Gujarat High Court
Prabhatji Sukhaji Dhabi vs State Of Gujarat & 3 on 18 July, 2017
Author: A.J.Desai
Bench: A.J.Desai
R/SCR.A/2203/2017 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CRIMINAL APPLICATION (DIRECTION) NO.2203 of 2017
FOR APPROVAL AND SIGNATURE :
HONOURABLE MR.JUSTICE A.J.DESAI Sd/-
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1. Whether Reporters of Local Papers may be NO
allowed to see the judgment ?
2. To be referred to the Reporter or not ? NO
3. Whether their Lordships wish to see the fair NO
copy of the judgment ?
4. Whether this case involves a substantial NO
question of law as to the interpretation of the
constitution of India, 1950 or any order made
thereunder ?
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PRABHATJI SUKHAJI DHABI....Petitioner
Versus
STATE OF GUJARAT & 3....Respondents
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Appearance :
MR NIKUNT K RAVAL, ADVOCATE for the Petitioner.
MS DILBAR CONTRACTOR WITH MRS KALPANAK RAVAL, ADVOCATE for the
Petitioner.
MR PRAKASH JANI, ADDITIONAL ADVOCATE GENERAL ASSISTED BY MR.
MITESH AMIN, PUBLIC PROSECUTOR for the Respondents.
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CORAM : HONOURABLE MR.JUSTICE A.J.DESAI
Date : 18/07/2017
ORAL JUDGMENT
1. Rule. Mr. Mitesh Amin, learned Public Prosecutor waives service of rule on behalf of respondents. With the consent of parties, the matter is taken up for final disposal today itself.
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2. The petitioner before the Court is a convict who is claiming his benefits of remissions granted to different types of prisoners by a Resolution No.JLK/822013/5009/J dated 25.1.2017 issued by the Deputy Secretary to the Government of Gujarat, Home Department, Sachivalaya, Gandhinagar, on the ground that he would be entitled for full remission of his remaining sentence to be undergone by him which has been denied by the State of Gujarat.
3. The brief facts arise from the record are as under :-
3.1 That the present petitioner came to be arrested on 5.3.1997 in connection with FIR bearing I C.R. No.65 of 1997 registered with Kadi Police Station, Mehsana for the offences punishable under Sections 302 and 34 of Indian Penal Code. The petitioner was convicted for the same and was sentenced for rigorous imprisonment for life by learned Additional Sessions Judge, Mehsana vide judgment and order dated 18.7.1998 in Sessions Case No.173 of 1997. He preferred Criminal Appeal No.842 of 1998 before this Court challenging the same. The said appeal was dismissed on 4.4.2007. When he was undergoing his sentence, he was released on temporary bail on two occasions. He was released on his first furlough leave by the competent authority on 9.11.2000 for a period of 14 days. He was required to surrender before the Jail authority on 22.11.2000. However, he did not surrender before the Jail authority and absconded. Ultimately he came to be arrested by the Police on 21.11.2006 i.e. after a period of 2174 days. After his arrest, he was released on parole and furlough leave on number of occasions and has surrendered in time.Page 2 of 14
HC-NIC Page 2 of 14 Created On Tue Aug 15 02:08:51 IST 2017 R/SCR.A/2203/2017 JUDGMENT 3.2 On the occasion of celebration of 68th Republic Day on 26.1.2017, the State of Gujarat, Home Department in pursuance of Article 161 of the Constitution of India decided to grant remission in sentence to the convicts for different types of categories. Since one of the criteria for granting remission of the remaining period of sentence in respect of prisoners convicted for life imprisonment is that convict should have undergone 12 years of actual imprisonment including set-off and has not absconded from parole / furlough / interim bail etc. for more than three days in last ten years. As the petitioner had not absconded after 22.11.2006, his case was put before the Advisory Committee constituted under the provisions of the Bombay Jail Manual along with other convicts. The Committee consists of several Officers including the Police Commissioner of Ahmedabad City, Superintendent of Ahmedabad Central Jail and Chief Metropolitan Magistrate, Ahmedabad, constituted to decide cases of several convicts opined that the petitioner would be entitled for remission of sentence in view of the Resolution dated 25.1.2017. However, the State Government did not release the petitioner.
