Gujarat High Court
Trikam @ Tiko Ravjibhai vs State Of Gujarat & on 14 February, 2017
Author: Akil Kureshi
Bench: Akil Kureshi, Biren Vaishnav
R/CR.MA/11344/2014 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR DIRECTION) NO. 11344 of 2014
In CRIMINAL APPEAL NO. 913 of 1999
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TRIKAM @ TIKO RAVJIBHAI....Applicant(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
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Appearance:
THROUGH JAIL for the Applicant(s) No. 1
MS. JIRGA JHAVERI, ADDITIONAL PUBLIC PROSECUTOR for the
Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE AKIL KURESHI
and
HONOURABLE MR.JUSTICE BIREN VAISHNAV
Date : 14/02/2017
ORAL ORDER
(PER : HONOURABLE MR.JUSTICE AKIL KURESHI) 1 Brief facts are as under:
Trikam alias Tiko Ravjibhai, was convicted by the Sessions Court for offences punishable under Sections 302, 376, 363 and 451 of Indian Penal Code. He was awarded death sentence. The accused challenged his conviction and sentence by filing Criminal Appeal No. 913 of 1999 before the High Court. Being a case of death penalty, Confirmation Case No 1 of 1999 was Page 1 of 12 HC-NIC Page 1 of 12 Created On Sun Aug 13 15:14:07 IST 2017 R/CR.MA/11344/2014 ORDER clubbed with such appeal. The High Court disposed of both these proceedings by common judgment dated 10.05.2000 by which the Court confirmed the conviction of the accused, however, commuted death penalty into one of life imprisonment. Relevant portion of the judgment of the High Court reads as under:
"31 In the case at hand, as recorded above, we have upheld conviction of the present appellant solely on the basis of the circumstantial evidence with corroboration of button and saliva on bidi bud etc coupled with his own say before P.W.2 Dr. Khadayate and we do not find it safe in the facts and circumstances of this case to confirm the extreme penalty of death sentence. It cannot be said in the facts of this case that there is some such thing which can be said to be so uncommon about the crime so as to render the sentence of imprisonment for life to be inadequate and that it is a case which calls for death sentence. Similarly giving maximum weightage to the mitigating circumstances also, it cannot be said in the facts of the present case that circumstances of the crime in this case leave no alternative but to impose the death sentence. Therefore, we do not find this case to be that rarest of rare case in which the alternative of the punishment of life imprisonment is unquestionably foreclosed. Appellant, who is a young boy of 20 years, has a long way to go and since he is not a hardened criminal and has not precipitated any crime in past and has not exhibited any criminality in his behaviour prior to the commission of this offence, the probability that he can be reformed and rehabilitated cannot be ruled out. On consideration of the circumstances of this case in totality, the evidence on which we have upheld the conviction and the consideration of the aggravating circumstances and the mitigating circumstances, the balance certainly tilts in Page 2 of 12 HC-NIC Page 2 of 12 Created On Sun Aug 13 15:14:07 IST 2017 R/CR.MA/11344/2014 ORDER favour of opting for the penalty of life imprisonment.
32 The upshot of the aforesaid adjudication is that the death sentence, as has been awarded to the present appellant, is not confirmed and the penalty of death sentence awarded to the appellant is altered and commuted to that of life imprisonment. The reference with regard to confirmation of death sentence is answered accordingly and the Appeal against the conviction fails. Whereas the appellant is sentenced to life imprisonment, the sentence of death, as ordered by the trial Court, is set aside and to that limited extent the Appeal is allowed and the slight modification is also made in the order of the trial Court with regard to the set off given by the trial Court under Section 428 Cr.P.C for the period for which the accused - appellant remained in Jail during trial and it is ordered that the appellant shall not be entitled to such set off for the period during which he remained in jail during the course of trial under S. 428 of the Cr.P.C because it is a case of sentence of life imprisonment to the appellant and in case of life imprisonment such set off is not to be given."
2 The convict having served out a sentence of more than 14 years, applied to the jail authorities for remission of the sentence and for his early release. However, the Supreme Court in a case of V. Sriharan @ Murugan & Ors., was considering various issues concerning the fixed term sentences imposed by various Courts in relation to the power of the State executive to grant remission. Pending such proceedings, on Page 3 of 12 HC-NIC Page 3 of 12 Created On Sun Aug 13 15:14:07 IST 2017 R/CR.MA/11344/2014 ORDER 09.07.2014, the Supreme Court passed the following interim order:
"UPON hearing the counsel the Court made the following ORDER Having regard to the observations made in para 49 of the referal order, we are of the view that notice may be issued to all the State Governments.
Let notice be issued to all the State Governments through their Standing Counsel representing them in the Supreme Court.
Notice is made returnable on July 18, 2014.
In the meanwhile, the State Governments are restrained from exercising power of remission to life convicts."
