Gujarat High Court
Musrafkhan Gorekhan Pathan vs State Of Gujarat on 26 April, 2022
Author: Nikhil S. Kariel
Bench: Nikhil S. Kariel
R/SCR.A/1763/2020 JUDGMENT DATED: 26/04/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 1763 of 2020
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
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1 Whether Reporters of Local Papers may be allowed to see the Yes
judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of the judgment No
?
4 Whether this case involves a substantial question of law as to the No
interpretation of the Constitution of India or any order made
thereunder ?
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MUSRAFKHAN GOREKHAN PATHAN
Versus
STATE OF GUJARAT
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Appearance:
MR IH SYED SENIOR ADVOCATE WITH MR PRITHU PARIMAL FOR MR
HEMANT B RAVAL(3491) for the Applicant(s) No. 1
NOTICE SERVED for the Respondent(s) No. 2,3
MR MITESH AMIN PUBLIC PROSECUTOR WITH MS MAITHILI D MEHTA
ADDITIONAL PUBLIC PROSECUTOR for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
Date : 26/04/2022
ORAL JUDGMENT
1. Heard learned Senior Advocate Mr. I.H. Syed with learned Advocate Mr. Prithu Parimal for learned Advocate Mr. Hemant Raval on behalf of the petitioner and learned Public Prosecutor Mr. Mitesh Amin with learned Additional Public Prosecutor Ms. Maithili D. Mehta on behalf of respondent- State.
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2. Issue Rule. Learned APP waives service of rule on behalf of the respondents.
3. With consent of the parties the present petition is taken up for final disposal.
4. By way of this petition, the petitioner inter alia seeks for quashment of an order dated 15.09.2020 passed by the respondent- State, more particularly whereby application of the petitioner under Section 432 read with Section 433A of the Code of Criminal Procedure for remission, has been rejected more particularly relying upon a policy of the State Government dated 23.01.2014.
5. Brief facts leading to the present petition being that the present petitioner had been arrested on 28.08.1992 in connection with an FIR being C.R. No. I- 254 of 1992, registered for offences punishable under Sections 302, 120B, 307 of the Indian Penal Code, under Section 25(1) of the Arms Act and under Section 5 of the TADA Act. It appears that the designated Court had convicted the petitioner vide judgement dated 21.10.2002 and had sentenced the petitioner to undergo life imprisonment. It appears that the case of the petitioner had been considered by the respondents, more particularly upon an application preferred by the petitioner and whereas vide the order impugned, the application has been rejected.
6. Learned Senior Advocate Mr. I.H. Syed assailing the impugned order would submit that the respondent-State has considered the case of the present petitioner as per policy of the State Government dated 23.01.2014, and whereas according to learned Senior Advocate, the case of the petitioner was required to be considered as per the policy of the State Government dated 09.07.1992, and whereas according to since the said Page 2 of 11 Downloaded on : Fri Apr 29 21:04:53 IST 2022 R/SCR.A/1763/2020 JUDGMENT DATED: 26/04/2022 policy was the policy of the State Government as regards remission prevailing at the time of conviction of the present petitioner.
7. Learned Senior Advocate would submit that as per the Circular dated 09.07.1992, any convict sentenced to life imprisonment after 18.12.1978, having completed 14 years of imprisonment, including the period of set off, was entitled to have his case considered for remission. Learned Senior Advocate would submit that as far as policy dated 23.01.2014 is concerned, the same inter alia lists the consideration, which would apply, while considering the case of a convict for remission and whereas the said policy also lists the exceptions to the policy of remission or premature release. Learned Senior Advocate would submit that relying upon the exceptions in policy of 2014, the State Government has rejected the case of the present petitioner.
8. Learned Senior Advocate would submit that the State Government had committed a grave error in relying upon the policy dated 23.01.2014 since according to the learned Senior Advocate, the said policy would not be applicable to the case of the petitioner. Learned Advocate would submit that on the date of conviction of the petitioner, the policy in vogue with regard to remission being the policy dated 09.07.1992, it would be this policy which should have governed the field regarding consideration of the case of the petitioner for remission. Learned Senior Advocate in this regard more particularly in support of his submissions that the policy existing at the time of conviction, would be the relevant policy, has relied upon decision of the Hon'ble Apex Court in case of State of Haryana vs. Mahender Singh and others reported in (2007) 13 SCC 606. Learned Senior Advocate relying upon the said decision has submitted that in the instant case, the Hon'ble Apex Court has inter alia held that the policy applicable for considering the case of remission would be the policy which was prevailing at the time of Page 3 of 11 Downloaded on : Fri Apr 29 21:04:53 IST 2022 R/SCR.A/1763/2020 JUDGMENT DATED: 26/04/2022 conviction of the convict.