3.3 Hence this petition.
4. Pursuant to the notice issued by this Court, the respondents appeared and filed affidavit-in-reply opposing grant of any reliefs prayed for by the petitioner.
5. Ms. Dilbar Contractor, learned advocate appearing with Mrs. Kalpana K. Raval for the petitioner has vehemently submitted that the authorities have wrongly denied the benefit of remission in sentence available to the petitioner since the case is squarely Page 3 of 14 HC-NIC Page 3 of 14 Created On Tue Aug 15 02:08:51 IST 2017 R/SCR.A/2203/2017 JUDGMENT covered under the Notification dated 25.1.2017. By taking me through one of the category of the prisoners i.e. Category (c) of Resolution dated 25.1.2017, she would submit that the case of the petitioner is squarely covered under the said Clause and, therefore, the petitioner is entitled for remission in sentence of the remaining period of sentence. By taking me through the Jail record, she would further submit that after 22.11.2006, the petitioner had never absconded and no jail offence has been registered against the petitioner. She would further submit that in all, the petitioner has undergone around 13 years and 10 months of sentence, excluding the period when he absconded.
5.1 She would further submit that for the period of 2174 days for which the petitioner remained absconded, an offence was registered against the petitioner and ultimately, he was convicted for a period of 1 year under Section 51 (1) (B) of the Prison Act by the learned Judicial Magistrate First Class, Kadi vide order dated 12.9.2007 in Criminal Case No.1710 of 2006. However, the learned Magistrate has not specifically stated that the petitioner is required to undergo the sentence of one year on completion of his earlier sentence because the petitioner was already convicted for life imprisonment. She would further submit that a specific provision has been made under the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code') with regard to commencement of sentence of those convicts who are undergoing fixed term sentence and life sentence, commits second offence. She has placed reliance upon the provisions of Section 427 (2) of the Code as far as the case on hand is concerned. She would submit that when the petitioner was undergoing sentence for life imprisonment, he committed second offence of remaining absconding for a period of 2174 days and, therefore, the second Page 4 of 14 HC-NIC Page 4 of 14 Created On Tue Aug 15 02:08:51 IST 2017 R/SCR.A/2203/2017 JUDGMENT conviction and sentence imposed thereof is required to be treated as if it has run concurrently. Therefore, the petitioner is required to be treated as if he has undergone sentence of one year concurrently when he has remained in jail till date as a life convict.
5.2 She would further submit that the petitioner was requesting the Authority time and again to consider the case forthwith, however, the respondent - State has not taken any decision promptly and have produced certain communications particularly, communication dated 3.7.2017 which is contrary to the provisions of Section 427 (2) of the Code and deliberately prolonged release of the petitioner. She has also tendered affidavit-in-rejoinder along with which she has placed on record a list which shows that similarly situated co-accused, who were undergoing sentence for life imprisonment and who have committed second offence, their cases have been considered in view of the Resolution dated 25.1.2017 and they were ordered to be released by granting remission in sentence to them. She, therefore, would submit that though the petitioner is similarly situated convict, different treatment is given to the petitioner without any justifiable reason and hence, the prayers prayed for in the present petition may kindly be granted and the petitioner may be awarded appropriate compensation for keeping the petitioner behind bar for around seven months without any legal ground and for no fault on the part of the petitioner.
6. Mr. Prakash Jani, learned Additional Advocate General assisted by Mr. Mitesh Amin, learned Public Prosecutor appearing for the respondent - State has taken me through the affidavit dated 12.7.2017 filed by Deputy Superintendent of Central Jail, Ahmedabad and has also taken me through the communication Page 5 of 14 HC-NIC Page 5 of 14 Created On Tue Aug 15 02:08:51 IST 2017 R/SCR.A/2203/2017 JUDGMENT dated 3.7.2017 issued by Section Officer of Home Department, State of Gujarat.
6.1 Mr. Jani would submit that under Sections 428, 433 and 433AA of the Code, the State Government has power to remit the sentence and it is a grace shown by the State Government and, therefore, it is required to be interpreted accordingly. He would further submit that remission in sentence is granted to the convicts after examining their behaviour, good conduct in Jail etc. He would further submit that the convict remained absconded for 2174 days which speaks about his conduct. For remaining absconding, an offence was also registered against the convict for which he has been convicted for a period of one year by the learned Magistrate. He would further submit that the petitioner - convict has been sentenced for two different crimes, one of having committed murder and the second under the provisions of the Prisoners Act and hence considering this aspect, the Department has rightly not considered the case of the petitioner and particularly, he has been convicted in two offences and, therefore, he is not entitled for any remission. He, therefore, would submit that the petition be dismissed.