3 Under such order, the Supreme Court as can be seen, restrained the State Governments from exercising power of remission in case of life convicts. This absolute fetter imposed by the Supreme Court in the said order dated 09.07.2014, was lifted under a further interim order dated 23.07.2015 passed in the said case. Relevant portion of the order reads as under:
"3 After hearing the arguments advanced by learned counsel for the respective State Governments for some time, we are of the considered view that our order dated 09.07.2014 requires to be modified.
4 Accordingly, we modify our order dated 09.07.2014, whereby we had restrained the State Page 4 of 12 HC-NIC Page 4 of 12 Created On Sun Aug 13 15:14:07 IST 2017 R/CR.MA/11344/2014 ORDER Governments from exercising power of remission or commutation to life convicts. The said order dated 09.07.2014 shall only apply to cases:
I) Where life sentence has been awarded specifying that
(a) the convict shall undergo life sentence till the end of his life without remission or commutation;
(b) the convict shall not be released by granting remission or commutation till he completes a fixed terms such as 20 years or 25 years or like.
ii) where no application for remission or communication was preferred, or considered suo motu by the concerned State Governments/ authorities.
iii) Where the investigation was conducted by Central Investigating Agency like the Central Bureau of Investigation.
iv) Where the life sentence is under any central law or under Section 376 of the Indian Penal Code, 1860 or any other similar offence."
4 It can thus be seen that the rigors imposed by the Supreme Court in its order dated 09.07.2014 on the State's power to grant remission in case of life convicts was substantially reduced by the said later order dated 23.07.2015. Barring certain special categories of cases, the State was free to exercise such powers. However, no such relaxation was granted in a case, where life sentence was awarded under Section 376 of the Indian Penal Code.
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R/CR.MA/11344/2014 ORDER
5 When the convict, therefore, in the present case
applied for remission, a question arose whether such application can be entertained by the State in view of the said orders passed by the Supreme Court in case of V Sriharan. The record would prima facie suggest that the Advisory Board constituted by the State Government and the concerned trial Court had given a positive opinion for exercise of such powers. On 31.03.2014, the Superintendent of Nadia Jail wrote a letter to the Registrar of Gujarat High Court giving background of the case of the convict and requesting for an opinion with reasons whether the convict can be released in terms of Section 433A of the Criminal Procedure Code bearing in mind the Supreme Court order. 6 We are not sure under which provision and under which procedure could the Jail Superintendent ask for an opinion of the Registrar of the Gujarat High Court. We are also not sure how the Registrar Judicial suo motu placed a remark under this letter dated 31.03.2014 of the Jail Superintendent to treat it as Criminal Miscellaneous Application. Be that as it may, when the question of life and liberty of a person has Page 6 of 12 HC-NIC Page 6 of 12 Created On Sun Aug 13 15:14:07 IST 2017 R/CR.MA/11344/2014 ORDER arisen and when certain issues have been presented before us, we would not dispose of the present proceedings on technical grounds.
7 Under order dated 22.01.2015, a Division Bench of this Court noticed that the proceedings in case of V. Sriharan, are pending before the Supreme Court and it would be necessary to wait for the outcome of such proceedings.
8 The materials on record would suggest that the trial Court having sentenced the convict to death penalty, had separately imposed a punishment of life sentence for offence under Section 376 of I.P.C. The Gujarat High Court in the appeal by the convict while commuting the death sentence into life imprisonment, did not segregate the punishment for different offences. In other words, the judgment of the High Court cannot be seen as having disturbed the conviction for the offence under Section 376 of the IPC and sentence of life imprisonment for such offences. Thus, the accused convict is serving life sentence also for offence under Section 376 of IPC.
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This would be relevant because in the order dated 23.07.2015, the Supreme Court in case of V Sriharan continued the ban on the State Governments exercising remission powers in case of an accused serving life sentence for offence under Section 376 of IPC. 9 This situation, however, has undergone a major change by virtue of the final judgment of the Supreme Court in case of V Sriharan reported in 2016 (7) SCC pg 1 Constitution Bench by a majority opinion answered the questions referred as under :
Answers to the Questions Referred in seriatim "Question 52.1 Whether imprisonment for life in terms of Section 53 read with Section 45 of the Penal code meant imprisonment for rest of the life of the prisoner or a convict undergoing life imprisonment has a right to claim remission and whether as per the principles enunciated in paras 91 to 93 of Swamy Shraddananda (2)4 a special category of sentence may be made for the very few cases where the death penalty might be substituted by the punishment of imprisonment for life or imprisonment for a terms in excess of fourteen years and to put that category beyond application of remission?
177 Imprisonment for life in terms of Section 53 read with Section 45 of the Penal Code only means imprisonment for the rest of the life of the convict. The right to claim remission, commutation, reprieve etc., as provided under Article 72 or Article 161 of the Constitution will always be available being constitutional Page 8 of 12 HC-NIC Page 8 of 12 Created On Sun Aug 13 15:14:07 IST 2017 R/CR.MA/11344/2014 ORDER remedies untouchable by the Court.
