Indian Law Research

SUPREME COURT OF INDIA

Bilkis Yakub Rasool v. Union of India

Decision date:

08 January 2024 · 2024 INSC 24

Challenge to the remission orders passed by the State of Gujarat releasing individuals convicted of gang rape during communal rights.

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Source and extraction notes

Official source

Draft summary

AI-assisted historical explanation. Independently checked against the source by an AI reviewer. Not reviewed by a lawyer. This historical summary does not certify the current legal position.

In one sentence

Gujarat’s remission orders were quashed because it was not the competent government.

Question decided

Which government could consider remission after the trial had taken place in Maharashtra?

Key holdings

Outcome

The victim’s petition was allowed and the released convicts were directed to return to custody within two weeks.

Source PDF pages: 248, 249, 250, 251.

Plain-English explanation

The judgment addresses the legal authority to remit sentences, rather than retrying the underlying offences. The Court held that the government of the State where the trial and sentence occurred was the appropriate authority in the circumstances. Gujarat could not exercise that power merely because the offences had occurred there. It also examined how the earlier order relied on by the applicants had been obtained and rejected its use to sustain the remission. Once the remission orders were quashed, the consequence was restoration of custody. A careful summary should focus on jurisdiction, lawful process and the operative surrender direction. It should not disclose unnecessary graphic details or suggest that remission is universally unavailable to every person convicted of a serious offence.

Relevant law

Opinions

Two-judge bench; Justice B.V. Nagarathna authored the judgment.

Research notes and limits

Check subsequent remission or review proceedings before describing present custody status; retain only necessary case facts.

Judgment - source material

All pages of the downloaded court document follow, including separate opinions, annexures and any final joint order. This is machine-extracted original text, not an AI rewrite. Use the PDF to check exact wording.

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2024 INSC 24
   Writ Petition (Crl.) No.491 of 2022 Etc.                                                                              Page 1 of 251 
 
REPORTABLE 
IN THE SUPREME COURT OF INDIA 
CRIMINAL ORIGINAL JURISDICTION 
WRIT PETITION (CRL.) NO.491 OF 2022 
BILKIS YAKUB RASOOL             ...PETITIONER 
    VERSUS 
UNION OF INDIA & OTHERS          …RESPONDENTS 
WITH 
WRIT PETITION (CRL.) NO.319 OF 2022 
WRIT PETITION (CRL.) NO.326 OF 2022 
WRIT PETITION (CRL.) NO.352 OF 2022 
WRIT PETITION (CRL.) NO.403 OF 2022 
WRIT PETITION (CRL.) NO.422 OF 2022 
 
J U D G M E N T 
NAGARATHNA, J. 
 
Table of Contents 
 
Sr. 
No. 
Particulars Page No(s). 
1 Preface 
 
3-5 
2 Details of the writ petitioners  
 
5-9 
3 Factual Background 9-25

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   Writ Petition (Crl.) No.491 of 2022 Etc.                                                                              Page 2 of 251 
 
4 Counter affidavit of State of Gujarat 
 
25-47 
5 Submissions 47-87 
6 Reply Arguments 87-101 
7 Points for consideration 101-251 
 
(A) Re: Point No.1:  Whether the petition 
filed by one of the victims in Writ 
Petition (Crl.) No.491 of 2022  under 
Article 32 of the Constitution is 
maintainable? 
 
102-106 
 
(B) Re: Point No.2 : Whether the writ 
petitions filed as Public Interest 
Litigation (PIL) assailing the impugned 
orders of remission dated 10.08.2022 
are maintainable? 
 
 
106-117 
 
 
 (i) Remission : Scope & Ambit 117-136 
 
(C) Re: Point No.3: Whether the 
Government of State of Gujarat was 
competent to pass the impugned 
orders of remission? 
 
136-186 
 
(D) Re: Point No.4 : Whether the impugned 
orders of remission passed by the 
respondent - State of Gujarat in favour 
of respondent Nos.3 to 13 are in 
accordance with law? 
 
186-218 
 
 
 
 
 (i) Section 432(2) of the CrPC: Opinion 
of the Presiding Judge of the 
convicting court 
 
218-227 
 (ii) Sentence in default of fine 
  
227-237 
(E) Summary of Conclusions 
 
237-241 
(F) Re: Point No.5: What Order? 
 
