Full Judgment Text
NONREPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL ORIGINAL JURISDICTION
WRIT PETITION(CRL.) NO(S). 135 OF 2022
RADHESHYAM BHAGWANDAS SHAH
@ LALA VAKIL …PETITIONER(S)
VERSUS
STATE OF GUJARAT & ANR. …RESPONDENT(S)
J U D G M E N T
Rastogi, J.
1. The present petition has been filed by the convict petitioner
seeking direction in the nature of Mandamus to the State of Gujarat
to consider his application for premature release under the policy
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dated 9 July, 1992 which was existing at the time of his
conviction.
2. The petitioner along with other coaccused persons faced trial
for the offence under Section 302, 376(2)(e )(g) read with Section
149 IPC committed in the State of Gujarat in 2004.
Signature Not Verified
Digitally signed by
Rachna
Date: 2022.05.13
17:41:07 IST
Reason:
3. Indisputedly, the crime was committed in the State of Gujarat
but this Court in Transfer Petition(Crl.) No. 192 of 2004, in the
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peculiar facts and circumstances of the case, considered it
appropriate to transfer Sessions Case No. 161 of 2004 pending
before the learned Additional Sessions Judge, Dahod/Ahmedabad
to the competent Court in Mumbai for trial and disposal by an
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Order dated 6 August 2004.
4. The learned trial Court, Mumbai in Sessions Case No. 634 of
2004, after holding trial, held the petitioner guilty and convicted
him for the aforestated offences and sentenced him to undergo
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rigorous imprisonment for life by judgment dated 21 January
2008.
5. It may be relevant to note that one of the coaccused Ramesh
Rupabhai, who had faced trial along with the petitioner and later
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convicted by judgment dated 21 January 2008, approached the
High Court of Bombay by filing Criminal Writ Petition no. 305 of
2013 seeking premature release but his application came to be
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dismissed by the High Court of Bombay by Order dated 5 August,
2013 on the premise that the crime was committed in the State of
Gujarat and his trial came to be transferred in the peculiar
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circumstances, under the directions of this Court by Order dated 6
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August, 2004 and once the trial stands concluded and the prisoner
has been convicted, the appropriate prison would be the State of
Gujarat and accordingly the application filed by the coaccused
Ramesh Rupabhai for premature release was left to be examined as
per the policy applicable in the State of Gujarat.
6. The present petitioner filed his petition for premature release
under Sections 433 and 433A of the Code of Criminal Procedure,
1973(hereinafter being referred to as the “CrPC”) stating that he had
undergone more than 15 years 4 months of custody but his petition
filed in the High Court of Gujarat came to be dismissed taking note
of Section 432(7) CrPC and placing reliance on the judgment of this
Court in Union of India Vs. V. Sriharan alias Murugan and
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Others on the premise that since the trial has been concluded in
the State of Maharashtra, the application for premature release
has to be filed in the State of Maharashtra and not in the State of
Gujarat, as prayed by the petitioner by judgment impugned dated
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17 July 2019.
1 2016(7) SCC 1
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7. As per the custody certificate which has been placed on
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record, the petitioner, as on 1 April 2022, has undergone the
sentence of more than 15 years 4 months without remission.
8. The policy with which the petitioner has to be governed,
applicable in the State of Gujarat on the date of conviction, indeed
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is Resolution No. JLK/3390/CM/16/Part/2/J dated 9 July 1992.
9. It has been settled by this Court in State of Haryana Vs.
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that the application for grant of premature release will
Jagdish
have to be considered on the basis of the policy which stood on the
date of conviction. The relevant para is as under:
| “ | 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 premature | ||||
| release would be considered after serving the sentence, prescribed | ||||
| in the shortsentencing policy existing on that date. 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. In case a liberal policy prevails on the date of | ||||
| consideration of the case of a “lifer” for premature release, he | ||||
| should be given benefit thereof.” |
10. Learned counsel for the respondents has placed reliance on
the judgment of this Court in Union of India Vs. V. Sriharan
2 2010(4) SCC 216
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alias Murugan and Others (supra) and submits that since the
trial has been concluded in the State of Maharashtra, taking
assistance of Section 432(7) CrPC, the expression ‘appropriate
Government’ as referred to under Section 433 CrPC in the instant
case, would be the State of Maharashtra and accordingly no error
has been committed by the High Court in the order impugned.
11. In our considered view, the submission made by learned
counsel for the respondents is not sustainable for the reason that
the crime in the instant case was admittedly committed in the State
of Gujarat and ordinarily, the trial was to be concluded in the same
State and in terms of Section 432(7) CrPC, the appropriate
Government in the ordinary course would be the State of Gujarat
but the instant case was transferred in exceptional circumstances
by this Court for limited purpose for trial and disposal to the
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neighbouring State (State of Maharashtra) by an order dated 06
August, 2004 but after the conclusion of trial and the prisoner
being convicted, stood transferred to the State where the crime was
committed remain the appropriate Government for the purpose of
Section 432(7) CrPC.
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12. Indisputedly, in the instant case, the crime was committed in
the State of Gujarat which is the appropriate Government
competent to examine the application filed for premature release
and that is the reason for which the High Court of Bombay in
Criminal Writ Petition No. 305 of 2013 filed at the instance of co
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accused Ramesh Rupabhai under its Order dated 5 August, 2013
declined his request to consider the application for premature
release and left the application to be examined according to the
policy applicable in the State of Gujarat by the concerned
authorities.
13. The judgment on which the learned counsel for the
respondents has placed reliance may not be of any assistance for
the reason that under Section 432(7) CrPC, the appropriate
Government can be either the Central or the State Government but
there cannot be a concurrent jurisdiction of two State Governments
under Section 432(7) CrPC.
14. In the instant case, once the crime was committed in the State
of Gujarat, after the trial been concluded and judgment of
conviction came to be passed, all further proceedings have to be
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considered including remission or premature release, as the case
may be, in terms of the policy which is applicable in the State of
Gujarat where the crime was committed and not the State where
the trial stands transferred and concluded for exceptional reasons
under the orders of this Court.
15. Consequently, the petition is allowed. The judgment
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impugned dated 17 July, 2019 is set aside.
16. The respondents are directed to consider the application of the
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petitioner for premature release in terms of its policy dated 9
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.
17. Pending application(s), if any, shall stand disposed of.
……………………………..J.
(AJAY RASTOGI)
……………………………..J.
(VIKRAM NATH)
NEW DELHI
MAY 13, 2022.
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