India is on
higher footing and overriding the requirements to exercise
the powers by the government and such powers over-ride
the requirement of section 433A of the CrPC and matter is
now referred to the Larger Bench of appropriate strength
and issue raised in the present petition is also similar and
as matter is pending before the larger Bench for
consideration. Hence, he has requested not to interfere
with the order passed by respondent No.3 under Article
161 of the Constitution of India.
[8.2] Further, learned Senior Advocate Mr. Syed has submitted
that, herein, question does not arise to follow resolution
dated 23.01.2014 issued by the Government of Gujarat and
submitted that, under Article 161 of the Constitution
powers are given to respondent No.3 as word used “State
Grants Remission” and he has properly exercised the
jurisdiction and power and therefore, there is no need to
follow the Government Resolution dated 23.01.2014 or
report of Advisory Board Committee is also not required
and therefore, he has requested to dismiss the present
petition.
REJOINDER ON BEHALF OF THE PETITIONER:
[9.0] In rejoinder, learned advocate Mr. Bhargav Bhatt for the
petitioner has submitted that the argument canvassed by
learned Senior Advocate appearing for respondent No.4 is
not only misconceived and against the settled principle ofPage 21 of 92
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law but also contrary to the record and even, learned
Senior Advocate for respondent No.4 has not properly
assisted the Court. Herein, question is, as to whether
respondent No.3 had a power to exercise jurisdiction? If
any power exercised by him then such exercise of power
was legal or illegal, is the only question which is required
to be decided by this Court.
[9.1] Under Chapter X of the Jail Manual, the Inspector General
of Prisons has a limited role to monitor the staff control
functions and any other matters and on administrative side
also, he has to make communication to the government.
Hence, the IG Prisons has to act as a medium or bridge of
communication and if he has received any proposal then it
was his duty to forward such proposal in turn to the
government for the consideration.
[9.2] Further, the circular dated 25.01.2017 which is base of
impugned letter at Annexure-A is issued under Article 161
of the Constitution but with certain embargo which are
ignored and same was issued for one year only and it
transpires from the communication that Jail
Superintendent, Junagadh has not considered the request
and based on the same, son of respondent No.4
straightway approached respondent No.3. In that event,
appropriate remedy for son of respondent No.4 was only
to file appropriate proceeding challenging the said
decision or to make request to consider the case forPage 22 of 92
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premature release rather than approaching respondent
No.3. Not only that, circular dated 23.01.2014 is very clear
wherein it is clearly stated that opinion of concerned
convicting Court is required and said requirement was
never dispensed with.
[9.3] Herein, Hon’ble Supreme Court has convicted the
respondent No.4 – accused. Hence, question of premature
release of respondent No.4 does not arise and therefore,
argument canvassed by learned Senior Advocate for the
respondent No.4 that earlier the positive opinion was filed
in favor of respondent No.4 by all the authorities and if
such an interpretation is arrived at then the same is
nothing but fallacious and misleading as his proposal was
not considered at the earlier point of time and no benefit
of premature release was extended at the relevant point
of time. Not only that, the prayer sought in the petition is
also very clear and petitioner has amended the memo of
petition and sought the relief to initiate action against
respondent No.3 as he failed to communicate properly to
his higher authority as his role was of a bridge between the
government and respondent No.4 and his action
straightway to address the impugned letter (Annexure-A)
on the same day to respondent No.3 does not fall within
the purview of term “bonafide” which is defined under
Section 52 of the IPC. In such circumstances, judicial
scrutiny and judicial review is permissible.
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[9.4] Insofar as argument of learned Senior Advocate Mr. Syed
for respondent No.4 that decision of Hon’ble Supreme
Court in the case of Sangeet (Supra) is overruled but which
is read in isolation with paragraphs 104 and 105 of the
decision of Hon’ble Supreme Court rendered in the case of
V. Sriharan (Supra) is concerned, learned advocate Mr.
Bhatt for the petitioner has submitted that, whatever
power exercised by respondent No.3 is against the settled
principle of law and circular produced at Annexure-I is not
passed and nowhere, it is stated that procedure under
Sections 431 and 432 of the CrPC is not required to be
followed.
[9.5] Further, he has submitted that, if power under Article 161
of the Constitution is exercised then there is no need to
follow section 432 of the CrPC. Such interpretation is also
nothing but a misnomer as circular dated 23.01.2014 is
passed as per the dictum of Hon’ble Supreme Court
wherein the case of Laxman Naskar vs. Union of India
reported in (2000) 2 SCC 595 is taken into consideration
and stated that, while extending the benefit of remission
has prescribed the procedure required to be followed
however, as respondent No.4 is headstrong, no one could
dare to challenge the said impugned letter (Annexure-A).
He has further submitted that, conduct of respondent No.4
is also required to be considered, whether respondent
No.4 is a law abiding citizen or not?
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[9.6] Herein, during the pending proceedings qua subject
matter, the coordinate Bench of this Court observed the
conduct of respondent No.4 and that all the authorities
have passed an order in tandem and facilitated respondent
No.4 and swept the issue under the carpet. Not only that,
due to the conduct and high-handedness on the part of
respondent No.4, family of deceased had to leave the
village by selling their movable and immovable properties
under the fear and terror. In recent past also, one person
had tried to challenge the order extending benefit of
remission to respondent No.4. The said person was forced
to commit suicide and in this regard also, recently in May,
2025 an offence is registered and specific allegation also
made in the FIR and till date respondent No.4 is on run and
his name is also mentioned in the FIR itself as he has
challenged or raised a voice against the impugned
remission order, which clearly reveals from the
proceedings filed before this Court i.e. SCR.A
No.3499/2018 (page Nos.35, 60, 62, 295, 299, 300, 302,
364, 423 and 460) and Writ Petition (PIL) No.182 of 2019
(page Nos.130, 143, 160, 161, 164, 166, 167 to 175 and
299), which reflects high-handedness and terror and
conduct of respondent No.4.
[9.7] So far as delay caused in filing the present petition is
concerned, learned advocate Mr. Bhatt appearing for the
petitioner has submitted that considering the high-
handedness and the fear which the petitioner was having
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and as his father restricted him from raising any voice
against respondent No.4, petitioner could not come to this
Court in time and others have raised voice due to pressure
and as other litigations were going on and had hope that
government may challenge it or will do something. Hence,
he was fence sitter and waiting for outcome. However,
after the demise of his father and due to silence of
government, present petitioner has gathered courage and
raised the voice. Hence, delay caused in filing the petition
is not a ground to not to entertain the petition as
impugned order is ab initio void. Adopting the pressure
tactics, respondent No.4 has continuously engaged in
illegal activities and he has enjoyed the liberty at the cost
of safety of public and it was the duty of the State though
State has not challenged the said order at Annexure-A.
Hence, the petitioner being the kith and kin of the
deceased who was killed by respondent No.4, has filed the
present petition and hence, delay only is not a ground to
dismiss the petition and confirm such illegal act of
respondent No.3. The Court has to consider the order
(Annexure-A) and statutory function based on the order
passed by respondent No.3. He has further submitted that
now, neither respondent No.3 nor respondent No.4 can
supplement any fresh reason by way of affidavit or
otherwise to divert the issue and this is a fit case and
matter requires judicial review of decision.
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[9.8] As regards suspicion raised by learned Advocates
appearing for respondent Nos.3 and 4 qua identity of the
present petitioner, learned advocate Mr. Bhatt has
submitted that petitioner is grandson of the deceased and
he approached the Hon’ble Supreme Court and he has
mentioned the said fact in the petition but inadvertently
said petition memo is not the part of compilation of
present petition however, upon instructions, he submits
that petitioner is ready and willing to furnish the said
material if either the Court or any party to the proceeding
if respondents want to verify. However, if the respondent
Nos.3 and 4 have any objection, then the petitioner is
ready to place on record the material in this regard.
Respondent No.4 anyhow wants to avoid the hearing of
the present petition. Right from 2018, illegal release was
challenged before this Court and all these attempts have
gone into vain and never reached upto logical end and such
litigation remain continued and such order has never
attained finality or approval of Court. Even, earlier also,
matter was listed before 3 different Benches and before
this Court also, present matter is listed six times. The Court
has to consider his conduct before this Court also and
manner in which they have tried to prolong / argue the
matter on one or another pretext, which is nothing but
against the settled principle of law and even as per the
decision of the Hon’ble Supreme Court in the case of D.P.
Chadha vs. Triyugi Narain Mishra & Ors reported in
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(2001) 2 SCC 221, such act is nothing but misconduct and
deliberate attempt to mislead the Court and attempted
practicing deception or fraud on the Court. Hence also, he
has requested to pass suitable direction also in this regard.
ANALYSIS:
[10.0] Having heard learned Counsel appearing for the respective
parties, perusing the record and affidavits in reply filed by
respective parties, it is undisputed and admitted fact that
respondent No.3 – IG Prisons has vide letter dated
29.01.2018 released respondent No.4, who was convicted
for the offence punishable under Section 302 of the IPC
for which he was convicted by the Hon’ble Supreme Court
and sentenced for life imprisonment and for the offence
under Section 5 of TADA, he was sentenced to undergo 3
years’ RI, vide impugned letter / communication produced
at Annexure-A to the petition based on the application
submitted by the son of respondent No.4, relying on
government circular dated 25.01.2017 produced at
Annexure-I to the petition.
[10.1] The circular dated 25.01.2017 provides to release the
prisoners from the Prisons of the State on occasion of
celebration of 68th Republic Day on 26.01.2017, subject to
condition Nos.1 to 6 prescribed in the said circular
(Annexure-I) and without following the said conditions,
after expiry of the said circular, as it was for limited period
of one year and without placing case of respondent No.4
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before the Advisory Board Committee, respondent No.3
has exercised the power and passed the impugned order
(Annexure-A).
[10.2] Considering the submission of learned Public Prosecutor
appearing for the State, letter (Annexure-A) dated
29.01.2018 was issued by respondent No.3 was issued
without authority and which is not issued by the State
Government or appropriate authority or by order and in
name of the Governor. Further, the learned Public
Prosecutor has also admitted that respondent No.3 has
issued the impugned letter dated 29.01.2018 without any
authority and without following embargo mentioned in
Circular dated 25.01.2017 (Annexure-I), which was
implemented only for one year and without any future
effect.
[10.3] Herein, the petitioner has challenged the order issued by
the respondent No.3 to extend the benefit of ‘pardon’ to
respondent No.4 and ordered to release respondent No.4
vide letter dated 29.01.2018 (Annexure-A) based on the
application dated 29.01.2018 submitted by the son of
respondent No.4 in vernacular, translation of which reads
as under:
APPLICATION SUBMITTED BY SON OF RESPONDENT NO.4
“Applicant: Shaktisinh Aniruddhsinh Jadeja
Village: Ribada, Taluka Gondal,
District: Rajkot.
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Date: 29/01/2018 (Hand Written Date)
To,
The Additional Director General of Police
Inspector General of Prisions,
Government of Gujarat,
Jail Bhavan,
Ahmedabad.
Subject: About release of convict-prisoner No. 35631 Shri
Aniruddhsinh Mahipatsinh Jadeja from the prisonRespected Sir,
My father Shri Aniruddhsinh Mahipatsinh Jadeja is
undergoing a sentence for last 18 years and 5 months at the
Junagadh Jail. He has been awarded a life term under Section
302 of I.P.C. and an imprisonment of three years under Section 5
of the TADA Act by the Hon’ble Supreme Court. He has been
ordered to undergo both the sentences concurrently. As of now,
he has completed an imprisonment of 18 years and 5 months.