  241-251 
 
 
8 Conclusion 251

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   Writ Petition (Crl.) No.491 of 2022 Etc.                                                                              Page 3 of 251 
 
 
Preface: 
  
Plato, the Greek Philosopher  in his treatise,  The 
Laws,  underscores  that punishment is to be inflicted, not for the 
sake of vengeance, for what is done cannot be undone, but for the 
sake of prevention and reformation (Thomas L. Pangle,  The Laws 
of Plato, Basic Book Publishers, 1980) . In his treatise, Plato 
reasons that the lawgiver, as far as he can, ought to imitate the 
doctor who does not apply his drug with a view to pain only, but 
to do the patient good. This curative theory of punishment likens 
penalty to medicine, administered fo r the good of the one who is 
being chastised (Trevor J. Saunders,  Plato's Penal Code: 
Tradition, Controversy, and Reform in Greek Penology,  Oxford 
University Press, 1991) . 
Thus, if a criminal is curable, he ought to be improved by 
education and other suitable arts, and then set free again as a 
better citizen and less of a burden to the state. This postulate lies 
at the heart of the policy of remission.  In addition, there are also 
competing interests involved – the rights of the victim and the 
victim’s family to justice vis-a-vis a convict’s claim to a second 
chance by way of remission or reduction of his sentence  for 
reformation .

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Over the years, t his Court initially attached greater weight 
to the former and has expressed scepticism over the latter, 
particularly if the offence in question is a heinous one. This 
sentiment can be gathered from the following observations of 
Fazal Ali J. in Maru Ram vs. Union of India, AIR 1980 SC 2147 
(“Maru Ram”) : 
“77. … It is true that there appears to be a modern trend 
of giving punishment a colour of reformation so that stress 
may be laid on the reformation of the criminal rather than 
his confinement in jail which is an ideal objective. At the 
same time, it cannot be gainsaid that such an 
objective cannot be achieved without mustering the 
necessary facilities, the requisite education and the 
appropriate climate which must be created to foster a 
sense of repentance and penitence in a criminal so that he 
may undergo  such a mental or psychological revolution 
that he reali ses the consequences of playing with human 
lives. In the world of today and particularly in our 
country, this ideal is yet to be achieved  and, in fact, with 
all our efforts it will  take us a long time  to reach this 
sacred goa l. 
 
xxx  xxx  xxx 
 
79. The question, therefore, is — should the country take 
the risk of innocent lives being lost at the hands of 
criminals committing heinous crimes in the  holy hope or 
wishful thinking that one day or the other, a criminal, 
however dangerous or callous he may be, will reform 
himself. Valmikis are not born everyday  and to expect that 
our present generation, with the prevailing social and 
economic environment, would produce Valmikis day after 
day is to hope for the impossible.”

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A woman deserves respect howsoever  high or low she may be 
otherwise considered in society or to whatever faith she may follow 
or any creed she may belong to . Can heinous crimes , inter alia , 
against women permit remission of the convicts by a reduction in 
their sentence and by granting them liberty? These are the issues 
which arise in these writ petitions.  
 
With the aforesaid philosophical preface, we proceed to 
consider these writ petitions , both on maintainability as well as 
on merits purely from a legal perspective .  
 
Details of the writ petitioners:  
 
2. These writ petitions have been filed assailing the Orders 
dated 10.08.2022, granting remission and early release of 
respondent Nos.3 to 13 in Writ Petition (Crl.) No.491 of 2022 (which 
petition shall be considered to be the lead petition) , who were all 
convicted, having been found guilty of committing heinous crimes 
during the large-scale riots in Gujarat on 28.02.2002 and a few days 
thereafter which occurred in the aftermath of the burning of the 
train incident in Godhra in the State of Gujarat on 27.02.2002. 
  