7. I have heard learned advocates appearing for the respective parties. The following facts are undisputed facts :-
(i) The petitioner came to be arrested on 5.3.1997. He remained absconded from 22.11.2000 to 22.11.2006.
(ii) The petitioner has undergone in all sentence of 13 years and 10 months, excluding the period Page 6 of 14 HC-NIC Page 6 of 14 Created On Tue Aug 15 02:08:51 IST 2017 R/SCR.A/2203/2017 JUDGMENT when he remained absconding.
(iii) After his arrest by Police on 22.11.2006, the petitioner has not remained absconded till date though he has been granted parole / furlough leave on number of occasions. Hence, it is proved that in the last ten years, he has not absconded from parole / furlough / interim bail etc.
(iv) Resolution dated 25.1.2017 was issued by the Government of Gujarat granting remission in sentence to the extent as set out in the said Resolution.
8. Resolution dated 25.1.2017 issued by the Government of Gujarat reads as under :-
" 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, 2017
Resolution :-
On the occasion of the celebration of 68th Republic Page 7 of 14 HC-NIC Page 7 of 14 Created On Tue Aug 15 02:08:51 IST 2017 R/SCR.A/2203/2017 JUDGMENT 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, Sd/-
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(M. B. Soni)
Deputy Secretary to the
Government of Gujarat, Home Department."
9. As far as the second offence committed by the petitioner of remaining absconding from furlough leave for 2174 days is concerned, the petitioner was convicted for a period of 1 year under Section 51 (1) (B) of the Prison Act by the learned Judicial Magistrate First Class, Kadi vide order dated 12.9.2007 in Criminal Case No.1710 of 2006. A copy of the said judgment is also produced before the Court for perusal which does not disclose that the petitioner has to undergo separate sentence. Even otherwise, in my opinion, the same would cover under Section 427 (2) of the Code. Section 427 of the Code reads as under :-
"427 :- Sentence on offender already sentenced for another offence :-
1. When a person already undergoing a sentence of imprisonment is sentenced on a subsequent conviction to imprisonment or imprisonment for life, such imprisonment or imprisonment for life shall commence at the expiration of the imprisonment to which he has been previously sentenced, unless the Court directs that the subsequent sentence shall run concurrently with such previous sentence Provided that where a person who has been sentenced to imprisonment by an order under section 122 in default of furnishing security is, whilst undergoing such sentence, sentenced to imprisonment for an offence committed prior to the making of such order, the latter sentence shall commence immediately.Page 10 of 14
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2. When a person already undergoing a sentence of imprisonment for life is sentenced on a subsequent conviction to imprisonment for a term or imprisonment for life, the subsequent sentence shall run concurrently with such previous sentence."
10. Considering the above position of law and facts, submission made by learned Additional Advocate General that if the petitioner is convicted for two sentences and has to undergo one after another, cannot be accepted on the ground that the convict who is undergoing imprisonment of life cannot be asked to undergo another sentence on completion of his earlier sentence because imprisonment for life means the convict has to undergo sentence till he is alive, as held by the Hon'ble Supreme Court in various decisions, unless remissions are granted by the State as per provisions of the Code. Therefore, the respondent authority ought to have considered that the convict has also undergone sentence of one year as the convict has been convicted on 18.7.1998 and the convict is in judicial custody since 5.3.1997.
11. I have also considered the submission made by learned Additional Advocate General about the behaviour and good conduct of the convict. I have gone through the Jail record of the convict. Except remaining absconded for a period of 2174 days from 23.11.2000 to 22.11.2006, no offence, not even a small offence has been registered against the petitioner while he was behind bar. Subsequent to his re-arrest on 22.11.2006, the petitioner has been released on parole / furlough leave on several occasions and at all occasions, he has surrendered in time before the Jail. No allegations have been made that while the petitioner was released Page 11 of 14 HC-NIC Page 11 of 14 Created On Tue Aug 15 02:08:51 IST 2017 R/SCR.A/2203/2017 JUDGMENT on parole / furlough leave, he has committed another offence. Therefore, in my opinion, his conduct cannot be attacked by oral submissions. When the State is considering the case of life convicts for remission and when itself decides that case of those life convicts are to be considered who have not absconded for last ten years from the date of issuance of Resolution, an officer of State Government cannot act contrary to the policy decision taken by the State.