After completing 12 years of sentence, he has made a
representation before the Government for the State-Pardon.
His conduct during the imprisonment was good and disciplined.
He has also received a certificate from the Senior Officers for his
good conducts. As per the criteria of State-Pardon granted on
25/01/2017, he has completed a simple imprisonment of 12
years. Thus, as per the Circular of the State Government, he is
eligible to be freed from jail. Therefore, it is humbly requested to
release him from the prison on the basis of the above stated
Circular of the Government.
Yours Sincerely,
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sd/- (illegible)
(Shaktisinh Aniruddhsinh Jadeja)”
Based on the said application, on the same day i.e. on
29.01.2018, respondent No.3 has passed the impugned
order dated 29.01.2018 (Annexure-A), translation of which
reads as under:
ORDER PASSED BY RESPONDENT NO.3
“Through FAX
O.W. No. JUDI/2/766/2018
Additional Director General of Police
Office of Prison Reforms,
Government of Gujarat,
‘Jail Bhavan’, Nr. Subhashbridge Circle,
Ahmedabad – 27.
Ph: 079-(P) 27560403, (G) 27550818, (F) 27557798
Date: 29/01/2018
To,
The Superintendent
Junagadh District Jail,
Junagadh.
Subject: About granting benefits of State Pardon, accorded on
68th Republic Day on 26th January 2017, to the convict-
prisoner No. 35631 Aniruddsinh Mahipatsinh Jadeja.
Subject:
Reference: (1) Resolution No. JLK/822013/5009/J of the Home
Department of State.
(2) Application dated 29/01/2018 of Shri Shaktisinh
Aniruddsinh Jadeja.
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With regard to the captioned subject, it is to state that,
the State has granted pardons vide the letter referred at Sr. No.
(1). The son of the prisoner No. 35631 – Aniruddhsinh
Mahipatsinh Jadeja has made representation before this office to
grant benefits of State-Pardon to his father and release him from
the prison as he has already undergone a sentence for 18
years and the imprisonment for 3 years under the TADA Act is to
run concurrently.
The then Superintendent, Junagadh District Jail has not
taken the provisions of the sentence under the TADA Act into
consideration, properly while interpreting the resolution at that
time.
Therefore, considering the representation made by the
applicant and the fact that not any other case is pending against
the convict-prisoner, it is informed to give him the benefits of
State-Pardon and release him from the prison, immediately.
Sd/- (illegible)
(T.S. Bishth)
Additional Director General of Police
Prison Reforms and Administration,
Government of Gujarat, Ahmedabad.”
Thus, based on application dated 29.01.2018
submitted by the son of respondent No.4 relying upon
circular dated 26.01.2017 (Annexure-I, Page 128), by which
the State Government has been pleased to extend the
benefit of pardon to the prisoners who have completed
sentence of 12 years, subject to the conditions vide circular
dated 26.01.2017 which reads as under:
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ANNEXURE-I
“Grant of Remission to the
Prisoners in the Prisons of the
State on the occasion of the
celebration of 68th Republic Day
on 26th January, 2017.
Government of Gujarat
Home Department,
No.JLK/822013/5009/J
Sachivalaya, Gandhinagar,
Date :- 25th January, 2017Resolution :-
On the occasion of the celebration of 68 th Republic
Day on 26th January, 2017 and in pursuance of Article 161 of
the Constitution of India the Government of Gujarat hereby
grants remission in sentence to the extent set out herein
below to the convicted persons undergoing imprisonment
inflicted by the Courts of criminal jurisdiction of the State and
who are confined in the jails and in the Prisons of the State.
Categories of Prisoners for release:-
(a) In respect of prisoners convicted for life imprisonment and
who have undergone 12 (twelve) years of actual
imprisonment including set-off as on 26th January, 2017
or before, full remission of the remaining period is
granted.
(b) xxxxxxxxx
(c) In respect of prisoners convicted for life imprisonment,
who have not absconded from parole/furlough/interim
bail etc. for more than three days, last ten years, and have
undergone 12 years of actual imprisonment including set-
off as on 26th January, 2017, full remission of the
remaining period is granted.
(d) xxxxxxxxxxxxx
A. Conditions of Release:
(1) This order shall not be applicable to under trial prisoners.
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(2) The following condition shall be attached to all release
If, following his release, any prisoner commits any
cognizable offence involving grave injury to a person or
property, he/she shall be liable to be apprehended and
confined to serve the unexpired portion of his sentence, so
remitted.
(3) The Jail Advisory Committee shall scrutinize each case
as directed by Hon. Supreme Court in Criminal Appeal
No.566 of 2010 (Arising out of SLP (Cri.) No.6638 of
2009) and Criminal Appeal No.490-491 of 2011 before
granting this State Remission.
(4) If a prisoner is on Parole or Furlough, the remission shall
be granted only if the prisoner surrendered in the jail
before the expiry of period of Parole or Furlough.
(5) The State Remission is one time and cannot be
extended to a future date.
(6) The remission shall be granted as per the Government
Resolution No.JLK / 822012 / 1859 / J, dated 23-01-
2014 and its subsequent amendment No.JLK
/822012 /1859 /J, dated 25/01/2017.
By order and in the name of the Governor of Gujarat,
(M. B. Soni)
Deputy Secretary to the
Government of Gujarat,
Home Department.”
Based on the aforesaid policy / circular, benefit was
extended to respondent No.4.
[11.0] Now, the centripetal issue in the matter which is required
to be considered is only as to whether respondent No.3
had any power or authority to address or to issue the
impugned letter (Annexure-A) to grant pardon to
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respondent No.4.
[11.1] Before dealing with the said issue, it is appropriate to refer
to section 3(23) of the General Clauses Act, which reads as
under:
“Government” or “the Government” shall include both the
Central Government and any State Government.
It is also relevant to refer to section 17 of the IPC,
which provides that the notation “GOVERNMENT” is
denoted for the Central and State Government of India.
Further, section 55A of the IPC reads as under:
“55A. “appropriate Government” means, —
(a) In case where the sentence is a sentence of death or is for an
offence against any law relating to a matter to which the
executive power of the Union extends, the Central Government;
and
(b) In case where the sentence (whether of death or not) is for
an offence against any law relating to a matter to which the
executive power of the State extends, the Government of the
State within which the offender is sentenced.”
[11.2] Upon bare reading of Circular and impugned
communication (Annexure-A), it appears that respondent
No.3 has arbitrarily issued the letter without any authority
and ignoring the settled principles of law as respondent
No.3 does not fall in the category of “Government” or
“Appropriate Government”. Even if for the sake of
argument we accept that there was an authority to
respondent No.3 for issuing such letter, even though
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circular (Annexure-I) was issued with certain embargo and
conditions. Herein, without following any stipulation
prescribed under the Circular dated 25.01.2017 (Annexure-
I), straightway without considering anything, on the same
day i.e. on 29.01.2018, respondent No.3 has issued the
impugned letter. Though policy was floated only for the
year 2017, though the benefit is extended for the period
subsequent thereto, which is illegal.
[11.3] At the outset, State has also submitted that, circular issued
was one time circular to extend the special benefit to the
prinsoners who had served sentence of 12 years with
certain conditions and following the recommendation of
Advisory Board Committee. Herein, in the case on hand,
after expiry of one year, impugned letter / order has been
issued by the respondent No.3 and that too without
following stipulation provided thereunder and on his own,
he has addressed the letter without complying with
conditions stated in the Circular (Annexure-I).
[11.4] The stand taken by respondent No.3 is that, he has only
followed the directions as a controlling authority of Jail
Administration being the Head of the Jails of the Gujarat
State, he has instructed and addressed a communication to
respondent No.2 – Jail Superintendent, Junagadh to
consider the case of respondent No.4 to relese him. Hence,
it was upon the respondent No.2 to follow the stipulation
provided under the Circular (Annexure-I) and respondent
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No.3 has already released other 7 convicts till date and no
one has raised any grievance and even the State has not
challenged such release. Hence, no colorable exercise on
the part of respondent No.3 as he has acted as controlling
officer and as a supervisory authority and once son of
respondent No.4 had approached the respondent No.3, he
has only passed instruction.
[11.5] Perusing the record also, it appears that stipulation
provided in the Circular dated 25.01.2017 (Annexure-I) is
required to be followed prior to exercise of the power or
prior to passing any direction by respondent No.3. Herein,
no any conditions are followed as stated in the Circular and
hence, said argument is nothing but an afterthought and
ignoring specific instruction to pass instruction to release
respondent No.4 immediately, which is nothing but abuse
of power and colorable exercise of power on the part of
respondent No.3 and said order is non est.
[11.6] As respondent No.4 is an affected party, he is also heard at
length. The main submission of respondent No.4 is that
benefit under Article 161 of the Constitution was
extended hence, no need to follow any condition either
under Section 432 of the CrPC or any statutory provisions
as powers to pardon is under Article 161 of the
Constitution which are constitutional powers. Further,
respondent No.4 has served the sentence for 18 years,
which was more than 14 years and hence, he was entitled
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to get the benefit of circular and for that his son
approached the authority and belatedly the petitioner has
approached this Court without there being any locus.
Hence, he has requested to dismiss the petition as the
power exercised by respondent No.3 is just legal and
proper and does not call for any interference and no
judicial review is permissible once the constitutional
powers being exercised.
[11.7] As per Circular dated 25.01.2017 (Annexure-I), benefit of
remission is granted and not a pardon is given. The word
“remission” refers to the reduction of duration of
prisoner’s sentence without altering the nature of
sentence. It allows the convict to be released earlier than
the original term prescribed by the Court provided that
they meet a specific eligibility criteria. Articles 72 and 161
of the Constitution of India are constitutional powers
which grant pardon, reprieve, respite or remit the
sentence or to suspend, remit or commute the sentence of
any person convicted of an offence under the Union Law or
involving Military Courts. Hon’ble Governor having the
same power under Article 161 of the Constitution in the
matter of State Government and such powers are
amenable to writ jurisdiction. The statutory provisions to
extend the benefit of remission is provided under Section
432 of the CrPC (section 473 of the BNSS). The powers to
grant the remission or remit the sentence without or
without the condition are under the domain of State
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Government.
[11.8] The Hon’ble Supreme Court has prescribed the criteria
while granting the benefit of remission in the case of
Laxman Naskar vs. Union of India reported in (2000) 2
SCC 595 and outlined five factors of remission namely (1)
societal impact; (2) crime severity; (3) risk of recidivism; (4)
prison conduct and (5) potential for reintergration
ensuring a balanced approach to justice and public safety.
The judicial review of remission order is also permissible on
the ground of non-application of mind, malafide intent,
reliance on extaneous or irrelevant considerations.