9. Learned Senior Advocate would further rely upon the decision of Hon'ble Apex Court in case of State of Haryana and others vs. Jagdish reported in (2010) 4 SCC 216 and the decision of the Hon'ble Apex Court in case of State of Haryana and others vs. Raj Kumar Alias Bittu reported in (2021) 9 SCC 292. Learned Senior Advocate would submit that both the decisions, reiterate the legal proposition that the policy prevailing at the time of conviction, would be the policy which would govern consideration of the case of the convict for remission. Learned Senior Advocate would further refer to paragraph no. 46 of the very judgement and would submit that since policy of the State Government of the year 1992, does not mention the factors which have to be taken into consideration, while considering the application of a convict for remission, and whereas in the said paragraph, the Hon'ble Apex Court has inter alia laid down the considerations which would be required to be taken into consideration by the State Authorities and whereas according to learned Senior Advocate, the observations of the Hon'ble Apex Court in this regard may be directed to be followed by the respondent-State.
10. Learned Senior Advocate would thereafter draw the attention of this Court, to the fact that as on date, the present petitioner is in prison since approximately 29 years and whereas learned Senior Advocate would submit that at least the convict was entitled to have his case considered fairly by the respondent- State more particularly in line of the law laid down by the Hon'ble Apex Court in this regard.
11. As against submissions made by learned Senior Advocate Mr. Syed, learned Public Prosecutor Mr. Amin has drawn the attention of this Court Page 4 of 11 Downloaded on : Fri Apr 29 21:04:53 IST 2022 R/SCR.A/1763/2020 JUDGMENT DATED: 26/04/2022 to a Circular of the State Government, Home Department, dated 08.05.2013, whereby the Circular dated 09.07.1992 is directed to be treated as cancelled.
11.1 Learned Public Prosecutor would submit that as of now, the said policy not being in existence, it may not be open for the petitioner to contend that his case ought to be considered according to the said policy. Learned Public Prosecutor would submit that while it is a well settled proposition that no convict who has been sentenced for life imprisonment, is entitled to be released upon completion of a certain number of years, at the same time, the convict is entitled for his case being considered by the respondent-State in accordance with the policy prevailing. Learned Public Prosecutor would submit that the case of the petitioner having been considered as per the policy prevailing on the date of consideration, and whereas the State having come to a conclusion that since the case of the petitioner is falling under the exceptions set out in policy dated 23.01.2014, therefore his request for remission had been rejected.
11.2 Learned Public Prosecutor would submit that the State having considered the case of the present petitioner for remission as per the policy prevailing, no fault could be found with the State and whereas according to learned Public Prosecutor the present petition deserves to be rejected.
12. Heard learned Advocates for the respective parties who have not submitted anything further.
13. The only question which arises for consideration of this Court is whether a convict who has been sentenced for life imprisonment, is entitled to have his application for remission under Section 432 of Cr.P.C., Page 5 of 11 Downloaded on : Fri Apr 29 21:04:53 IST 2022 R/SCR.A/1763/2020 JUDGMENT DATED: 26/04/2022 considered as per the policy prevailing on the date of conviction of the convict or on the date when the application for remission was being considered. In the considered opinion of this Court, the said question is no more res integra . The decisions relied upon by learned Senior Advocate Mr.Syed on behalf of the petitioner, elaborately stating that the policy which would be applicable, would be the policy which would be prevailing at the time of the conviction.