178 We hold that the ratio laid down in Swamy Shraddananda (2)4 that a special category of sentence, instead of death can be substituted by the punishment of imprisonment for life or for a term exceeding 14 years and put that category beyond application of remission is well founded and we answer the said question in the affirmative.
Question 52.2 Whether the "appropriate Government" is permitted to exercise the power of remission under Section 432/433 of the Code after the parallel power has been exercised by the President under Article 72 or the Governor under Article 161 or by this Court in its constitutional power under Article 32 as in this case?
Answer 179 The exercise of power under Section 432 and 433 of the Criminal Procedure Code will be available to the appropriate Government even if such consideration was made earlier and exercised under Article 72 by the President or under Article 161 by the Governor. As far as the application of Article 32 of the Constitution by this court is concerned, it is held that the powers under Sections 432 and 433 are to be exercised by the appropriate Government statutorily and it is not for this court to exercise the said power and it is always left to be decided by the appropriate Government. Questions 52.3, 52.4 and 52.5:
52.3 Whether Section 432(7) of the Code clearly gives primacy to the Executive Power of the Union and excludes the Executive Power of the State where the power of the Union is coextensive?
52.4 Whether the Union or the State has primacy over the subjectmatter enlisted in List II of the Seventh Schedule to the Constitution of India for exercise of power of remission?Page 9 of 12
HC-NIC Page 9 of 12 Created On Sun Aug 13 15:14:07 IST 2017 R/CR.MA/11344/2014 ORDER 52.5 Whether there can be two appropriate Governments in a given case under Section 432(7) of the Code?
Answer 180 The status of appropriate Government whether the Union Government or the State Government will depend upon the order of sentence passed by the criminal court as has been stipulated in Section 432(6) and in the event of specific Executive Power conferred on the Centre under a law made by Parliament or under the Constitution itself then in the event of the conviction and sentence covered by the said law of Parliament or the provisions of the Constitution even if the Legislature of the State is also empowered to make a law on the same subject and coextensive, the appropriate Government will be the Union Government having regard to the prescription contained in the proviso to Article 73(1)(a) of the Constitution. The principle stated in the decision in G.V.Ramanaiah should be applied. In other words, cases which fall within the four corners of Section 432(7)(a) by virtue of specific Executive Power conferred on the centre, the same will clothe the Union Government the primacy with the status of appropriate Government. Barring cases falling under Section 432(7)(a), in all other cases where the offender is sentenced or the sentence order is passed within the territorial jurisdiction of the State concerned, the State Government would be the appropriate Government.
Question 52.6 Whether the motu exercise of power of remission under Section 432(1) is permissible in the scheme of the section, if yes, whether the procedure prescribed in subsection (2) of the same section is mandatory or not? Answer 181 No suo motu power of remission is exercisable under Section 432(1) of the Criminal Procedure Code. It can only be initiated based on an application of the person convicted as provided under Section 432(2) and that ultimate Page 10 of 12 HC-NIC Page 10 of 12 Created On Sun Aug 13 15:14:07 IST 2017 R/CR.MA/11344/2014 ORDER order of suspension or remission should be guided by the opinion to be rendered by the Presiding Officer of the Court concerned.
Question 52.7 Whether the term "consultation" stipulated in Section 435(1) of the Code implies "concurrence"?
Answer 182 Having regard to the principles culled out in paras 173.1 to 173.4., it is imperative that it is always safe and appropriate to hold that in those situations covered by clauses (a) to (c) of Section 435(1) falling within the jurisdiction of the Central Government it will assume primacy and consequently, the process of"consultation" in reality to be held as the requirement of "concurrence".
183 We thus answer the above questions accordingly."
10 With this authoritative pronouncement of the correct legal position by the Constitution Bench of the Supreme Court, there remains no further lingering doubt on the question of remission powers of the State executive. Unless the High Court or the Supreme Court has awarded a fixed term sentence in lieu of death penalty, on an application by the convict the State authorities would be competent to consider the question of his remission in terms of provisions contained in the Criminal Procedure Code. In the present case, we have reproduced the relevant portion of the High Court judgment. While substituting death Page 11 of 12 HC-NIC Page 11 of 12 Created On Sun Aug 13 15:14:07 IST 2017 R/CR.MA/11344/2014 ORDER penalty by life imprisonment, the High Court did not provide for a fixed term sentence. It would therefore be open for the State authorities to consider the application of the convict for remission in terms of the statutory provisions contained in the Cr.P.C and the policy framed by the State Government in this regard. With this clarification, this Miscellaneous Criminal Application is disposed of.
(AKIL KURESHI, J.) (BIREN VAISHNAV, J.) Bimal Page 12 of 12 HC-NIC Page 12 of 12 Created On Sun Aug 13 15:14:07 IST 2017