Noormamad Yakubbhai Saiyad vs State Of Gujarat & 2

1. This petition is for seeking writ of mandamus under Articles 14,21 and 226 of the Constitution of India read with section 482 of the Code of Criminal Procedure seeking following reliefs:-

"15. The petitioner most humbly prays:-

i) In the facts and circumstances of the case, the petitioner prays that your Lordships be pleased to quash and set aside the order passed vide order/communication dated 13/2/2015 and the petitioner be given the benefits as per GOVERNMENT RESOLUTION dated 27th September 2013, vide Resolution no/JLK/822013/5009/J, issued by Home department, Sachivalaya, Gandhinagar.

ii) That this Hon'ble Court may be pleased to call for jail record of the present petitioner

iii) That during the pendency of this petition the petitioner be released in temporary bail till the final hearing of this application."

2. Reply to the same has been filed by the State by way of an affidavit-in-reply by Jail, Group-I, Ahmedabad Central Jail. The Page 1 of 8 HC-NIC Page 1 of 8 Created On Tue May 10 00:32:22 IST 2016 R/SCR.A/1323/2015 ORDER petitioner herein is a convict who has undergone 14 years of imprisonment. It is his say that a resolution came to be passed on 2.10.2013 on the occasion of celebration of Mahatama Gandhi Jayanti and under Article 161 of the Constitution of India, the Government of Gujarat granted remission in sentence as set out in the resolution. The respondent authority since did not consider the case of the petitioner, he is aggrieved and, therefore, he preferred Special Criminal Application No.4462 of 2014, wherein this Court issued direction vide its order dated 16.10.2014 asking the State Government to consider the case of the petitioner on the basis of the resolution dated 27.9.2014 and to pass an appropriate order expeditiously. On the ground that two months have passed, no positive reply had been sent to the petitioner, he made a written as well as oral representations. However, when no heed was paid to the same, he preferred Criminal Miscellaneous Application No.385 of 2015 in Special Criminal Application No.4462 of 2014. He sought further direction upon the respondent authority to consider his case within two months. This Court (Coram:V.M.Pancholi, J.) has directed respondent No.2 to take appropriate decision as per the direction given by this Court in the order dated 16.10.2014 within a period of four weeks from the date of receipt of the copy of the order of this Court.

3. As can be noticed from the affidavit-in-reply, it has been emphasized by the respondent authority that files of 100 prisoners Page 2 of 8 HC-NIC Page 2 of 8 Created On Tue May 10 00:32:22 IST 2016 R/SCR.A/1323/2015 ORDER were to be placed before the committee which has been constituted to review the sentence of the prisoners under section 433A of the Code of Criminal Procedure. As per the affidavit, the Jail Advisory Board Committee had observed that, as the petitioner had many cases lodged against him and he being an habitual offender, his case was not considered. It is also their say that pursuant to the directions issued by this Court in Special Criminal Application No.385 of 2015 the case was reviewed.

4. Learned advocate Mr.Ahuja appearing for the petitioner has urged that there is a complete non-application of mind on the part of the Executives. The petitioner has been acquitted of all the charges long ago. He cannot be denied, according to him, the remission which was declared by the State under Article 161 of the Constitution of India. According to him, this is a power of sovereign to grant remission and it is within its exclusive domain. However, the same can be challenged before this Court on various grounds which have been mentioned in the decision of the Apex Court in the case of State of Haryana and others vs. Jagdish reported in AIR 2010 SC 1690. He also sought to rely upon the decision Court in the case of Union of India vs. V.Sriharan alias Murugan and others (supra).

5. According to learned Additional Public Prosecutor, the case is prescribed under section Section 433A of Code of Criminal Procedure along with other accused. He is one of the prisoners, whose case will Page 3 of 8 HC-NIC Page 3 of 8 Created On Tue May 10 00:32:22 IST 2016 R/SCR.A/1323/2015 ORDER be considered for remission.