2.1. The grotesque and diabolical crime in question was driven by 
communal hatred and resulted in twelve convicts , amongst many

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others, brutally gang -raping the petitioner in Writ Petition (Crl.) 
No.491 of 2022, namely, Bilkis Yakub Rasool, who was pregnant at 
that time. Further, the petitioner’s mother was gang raped and 
murdered, her cousin who had just delivered a baby was also gang 
raped and murdered. Eight minors including the petitioner’s 
cousin’s two -day-old infant were also murdered. The petitioner’s 
three-year-old daughter was murdered by smashing her head on a 
rock, her two minor brothers, two minor sisters, her phupha, phupi, 
mama (uncle, aunt and uncle respectively)  and three-cousins were 
all murdered. 
  
2.2. While eventually, the perpetrators of the crime, including the 
police personnel were convicted and sentenced, the petitioner, who 
was aged twenty -one years and pregnant at that time, having lost 
all members of her family in the diabolical and brutal attacks , has 
once again approached this Court seeking justice by challenging the 
en-masse remission granted to respondent Nos.3 to 13. Bilkis Yakub 
Rasool, being an unfortunate victim of the heinous crimes 
hereinabove narrated, has filed the present writ petition under 
Article 32 of the Constitution of India, seeking issuance of a writ, 
order or direction quashing the Orders dated 10.08.2022 passed by 
the State of Gujarat by which the convicts in Sessions Case No.634

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of 2004, Mumbai (respondent Nos.3 to 13 herein), whose convictions 
were upheld by a Division Bench of the Bombay High Court and 
thereafter by this Court, have been released prematurely. 
  
2.3. Writ Petition (Crl.) No.352 of 2022 titled Dr. Meeran Chadha 
Borwankar vs. State of Gujarat has been preferred by a former 
woman police officer, a woman bureaucrat who ha d served in the 
Indian Foreign Service and an academic, seeking , inter alia , the 
setting aside of the remission Order s dated 10.08.2022. The 
petitioners by way of the writ petition have also sought a writ or 
order in the nature of mandamus directing that the States must 
endeavour to have a pluralistic composition in Jail Advisory 
Committees, adequately representing the diverse nature of our 
society. 
 
2.4. Writ Petition (Crl.) No.319 of 2022 titled Subhashini Ali vs. 
State of Gujarat being the first of the petitions filed in this batch 
has been preferred under Article 32 by Subhashini Ali, a former 
parliamentarian and presently the Vice -President of All India 
Democratic Women’s Association; Revati Laul, an independent 
journalist and Roop Rekha Verma, former Vice -Chancellor of 
Lucknow University, challenging the Orders dated 10.08.2022.

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2.5. Writ Petition (Crl.) No.326 of 2022 titled Mahua Moitra vs. 
State of Gujarat has been preferred by Mahua Moitra, a Member 
of Parliament from the Krish nanagar constituency in West Bengal, 
seeking issuance of a writ, order, or direction, quashing the Orders 
dated 10.08.2022. The petitioner in the said writ petition has also 
sought the framing of guidelines and the equitable application of 
existing guidelines by the State Government for the grant of 
remission so as to channelise the exercise of discretion in granting 
remission and to prevent the misuse of such discretion , if found 
necessary upon an examination of the existing statutory framework. 
 
2.6. Writ Petition (Crl.) No.403 of 2022 titled National 
Federation of Indian Women (NFIW) vs. State of Gujarat has 
been filed by the National Federation of Indian Women (NFIW) , 
which is a women  centric organization that was established on 
04.06.1954 for the purpose of securing women’s rights, seeking 
appropriate directions in the form of a writ of mandamus to the 
respondent to revoke the remission granted to respondent Nos.3 to 
13 by the competent authority of the Government of Gujarat under 
the remission policy dated 09.07.1992 and to re -arrest respondent 
Nos.3 to 13 herein.

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2.7. Writ Petition (Crl.) No.422 of 2022 titled Asma Shafique 
Shaikh vs. State of Gujarat has been filed by Asma Shafique 
Shaikh, a lawyer by profession and a social activist, seeking 
issuance of a writ, order or direction, quashing the Order s dated 
10.08.2022.  
 
2.8. As Writ Petition (Crl.) No.491 of 2022 has been filed by one of 
the victims, Bilkis Yakub Rasool , seeking quashing of the orders 
dated 10.08.2022 , f or the sake of convenience, the factual 
background, details as well as the status of the parties shall be with 
reference to Writ Petition (Crl.) No.491 of 2022. 
 
