Gujarat High Court
Mohmad Umar Majid Ahmed @ Mohmad Fighter ... vs State Of Gujarat on 7 July, 2022
R/SCR.A/6975/2021 JUDGMENT DATED: 07/07/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 6975 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE NIRAL R. MEHTA
================================================================
1 Whether Reporters of Local Papers may be allowed NO
to see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy NO
of the judgment ?
4 Whether this case involves a substantial question NO
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
================================================================
MOHMAD UMAR MAJID AHMED @ MOHMAD FIGHTER @ MOHMAD
PEHELVAN
Versus
STATE OF GUJARAT & 2 other(s)
================================================================
Appearance:
MR IH SYED, SENIOR COUNSEL with MR HEMANT B RAVAL(3491) for the
Applicant(s) No. 1
NOTICE SERVED for the Respondent(s) No. 2,3
MR PRANAV TRIVEDI, APP for the Respondent(s) No. 1
================================================================
CORAM:HONOURABLE MR. JUSTICE NIRAL R. MEHTA
Date : 07/07/2022
ORAL JUDGMENT
1. By way of this writ petition under Article 226 of the Constitution of India, the petitioner - convict has prayed for the following reliefs :
Page 1 of 14 Downloaded on : Thu Jul 07 21:45:14 IST 2022
R/SCR.A/6975/2021 JUDGMENT DATED: 07/07/2022 "(a) To issue a writ of mandamus or a writ, direction or order in the nature of writ of mandamus directing the Jail Authorities to process the case and the State Government to consider the case of petitioner for commutation of his sentence and pre-mature release from jail on his completing more than 14 years in jail as per the policy prevailing on the date of his conviction and expeditiously decide the same in accordance with law.
(a1) to quash and set aside the report of the Jail Advisory Committee dated 15.7.2020, a copy of which is annexed to the present petition at Annexure-A2.
(a2) to enlarge the petitioner on long parole pending a decision by the respondent State on his application for remission.
(b) To pass any other order or orders in favour of the petitioner as this Hon'ble Court deems fit and proper in the facts and circumstances of the case.
(c) Your Lordships may be pleased to grant such other and further relief as thought fit in the interest of justice."
2. Indisputed facts of the case are recorded as under :
2.1 The petitioner was tried and convicted for the offences Page 2 of 14 Downloaded on : Thu Jul 07 21:45:14 IST 2022 R/SCR.A/6975/2021 JUDGMENT DATED: 07/07/2022 punishable under Sections 302 and 120-B of the IPC and Section 25(1)(a) and (b) of the Arms Act and Sections 3 and 5 of the Terrorist and Disruptive Act and was sentenced for life imprisonment of 20 years vide judgment and order dated 6.2.2007 by the City Civil and Sessions Judge, Ahmedabad in Sessions Case No.176 of 1993.
2.2 The said conviction was challenged upto the Apex Court.
However, the conviction recorded by the City Civil and Sessions Judge, Ahmedabad was upheld. Thus, the petitioner has undergone almost 18 years of sentence.
2.3 During these 18 years of imprisonment, the behaviour of the petitioner reported to be satisfactory. The petitioner has rendered various services in jail and in turn, has been given recognition and appreciation for such services by the jail authorities. It also appears that the petitioner has surrendered before jail authority diligently on the expiration of the temporary release as and when granted. 2.4 It further appears that the petitioner, upon having completed 18 years of imprisonment, as per the policy of the State Government dated 9.7.1992, applied for commutation of Page 3 of 14 Downloaded on : Thu Jul 07 21:45:14 IST 2022 R/SCR.A/6975/2021 JUDGMENT DATED: 07/07/2022 sentence and premature release. The said application was submitted before the Jail Advisory Committee, who, on 15.7.2020, arrived at a conclusion that the petitioner cannot be granted remission in view of the policy of the Government of Gujarat dated 23.1.2014.
2.5 It appears that at present, the petitioner is on parole leave for 60 days starting from 3.6.2022 granted by the Apex Court vide its order dated 3.6.2022 passed in SLP (Cri.) No.5365 of 2022.
3. Being aggrieved by the aforesaid, the petitioner has approached this Court for appropriate writ, order or direction upon the jail authorities to consider the case of the petitioner as per the policy prevailing on the date of his conviction.
4. I have heard Mr.I.H. Syed, learned Senior Counsel assisted by Mr.Hemant Raval, learned counsel for the petitioner and Mr.Pranav Trivedi, learned Additional Public Prosecutor for the respondent - State.
5. It is required to be noted that on 28.6.2022, when this matter was taken up for final hearing, one Mr.Zuber Ahmed, Page 4 of 14 Downloaded on : Thu Jul 07 21:45:14 IST 2022 R/SCR.A/6975/2021 JUDGMENT DATED: 07/07/2022 son of the present petitioner, appeared before this Court in person, without there being any application for joining party and/or any affidavit whatsoever in nature. Mr.Zuber Ahmed, since appeared in person, this Court granted indulgence and had given him an opportunity of hearing. Mr.Zuber Ahmed mainly submitted before the Court that the present petitioner is his father, who is making false representation with regard to his health before various courts. According to him, his father was never having any serious health issue in the past. He further submitted that by showing false health reasons, his father is now on parole leave and while on parole leave, his father is harassing him and threatening him. Pertinently, another son of the present petitioner, namely, Mr.Tariq Ahmed is also personally present before this Court on the same day, who was also given an opportunity of hearing, who, in turn, submitted that his brother Mr.Zuber Ahmed is making incorrect statements and trying to settle his personal dispute with their father.