6. The question that is required to be considered by this Court is as to whether discretionary powers of remission to be exercised by the executives under Article 161 of the Constitution of India had been aptly exercised in the instant case.

7. At this stage considering the direction of the Apex Court in the case of State of Harayana and others vs. Jagdish reported in AIR 2010 SC 1690 would be necessary:-

"The power of the sovereign to grant remission is within its domain and it is for this reason that our Constitution makers went on to incorporate the provisions of Article 72 and Article 161 of the Constitution of India. This responsibility was cast upon the Executive through a Constitutional mandate to ensure that some public purpose may require fulfilment by grant of remission in appropriate cases. This power was never intended to be used or utilised by the Executive as an unbridled power of reprieve. Power of clemency is to be exercised cautiously and in appropriate cases, which in effect, mitigates the sentence of punishment awarded and which does not, in any way, wipe out the conviction. It is a power of reprieve. Power of clemency is to be exercised cautiously and in appropriate cases, which in effect, mitigates the sentence of punishment awarded and which does not, in any way, wipe out the conviction. It is a power which the sovereign exercises against its own judicial mandate. The act of remission of the State does not undo what has been done judicially. The punishment awarded through a judgment is not overrules but the convict gets benefit of a liberalised policy of State pardon. However, the exercise of such power under Article 161 or under Section 433-A, Cr.P.C. may have a different flavour in the statutory provisions, as short sentencing policy brings about a mere reduction in the period of imprisonment whereas an act of clemency under Article 161 commutes the sentence itself. The clemency power of the Executive is absolute and remains unfettered for the reason that the provisions contained under Article 72 or 161 of the Constitution cannot be restricted by the provisions of Sections 432,433 and 433-

A, Cr.P.C. though the Authority has to meet the requirements Page 4 of 8 HC-NIC Page 4 of 8 Created On Tue May 10 00:32:22 IST 2016 R/SCR.A/1323/2015 ORDER while exercising the clemency power."

The Apex Court in the case of Union of India vs. Sriharan alias Murugan and others reported in 2014(3) SCC Cri.1 where initially the stay had been granted and thereafter the same had been referred to the Larger Bench and the reference is answered:-

"53. In paras 27 and 38 of the decision in State of Haryana v. Mahendder Singh and others, this Court observed:-

"27. It is true that no convict has a fundamental right of remission or shortening of sentences. It is true that the State in exercise of its executive power of remission must consider each individual case keeping in view the relevant factors. The power of the State to issue general instructions, so that no discrimination is made, is also permissible in law.

38. A right to be considered for remission, keeping in view the constitutional safeguards of a convict under Articles 20 and 21 of the Constitution of India, must be held to be a legal one. Such a legal right emanates from not only the Prisons Act but also from the Rules framed thereunder. Although no convict can be said to have any constitutional right for obtaining remission in his sentence, he in view of the policy decision itself must be held to have a right to be considered therefor. Whether by reason of a statutory rule or otherwise if a policy decision has been laid down, the persons who come within the purview thereof are entitled to be treated equally.(State of Mysore v.H.Srinivasmurthy)" xxx xxx xxx xxx xxx xxx

71. We completely share the concern as expressed in Shraddananda (2)6 that at times remission are granted in extremely unsound manner but in our view that by itself would not and ought not to nudge a judge into endorsing a death penalty. If the offence in question falls in the category of the "rarest of rare" the consequence may be inevitable.

But that cannot be a justification to create a new form of punishment putting the matter completely beyond remission. Parliament having stipulated mandatory minimum actual imprisonment at the level of 14 years, in law a prisoner would be entitled to apply for remission under the statute. If his case is made out, it is for the executive to consider and pass appropriate orders. Such orders would inter alia consider not only the gravity of the crime but also other circumstances including whether the prisoner has now Page 5 of 8 HC-NIC Page 5 of 8 Created On Tue May 10 00:32:22 IST 2016 R/SCR.A/1323/2015 ORDER been de-sensitized and is ready to be assimilated in the society. It would not be proper to prohibit such consideration by the executive. While doing so and putting the matter beyond remissions, the court would in fact be creating a new punishment. This would mean-though a model such a Section 32A was available before the Legislature and despite recommendation by Malimath Committee, no such punishment was brought on the Statute yet the Court would create such punishment and enforce it in an individual case. In our view, that would not be permissible."