Factual Background:  
3. The factual background in which these writ petitions have 
been filed is that  following the aforesaid unfortunate and grave 
incident, a First Information Report (“FIR” for short) was registered 
against unknown accused, on 04.03.2002. The Investigation Agency 
filed a closure report stating that the accused could not be traced 
and the said closure report was accepted by the Judicial Magistrate 
vide Order dated 25.03.2003. The closure report was challenged by 
the petitioner-victim- Bilkis Yakub Rasool, before this Court in Writ 
Petition (Crl.) No.118 of 2003. This Court directed the reopening of

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the case and transferred the investigation of the same to the Central 
Bureau of Investigation (“CBI” for short). 
 
3.1.  The CBI commenced a fresh investigation and submitted a 
chargesheet on 19.04.2004 against twenty persons accused of the 
crime. Charges of gang rape, murder and rioting armed with deadly 
weapons with a common intention were framed against twelve 
persons, six police personnel and two doctors 
  
3.2. The petitioner-victim approached this Court by filing Transfer 
Petition (Crl.) No.192 of 2004, seeking transfer of the trial from the 
State of Gujarat to a neutral place. This Court in Transfer Petition 
(Crl.) No.192 of 2004, by an Order dated 06.08.2004, in the 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. Char ges were framed on 
13.01.2005 amongst others against the eleven convicts for the 
commission of offences under Sections 143, 147, 302, 376(2)(e) and 
(g) of the Indian Penal Code, 1860 (hereinafter referred to as the 
“IPC” for the sake of brevity).

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3.3. The Special Judge, Greater Mumbai, vide Judgment dated 
21.01.2008 in Sessions Case No.634 of 2004 convicted the eleven 
accused and sentenced them to life imprisonment for the 
commission of the offences of, inter alia, gang rape and murder of 
the petitioner’s mother ; gang rape and murder of her cousin 
Shamim; murder of twelve more victims including the three and a 
half year old daughter of the petitioner, rioting, etc. and one police 
personnel for deliberately recording the FIR incorrectly. However, 
the Trial Court acquitted the remaining five police personnel and 
the two doctors, against whom there were serious charges. 
Respondent Nos.3 to 13 herein were convicted for the offences 
punishable under Sections 143, 147, 148, 302 r/w 149 of the IPC 
for the murder of fourteen people; Section 376 (2)(e) & (g) for having 
committed gang-rape on the petitioner-victim; Section 376(2)(g) for 
having committed gang rape on other women.  The police officer , 
Somabhai Gori was convicted of the offence punishable under 
Sections 217 and 218 of the IPC. 
 
3.4. On 05.08.2013, a Division Bench of the High Court of 
Bombay passed an Order in Criminal Writ Petition No.305 of 2013 
titled Ramesh Rupabhai Chandana vs. State of Maharashtra , 
preferred by respondent No.13 herein, holding that where a trial has

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been transferred from one State to another and such trial has been 
concluded and the prisoner has been convicted, the prisoner should 
be transferred to the prison of his State. 
 
3.5. Against the judgment of the Trial Court dated 21.01.2008, 
the persons convicted, as well as the State filed Criminal Appeals 
before the Bombay High Court. While the convicts filed criminal 
appeals assailing their conviction, the State filed criminal appeal 
against acquittal of the police officials and the doct ors A bench 
comprising Mrs. Mridula Bhatkar and Mrs. V. K. Tahilramani, JJ. 
of the Bombay High Court upheld the conviction of the eleven 
persons accused of the offence of rioting armed with deadly 
weapons, gang-rape and murder by judgment dated 04.05.2017 in 
Criminal Appeal Nos.1020-1023 of 2009, 487 of 2010, 194 and 271 
of 2011 titled Jaswantbhai Chaturbhai Nai vs. State of Gujarat. 
The five police officials and the two doctors who were acquitted by 
the Trial Court were also convicted by the High Court. The High 
Court also observed that the investigation by the Gujarat police was 
not proper and that the Gujarat police had taken the investigation 
in the wrong direction from the beginning i.e., the day of registering 
the FIR. That the investigation was not only unsatisfactory but it 
also smacked of dishonest steps to shield the culprits. It was further

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observed that the earlier investigation had played the role of a villain 
in the case. The High Court while going through the evidence also 
noted that “the truth and the falsehood are mixed up in such a 
manner that at every stage of investigation the truth is hidden under 
layers of intentional laxity, omissions, contradictions and falsehood 
and the truth is required to be unearthed”. 
  