[11.9] Perusing condition No.6 also of the impugned policy /
circular, it clearly reveals that certain restriction and
limited power is required to be exercised and under
Section 437(2) of the CrPC, word “appropriate
government” for remission is explained and same fact is
also reiterated and considered in the decision of Hon’ble
Supreme Court in the case of Sangeet & Another (Supra)
and V. Sriharan (Supra). At the same time, considering
various pronouncements of Apex Court rendered in the
case of Sangeet & Another (Supra) and in the case of
State of Haryana & Others vs. Mohinder Singh reported
in (2000)3 SCC 394, in the case of Laxman Naskar (Supra),
Hon’ble Supreme Court emphasized that the convict
cannot claim the remission as a matter of right. It is settled
principle of law that remission policy only gives right to the
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convict to be considered and his case for remission do not
provide an indefeasible right to claim remission and
powers of remission are required to be exercised in fair
and reasonable manner and cannot be exercised
arbitrarily.
[11.10] Herein, as stated above and considering the circular at
Annexure-I, prima facie, this Court is of considered view
that said circular dated 25.01.2017 (Annexure-I) was one
time without future extention and with certain conditions.
Therefore, report of Advisory Board Committee and other
conditions provided under other two circulars are required
to be followed, which are also not followed by respondent
No.3 and straightway impugned communication is made
without verifying the record or contents of the application
of son of respondent No.4 accepting the same as gospel
truth passed an order. Hence, it appears that the
impugned letter / communication is not in consonance
with the circular issued by the authority. Not only that, in
the said letter, word used is “રાજ્યમાફી” (Rajya Mafi), which
means “pardon”. The word “pardon” means to completely
absolve a person of the offence and its consequences and
said power is only under Articles 72 and 161 of the
Constitution of India and are to be exercised by Hon’ble
The President of India and Hon’ble Governor only based on
recommendation or advice of Minister of Council and
herein, no such deligation of power to respondent No.3 to
pass any such order and no any order is passed by the
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Government or such name of the Governor also.
[11.11] Respondent No.4 was also convicted for the offence under
the provisions of TADA and central legislation was there
and therefore, to extend the benefit under the circular at
Annexure-I, minimum stipulation was 12 years. Respondent
No.4 herein was convicted and sentenced for life
imprisonment and even as per the submission of learned
Counsel Mr. Syed, convict had undergone 18 years means
his case was to be considered in the category to extend the
benefit of remission to lessen the sentence without
changing its characteristics as respondent No.4 was
convicted by the Hon’ble Apex Court. Herein, no any
powers with respondent No.3 of commutation and hence,
question does not arise to exercise any power to pardon or
to commute the sentence as of right. Even, as per the
settled principle of law, the power under Article 161 of the
Constitution is required to be exercised by the State
Government with Hon’ble The Governor acting on their
advise. Herein, respondent No.3 does not fall in the
purview of “appropriate government” or “Government”
though he has extended the benefit of pardon to
respondent No.4 and that too without following condition
of circular at Annexure-I and de hors the said legal frame
work and the requirement to exercise the power.
[12.0] The application dated 29.01.2018 was filed for “pardon” by
son of respondent No.4. Word “pardon” means to
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completely absolve a person of offence and its
consequences. “Remission” means lessening the amount of
sentence without changing its characteristics and word
“Reprieve” means delay the execution of sentence
allowing more time to the convict person to avail or seek
other legal remedies. “Respite” means awarding lesser
sentence instead of original sentence usually due to
special circumstances such as illness and pregnancy.
Impugned letter at Annexure-A clearly reveals that benefit
of “pardon” is extended, means convict is completely
absolved of offence and its consequences. The said letter
is issued by respondent No.3 on his own and not on behalf
of the State Government or in the name of Hon’ble The
Governor and that too without following any due
procedure. If we accept that, the said letter is issued
keeping in mind the provisions of remission even though
no stipulation provided under the circular at Annexure-I is
complied with or followed neither by respondent No.3 nor
by respondent No.2 as argued by learned Counsel for
respondent No.3.
[12.1] Even, if for the sake of argument it is accepted that,
circular at Annexure-I is issued under Article 161 of the
Constitution for premature release of prisoners, exercise
of such powers is under the domain of Hon’ble Governor
and upon the advise of Ministers of Council and prior to
exercise of such power or issuance of circular, perusing the
material produced by the State Authority before this
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Court, it clearly reveals that prior to issuance of Circular
the proposals were called for from throughout the State
wherein the prisoners who have completed 12 years of
sentence and considering their jail remarks, opinion of
Advisory Board Committee alongwith proposals,
everything were placed before the Governor with
recommendation and thereafter, circular dated 25.01.2017
came to be issued for one year i.e. for the year 2017 only.
At that time, from Junagadh District Jail also, detail of
beneficiary prisoners called for, who were convicted for
life imprisonment and lesser punishment. Perusing the said
communication also, it appears that name of only five life
convict prisoners, for the offence under Section 302 of the
IPC as on 26.01.2017 came to be forwarded to the
government wherein, name of respondent No.4 herein,
was not included in the list as a beneficiary of the said
circular and other 10 convicts who were convicted for the
offence under Section 125 CrPC, sections 304 (Part II) IPC,
326, 324, 114, 279, 337, 338 of IPC and provisions of MV
Act etc. were given the benefit under the said circular by
the Government as part of one time exercise. On that
count also, argument canvassed by learned Counsel for
respondent Nos.3 and 4 is not accepted.
[12.2] Even, at relevant point of time, respondent No.4 did not
raise any objection or not made any correspondence while
the said list was submitted as per the circular to the State
Government for consideration on 26.01.2017. Herein, after
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one year, relying on antback dated circular, straightway
respondent No.3 has issued the letter at Annexure-A
without forwarding it to the State Government for
consideration though benefit was not extended by State
Government to respondent No.4, at that time, though
respondent No.3 on his own addressed letter to
respondent No.2.
[12.3] Thus, it is crystal clear that respondent No.3 did not follow
the conditions stipulated in the said circular and even
otherwise prior to that also, while the proposal was
forwarded in the year 2013-14 for the benefit of remission
to respondent No.4, at that time, name of respondent No.4
was not considered and benefit of remission was not
extended to him. At that time also, respondent No.3 had
addressed a communication wherein it is clearly stated
that, respondent No.2 recommended to consider the case
of respondent No.4. Herein also, he ought to have only to
make recommendation on same line as he was superior or
controlling officer but herein, straightway he has usurped
the power of the State Government. Nonetheless, learned
Counsel for respondent No.3 has stated that it was for
respondent No.3 to follow the stipulation and the
condition enumerated in the circular dated 25.01.2017 and
he did not follow the said condition. Even if we accept the
said submission for the sake of argument then also,
release of respondent No.4 is de hors and against the
established procedure of law and circular (Annexure-I)
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itself.
[12.4] Learned Counsel for respondent No.4 has submitted that,
there is no need to follow the provisions of section 432 of
the CrPC as respondent No.3 has exercised powers under
Article 161 of the Constitution but as discussed above,
powers under Article 161 of the Constitution are required
to be exercised by Hon’ble Governor only based on the
advise of the Ministers of Council. Respondent No.3 did
not fall in the category of Ministers of Council or State or
appropriate Government. The nature and scope of powers
of Governor is discussed by the Hon’ble Supreme Court in
the case of State of Haryana and Others Vs. Rajkumar @
Bittu reported in (2021)9 SCC 292 wherein it is observed
that said power is required to be exercised by the
Governor on aid and advise of State Government and not
by Hon’ble Governor on his own and only restriction under
Section 433A of the CrPC is not applicable when powers
under Article 161 of the Constitution is exercised.
[12.5] Herein, in the case on hand, while exercising powers under
Article 161 of the Constitution, name of present
respondent No.4 was not included in the list of
beneficiaries of circular at Annexure-I. Not only that, there
is no bar to exercise the power under Article 161 of the
Constitution with terms and conditions of the statutory
provisions for remission policy of the State Government.
As per argument of learned Counsel for respondent No.3 is
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that, respondent No.3 has exercised the power being
controlling and superior officer of Jail Administration. Such
power and authority is clearly mentioned in the Bombay
Jail Manual and Prisoners Act, which clearly defines the
power and authority of IG, Prison wherein, it is provided
that power of IG, Prison is only to have control over the
staff and general jail administration and supervision and
for remission purpose, he is only medium of
communication to forward the proposals to the
Government and he has to submit the proposals to the
State Government in turn whenever he receives such
proposal. Except this, respondent No.3 has no role to play.
His functions as a government servant / officer are
provided under Rules 257 and 258 under Chapter X of Jail
Manual. Nowhere, power of remission or to exercise power
under Article 161 of the Constitution is entrusted or
bestowed upon respondent No.3. Hence, argument
canvassed by learned Counsel Mr. Syed is not acceptable.
[12.6] Moreover, as per the Rules of Business of Government of
Gujarat, if any circular is issued for and on behalf of the
State Government, in that event also, the General
Administration Department of Gujarat State has
prescribed the procedure and Rules under the said Rules of
Business of Gujarat Government wherein also, it is clearly
mentioned in Rule 13 that every order of State
Government is required to be passed by the Secretary,
Additional Secretary, Joint Secretary, Deputy Secretary,
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Under Secretary or Section Officers based on the powers
given by the Government. Herein, respondent No.3 has
passed order not in the name and on behalf of the Hon’ble
Governor. Hence, this Court is of the considered opinion
that the impugned order dated 29.01.2018 (Annexure-A)
passed by respondent No.3 is not in accordance with law
and he was incompetent to pass the impugned order
extending pardon or benefit of remission to respondent
No.4. Thus, it appears that in absence of any source of
power, respondent No.3 has exceeded his authority /
power. Herein, specific case of respondent No.4 that he
had served sentence or more than 14 years and hence,
actual imprisonment was within the scope of section 433A
of the CrPC and it was for the Hon’ble Governor to exercise
the power conferred to him under Article 161 of the
Constitution as per the policy.
[12.7] Even if for the sake of argument it is accepted then also,
under Article 161 of the Constitution and the circular at
Annexure-I, power was conferred even though there was
no question to give a concession in a sentence below 14
years i.e. 12 years as per the Circular. If argument of
respondent No.4 is accepted that the circular at Annexure-I
was issued under Article 161 of the Constitution with
certain restrictions, which is permissible under the law and
appropriate government is also empowered to impose
restrictions under Section 432(5) of the CrPC for check and
balances of past conduct of convict after release and sole
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purpose of such benefit is given or extended only for the
purpose of rehabilitation of convict in the society. Earlier
also, under Section 432(5) of the CrPC, policies were
framed with such condition. The distinction is that
remission is taken into consideration where prisoner
convicted for the offence under Section 302 of the IPC has
undergone the sentence of not less than 14 years and
then it would fall under the circular dated 25.01.2017
(Annexure-I). It appears that respondent No.3 has
arbitrarily usurped the power of government.
[12.8] Even, the Hon’ble Supreme Court in the case of Bilkis
Yakub Rasool (Supra) has been pleased to examine the
scope and ambit of remission. The argument of learned
Senior Counsel for respondent No.4 that decision in the
case of Sangeet & Another (Supra) is overruled and not
applicable is not acceptable in toto. Present petitioner is
convicted and sentenced with life imprisonment by the
Hon’ble Supreme Court. Section 53 of the IPC speaks about
various punishments which could be ordered against the
offenders and imprisonment for life is one of such
punishment. Section 53 of the IPC reads as under:
“53. Punishments.– The punishments to which offenders are
liable under the provisions of this Code are–
First.– Death;
Secondly. — Imprisonment for life;
***[Clause “Thirdly” omitted by Act 17 of 1949, sec. 2 (w.e.f.
6.4.1949]Page 48 of 92
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Fourthly.– Imprisonment, which is of two descriptions, namely:
–(1)Rigorous, that is, with hard labour;
(2)Simple;
Fifthly– Forfeiture of property;
Sixthly– Fine.”