8. Today i.e. on 6.5.2016, the report dated 5.5.2016 of the Deputy Superintendent, Ahmedabad Central Jail is placed on record, wherein it has been stated that pursuant to the directions issued by this Court in Special Criminal Application No.385 of 2015 in Special Criminal Application No.4462 of 2014, the decision had been taken not to grant remission to the petitioner on the ground that he was an habitual offender. As could be noticed from the report of the Chairman of the Jail Advisory Board Committee, Sabarmati Central Jail, earlier consideration in the month of October, 2013 for remission was under section 433A of the Code of Criminal Procedure and not under Article 161 of the Constitution of India.

9. By communication dated 5.5.2016, it has been specified that not only under section 433A of the Code of Criminal Procedure but also under Article 161 of the Constitution of India by virtue of the Notification dated 27.9.2013, the case of the present petitioner is going to be considered.

10. In other words, the scenario that emerges is that although this Court in the year 2014 had directed the jail authority to consider the Page 6 of 8 HC-NIC Page 6 of 8 Created On Tue May 10 00:32:22 IST 2016 R/SCR.A/1323/2015 ORDER case of the petitioner under Article 161 of the Constitution of India in wake of the Notification issued on 27.9.2013 nothing was done. Therefore, subsequently Criminal Miscellaneous Application was preferred by the present petitioner and this Court in Criminal Miscellaneous Application No. 385 of 2015 had directed the decision to be taken in four week's time. By annexing a communication dated 13.2.2015 it is being communicated that there is no opinion for extending remission in case of the present petitioner. The Jail authority on realizing that the earlier order granted by this Court in the year 2014 since has not been complied with, has ensured this Court to comply the same within four weeks. Moreover, there was already a committee which has been constituted subsequent to the decision of the Apex Court in the case of Union of India vs. V.Sriharan alias Murugan and others (supra). Such meeting is now scheduled on 12.5.2016. Considering totally 100 cases out of which, the petitioner is at Sr.No.88, it is being directed that without being influenced by any decision taken by the authority on earlier occasions, it shall have to take a fresh decision within four weeks. Considering the case of the petitioner for remission under Article 161 of the Constitution of India ,in wake of the Notification dated 27.9.2013 so also under section 433A of the Code of Criminal Procedure, let the report be submitted to the Registrar General, High Court of Gujarat on or before 7.6.2016.

11. As far as the aspect of remission under section 433A of Code of Page 7 of 8 HC-NIC Page 7 of 8 Created On Tue May 10 00:32:22 IST 2016 R/SCR.A/1323/2015 ORDER Criminal Procedure is concerned, it goes without saying that next meeting of the Jail Advisory Board Committee is on 12.5.2016. His case to be considered as it is at SrNo.88. The authority concerned even if his case is placed at No.88 shall consider his case expeditiously on 12.5.2016 itself, bearing in mind the earlier two decisions and the directions issued by this Court and intimate the petitioner the outcome of the same within two weeks thereafter.

12. Before parting, it is to be noted that much time has been taken by the jail authority. It is the case of the petitioner that from 2005 all the matters for which he was labelled as habitual offender have resulted in his favour acquitting him of all those offences. The list of which also is annexed at Annexure-R-I of the affidavit in reply. It is also to be born in mind that the case of the co-accused has been considered under Article 161 of the Constitution of India.

13. With these specific directions and observations, petition is being disposed of. In the event of any difficulty, the petitioner is at liberty to revive this petition.

Direct service is permitted.

(MS SONIA GOKANI, J.) SUDHIR Page 8 of 8 HC-NIC Page 8 of 8 Created On Tue May 10 00:32:22 IST 2016