14. In this regard, this Court seeks to refer to the observations of the Hon'ble Apex Court in case of Mahender Singh and others (supra) more particularly paragraphs no. 38 and 40 being the relevant paragraphs, are reproduced hereinbelow for benefit:
"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)
40. Whenever, thus, a policy decision is made, persons must be treated equally in terms thereof. A' fortiori the policy decision applicable in such cases would be which was prevailing at the time of his conviction. [See Commissioner of Municipal Corporation, Shimla v. Prem Lata Sood and Ors.] 14.1 The Hon'ble Apex Court in the above quoted paragraphs has inter alia observed that while the right of a convict is only for having his case considered for remission and whereas whenever a policy decision is taken by the State, all equally situated persons must be treated equally. The Hon'ble Apex Court further goes on to hold 'A fortiori the policy decision applicable in such cases would be which was prevailing at the time of his conviction'.Page 6 of 11 Downloaded on : Fri Apr 29 21:04:53 IST 2022
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15. It would further be relevant to note that in decision of Jagdish (supra), it appears that the Hon'ble Apex Court has explained the concept of consideration of the case of a prisoner undergoing life sentence for remission and whereas it also appears that while the Hon'ble Apex Court has reiterated the law that the case of the convict has to be considered in accordance with the policy existing on the date of conviction and whereas it also appears that the Hon'ble Apex Court, has also observed that apart from the policy which existed on the date of the conviction, if there is any policy which exists, which had been formulated at a later date, consideration of the case of the convict as per the policy, might entail the convict being entitled for premature release, then according to the Hon'ble Apex Court, it should be the later- liberal policy which should be made applicable. The observation of the Hon'ble Apex Court at paragraphs no. 43 to 48 and paragraph no. 54 being the relevant paragraphs are being quoted hereinbelow for benefit:
"43. Legal maxim, "Veniae facilitas incentivum est delinquendi", is a caveat to the exercise of clemency powers, as it means - "Facility of pardon is an incentive to crime." It may also prove to be a "grand farce", if granted arbitrarily, without any justification, to "privileged class deviants". Thus, no convict should be a "favoured recipient" of clemency.
44. Liberty is one of the most precious and cherished possessions of a human being and he would resist forcefully any attempt to diminish it. Similarly, rehabilitation and social reconstruction of life convict, as objective of punishment become of paramount importance in a welfare state. "Society without crime is a utopian theory". The State has to achieve the goal of protecting the society from convict and also to rehabilitate the offender. There is a very real risk of revenge attack upon the convict from others. Punishment enables the convict to expiate his crime and assist his rehabilitation. The Remission policy manifests a process of reshaping a person who, under certain circumstances, has indulged in criminal activity and is required to be rehabilitated. Objectives of the punishment are wholly or predominantly reformative and preventive.
45. The basic principle of punishment that "guilty must pay for his crime"Page 7 of 11 Downloaded on : Fri Apr 29 21:04:53 IST 2022
R/SCR.A/1763/2020 JUDGMENT DATED: 26/04/2022 should not be extended to the extent that punishment becomes brutal. The matter is required to be examined keeping in view modern reformative concept of punishment. The concept of "Savage Justice" is not to be applied at all. The sentence softening schemes have to be viewed from a more human and social science oriented approach. Punishment should not be regarded as the end but as only the means to an end. The object of punishment must not be to wreak vengeance but to reform and rehabilitate the criminal. More so, relevancy of the circumstances of the offence and the state of mind of the convict, when the offence was committed, are the factors, to be taken note of.
46. At the time of considering the case of pre-mature release of a life convict, the authorities may require to consider his case mainly taking into consideration whether the offence was an individual act of crime without affecting the society at large; whether there was any chance of future recurrence of committing a crime; whether the convict had lost his potentiality in committing the crime; whether there was any fruitful purpose of confining the convict any more; the socio-economic condition of the convict's family and other similar circumstances.
47. Considerations of public policy and humanitarian impulses - supports the concept of executive power of clemency. If clemency power exercised and sentence is remitted, it does not erase the fact that an individual was convicted of a crime. It merely gives an opportunity to the convict to reintegrate into the society. The modern penology with its correctional and rehabilitative basis emphasis that exercise of such power be made as a means of infusing mercy into the justice system. Power of clemency is required to be pressed in service in an appropriate case. Exceptional circumstances, e.g. suffering of a convict from an incurable disease at last stage, may warrant his release even at much early stage. `Vana Est Illa Potentia Quae Nunquam Venit In Actum' means-vain is that power which never comes into play."