Section 57 of the IPC is also relevant and is extracted as under :
“57. Fractions of terms of punishment.- In calculating
fractions of terms of punishment, imprisonment for life
shall be reckoned as equivalent to imprisonment for
twenty years.
In the case of Swamy Shraddhananda (2) vs. State of
Karnataka reported in (2008) 13 SCC 767, the Hon’ble
Supreme Court took note of the contention that a convict
undergoing a sentence of imprisonment has no right to
claim remission was not the same as the Court, while
imposing the punishment of imprisonment, suspending the
operation of the statutory provisions of remission and
restraining the appropriate Government from discharging
its statutory function. It was contended in the said case
that just as the Court could not direct the appropriate
Government for granting remission to a convicted
prisoner, it was not open to the Court to direct the
appropriate Government not to consider the case of a
convict for grant of remission in sentence. It was
contended therein that giving punishment for an offence is
a judicial function but the execution of the punishment
passes into the hands of the executive and the scheme of
statute, the Court had not control over the execution. ThisPage 49 of 92
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contention was however, not accepted and held to be
untenable. Referring to sections 45, 53, 54, 55 and 57 of
the IPC, it was observed that section 57 of the IPC provides
that in calculating fractions of terms of punishment,
imprisonment for life shall be reckoned as equivalent to
imprisonment for twenty years. That, Section 57 of the IPC
does not in any way limit the punishment for imprisonment
for life to a term of twenty years. It only provides that
imprisonment for life shall be reckoned as imprisonment
for twenty years while calculating fraction of terms of
punishment.
[12.9] The Constitution Bench of the Hon’ble Supreme Court in
the case of V. Sriharan (Supra) considered, inter alia, two
questions namely, (i) as to whether the imprisonment for
life means till the end of convict’s life with or without any
scope for remission? and (ii) whether a special category of
sentence instead of death for a term exceeding 14 years
can be made by putting that category beyond grant of
remission? The Constitution Bench for the majority
observed that the first question relates to Sections 53 and
45 of the IPC vis-a-vis the meaning of “life imprisonment” as
to whether it means imprisonment for the rest of one’s life
or a convict has a right to claim remission. The second
question is based on the ruling of Swamy Shraddhananda
(Supra). Having noted the decisions of the Hon’ble
Supreme Court in case of Gopal Vinayak Godse v. The
State of Maharashtra and others [(1961) 3 SCR 440] andPage 50 of 92
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Maru Ram (Supra) as well as other cases discussed therein
which have followed those decisions, it was observed that,
“the first part of the first question can be conveniently
answered to the effect that imprisonment for life in terms
of Section 53 read with Section 45 of the IPC only means
imprisonment for rest of the life of the prisoner subject,
however to the right to claim remission etc. as provided
under Articles 72 and 161 of the Constitution to be
exercisable by the President and the Governor of the State
and also as provided under Section 432 of the CrPC. Herein,
neither the State or Governor has exercised any power in
issuing impugned letter (Annexure-A).
[12.10]The ratio laid down in the case of Swamy Shraddhananda
(Supra) with regard to special category of sentence was
affirmed. It was expressed that the opinion of the Court in
the case of Sangeet & Another (Supra) that the deprival of
remission power of the appropriate Government by
awarding sentences of twenty or twenty-five years without
any remission was not permissible, was not in consonance
with law and hence, the said judgment was over-ruled upto
that extent only.
[12.11]In the said decision, only term “life imprisonment” is
explained and partly over-ruled qua “life imprisonment”
and for getting the benefit of remission, 14 years’ sentence
is required to be undergone and same ratio is affirmed by
the Hon’ble Supreme Court subsequently in the case of
Bilkis Yakub Rasool (Supra) and paragraphs 164 to 170 ofPage 51 of 92
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the said decision read as under:
“164. Be that as it may, it would be useful to refer to the
following judgments in the context of passing an order of
remission in terms of Section 432 read with Section 435 of the
CrPC.
165. V. Sriharan is a judgment of this Court wherein the
Constitution Bench answered seven questions out of which the
following questions are relevant for the purposes of this case:
(SCC p. 52, para 8)“8. 8.3. (iii) Whether the power under Sections 432 and
433 of
the Criminal Procedure Code by the appropriate
Government would be available even after the
constitutional power under Articles 72 and 161 by the
President and the Governor is exercised as well as the
power exercised by this Court under Article 32?
8.4. (iv) Whether the State or the Central Government
have the primacy under Section 432(7) of the Criminal
Procedure Code?
8.5. (v) Whether there can be two appropriate
Governments under Section 432(7)?
8.6. (vi) Whether power under Section 432(1) can be
exercised suo motu without following the procedure
prescribed under Section 432(2)?
8.7. (vii) Whether the expression “consultation” stipulated
in Section 435(1) really means “concurrence”?”
This Court observed that the procedure to be followed under
Section 432(2) is mandatory and that suo moto power of
remission cannot be exercised under Section 432(1) and it can
only be initiated by an application of the person convicted as
provided under Section 432(2) and the ultimate order of
suspension of sentence or remission should be guided by the
opinion to be rendered by the Presiding Officer of the Court
concerned. In this case the earlier judgement of this court in
Sangeet was approved.
166. 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
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and Jagdish. It was further observed in the said case that there
does not seem to be any decision of this Court detailing the
procedure to be followed for the exercise of power under Section
432 of the CrPC which only lays down the basic procedure i.e. by
making an application to theappropriate 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 CrPC is only an enabling provision to override
a judicially pronounced sentence, subject to the fulfilment of
certain conditions. These conditions are found either in the Jail
Manual or in statutory rules.
167. It was pertinently observed that when an application for
remission is made the appropriate Government may take a
decision on the remission application and pass orders granting
remission subject to certain conditions or, refuse remission. But
there has to be an application of mind on the remission
application so as to eliminate discretionary en-masse release of
convicts on “festive” occasions, since each release requires a case
by case scrutiny. It was observed that the power of remission
cannot be exercised arbitrarily and the decision to grant
remission has to be well informed, reasonable and fair to all
concerned. The statutory procedure under Section 432 of the
CrPC provides a check on the possible misuse of power of the
appropriate Government.
168. It was further observed that there is a misconception
that a prisoner serving a life sentence has an indefeasible
right to be released on completion of fourteen years or
twenty years of imprisonment; however, in reality, the prisoner
has no such right. A convict undergoing life imprisonment is
expected to remain in custody till the end of his life, subject to
any remission granted by the appropriate Government under
Section 432 of the CrPC which, in turn, is subject to the
procedural checks in that section and the substantive check in
Section 433-A of the CrPC. That the application of Section 432 of
the CrPC to a convict is limited inasmuch as, a convict serving a
definite term of imprisonment is entitled to earn a period of
remission under a statutory rule framed by the appropriate
Government or under the Jail Manual. The said period is then
offset against the term of punishment given to him. Thus, upon
completion of the requisite period of incarceration, a prisoner’s
release is automatic. However, Section 432 of the CrPC will apply
only when a convict is to be given an “additional” period of
remission for his release i.e., the period to what he has earned as
per the Jail Manual or the statutory rules.That in the case of
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indeterminate. Remissions earned or awarded to such a life
convict are only notional and Section 432 of the CrPC reduces the
period of incarceration by an order passed by an appropriate
Government which cannot be reduced to less than fourteen years
as per Section 433-A of the CrPC.
169. This Court after a detailed discussion came to the
following conclusions on the aspect of grant of remissions:
“77.5. The grant of remissions is statutory. However, to
prevent its arbitrary exercise, the legislature has built in
some procedural and substantive checks in the statute. These
need to be faithfully enforced.
77.6. Remission can be granted under Section 432 Cr.P.C. in
the case of a definite term of sentence. The power under this
section is available only for granting “additional” remission,
that is, for a period over and above the remission granted or
awarded to a convict under the Jail Manual or other
statutory rules. If the term of sentence is indefinite (as in life
imprisonment), the power under Section 432 Cr.P.C. can
certainly be exercised but not on the basis that life
imprisonment is an arbitrary or notional figure of twenty
years of imprisonment.
77.7. Before actually exercising the power of remission under
Section 432 Cr.P.C. the appropriate Government must obtain
the opinion (with reasons) of the Presiding Judge of the
convicting or confirming Court. Remissions can, therefore, be
given only on a case-by-case basis and not in a wholesale
manner.”
170. Ram Chander was a case of a writ petition being filed
before this Court under Article 32 of Constitution seeking a
direction to the respondent-State therein to grant him premature
release. This Court speaking through Dr. D.Y. Chandrachud., J.,
(presently the learned Chief Justice) considered the aspect of
judicial review of power of remission and referred to Mohinder
Singh to observe that the power of remission cannot be exercised
arbitrarily and the decision to grant remission should be
informed, reasonable and fair. In this context, reliance was
placed on Laxman Naskar wherein this Court, stipulated the
factors that govern the grant of remission namely: (Laxman
Naskar Case, SCC p. 598, para 6)
“6. (i) Whether the offence is an individual act of crime
without affecting the society at large?
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(ii) Whether there is any chance of future recurrence of
committing crime?
(iii) Whether the convict has lost his potentiality in
committing crime?
(iv) Whether there is any fruitful purpose of confining this
convict any more?
(v) Socio-economic condition of the convict’s family.
(Emphasis supplied)”
[12.12] Herein, the order is passed by respondent No.3
straightway without following the aforesaid prescribed
procedure and embargo provided therein and without any
opinion of the Presiding Judge, without imposing any
condition while allowing the remission application to put
check and balances and considering the societal interest,
reasonable conditions are required to be imposed so that
in the event of any default, if purpose of rehabilitation of
convict fails, after getting the particular of convict, order
of remission can be revoked. Herein, no such condition is
imposed and petitioner has submitted that after passing of
the impugned order, respondent No.4 has continued
indulging in illegal activities and three offences are
registered out of which one offence is quashed and such
offence took place due to filing of PIL against respondent
No.4 and his premature release, registration of subsequent
offences is not disputed by respondent No.1 and 4 also.
[12.13] It is needless to say that, the remission is reduction of
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sentence without changing the characteristics of sentence
and due to this guilt of offender is not affected nor the
sentence passed by the Court except in the sense that the
person concerned does not suffer incarceration for the
entire period of sentence but is relieved from serving the
part of it. Section 432 of the CrPC empowers the
appropriate government to suspend or remit the
sentence and remission of sentence does not mean
acquittal and aggrieved party has every right to vindicate
himself or herself and section 432(1) of the CrPC is an
enabling provision which deals with the application made
to the appropriate government for suspension or
remission of a sentence and the appropriate government
may call for the opinion from the Presiding Judge of the
Court by which the conviction was confirmed and then the
application is required to be considered. Herein, in the case
on hand, no application was filed before the appropriate
government. If respondent No.3 has received any
application from son of respondent No.4 then it was the
duty of respondent No.3 in turn to send the proposal to
the appropriate government alongwith all opinions and
material in support of the application. Even otherwise,
herein no any opinion of convicting Court is sought for.
