Gujarat High Court
Prafulbhai Merambhai Chhaiya vs State Of Gujarat on 2 September, 2022
Author: Vaibhavi D. Nanavati
Bench: Vaibhavi D. Nanavati
R/SCR.A/8273/2020 ORDER DATED: 02/09/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 8273 of 2020
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PRAFULBHAI MERAMBHAI CHHAIYA
Versus
STATE OF GUJARAT
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Appearance:
MS KD PARMAR(589) for the Applicant(s) No. 1
NOTICE SERVED for the Respondent(s) No. 2,3,4
PUBLIC PROSECUTOR for the Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 02/09/2022
ORAL ORDER
1. By way of this petition, the petitioner has prayed for seeking direction qua the respondent authorities to consider the case of the petitioner for remission and/or commutation of sentence under the provisions of Section 432, 433 and 433A of the Code of Criminal Procedure, 1973 and further directed to release the petitioner from jail, who is at present undergoing life imprisonment at Special Jail, Porbandar being convict (prisoner No.:3415).
2. Heard Ms. Alka Vaniya, the learned advocate for Page 1 of 10 Downloaded on : Tue Sep 06 20:24:23 IST 2022 R/SCR.A/8273/2020 ORDER DATED: 02/09/2022 Ms. K.D. Parmar, the learned advocate appearing for the petitioner and Ms. Maithili D. Mehta, the learned Additional Public Prosecutor appearing for the respondent - State.
3. Ms. Maithili Mehta, the learned Additional Public Prosecutor appearing for the respondent State has placed reliance on the affidavit in reply filed by the respondent No.4 and more particularly para 10 of the affidavit, which reads thus :-
"10. I say and submit that considering the police of 1992 which merely specifies that a convict becomes entitle to be considered for remission on completion of 14 years. In the present case the applicant completes 14 years on 05.12.2018 prior thereto the applicant had absconded for 2045 days and hence considering the 1992 policy the government vide order dated 05.07.2022 had rejected the application of the applicant for grant of remission."Page 2 of 10 Downloaded on : Tue Sep 06 20:24:23 IST 2022
R/SCR.A/8273/2020 ORDER DATED: 02/09/2022
4. From the aforesaid, it is borne out that the applicant herein becomes entitled to be considered for remission on completion of 14 years.
5. In the present case, as stated in the affidavit though the applicant completed 14 years on 05.12.2018 prior thereto the applicant herein had absconded for a period of 2045 days and hence considering the Policy of 1992 the Government by order dated 05.07.2022 rejected the application of the applicant for grant of remission.
6. This Court deems it fit to referred the order passed by this Court in 2018 (0) AIJEL -HC 239908, Special Criminal Application No.9089 of 2017, paragraph No.78 :-
"78. Let me now summarise the aforesaid discussion:
[1] The imprisonment for life in terms of Section 53 read with Section 45 of the Penal Code means "the imprisonment for the Page 3 of 10 Downloaded on : Tue Sep 06 20:24:23 IST 2022 R/SCR.A/8273/2020 ORDER DATED: 02/09/2022 rest of the life of the convict". To put it in other words, till the convict breathes his last.
[2] The grant of remission is a matter of policy and it is for the Executive Branch of the Government to decide as to when, to what extent and in what manner, remission is to be granted.
[3] The policy decision may be based on so many factors, like the prevailing general law and order situation, the impact of remission on the social life and social security at the relevant time and the type of the prisoners to be covered by it. Further, if the reformative imprisonments are already underway in the prisons themselves, perhaps, the immediate release may not be desirable or beneficial and thus, remission may have to be turned down accordingly.
[4] It is not for the judiciary to enter into this arena. Indeed, where the judicial function ends by awarding conviction and imposing sentence, it is there that the executive function begins and it is then for the latter to consider the question of suspension, remission and Page 4 of 10 Downloaded on : Tue Sep 06 20:24:23 IST 2022 R/SCR.A/8273/2020 ORDER DATED: 02/09/2022 commutation of sentences.
[5] The Courts should not issue any direction in the matter of policy, which is purely within the executive domain of the Government. If the Government decides to categorise the prisoners for the grant of remission and the classification is rational and intelligible and it is not discriminate between the same class of prisoners, the Court is not competent to say that such classification should not be made or that the same yardstick of remission be made applicable to each class.