12. I have also gone through the communication dated 3.7.2017 issued by the Home Department, Government of Gujarat. It appears that the concerned Officer has not examined the provisions of Code, Bombay Jail Manual and the recommendations made by the Advisory Committee and for the reasons best known to him/her, has denied remission to the petitioner. In my opinion, the case of the petitioner squarely falls under Clause (c) of Resolution dated 25.1.2017, referred to herein above and hence, the petitioner would be entitled for full remission.
13. In the result, the present application succeeds and is allowed. The petitioner is entitled for full remission of sentence in view of Resolution dated 25.1.2017 issued by Government of Gujarat, Home Department, Sachivalaya, Gandhinagar. Accordingly, the petitioner shall be released from Jail forthwith.
14. It is to be noted that when the petitioner was not released from Jail subsequent to issuance of the Resolution dated 25.1.2017, he immediately made a representation to State Government and brought to the notice about release of similarly situated convicts. However, there was no response from any of the respondents. Therefore, the petitioner was constrained to file Page 12 of 14 HC-NIC Page 12 of 14 Created On Tue Aug 15 02:08:51 IST 2017 R/SCR.A/2203/2017 JUDGMENT present petition. The matter was listed for hearing before the coordinate Bench on 4.4.2017 and following order was passed :-
"Mr. Raval, the learned counsel appearing for the writ applicant - a convict accused undergoing sentence past more than 13 years submits that the committee constituted by the State Government, but the recommendation for Grant of Remission to the writ applicant herein, however, such recommendations for one reason or the other, has not been accepted by the State Government. This Court would like to know from the State what weighed with them in not considering the recommendation.
Let Notice be issued to the respondents, returnable on 26/04/2017. Ms. Pathak, the learned Additional Public Prosecutor waives service of notice for and on behalf of the respondent no.1State of Gujarat. Direct service for respondents nos.2, 3, and 4."
15. On 26.4.2017, the Court was informed that matter is being looked into by State Government. No affidavit-in-reply has been filed by either Home Department or by I.G. (Prisons), State of Gujarat in the matter. The Deputy Superintendent of Central Jail files affidavit only on 12.7.2017, which does not disclose who and how the decision has been taken that an undergoing life convict, if he commits second offence would not be entitle for any remission under the said Resolution.
16. A life convict might have absconded and convicted for remaining absconding, but when there is no legal bar or any policy, Page 13 of 14 HC-NIC Page 13 of 14 Created On Tue Aug 15 02:08:51 IST 2017 R/SCR.A/2203/2017 JUDGMENT the State Government is expected to act in accordance with law, fairly and promptly, particularly when a person is behind bars. The lethargy shown by the State and its Officer has kept a person behind the bars for a period of around six months. These six months of illegal incarceration of the petitioner by State is, therefore, required to be dealt with. A person who has behaved properly in the Jail since last more than ten years sees release of similarly situated convicts getting release from Jail, was writing for justice from the Authority had to spend six months without his fault. I have hesitance in stating that time and again, the matter is adjourned at the behest of respondents. The relief, now Court can grant for this illegal incarceration is only the compensation. Considering the period of illegal incarceration, I am of the opinion that an amount of Rs.50,000/- (Fifty Thousand only) would be just and adequate compensation though legitimate freedom cannot be equated with money. Hence, the Government of Gujarat, Home Department is hereby directed to pay a compensation of Rs.50,000/- to the petitioner within a period of two weeks from the date of receipt of this order.
Rule is made absolute to the above extent.
Direct service is permitted. A copy of this order be handed over to learned Public Prosecutor for its immediate compliance.
Sd/-
(A.J.DESAI, J.) Savariya Page 14 of 14 HC-NIC Page 14 of 14 Created On Tue Aug 15 02:08:51 IST 2017