[13.0] Respondent No.4 was convicted by Hon’ble Supreme Court
in appeal and without any judicial opinion straightway
respondent No.3 has considered the application. The
Home Department also has to follow the circular. In thePage 56 of 92
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year 2014, though recommendation was made by
respondent No.3 on 02.01.2014, it was not considered and
then the remedy was different either to challenge the said
refusal to make request or sought relief to consider his
case for grant of remission. Translation of earlier
recommendation dated 02.01.2014 made by respondent
No.3 to the respondent No.2 – Jail Superintendent, said
documents are produced by respondent No.4 by way of
additional affidavit, which reads as under:
“No. MAG/C/6575/13
Office of District Magistrate
Jilla Seva Sadan,
Bh. Sardar Baug,
Junagadh, District: Junagadh.
Date: 02/01/2014
To,
The Superintendent
District Jail,
Junagadh.
Subject: About giving opinion on pre-mature release of
convict-prisoner No. 35631 Aniruddsinh
Mahipatsinh Jadeja under Section 433-A of
Cr.P.C.
With regard to the captioned subject, this office has been
asked, vide your letter no. JUDI/2297/2013 dated 23/12/2013, to
give opinion on the pre-mature release of convict-prisoner No. 35631
– Aniruddhsinh Mahipatsinh Jadeja of Junagadh District Jail under
Section 433(a) of Cr.P.C.
Perusing the report qua the Letter No. CB-5/PRISONER/
RELEASE/ 3280/2013 dated 18/12/2013 of the Superintendent,
Rajkot Rural, Rajkot appended to your letter dated 23/12/2013 andPage 57 of 92
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considering the opinion given by the Police Inspector, Gondal City
and the Deputy Superintendent of Police, Gondal, a ‘positive’ opinion
has been given about pre-mature release of the prisoner.
Considering the opinion given by you as well as the
Superintendent of Police, Rajkot Rural, Rajkot, as stated above, it is
opined to give benefit of pre-mature release to this prisoner. It is
informed to do the needful in this regard as per law.
Sd/- (illegible)
(District Magistrate)
District Junagadh, JunagadhOutward No.:
Date:
Branch:
4/- The opinion by concerned authorities for early release of accused
is as under:
(1) The District Magistrate, Rajkot has recommended for early
jail release.
(2) The Superintendent of Police, Rajkot has recommended for
early jail release.
(3) In Jail Advisory Board Committee, in-charge District and
Sessions Judge has given negative and other members, who were
present, have given affirmative opinion.
(4) Superintendent, Junagadh District Jail has recommended for
early jail release.
In view of the above, considering the opinion given by the
committee and jail conduct, the accused is hereby recommended to
be released early from the jail, which may be noted.
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Encl.:-
Report (Page No.1 to 275) with copy of judgments
Yours faithfully,
Sd/-
(T.S. Bishth)
Additional Director General of Police
and Inspector General of Prisons,
Gujarat State, Ahmedabad.
Copy forwarded to-
Superintendent, Junagadh District Jail, Junagadh for
information”
[13.1] Herein, rather than challenging the refusal or non-
consideration of grant of remission in the year 2014,
straightway after four years, son of respondent No.4 has
approached respondent No.3 which was a strange
procedure. Even if for the sake of argument it is accepted
that respondent No.3 was having administrative control
then also as per the statutory provision as well as the
circular issued by the Government and as per the policy
also, in turn respondent No.3 ought to have only
forwarded the said proposal for consideration to the
appropriate government though respondent No.3 himself
acted as an appellate authority or appropriate government
and without verifying anything straightway accepted the
request made by son of respondent No.4 as a gospel truth
though he was well-versed with the procedure and his
power also, he has passed an order of pardon which is not
only against the settled principle of law but also without
authority.
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[13.2] As held by the Hon’ble Supreme Court in the case of Bilkis
Yakub Rasool (Supra), when respondent No.3 was not
competent to pass the remission order, which goes to the
root of the matter, and once remission or pardon order is
passed by the incompetent authority, same would be non
est and nullity. Hence, in the present case, respondent
No.3 has passed impugned order without any authority,
which is nullity.
[13.3] It is pertinent to note that earlier respondent Nos.1 and 2
have not specifically placed on record any material about
competency of respondent No.3. The State has relied on
the affidavit 14.02.2025 filed by one Mr. Ashvin G.
Chauhan, Inspector General of Prison, Gujarat State
wherein rather than making out specific defence or case,
reiterated the facts based on affidavit filed in the
proceedings of SCR.A No.3499/2018, which has been
reproduced in the present proceeding also and as there
was no any specific stand taken by the State Authority, this
Court is compelled to pass the order on 17.07.2025
directing the respondent Nos.1 and 3 to place on record a
report on or before the next date of hearing indicating as
to whether, while passing the impugned order dated
29.01.2018 in favor of respondent No.4, any proceedings
of the Jail Advisory Committee or any material thereof was
taken into consideration as mentioned in condition of
circular and respondent No.3 was also directed to clarify as
to what material was relied upon prior to taking thePage 60 of 92
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decision dated 29.01.2018.
[13.4] Further, it is stated that respondent No.3 having no any
document or material and has further stated that
respondent No.3 has passed order as per the rules and
regulations and Jail Superintendent has to follow the
conditions if any of the circular (Annexure-I), which was
conditional and is required to be followed by the
respondent No.2. The State has also rather than placing on
record any material, learned Public Prosecutor has placed
on record the communication made to the learned Public
Prosecutor wherein it is stated that prior to passing the
order to release respondent No.4, circular was not
followed and case of respondent No.4 was not placed
before the Advisory Board Committee. Thus, it clearly
reveals that as per Circular (Annexure-I), case of
respondent No.4 was not placed before the Advisory
Board Committee for consideration and was not
considered in light of condition No.3 of the circular dated
25.01.2017 (Annexure-I) though till date State has not
taken any call qua impugned order dated 29.01.2018 and
has remained silent for quite a long for the reasons that
are best known to the State Authorities.
[14.0] As the impugned order is without authority and non est
also and not passed in the name of Hon’ble Governor and
is passed by respondent No.3, the argument canvassed by
learned Counsel for respondent Nos.3 and 4 that order isPage 61 of 92
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passed on behalf of the government and under the policy /
circular (Annexure-I) in exercise of power under Article 161
of the Constitution and hence, there was no need to
comply with any condition imposed in the circular and any
other statutory restriction and no judicial review is called
for is not acceptable. It is needless to say that, judicial
review has been recognized as a necessary and
fundamental requirement for construction of an advanced
civilization to safeguard the liberty and rights of citizens
and judicial review is the Court’s power to review the
actions of government and other branches of the
government especially the Court’s power to deem invalid
the action exercised by the government and the executives
as unconstitutional.
[14.1] A judicial review of any action or any decision of
government is permissible on the grounds viz. (i)
jurisdictional error; (ii) irrationality; (iii) procedural
impropriety; (iv) proportionality and (v) legitimate
expectation. Herein, Court came to the conclusion that,
the order passed by respondent No.3 is lacking jurisdiction
and once authority having no power or jurisdiction at all to
pass such order, the Court may review such administrative
action on the ground that the authority exercised the
jurisdiction which it was not supposed to and in such cases,
issuance of the writ of certiorari is also permissible. Even,
the procedural impropriety also found from the action of
respondent No.3. If an executive passes any order withoutPage 62 of 92
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authority then same is nothing but amounts to nullity. In
this regard, reference is required to be made to the case of
Mansuklal Vithaldas Chauhan vs. State of Gujarat
reported in (1997) 7 SCC 622, the Hon’ble Supreme Court
held that the legality of administrative decision could be
reviewed and if decision making authority exceeded its
power and committed an error of law and reached to the
conclusion then the review is permissible.
[14.2] Herein, in the case on hand, It appears that respondent
No.3 has passed an order with extraneous or wholly
irrelevant consideration and prior to passing any order he
has to consider the relevant material, condition imposed in
the circular and in turn he has to submit the proposal to
the State Government and when order suffers from
arbitrariness then as stated by the Hon’ble Supreme Court
in the case of Swamy Shraddhananda (2) vs. State of
Karnataka reported in (2008) 13 SCC 767, judicial notice
has to be taken of the fact that remission, if allowed to life
convicts in a mechanical manner, without any sociological
or psychiatric appraisal of the convict and without any
proper assessment as to the effect of early release of a
particular on the society. The impugned order is passed
without considering any material. While passing such order
the power of executive clemency is not permissible based
on whims and fancies and respondent No.3 has only taken
into consideration the benefit of convict but what has to
be borne in mind is the effect of the decision on the familyPage 63 of 92
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of the victims, society as a whole.
[14.3] Further, in the case of Maru Ram (Supra), the limitations
of judicial review over exercise of powers under Articles 72
and 161 of the Constitution have been delineated by the
Constitution Bench and it has been observed that all public
power, including constitutional power, shall never be
exercisable arbitrarily or mala fide, and ordinarily
guidelines for fair and equal execution are guarantors of
valid play of power. Ignoring such guidelines, if any order is
passed then the same would be bad in the eyes of law. The
condition and embargo of the policy itself refers to the
circular dated 23.01.2014. The Hon’ble Supreme Court in
the case of Laxman Naskar (Supra) has laid down the
guidelines for considering premature release as stated
earlier in paragraph No.[11.8]. No such ground or any
aspect is also considered by respondent No.3 and even any
authority allowing the application filed by the son of
respondent No.4 and said principle including the one laid
down in the case of Maru Ram (Supra) and V. Sriharan
(Supra), various aspects qua remission of sentence are
discussed. Even in the case of Epuru Sudhakar vs. State of
Andhra Pradesh reported in (2006)8 SCC 161, the Hon’ble
Supreme Court has held that judicial review of an order of
remission is available when there is non-application of
mind and relevant material have not been considered and
order is passed based on irrelevant considerations and
suffers from arbitrariness. Hence, judicial review of suchPage 64 of 92
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order is permissible.
[14.4] Even, in the case of Satpal vs. State of Haryana reported
in (2000)5 SCC 170, an order of granting remission to the
convicts under Article 161 of the Constitution was assailed
wherein also, the Hon’ble Supreme Court examined the
parameters of judicial review and come to conclusion that
the judicial review in relation to order granting remission
by the Governor is also permissible and if any order is
passed irrationally and arbitrarily and without considering
the material fact then judicial review is permissible.
[14.5] Thus, it is crystal clear from various pronouncements of
Hon’ble Supreme Court that, the powers granting
remission on an application filed by the convict or on his
behalf and now State on its own be considered but
ultimately the exercise of discretion by the appropriate
government is required to be used to grant the benefit of
remission in exercise of such power coupled with
discretion, administrative authorities and the test is
whether the authority concerned was acting within the
scope of its power. This would not only mean that the
concerned authority and in the instant case the
“appropriate government” has not passed any order and
respondent No.3 – authority was not vested with to
exercise such power and even otherwise the said powers
are not exercised in accordance with law and is in the
nature of arbitrariness and is improper exercise of
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discretion.
[14.6] While first time, when the exercise was undertaken to
grant benefit of remission to respondent No.4, at that
time, matter was placed before the Advisory Board
Committee and the then I/c. PDJ has opined in negative.