[6] The Executive Wing of the State in its discretion on consideration of the cry and aspiration of the society for imposition of the deterrent punishment on certain type of offenders may decline to grant the benefit of remission. For example, an offence punishable under Section 376 I.P.C. is not only an offence against a singular individual, but against the collective as it offends the dignity of a woman and creates a terror trodden atmosphere in the society, because a rapist is a menace in the civilised society. Sometime, liberal delineation Page 5 of 10 Downloaded on : Tue Sep 06 20:24:23 IST 2022 R/SCR.A/8273/2020 ORDER DATED: 02/09/2022 with a convict of this nature decreases the faith in the system and a feeling of insensitivity prevails. Offences for dowry death and cruel treatment for demand of dowry have their own social impact, as the said offences corrode the essential social fabric and slowly denude it of stability affecting the age of old established institutions.
[7] Remissions are granted under the special circumstances by the State and also with the object of reforming the prisoners, after ensuring that there is no possibility of repeating the offences.
[8] The right to be released seeking the benefit of remission is neither a fundamental right nor a common law right, but is a statutory right and flows from the Act and Rules framed in this behalf. By earning remissions, a life convict does not acquire a right to be released prematurely. But, if the Government has framed any rules or made a scheme for the early release of such convicts, then those rules or schemes will have to be treated as guidelines for exercising its power under Article 161 of the Constitution.Page 6 of 10 Downloaded on : Tue Sep 06 20:24:23 IST 2022
R/SCR.A/8273/2020 ORDER DATED: 02/09/2022 [9] Considerations of public policy and humanitarian impulses - supports the concept of executive power of clemency. If the clemency power is exercised and the 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.
[10] All the convicts cannot be classified as one homogeneous class. They can be classified on the basis of different considerations. Heinousness or gravity of the offence committed by a convict can be one of the basis for such classification.
[11] Ordinarily, when any application or representation is received from the convict as regards grant of remission, the authorities concerned should not keep it pending for an unduly long time. It is a matter of great concern to a prisoner as to when he will regain his freedom from jail specifically when the sentence imposed is a life imprisonment. Therefore, without keeping such applications pending for a long time, those should be taken up for consideration within a reasonable period of time and the outcome should be Page 7 of 10 Downloaded on : Tue Sep 06 20:24:23 IST 2022 R/SCR.A/8273/2020 ORDER DATED: 02/09/2022 communicated to the prisoner.
[12] The order passed under Article 161 of the Constitution granting remission in favour of a convict undergoing life imprisonment can be challenged before the High Court under Article 226 of the Constitution of India by any person aggrieved, if such aggrieved person is able to show that the power had been exercised taking into account the extraneous consideration, not germane to the exercise of the power conferred, or in other words, that the order is a result of mala fide exercise of power. However, it needs to be clarified that the exercise of power in this regard cannot be questioned on the ground of adequacy or inadequacy of the reasons, which resulted into the passing of the order. The court is not entitled to investigate the matter on merits, but can certainly go into the question whether the power given has been exercised mala fide or not.
[13] It is completely a different matter that a person aggrieved, say for example, kith and kin of the victim or deceased may fail to prove or make good his case that the power was exercised taking into Page 8 of 10 Downloaded on : Tue Sep 06 20:24:23 IST 2022 R/SCR.A/8273/2020 ORDER DATED: 02/09/2022 account the extraneous consideration or had been exercised mala fide, but, to say that no such person has locus standi to challenge an order issued under Article 161 of the Constitution of India, will not be the correct position of law. Though, no legal right of any kith and kin of the victim or deceased could be said to have been infringed by the grant of remission, but, such person has certainly got a personal or modified right, as he would be the real person, who felt aggrieved because of the criminal acts done by the convict. [See: Godde Venkateswara Rao vs. Government of Andhra Pradesh (AIR 1966 SC
828)].
[14] The policy, which was prevailing on the date of conviction, shall be made applicable for the purpose of grant of remission."
7. In view of the aforesaid settled position of law, the grant of remission being a matter of policy and within the domain of the respondent State to decide as to when, to what extent and in what manner, remission is to be granted and the aforesaid not being res-integra, no Page 9 of 10 Downloaded on : Tue Sep 06 20:24:23 IST 2022 R/SCR.A/8273/2020 ORDER DATED: 02/09/2022 interference is called for under Section 482 of the Code of Criminal Procedure, 1973. In the facts of the present case, the respondent State considered the case of the applicant under the policy of 1992 and by order dated 05.07.2022 rejected the application of the applicant for grant of remission for the reasons as stated above.
8. In view of above, no interference is called for under Section 482 of the Code of Criminal procedure. The present petition is devoid of merit and stands rejected accordingly.
(VAIBHAVI D. NANAVATI,J) Pallavi Page 10 of 10 Downloaded on : Tue Sep 06 20:24:23 IST 2022