3.6. All the persons convicted filed Special Leave Petitions against 
the judgment of the High Court. This Court vide Order dated 
10.07.2017 passed in SLP (Crl.) No s.4290/2017, 4705/2017 and 
4716/2017 and  by Order dated 20.11.2017 passed in SLP (Crl.) 
No.7831/2017 dismissed the Special Leave Petitions preferred by 
the convicts and upheld the findings rendered by the High Court, as 
well as the sentence awarded. 
 
3.7. It is noteworthy that the petitioner-victim approached this 
Court by way of Criminal Appeal No s.727-733 of 2019 seeking just 
and adequate compensation for her ordeals. This Court vide order 
dated 23.04.2019 observed that the petitioner is a victim of riots 
which occurred in the aftermath of the Godhra train burning. This 
Court noted that the petitioner’s case had to be dealt with differently 
as the loss she has suffered surpassed normal cases. That the 
gruesome and horrific acts of violence had left an inde lible imprint

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on the mind of the petitioner, which will continue to torment and 
cripple her. This Court therefore directed the State Government to 
pay Rs. 50,00,000/ - (Rupees Fifty Lakhs) to the petitioner within 
two weeks noting that the petitioner had been coerced into living the 
life of a nomad and an orphan and was barely sustaining herself on 
the charity of NGOs, having lost her family members. 
 
3.8. After undergoing 14 years 5 months and 6 days of his 
sentence, respondent No.3 herein, namely, Radheshyam 
Bhagwandas Shah , filed Criminal Application No.4573 of 2019 
before the Gujarat High Court challenging the non-consideration of 
his application for premature release under Sections 433 and 433A 
of the Code of Criminal Procedure, 1973 (hereinafter, the “CrPC” for 
the sake of brevity). The High Court after considering the 
submissions observed that respondent No.3 herein had been tried 
in the State of Maharashtra, hence, as per Section 432 (7), the 
‘appropriate government’ for t he purpose of Sections 432 and 433 
of the CrPC would be the State of Maharashtra. The High Court 
placed reliance on the dictum of this Court in Union of India vs. V. 
Sriharan, (2016) 7 SCC 1  (“V. Sriharan”) and by Order dated 
17.07.2019 directed the petitioner therein (respondent No.3 herein) 
to pursue his remedy within the State of Maharashtra.

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3.9. Respondent No.3 then moved an application dated 
01.08.2019 before the Secretary, Department of Home Affairs, State 
of Maharashtra, seeking premature release under Sections 432 and 
433A of the CrPC. Respondent No.3 specifically relied on the order 
dated 17.07.2019 of the Gujarat High Court granting liberty to the 
convict to approach the State of Maharashtra seeking premature 
release. 
 
3.10. As the case was investigated and prosecuted by the CBI, the 
opinion of the said Agency was sought on the application for 
premature release. The CBI submitted its report dated 14.08.2019 
wherein it was recommended that respondent No.3 should serve his 
sentence fully and no leniency should be given to him. The CBI 
submitted that respondent No.3 had actively participated in the 
heinous crime and t hat the offences committed by him and others 
were serious in nature and thus, he should not be pardoned or the 
sentence, suspended or remitted. 
 
3.11.  Further, on 03.01.2020, the Special CBI Court, Mumbai, also 
gave a negative report and objected to the prayer for premature 
release of respondent No.3 on the ground of seriousness of the 
offence. It was observed that the offences committed by the accused

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fell into category 5 (b) of the relevant State policy and were extremely 
serious, thus, it would be improper to grant remission to respondent 
No.3. 
 
3.12. Similarly, on 03.02.2020, the Superintendent of Police, 
Dahod, in his report submitted to the Collector and District 
Magistrate, Dahod, gave a negative opinion against the pre -mature 
release of respondent No.3 on the ground that the victim and her 
family members apprehended serious crimes against them if 
respondent No.3 was released prematurely. The Office of the 
Collector and District Magistrate, Dahod, on 19.02.2020 also opined 
against the pre-mature release of respondent No.3 by relying on the 
opinion dated 03.02.2020 of the Superintendent of Police, Dahod. 
 