Not only that, respondent No.4 was also convicted for the
offence under Section 302 of the IPC and under the
provisions of TADA and further pleased to make the
comment and sought opinion from the appellate Court has
conviction recorded by the Hon’ble Supreme Court. Hence,
case of respondent No.4 at that point of time in the year
2014 was not considered. At that time also, proposal was
forwarded and respondent No.3 only made a
recommendation vide letter dated 02.01.2014 but said
decision was not challenge at any point of time and
proposal was filed.
[14.7] Thereafter, another opinion is sought for not based on the
Advisory Board Committee but recording the statement by
the police authority and signature of son of deceased
which is also disputed by the petitioner wherein also
learned Additional Sessions Judge had formed one
committee of two Additional District Judges however,
rather than opining as a member of Advisory Board
Committee, a committee consisting of two Additional
Judges, Additional Sessions Judge has opined based on
the statement recorded by the police authority and based
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on good jail conduct of respondent No.4 was mentioned to
however, the learned Additional Sessions Judge did not
opine judicially or not on the merits of the case and such
opinion was nothing but per functory and not helpful to
respondent No.4 and same is also not considered and was
not taken into consideration also. So far without applying
independently or examining the case or seriousness of the
offence, the then Additional Sessions Judge has relied on
the reports submitted by the police authority in casual
manner while conduct of respondent No.4 in the jail is
already disputed earlier, more particularly the judicial
observations made by the coordinate Bench in the order
dated 08.12.2017 passed in SCR.A No.9552/2017, which
reads as under:
“The case put up by the writ-applicant, a resident of village
Ramod, District Rajkot, in this writ-application is something
very shocking. He has brought to the notice of this Court that
one Aniruddhsinh Jadeja came to be convicted by the Supreme
Court for the offence under Section 5 of the TADA Act and also
for the offence of murder punishable under Section 302 of the
Indian Penal Code. Aniruddhsinh Jadeja is sentenced to
undergo life imprisonment.
It is pointed out by the writ-applicant that he has been
confined in a sub-jail at Junagadh. Ordinarily, a life convict is
confined in a central prison. The allegations levelled in this
writ-application are that, on the pretext of taking medical
treatment, everyday the Jailor takes the convict from
Junagadh to Rajkot, and in Rajkot, the convict would attend
the public meetings in connection with the forthcomingPage 67 of 92
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Assembly Elections.
If the allegations levelled in this writ-application are true, then
this is something very shocking.”
Then the report of the then learned PDJ was also
called for and passed an order. In light of the judicial
observations, the report submitted by the learned
Additional Sessions Judge having no any value. Hence,
argument canvassed by learned Counsel for respondent
No.4 about opinion and conduct of respondent No.4 is not
acceptable and said alleged opinion or other material was
also not placed or submitted to respondent No.3
alongwith application dated 29.01.2018 submitted by son
of respondent No.4.
[14.8] It is true that appropriate government is not bound to
mechanically follow the opinion of the learned Presiding
Judge. If opinion of the Presiding Judge does not comply
with the requirement of section 432(2) of the CrPC or if
the learned Judge does not consider the relevant factor
for grant of remission that have been laid down in the case
of Laxman Naskar (Supra), the government may request
the Presiding Judge to consider the matter afresh. Herein,
the special designated Court has acquitted the accused
and conviction is recorded by the Hon’ble Supreme Court
and hence, opinion of appellate Court is mandatory. In
such case, compliance of section 432(2) of the CrPC was
required but no fresh opinion or nothing is on record which
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shows that as mentioned in the policy also, circular dated
23.01.2014 is complied with as mentioned in Circular dated
25.01.2017.
[14.9] Even, the petitioner has raised the concern about judicial
observations made by this Court in SCR.A No.3499/2018
and SCR.A No.9552/2017 whereby it was observed that
though respondent No.4 was in jail, he was attending the
election rallies and report from the then learned PDJ, Jail
Authority and other authorities was called for and directed
to look into the issue though State has not carry the issue
and rather than considering the issue, has swept the issue
under carpet and benefit of remission is extended to
respondent No.4. Though it was the duty of the State to
reach to logical conclusion but State has not inquired into
said allegation and though State was aware of the fact that
respondent No.3 has exercised the power without
jurisdiction, till date neither recalled the said letter / order
dated 29.01.2018 nor challenged the said decision and
remained silent for quite a long which speaks volume.
[15.0] Learned Counsel for respondent No.4 has submitted that
jail conduct of respondent No.4 was good and even the Jail
Committee has opined in positive manner and District
Judge has also opined in his favor but as discussed in the
earlier part, judicial observations are contrary while he was
in jail at Junagadh. Nonetheless, at that time,
recommendation was not considered on 02.01.2014 and
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respondent No.3 himself addressed a letter to the Jail
Superintendent wherein the then I/c. PDJ, Rajkot had
opined in negative and thereafter, based on another
report of the learned Additional District Judge, Rajkot
which was opined based on the report of Jail Authority,
rather than applying judicial mind independently, a casual
report was submitted and procedure was not properly
followed. Hence, based on the said erroneous material,
respondent No.4 is not entitled for getting the benefit of
remission at present and even otherwise once this Court
comes to conclusion that order passed by respondent No.3
is without considering any material, the respondent No.3
authority or any statutory authority having no power to
supplement or to back the reasons subsequently. At this
stage, it is apposite to refer to the decision of the Hon’ble
Supreme Court in the case of Mohinder Singh Gill and
Another vs. Chief Election Commissioner, New Delhi and
Others reported in (1978)1 SCC 405 wherein in paragraph
No.8, the Hon’ble Supreme Court has observed and held as
under:
“8. The second equally relevant matter is that when a
statutory functionary makes an order based on certain grounds,
its validity must be judged by the reasons so mentioned and
cannot be supplemented by fresh reasons in the shape of
affidavit or otherwise. Otherwise, an order bad in the beginning
may, by the time it comes to court on account of a challenge,
get validated by additional grounds later brought out. We may
here draw attention to the observations of Bose J. in
Gordhandas Bhanji (1)
“Public orders, publicly made, in exercise of a statutory
authority cannot be construed in the light of explanations
subsequently given by the officer making the order of whatPage 70 of 92
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he meant, or of what was in Ms mind, or what he intended
to, do. Public orders made by public authorities are meant
to have public effect and are intended to effect the actings
and conduct of those to whom they are addressed and
must be construed objectively with reference to the
language used in the order itself.”
Hence, respondent No.4 or respondent No.3 are
not entitled to supplement reasons subsequently after
passing order dated 29.01.2018. Hence, argument
canvassed by learned Counsel for respondent No.4 is
not acceptable.
[15.1] Learned Senior Advocate for respondent No.4 has further
argued that decision in the case of Sangeet & Another
(Supra) would bear no effect in view of the decision in the
case of V. Sriharan (Supra) as the term “life sentence” is
interprted by the Hon’ble Supreme Court but it is needless
to say that as per the guideline issued in the case of
Sangeet & Another (Supra) does exist till date. Herein, in
the case on hand, though the petitioner was convicted by
the Hon’ble Supreme Court, respondent No.3 has granted
pardon. It is needless to say that there is a diffence
between remission and pardon and the Constitution Bench
in the case of Sarat Chandra Rabha and Others vs.
Khagendranath Nath and Others reported in AIR 1961 SC
334 wherein the Hon’ble Supreme Court has distinguished
‘remission’ and ‘pardon’ and observed as under:
“…Further, a remission of sentence does not mean acquittal
and an aggrieved party still has every right to vindicate
himself or herself. In this context, reliance could be placedPage 71 of 92
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on Sarat Chandra Rabha vs. Khagendranath Nath (AIR 1961
SC 334), wherein a Constitution Bench of this Court, while
distinguishing between a pardon and a remission, observed
that an order of remission does not wipe out the offence
and it also does not wipe out the conviction.”
Respondent No.3 has without any authority passed an
order and not only that, he has ignored the specific
embargo put in the policy dated 25.01.2017 (Annexure-I).
Hence, this Court is of considered view that the order
passed by respondent No.3 is nothing but nullity as the
impugned order is passed without assigning any reason.
[15.2] It is needless to say that while passing any order or
granting the benefit of remission or pardon, whatever may
be, the authority has to assign the reason and the Hon’ble
Supreme Court in the case of Bilkis Yakub Rasool (Supra)
indicated that the certain factors must be taken into
account while entertaining an application for remission
under the provisions of CrPC and the test which has been
discussed can be enumerated as under:
“222.1. The application for remission under Section 432 of
the CrPC could be only before the Government of the State
within whose territorial jurisdiction the applicant was convicted
(appropriate Government) and not before any other Government
within whose territorial jurisdiction the applicant may have been
transferred on conviction or where the offence has occurred.
222.2. A consideration for remission must be by way of an
application under Section 432 of the CrPC which has to be made
by the convict or on his behalf. In the first instance whether there
is compliance of Section 433A of the CrPC must be noted
inasmuch as a person serving a life sentence cannot seek
remission unless fourteen years of imprisonment has been
completed.
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222.3. The guidelines under Section 432(2) with regard to the
opinion to be sought from the Presiding Judge of the Court which
had convicted the applicant must be complied with mandatorily.
While doing so it is necessary to follow the requirements of the
said Section which are highlighted by us, namely,
(i) the opinion must state as to whether the application for
remission should be granted or refused and for either of
the said opinions, the reasons must be stated;
(ii) the reasons must have a bearing on the facts and
circumstances of the case;
(iii) the opinion must have a nexus to the record of the
trial or of such record thereof as exists;
(iv) the Presiding Judge of the Court before or by which
the conviction was had or confirmed, must also forward
along with the statement of such opinion granting or
refusing remission, a certified copy of the record of the
trial or of such record thereof as exists.
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 any reason, the said policy cannot be made
applicable a more benevolent policy, if in vogue, could apply.
222.5. While considering an application for remission, there
cannot be any abuse of discretion. In this regard, it is necessary to
bear in mind the following aspects as mentioned in Laxman
Naskar, namely, –
(i) Whether the offence is an individual act of crime
without affecting the society at large?
(ii) Whether there is any chance of future recurrence of
committing crime?
(iii) Whether the convict has lost his potentiality in
committing crime?
(iv) Whether there is any fruitful purpose of confining this
convict any more?
(v) Socio-economic condition of the convict’s family.
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222.6. There has also to be consultation in accordance with
Section 435 of the CrPC wherever the same is necessitated.
222.7. The Jail Advisory Committee which has to consider the
application for remission may not have the District Judge as a
Member inasmuch as the District Judge, being a Judicial Officer
may coincidently be the very judge who may have to render an
opinion independently in terms of sub-section (2) of Section 432
of the CrPC.
222.8. Reasons for grant or refusal of remission should be
clearly delineated in the order by passing a speaking order.
222.9. When an application for remission is granted under the
provisions of the Constitution, the following among other
tests may apply to consider its legality by way of judicial
review of the same:
(i) that the order has been passed
without application of mind;
(ii) that the order is mala fide;
(iii) that the order has been passed on extraneous or
wholly irrelevant considerations;
(iv) that relevant materials have been kept out of
consideration;
(v) that the order suffers from arbitrariness.”