48. Pardon is an act of grace, proceedings from the power entrusted with the execution of the laws, which exempts the individual on whom it is bestowed from the punishment which law inflicts for a crime he has committed. Every civilised society recognises and has therefore provided for the pardoning power to be exercised as an act of grace and humanity in appropriate cases. This power has been exercised in most of the States from time immemorial, and has always been regarded as a necessary attribute of sovereignty. It is also an act of justice, supported by a wise public policy. It cannot, however, be treated as a privilege. It is as much an official duty as any other act. It is vested in the Authority not for the benefit of the convict only, but for the welfare of the people; who may properly insist upon the performance of that duty by him if a pardon or parole is to be granted.
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 pre-mature release would be considered after serving the sentence, prescribed in the short sentencing policy existing on that date. The Page 8 of 11 Downloaded on : Fri Apr 29 21:04:53 IST 2022 R/SCR.A/1763/2020 JUDGMENT DATED: 26/04/2022 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 pre-mature release, he should be given benefit thereof."
15.1. It would also be pertinent to state here that the Hon'ble Apex Court has at paragraph no. 54 inter alia observed " 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." It thus appears that the intent of the observations of the Hon'ble Apex Court being that the prisoner was entitled to have his case considered, as per any liberal policy i.e. either the policy existing on the date of conviction or any policy existing on the date of consideration.
16. The Hon'ble Apex Court in case of Raj Kumar Alias Bittu (supra) has reiterated as below in the paragraph no. 16 that the policy prevailing at the time of conviction would be the relevant policy, the said paragraph being reproduced hereinbelow for benefit:
"16. Still further, it is the consistent view of this Court that the policy prevalent at the time of conviction shall be taken into consideration for considering the premature release of a prisoner. In Jagdish, while determining the policy which would be applicable for the remission of sentence, this Court held as under:
"27. In Mahender Singh, this Court as referred to hereinabove held that the policy decision applicable in such cases would be which was prevailing at the time of his conviction. This conclusion was arrived on the following ground: (SCC p. 619, para 38)
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."Page 9 of 11 Downloaded on : Fri Apr 29 21:04:53 IST 2022
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17. Insofar as the submission of the learned Public Prosecutor, that policy dated 09.07.1992 prevailing at the time of conviction having been cancelled vide communication dated 08.05.2013, in the considered opinion of this Court, the same may not be a consequential factor at all. As noted hereinabove, the Hon'ble Apex Court in case of Jagdish(supra) has inter alia observed that the power of remission has to be exercised by the State liberally. As noted hereinabove the Hon'ble Apex Court has also held that any policy which would favour the convict, be it the policy prevailing at the time of conviction or consideration would be the policy to be applied. Such being the extent of the exercise of powers by the State, more particularly in view of the fact that policy dated 09.07.1992 was existing on the date of conviction of the petitioner, therefore its subsequent withdrawal/cancellation, would not preclude the applicant to claim consideration for remission on basis of the said policy.
18. Having regard to the law laid down by the Hon'ble Apex Court, as noted by this Court hereinabove, the question as to which would be the policy applicable while considering the case of convict undergoing life imprisonment, is no more res integra. As per the law laid down by the Hon'ble Apex Court, in the considered opinion of this Court, it would be either the policy which would be prevailing on the date of the conviction or any later liberal policy, formulated by the State, by applying which, the convict would be entitled for premature release.
19. Having regard to the observations as hereinabove, in the considered opinion of this Court , the present petition deserves consideration.
20. The impugned order dated 15.09.2020 passed by the State Government, Home Department is quashed and set aside.Page 10 of 11 Downloaded on : Fri Apr 29 21:04:53 IST 2022
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21. The respondent authorities are directed to consider the case of the petitioner as per policy of the State Government vide Circular dated 09.07.1992. The State Government shall do well to follow the observation of the Hon'ble Apex Court at paragraph no. 46 in case of Jagdish(supra), quoted hereinabove, where the Hon'ble Apex Court has laid down the consideration that should weigh with the State Government while considering the case of a convict for premature release.
Such an exercise shall be conducted by the State Government within a period of six weeks from the date of receipt of this decision.
22. With the above observations and directions present petition stands disposed of as allowed. Rule is made absolute.
(NIKHIL S. KARIEL,J) NIRU Page 11 of 11 Downloaded on : Fri Apr 29 21:04:53 IST 2022