Gautamkumar @ Sudhirkumar ... vs State Of Gujarat
2021 Latest Caselaw 6084 Guj

   R/SCR.A/7290/2017                              ORDER DATED: 16/06/2021




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

         R/SPECIAL CRIMINAL APPLICATION NO. 7290 of 2017

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      GAUTAMKUMAR @ SUDHIRKUMAR MANINILAL RAMANUJ
                         Versus
               STATE OF GUJARAT & 3 other(s)
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Appearance:
PIYUSHKUMAR K BASERI(7933) for the Applicant(s) No. 1
NOTICE SERVED BY DS(5) for the Respondent(s) No. 2,3,4
MS.M.D. MEHTA, ADDL. PUBLIC PROSECUTOR(2) for the Respondent(s)
No. 1
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CORAM: HONOURABLE MR. JUSTICE NIKHIL S. KARIEL

                           Date : 16/06/2021

                             ORAL ORDER

1. Heard learned Advocate Shri Maulik Nanavati for learned Advocate Shri Piyushkumar K. Baseri for the applicant and learned APP Ms.M.D. Mehta for the respondent - State.

2. By way of this application, the applicant has prayed for the following reliefs:-

A) Be pleased to admit and allow this application.

B) Be pleased to release the petitioner may be release in Bharuch Sessions Case No.99 of 1998 and Criminal Appeal No.244 of 2000 in the particular fact and circumstances of the case, in the interest of justice.

C) Be pleased to grant such other and further relief/s which may deem fit and proper in the interest of justice.

3. Facts in brief are that a complaint was registered against the present applicant for the offences punishable under Section 364 (A) and 120 (B) of the Indian Penal Code, the applicant had been convicted and

R/SCR.A/7290/2017 ORDER DATED: 16/06/2021

sentenced by the learned Additional Sessions Court, Bharuch vide judgment and order dated 11.01.2000 in Sessions Case No.99 of 1998 for life imprisonment. The applicant having challenged the said judgment before this Court by preferring Criminal Appeal No.244 of 2000 which came to be rejected by this Court vide judgment dated 21.01.2009. That the applicant had absconded for a period of 1403 days from 27.03.2002 to 04.02.2006 when the applicant had been released on furlough leave by the jail authority. The applicant after having completed approximately 14 years imprisonment, he had submitted an application for remission of his remaining sentence vide application dated 21.07.2017 before Office of the Inspector General Prison. The said application had been rejected by concerned authority vide order dated 23.08.2017. The applicant, had, therefore, moved this Court for being granted benefit of remission. It appears that thereafter, in the year 2020, the case of the applicant had been considered by the State Authorities for remission under Section 433 of the Code of Criminal Procedure and vide order dated 27.10.2020, the Home Department, State of Gujarat had been pleased not to grant the benefit of remission to the applicant.

4. Learned advocate Shri Nanavati on behalf of the applicant has submitted that the authorities concerned, while considering the application, have relied upon the extant policy of the State Government prevailing on that date to reject the application. Learned advocate has relied upon the decision of the Supreme Court in the case of State of Haryana and others V/s Jagdish reported in (2010) 4 SCC 216 and has submitted that the Supreme Court in the said judgment has laid down the law that while considering the case of convict for remission either the policy which was prevailing at the time of conviction or any other latter policy which would enure to the benefit of convict ought to be considered. Learned advocate has more particularly relied upon

R/SCR.A/7290/2017 ORDER DATED: 16/06/2021

paragraphs no.53 and 54 of the said judgment, which are reproduced hereinbelow:-

53. The right of the respondent prisoner, therefore, to get his case considered on a par with such of his inmates, who were entitled to the benefit of the said policy, cannot be taken away by the policy dated 13.08.2008. This is evident from a bare perusal of the recitals contained in the policies prior to the year 2008, which are referable to Article 161 of the Constitution. The High Court, therefore, in our opinion, was absolutely justified in arriving at the conclusion that the case of the respondent was to be considered on the strength of the policy that was existing on the date of his conviction.

54. The State authority is under an obligation to at least exercise its discretion in relation to an honest expectation perceived by the convict, at the time of his conviction that his case for premature release would be considered after serving the sentence, prescribed in the short sentencing policy existing on that date. The State has to exercise its power of remission also keeping in view any such benefit to be construed liberally in favour of a convict which may depend upon case to case and for that purpose, in our opinion, it should relate to a policy which, in the instant case, was in favour of the respondent. In case a liberal policy prevails on the date of consideration of the case of a "lifer" for premature release, he should be given benefit thereof.

5. Learned Advocate further submits that while remission granted to convict is not a matter of right but at the same time, the convict is entitled to have his case considered for remission in accordance with law. He submits that while prayers in the present petition have been made seeking a direction of release by this Court, but he seeks to restrict the scope of this petition to seeking a direction against the respondent authorities to consider the case of the applicant for remission, in light of the observations of the Supreme Court at paragraph nos. 53 and 54 which are quoted hereinabove.

6. Learned APP Ms.M.D.Mehta has strongly opposed this application and has submitted that as such the case of the applicant is considered in accordance with law and whereas in view of the fact that the applicant has sought for his release, this Court may not interfere in the present petition.

R/SCR.A/7290/2017 ORDER DATED: 16/06/2021

7. Having heard the learned advocates for the parties, this Court is of the opinion that ends of justice would be met, if the respondent - State Authorities are directed to consider the case of the applicant for remission in light of the observations of the Supreme Court in the case of Jagdishbhai (Supra). More particularly, the observations at paragraph nos.53 and 54 which are quoted hereinabove, where the Supreme Court has laid down the law that the case of the convict for remission shall be considered in light of the policy prevailing at the time of his conviction and further more if there is any later policy which would help the case of the convict for remission, then the State Authorities are required to consider the case of the convict in accordance with later - more beneficially policy.

8. In light of above discussions, the orders dated 23.8.2017 and 27.10.2020 passed by the respondent authorities are hereby quashed and set aside and the matter is remitted back to the State Authorities for considering the case of the applicant for remission in light of the observations hereinabove. Such consideration by this respondent - State authorities shall be done within a period of 6 weeks from the date of receipt of this order, without fail

9. With these observations and directions, the present application is partly succeed. Rule is made absolute to the aforesaid terms.

(NIKHIL S. KARIEL,J) VARSHA DESAI