(Emphasis supplied)
Thus, keeping in mind above exhaustive guidelines
and who has to exercise power of remission under Section
432 of the CrPC and that prior to exercising such power,
appropriate government must obtain the opinion with
reason from the Presiding Judge of the convicting or
confirming Court and such opinion must be one case to
case basis and not in wholesale manner and in the case of
V. Sriharan (Supra), declaration of law made by the
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Hon’ble Supreme Court in the case of Sangeet & Another
(Supra), held to be correct law and come to conclusion
that compliance of section 432(2) of the CrPC is
mandatory. Herein, order dated 29.01.2018 passed without
any compliance of guideline issued by the Government and
case on hand is squarely covered by the ratio laid down by
the Hon’ble Apex Court in the case of Bilkis Yakub Rasool
(Supra).
[15.3] Learned Counsel for respondent No.3 has submitted that
earlier one note for speaking to minutes was filed in
Criminal Misc. Application No.1 of 2018 in SCR.A
No.3499/2018 requesting to arraign present respondent
No.3 as party respondent but the said request was not
acceded to but perusing the said order and entire
proceeding of SCR.A No.3499/2018, it appears that the
Court was not inclined to pass any order based on the
argument to pass an order in the note for speaking to
minutes and therefore, said argument would not avail any
assistance to respondent No.3 as no any order was passed
on merit and because wrong is wrong and even silence on
the part of State Authority does not confer the power of
jurisdiction to respondent No.3. Now, the State in this
matter for the first time before this Court says that,
respondent No.3 having no power and impugned order is
passed without considering the embargo mentioned in the
policy and without placing the case before the Advisory
Board Committee for consideration. Hence, argument
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canvassed by learned Counsel for respondent No.3 that
respondent No.3 is wrongly joined as party respondent is
not accepted since order passed by him is assailed.
[15.4] The State has not challenged or recalled the order dated
29.01.2018. Hence, the Court has to ensure that the rule of
law prevails over the abuse of process of law which may
result from inaction or arbitrary action of protecting the
offender or failure by the different authorities in discharge
of statutory duty or other obligations and in case of breach
of law, judicial review is always permissible. It is said that
justice should remain loyal to the rule of law and justice
cannot be done without adherence to rule of law. The
concept of justice encompasses not just the right of
convict but also the right of victims also. The law abiding
section of society looks forward to the Court as a vital
instrument for preservation of peace and curtailment of
crime. In this regard, reference is required to be made to
the decision of Hon’ble Supreme Court in the case of Surya
Baksh Singh vs. State of U.P. reported in (2014)14 SCC
222 wherein the Hon’ble Supreme Court has observed
that, “the concept of ‘justice’, suffice it to say that it
encompasses not just the rights of the convict, but also of
victims of crime as well as of the law abiding section of
society who look towards the Courts as vital instruments for
preservation of peace and the curtailment or containment of
crime by punishing those who transgress the law. If convicts
can circumvent the consequence of their conviction, peace,
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tranquility and harmony in society will be reduced to a
chimera”.
[16.0] Learned Counsel for respondent Nos.3 and 4 have argued
about delay in filing the present petition. The petitioner
has clearly stated that he is the grandson of the deceased
and considering the high-handedness and fear of
respondent No.4, entire family of the petitioner was
compelled to leave village Ribda and his father restricted
him to initiate any action considering the high-handedness
and life threat from respondent No.4. Even, the State
Government and the government officials were also
scared. The Hon’ble Supreme Court while convicting the
respondent No.4 made observations in paragraphs 4 and
5 , which read as under:
“4. Popatbhai, a sitting member of Legislative Assembly
was done to death in the public gaze when full
ceremonial Independence Day function was in progress.
The chief dignitary of the event, the Deputy Collector and
Sub-Divisional Magistrate, Mr. J. P. Dave who was sitting
beside the deceased, witnessed the occurrence of
shooting of deceased from behind; however, when culprit
was caught, it would be obvious that he saw him; yet he
has turned hostile to the prosecution and even refused to
identify the respondent in the Court sabotaging the
prosecution case. Thus, he betrayed his duty as a
responsible officer and as a worthy citizen and has
denied himself to hold an office of trust and
responsibility. His own unworthiness is writ large in the
present case. Similar is the case of many a dignitary
including the Mamlatdar, PW-36, a leading private doctor
and Chief Officer of the Municipality and a host of others
numbering 45 in all. It would speak volumes of unworthy
conduct forsaking their responsibility as dutiful citizens
driving the prosecution to fall back upon thePage 77 of 92
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circumstantial evidence.
5. Mr. Jhala, the Assistant Commandant, Special
Reserved Police, PW-4 and I.B. Shekhawat, PW-58
another officer on duty from the same force, displayed
high degree of responsibility, courage and sense of duty
in assistance of the prosecution by swinging into action
immediately. PW-4 caught the culprit; PW-58 secured the
weapon of the offence, lodged the FIR and handed over
the accused and the weapon with material particulars
mentioned in that behalf in the FIR to the Station House
Officer. Everyone needs to take leaf out of their books of
service. It is seen that in som cases of recent origin terror
by the accused or at his behest, has instilled in the mind
of the witnesses the instinct of self-preservation and
inclined them to avoid their extermination or reprisal.
The State should extend protection to them. This case is a
classic illustration of how the prosecution case gets
sabotaged by the material witnesses turning hostile and
creating a disbelief in the efficacy of criminal justice
system which needs urgent attention and appropriate
remedial action on the part of the legislature and the
executive, in that behalf.”
Aforesaid observation of Hon’ble Supreme Court also
is very indicative and reflects the prevalent situation as,
the government officials turned hostile and even
thereafter also, it is alleged that respondent No.4 was
continuously administering threats. One litigation was also
filed by a person who impersonated himself as the father
of present petitioner however, the said petition also could
not come to its logical conclusion and State remained
silent in that proceedings also. Not only that, one Writ
Petition (PIL) was also filed the petitioner of which was
assaulted and thereafter consent quashing was filed and
complainant / victim was compelled to withdraw such
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proceeding.
[16.1] While exercising jurisdiction under Article 226 of the
Constitution, Court should not mechanically refuse to
exercise the jurisidiction and dismiss the writ petition on
the ground of delay without considering relevant factors,
considering circumstances as explained by the petitioner
and earlier continuous unyielding pursuasion which cannot
be brushed aside mechanically and Court has to exercise
prerogative jurisdiction. In this regard reference is
required to be made to the decision of the Hon’ble
Supreme Court in the case of Ram Autar Singh vs. State
of Uttar Pradesh and Others rendered in Civil Appeal
No.13806/2024 [Arising out of SLP(C) No.26568/2023] (3
Judges’ Bench). Further, in the case of Noida Toll Bridge
Company Ltd. v. Federation of Noida Residents Welfare
Association reported in (2025) 6 SCC 717, it has been held
by the Hon’ble Supreme Court that the writ proceeding
under Article 32 or 226 of the Constitution of India are not
guided by the provisions of the Limitation Act and doctrine
of delay and laches cannot be applied stricto senso to writ
petitions. Delay is always not a material factor as there is
no fixed time period of limitation in invoking jurisdiction
under Article 226 of the Constitution of India and each
case should be considered on its own facts and
circumstances. Thus, allowing for a more liberal approach
while applying the said doctrine and limitation is not rigid
rule but is rather a practice that is founded on the exercise
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of sound judicial discretion. Hence, argument of delay
canvassed by learned Counsel for respondent No.4 is not
accepted considering peculiar facts and circumstances of
the case on hand.
[16.2] Thereafter, one person has only made an application to
cancel the remission of respondent No.4 and he had also
committed suicide and in this regard recently an offence is
registered wherein specific allegation levelled against
respondent No.4 and respondent No.4 is on run in
connection of that offence also. The said fact is also denied
neither by respondent No.4 nor by the State. The
petitioner herein is the kith and kin of the deceased and he
has a right to challenge the arbitrary action or any action
of respondent authority and merely on the ground of
alleged delay, illegal act never become the legal one or
attain the finality or get seal of confirmation to such illegal
order. The judiciary is guardian of rule of law and
therefore, it is the duty and function of judiciary to
perform its duty independently. Rule of law does not mean
to protect fortunate few and justice is not only for accused
or convict. The justice is for victim also and right to justice
is indispensible human and fundamental right. In this
regard, reference is required to be made to the decision of
the Hon’ble Supreme Court in the case of Anita Kushwaha
vs. Pushap Sudan reported in (2016)8 SCC 509, wherein it
has been observed and held as under:
“Access to justice is and has been recognised as a part and parcel
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of right to life in India and in all civilized societies around the
globe. The right is so basic and inalienable that no system of
governance can possibly ignore its significance, leave alone
afford to deny the same to its citizens. The Magna Carta, the
Universal Declaration of Rights, the International Covenant on
Civil and Political Rights, 1966, the ancient Roman
Jurisprudential maxim of ‘Ubi Jus Ibi Remedium’, the
development of fundamental principles of common law by
judicial pronouncements of the Courts over centuries past have
all contributed to the acceptance of access to justice as a basic
and inalienable human right which all civilized societies and
systems recognise and enforce.
[16.3] Further, as regards the reliance being placed on the
proceedings undertaken in some of the earlier petitions
filed by third party is concerned, the same is irrelevant for
the reasons that (a) the same were instituted by third
parties, but, the present petition has been filed by the
grandson of the deceased, being kith and kin of the
deceased and being aggrieved party and (b) in none of the
matters which are stated to have been filed earlier, there
was adjudication of issue being raised in the present
petition. Even, identity of Kantilal Ramjibhai Solanki who
had filed SCR.A No.3499/2018 was itself in dispute. There
were three Kantilal Solanki in town and their addresses,
fathers’ name and surnames were also different in
different government documents namely Election Card,
Ration Card and Voter List. Once it is proved on record that
respondent No.3 has passed an order without any
authority, such non est order cannot be continued or
perpetuated on the ground that other seven people had
been released and State has not raised any objection.
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Hence, petition filed by the petitioner is maintainable and
objection raised by respondent No.4 is not accepted.
[17.0] Further, learned Senior Counsel Mr. Syed for respondent
No.4 has submitted that the petitioner herein has not
challenged the Circular (Annexure-I) issued under Article
161 of the Constitution of India. As discussed in earlier
part, the respondent No.4 was not entitled to any benefit
of extension based on circular dated 25.01.2017
(Annexure-I) as State has categorically stated that, it was
for the limited period of one year and was conditional.
Herein, no any condition was followed. Not only that,
powers of pardon is not exercised by Hon’ble The
Governor based on advise of Minister of Council. Even, the
said circular was conditional coupled with the statutory
provisions of section 432/433 of the CrPC and hence,
argument canvassed by learned Counsel for respondent
No.4 that petition is not maintainable as Circular
(Annexure-I) is not challenged by the petitioner. Herein,
powers of respondent No.3 is under challenge. Hence,
question does not arise to challenge the said Circular
(Annexure-I). Hence, argument is not accepted.
[18.0] So far as the authorities relied upon by learned Counsel for
respondent No.4 i.e. Sangeet & Another (Supra); Maru
Ram (Supra); V. Sriharan (Supra) and Pyare Lal (Supra)
are concerned, the Hon’ble Supreme Court in said
decisions has elaborately discussed the scope of powers ofPage 82 of 92
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remission which are already taken into consideration in the
earlier part of judgment and said decisions are more
helpful to the case of the petitioner rather than
respondent No.4 more particularly when, on record it
clearly transpires that respondent No.3 failed to comply
the mandatory provisions and directions and exceeded his
authority. Hence, no further discussion is required in this
regard.