3.13. Respondent No.3 again approached the High Court of 
Gujarat by way of Criminal Miscellaneous Application No. 1 of 2019 
in Criminal Application No.4573 of 2019 seeking remission under 
Section 432 read with Section 433 of the CrPC. The High Court vide 
Order dated 13.03.2020 rejected the application preferred by 
respondent No.3 with a specific observation that the appropriate 
government under Section 432(7)(b) to exercise the powers of 
remission would be the State of Maharashtra and not the State of 
Gujarat. It was further recorded in the said order that the counsel

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for respondent No.3 had sought the permission of the Court to move 
the High Court of Bombay for the same relief and therefore the 
application was disposed of with liberty to the writ petitioner therein 
in the aforesaid terms. It is pertinent to note that t his order still 
holds the field as it has neither been challenged nor recalled or set 
aside in accordance with law. 
  
3.14. On 20.07.2021, a meeting of the Jail Advisory Committee of 
the State of Gujarat took place which comprised  of four social 
workers; two members of the State Legislative Assembly; the 
Superintendent of Police, Godhra; the District and Sessions Judge, 
Godhra; the Secretary, Jail Advisory Committee and 
Superintendent, Godhra Sub -Jail and the District Magistrate, 
Godhra (Chairman of the Jail Advisory Committee, Godhra Sub -
Jail). 
 
3.15  The Sessions Judge, Godhra, being one of the ten members of 
the Jail Advisory Committee, after going through the case papers 
observed that the convict, respondent No.3 herein , had been 
sentenced to undergo life imprisonment in a sensitive case and that 
if he was released prematurely, it may create an adverse effect on 
the society and there is a possibility of peace being disturbed. The 
other Committee members recommended the grant of remission to

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respondent No.3, on the ground that he had completed fifteen years 
of imprisonment and that his conduct in prison had been good. 
 
3.16. On 18.08.2021, the Additional Director General of Police, 
Prisons and Correctional Administration, State of Gujarat, vide his 
letter to the Additional Chief Secretary, Home Department, Gujarat, 
after considering the opinion given by the Jail Advisory Committee, 
concurred with the opinion given by the Superintendent of Police, 
Dahod; CBI; the Special CBI Court, Mumbai and the District 
Magistrate, Dahod and did not recommend the premature release of 
the convict- respondent No.3. 
 
3.17.  In the interregnum, the rest of the convicts, respondent Nos.4 
to 13 had applied for remission on varying dates in the month of 
February 2021 to the Superintendent, Godhra Sub-Jail. The opinion 
of the CBI was sought in this regard, and a negative opinion was 
given, so also by the Special Judge (CBI), Greater Mumbai. By a 
common opinion dated 22.03.2021, Special Judge (CBI), Greater 
Mumbai stated that since all the accused were tried and convicted 
in Mumbai, i.e., the State of Maharashtra, the Government 
Resolution issued by the Home Department, Government of 
Maharashtra would be applicable to them. The Special Judge after 
perusing the guidelines issued by the Government of Maharashtra

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on 16.11.1978 and 11.05.1992 and the Government Resolution 
dated 11.04.2008 (Policy dated 11.04.2008), observed that the said 
resolution dated 11.04.2008 would apply as it ha d superseded all 
earlier orders and guidelines and would have been applicable in the 
normal course to the convicts undergoing life imprisonment. The 
Special Judge further noted that the case of the convicts mentioned 
above would fall under categories 2(c), 2 (d) and 4(d) of the Policy 
dated 11.04.2008, according to which the minimum period of 
imprisonment to be undergone is 28 years (Category 2(d)). However, 
the Superintendent of Police, Dahod, gave a positive opinion with 
respect to the premature release of respondent Nos.3 to 13. His 
opinion was seconded by the Collector  and District Magistrate, 
Dahod. 
  