6. Although the present proceedings are not with regard to grant of parole leave and this Court believed that essentially, there is a family dispute between the petitioner and his son. However, this Court, for the sake of satisfaction, directed the Page 5 of 14 Downloaded on : Thu Jul 07 21:45:14 IST 2022 R/SCR.A/6975/2021 JUDGMENT DATED: 07/07/2022 petitioner to appear before the concerned medical officers of Government hospital for medical examination. Pursuant thereto, the petitioner appeared before the concerned Medical Officer at Government hospital and the medical report of the petitioner is tendered by Mr.Pranav Trivedi, learned APP, which is taken on record, which says that the petitioner is having serious ailment and was treated till the year 2018.
7. Be that as it may, the present petition is filed seeking, inter-alia, remission and/or premature release in view of the policy framed by the State Government. The present proceedings are nowhere connected with parole leave of the present petitioner.
8. Mr.I.H. Syed, learned Senior Counsel assisted by Mr.Hemant Raval, learned counsel for the petitioner, 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.
Page 6 of 14 Downloaded on : Thu Jul 07 21:45:14 IST 2022 R/SCR.A/6975/2021 JUDGMENT DATED: 07/07/2022 8.1 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. 8.2 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 Page 7 of 14 Downloaded on : Thu Jul 07 21:45:14 IST 2022 R/SCR.A/6975/2021 JUDGMENT DATED: 07/07/2022 remission. Learned Senior Advocate would further refer to paragraph no. 46 of the very judgment 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.
8.3 Mr.Syed, would thereafter draw the attention of this Court to the fact that as on date, the present petitioner is on parole leave, however, has undergone 18 years of life imprisonment and thereby, his case may be considered fairly by the respondent authorities, more particularly in line with the law laid down by the Apex Court in this regard. 8.4 By making above submissions, Mr.Syed urged this Court to allow the present petition.
Page 8 of 14 Downloaded on : Thu Jul 07 21:45:14 IST 2022
R/SCR.A/6975/2021 JUDGMENT DATED: 07/07/2022
9. Per contra, Mr.Pranav Trivedi, learned Additional Public Prosecutor for the respondent - State, drawn the attention of this Court 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. 9.1 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.
Page 9 of 14 Downloaded on : Thu Jul 07 21:45:14 IST 2022 R/SCR.A/6975/2021 JUDGMENT DATED: 07/07/2022 9.2 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. 9.3 Mr.Trivedi, learned APP, would further submit that the right of the petitioner for being considered for remission would only accrue after having undergone substantial period of sentence. According to learned APP, on the date when the petitioner was convicted, at that moment he has got no right for being considered for remission and, therefore, if on the date on which there is no right of being considered accrued in favour of petitioner, in that event the policy existing on that day cannot be made applicable to the present petitioner. Accordingly, learned APP submitted that the petitioner's right of being considered for remission only accrues after having undergone substantial period of imprisonment and thereby, the policy which is existing at the time of such accrual of right has to be made applicable and thereby, the State Government or the Jail Authority has rightly considered the policy which is prevailing at the time when the right accrued. Page 10 of 14 Downloaded on : Thu Jul 07 21:45:14 IST 2022 R/SCR.A/6975/2021 JUDGMENT DATED: 07/07/2022
10. I have heard the learned counsel appearing for the respective parties and have gone through the material produced on record in detail. No other and further submissions have been canvassed by the learned counsel appearing for the respective parties.
11. Having heard the learned counsel appearing for the respective parties, the only question which falls for consideration of this Court is whether the convict, who has been sentenced for life imprisonment, is entitled to have his application for remission under Section 432 of the Cr.P.C., 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?
12. In my view, the aforesaid question is no more res-integra in view of the latest decision of the Apex Court in the case of Radheshyam Bhagwandas Shah @ Lala Vakil v. State of Gujarat, reported in 2022 LiveLaw (SC) 484, wherein it is held that the policy which would be applicable would be the policy which would be prevailing at the time of conviction. The relevant observations made in Para.16 is reproduced, thus;
"16. The respondents are directed to consider the Page 11 of 14 Downloaded on : Thu Jul 07 21:45:14 IST 2022 R/SCR.A/6975/2021 JUDGMENT DATED: 07/07/2022 application of the petitioner for premature release in terms of its policy dated 9th July, 1992 which is applicable on the date of conviction and may be decided within a period of two months. If any adverse order is passed, the petitioner is at liberty to seek remedy available to him under the law."
13. Even, the Coordinate Bench of this Court has, in the case of Musrafkhan Gorekhan Pathan v. State of Gujarat (Special Criminal Application No.1763 of 2020), decided on 26.4.2022, after referring to various decisions of the Apex Court, held as under :
"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 herein-above, 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 herein-above 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 Page 12 of 14 Downloaded on : Thu Jul 07 21:45:14 IST 2022 R/SCR.A/6975/2021 JUDGMENT DATED: 07/07/2022 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 herein-above, 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."
14. In view of the aforesaid facts and circumstances, more particularly the law laid down by the Apex Court as well as the Coordinate Bench of this Court, the present petition deserves to be allowed.
15. The impugned order dated 15.7.2020 passed by the Jail Advisory Committee is hereby quashed and set aside and the State of Gujarat is hereby directed to re-consider the case of present petitioner keeping in mind the policy which is prevailing at the time of conviction of the present petitioner, Page 13 of 14 Downloaded on : Thu Jul 07 21:45:14 IST 2022 R/SCR.A/6975/2021 JUDGMENT DATED: 07/07/2022 within a period of 4 weeks from the date of receipt of writ of this Court.
16. It is made clear that if any adverse order is passed, the petitioner is at liberty to seek remedy available under the law.
17. With the above observations and directions present petition stands disposed of as allowed. Rule is made absolute.
(NIRAL R. MEHTA,J) V.J. SATWARA Page 14 of 14 Downloaded on : Thu Jul 07 21:45:14 IST 2022