[19.0] Lastly, it is argued by learned Counsel for respondent No.4
to keep pending the present petition as the issue is writ
large referred to the Larger Bench in the case of Pyare Lal
(Supra) qua powers of Hon’ble Governor under Article 161
of the Constitution and applicability of section 433A of the
CrPC. It is needless to say that as discussed in earlier part,
herein powers are exercised under Article 161 of the
Constitution based on the Circular dated 25.01.2017
(Annexure-I) and even if for the sake of argument it is
accepted that powers are exercised under Article 161 of
the Constitution based on Circular (Annexure-I) then also,
the said circular was conditional and there is no bar to
exercise the power under Article 161 of the Constitution
by Hon’ble The Governor based on advise of Minister of
Council and at relevant point of time in the year 2017, as
submitted by the learned Public Prosecutor and perusing
the original record placed for perusal of this Court, it
reveals that to extend the benefit of said circular, proposal
for 167 prisoners was forwarded and subsequently afterPage 83 of 92
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fulfilling the condition enumerated in the Circular
(Annexure-I), one time benefit was extended. Herein, no
such exercise is undertaken and powers of Hon’ble
Governor and power of remission under Section 432 of the
CrPC both operates in different fields, which is already
discussed by the Hon’ble Supreme Court and also
mentioned in earlier part of the judgment relying on the
decision of the Hon’ble Supreme Court in the case of
Rajkumar @ Bittu (Supra) and therefore, argument
canvassed by the learned Counsel for respondent No.4 is
not acceptable. Even, matter is referred to the Larger
Bench is not a ground. The Court may have to defer the
matter for indefinite time.
[19.1] As discussed in the case of Epuru Sudhakar (Supra) and V.
Sriharan (Supra), only appropriate government has to
decide the remission application and as discussed in earlier
part, respondent No.3 has without any authority exercised
the power and relied on the case of Bilkis Yakub Rasool
(Supra). The Constitution of India has accorded the
clemency power to the Governor and Hon’ble President
and such order is also required to be passed based on
“Rule of Law”.
[20.0] Further, learned Counsel for respondent No.4 has also
submitted that reference is pending before the Larger
Bench and hence, present petition is required to be
deferred but he has made such a request after conclusion
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of the arguments. At this stage, it is apposite to refer to
the decision of the Hon’ble Supreme Court in the case of
Ashok Sadarangani and Another vs. Union of India and
Others reported in (2012)11 SCC 321 (Para 29) wherein it
is held that mere reference of an issue to a Larger Bench
would not make the judgment inoperative. In the case of
Manager, National Insurance Company Limted vs. Saju
P. Paul and Another reported in (2013)2 SCC 41, the
Hon’ble Supreme Court emphatically held that mere
pendency of certain question before Larger Bench would
not mean that a particular course that was followed in the
earlier judgment could not be followed. The same view is
also reiterated in the case of P. Sudhakar Rao and Others
vs. U. Govinda Rao and Others reported in (2013)8 SCC
693 and it has been held in Paragraph 55 as under:
“55. Be that as it may, the pendency of a similar matter
before a larger Bench has not prevented this Court from
dealing with the issue on merits. Even on earlier occasions,
the pendency of the matter before the larger Bench did not
prevent this Court from dealing with the issue on merits.
Indeed, a few cases including Pawan Pratap Singh were
decided even after the issue raised in Asis Kumar Samanta
was referred to a larger Bench. We, therefore, do not feel
constrained or precluded from taking a view in the matter.
Hence, pendency of similar matter before the Larger
Bench does not prevent the Court from dealing with the
issue on merit. Even outcome of any question referred to
Larger Bench does not bear any effect to present
controversy involved in the matter and on that count also,
argument canvassed by learned Counsel for respondentPage 85 of 92
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No.4 is not acceptable. Herein, no any such controversy
also involved in the matter.
[21.0] As discussed in the earlier part, respondent No.3 has
passed an order without authority and on extraneous
consideration and is a non est and once order is nullity
then the Court has to consider justice, equity and good
conscience and considering the aforesaid aspect, writ
jurisdiction is required to be exercised. Hence, considering
the circumstances explained by the petitioner which
prevented him from approaching the Court in timely
fashion, delay is immaterial.
[22.0] It is pertinent to note that respondent No.4 is an affected
party. It is true that without giving an opportunity of being
heard to respondent No.4, remission order should not be
revoked or cancelled. This Court is conscious about the law
in this regard. In the case on hand, ample opportunity is
given to respondent No.4 and he has also filed reply and
learned Counsel for respondent No.4 is heard at length. In
the present case, respondent No.4 was released without
any condition. The State remained silent for quite a long
time and it appears that the State was in complicit. Though
power is exercised by respondent No.3 without any
authority but in absence of any material to show or point
out mala fide, though the State was aware of the same
since the year 2018 from earlier proceeding and stance
taken by the State in earlier proceeding also, State hasPage 86 of 92
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remained silent for quite a long time and hence, merely
based on assumption or presumption it is difficult to jump
to conclusion of issuing any direction to the respondent
State to initiate appropriate proceeding against
respondent No.3 herein and other officer who have been
instrumental in illegal release of respondent No.4 more
particularly in absence of any material which shows
malafide on the part of respondent No.3 in exercising such
power.
[22.1] Article 21 of the Constitution of India states that no
person shall be deprived of his liberty except in accordance
with law. Herein, respondent No.4 is an affected party. As
discussed in the earlier part, impugned order is without an
authority and is a non est. In such circumstances, the moot
question arising for this Court to determine is can
respondent No.4’s liberty be protected or continued in
breach or violation of law? The said aspect was aslso
considered in the case of Bilkis Yakub Rasool (Supra)
wherein the Hon’ble Supreme Court has clearly held that
the rule of law must prevail over the personal liberty of
person and Court must be a beacon in upholding the rule
of law failing which it would give rise to an impression that
the Court is not serious about rule of law. While upholding
the principle of rule of law, compassion and sympathy have
no role to play where rule of law is required to be enforced
and the rule of law has to be preserved as an essence of
democracy and it is the duty of the Courts to enforce thePage 87 of 92
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same without fear and favor, affection or ill-will. Justice is
supreme and justice ought to be beneficial for the society.
Therefore, it is the prime duty and highest responsibility of
this Court to correct arbitrary orders to maintain the
confidence of litigant, public in the purity of fountain of
justice to respect the rule of law.
[22.2] In sequel, once this Court has come to conclusion that
respondent No.3 has passed an order which is non est,
arbitrary and passed with extaneous consideration or
wholly on irrelevant consideration and the relevant
material is kept out from consideration and order suffers
from inherent lack of jurisdiction and based on the said
order respondent No.4 has enjoyed his liberty, same is
required to be restored. At the same time, the Court has to
consider deprivation of liberty of respondent No.4. Based
on the said erroneous and contrary to law order is passed
and respondent No.4 is set at liberty and he is enjoying
such liberty since last 7 years and at the same time, if the
respondent No.4 wants to claim the remission in
accordance with law then he has to be in prison and
without being in prison, he cannot seek remission when he
is outside the jail. Hence, order directing respondent No.4
to surrender is also required to be passed.
[22.3] Even as per the principle of law and as per the
administrative law also, if statute provides for a thing to bePage 88 of 92
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done in a particular way, then it has to be done in the said
manner and in no other manner. Expressio uninus est
exclusio alterius which means, if a statute provides for a
thing to be done in a particular way, then it has to be done
in that manner and in no other manner. Quando aliquid
prohibetur, prohibetur et omne per quod devenitur ad
illud means an authority cannot be permitted to evade a
law by “shift or conveience” and what cannot be done
directly is not permissible to be done obliquely.
CONCLUSION:
[23.0] In wake of aforesaid discussion, this Court has arrived at
the following conclusions:-
(i) Respondent No.3 has released respondent No.4
giving benefit of pardon without any authority.
Therefore, impugned order / letter dated 29.01.2018
(Annexure-A to the petition) passed by respondent
No.3 is arbitrary and passed on extraneous
considerations without any authority and is non est
and nullity.
(ii) The circular at Annexure-I was conditional and one
time measure and there was no future extension and
as per the said circular, remission could not be
extended to a future date.
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(iii) Respondent No.2 or respondent No.3 have failed to
forward the proposal to the competent authority and
respondent No.3 himself has passed the impugned
order without any material or without verifying
anything merely based on the application dated
29.01.2018 of the son of respondent No.4 as a gospel
truth without placing the case before the Advisory
Board Committee and without following condition
No.6 of the Circular at Annexure-I.
(iv) Each and every convict has a right to make a request
to consider his case for remission but do not have any
absolute right to claim pardon or remission as a
matter of right.
[24.0] Ergo, aforesaid discussions and conclusions, petition is
allowed and it is declared that the direction issued by
respondent No.3 – Shri T.S. Bishth, the then Additional
Director General of Police, Jail and Administrative
Reforms, State of Gujarat, Ahmedabad (Now Retired) to
respondent No.2 – the Superintendent, Junagadh District
Jail, Junagadh by letter dated 29.01.2018 (Annexure-A) is
without authority and does not have any force of law and
is a nullity and that premature release of respondent No.4
– Aniruddhsinh Mahipatsinh Jadeja is illegal and without
any authority of law and consequently, respondent No.4 –
Anirudhsinh Mahipatsinh Jadeja is directed to surrender
before the Jail Authority within a period of TWO WEEKS
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from today to serve the sentence.
[24.1] Respondent No.1 – State is directed to consider the case of
respondent No.4 for grant of benefit of remission
considering parameters fixed by the Hon’ble Supreme
Court in the case of Nawas @ Mulanavas Vs. State of
Kerala reported in 2024 INSC 215 and Suo Motu Writ
Petition (Cri.) No.4/2021 reported in 2025 INSC 239 and
as per the Standard Operating Procedure for Process of
Premature Release of Prisoners keeping in mind the
principles and SOP issued by NALSA, independently on its
own merits without being influenced by any of the
observations made by this Court preferably within a period
of eight weeks from the date of surrender of respondent
No.4. Rule is made absolute to the aforesaid extent.
Be You So High, Law Is Above You.
(HASMUKH D. SUTHAR, J.)
FURTHER ORDER
At this stage, learned Senior Advocate Mr. I.H. Syed
appearing for the respondent No.4 through virtual mode has
made request to extend the time for surrender for the
respondent No.4 from two weeks to four weeks.
Learned Advocate Mr. Bhargav Bhatt appearing for the
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petitioner has opposed the said request on the ground that
without any reason no case is made out to extend the time for
surrender and possibility cannot be ruled out that respondent
No.4 will flee away from justice and therefore, has requested to
direct the respondent No.4 to surrender his passport and
meanwhile during interregnum period mark his presence before
the concerned Police Station. With the aforesaid stipulation if
order extending time to surrender is passed then he has no
objection.
Having heard learned Counsel appearing for respective
parties and for the reasons recorded in the judgment, so as to
secure the presence of respondent No.4, respondent No.4 is
directed to mark his presence with the concerned police station
once in a week till he surrenders before the Jail Authority and
directed to surrender his passport before the concerned Police
Station within a period of one week from today and the time to
surrender by respondent No.4 is extended and he shall surrender
before the concerned Jail Authority on or before 18.09.2025
without fail. If respondent No.4 is not having a passport then he
shall have to file an affidavit in that regard before this Court.
(HASMUKH D. SUTHAR, J.)
Ajay
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