3.18.  In the aforesaid backdrop, when various steps were in 
progress at various stages, stealthily a writ petition , being Writ 
Petition (Crl.) No.135 of 2022 titled Radheshyam Bhagwandas 
Shah vs. State of Gujarat , (2022) 8 SCC 552 (“Radheshyam 
Bhagwandas Shah”) , was filed before this Court by respondent 
No.3 herein, seeking a direction in the nature of mandamus to the 
State of Gujarat to consider his application for pre -mature release

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under its policy dated 09.07.1992, which was existing at the time of 
commission of his crime and his conviction.  
 
3.19  This Court noted that the policy on the date of conviction was 
as per the resolution dated 09.07.1992 passed by the State of 
Gujarat. Hence, respondent No.3 ( petitioner therein) would be 
governed by the same. This Court placed reliance on the dictum in 
State of Haryana vs. Jagdish, (2010) 4 SCC 216 (“Jagdish”) to 
observe that the application for grant of pre-mature release will have 
to be considered on the basis of the policy which stood  as  on the 
date of conviction. The other pertinent findings of this Court in its 
judgment and Order dated 13.05.2022, in Writ Petition (Crl.) No.135 
of 2022 are culled out hereunder: 
i.   The argument advanced by the respondents – State 
of  Gujarat therein that since the trial ha d been 
concluded in the State of Maharashtra, the 
'appropriate Government' as referred to under 
Section 433 of the CrPC would be the State of 
Maharashtra, was rejected by this Court holding 
that the crime in the instant case was admittedly 
committed in the State of Gujarat and ordinarily, 
the trial would have been concluded in the same

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State and in terms of Section 432(7) of the CrPC, 
the appropriate Government in the ordinary course 
would have been  the State of Gujarat but in the 
instant case, the case was transferred under 
exceptional circumstances by this Court for the 
limited purpose of trial and disposal to the State of 
Maharashtra. However, after the conclusion of trial 
and on conviction, the case stood transferred to the 
State where the crime was committed and the State 
of Gujarat remains the appropriate Government for 
the purpose of Section 432(7) of the CrPC. 
ii. This Court observed that once the crime was 
committed in the State of Gujarat , after the trial 
came to be concluded and judgment of conviction 
came to be passed, all further proceedings would 
have to be considered, including remission or pre -
mature 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 stood transferred and concluded for 
exceptional reasons under the orders of this Court.

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iii.  This Court directed the State of Gujarat to consider 
the application of the petitioner therein for pre -
mature release in terms of its policy dated 
09.07.1992 which was applicable on the date of 
conviction. 
 
3.20.  Pursuant to the judgment of this Court dated 13.05.2022, a 
meeting of the Jail Advisory Committee of the State of Gujarat took 
place on 26.05.2022 and all the members recommended grant of 
remission to respondent Nos.3 to 13. 
 
3.21.  The Sessions Judge, Godhra, also considered the 
applications of respondent Nos.3 to 13 and upon going through the 
particulars provided by the Jail Superintendent, Sub -Jail, Godhra 
noted that the said report recorded that the convicts had 
demonstrated good behavior and conduct during the period of 
incarceration and that no adverse incident had been  recorded 
against the convicts even when they were on furlough or on parole, 
except against one convict, namely, Mitesh Chimanlal Bhatt. That 
all convicts, by and large, surrendered themselves within the time 
after enjoying parole/furlough and participated in rehabilitation 
and corrective programmes. That the convicts still had substantial 
years of life remaining.  Accordingly, the Sessions Judge applied the

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policy dated 09.07.1992 and gave an ‘affirmative’ opinion as regards 
the premature release of respondent Nos.3 to 13. 
 
3.22.  The Additional Director General of Police, Prisons and 
Correctional Administration, State of Gujarat, addressed a letter 
dated 09.06.2022 to the Additional Chief Secretary, Home 
Department, Government of Gujarat, regarding the premature 
release of accused Kesarbhai Khimabhai Vahoniya. In the said 
letter, the details of the opinion given by the concerned authorities 
regarding the premature release of the said convict were also 
discussed. It was stated in the letter that the Superintendent of 
Police, D ahod, had given a positive opinion regarding premature 
release from jail; the Superintendent of Police, Special Crime 
Branch, Mumbai, however, had given a  negative opinion about 
premature release from jail; the District Magistrate, Dahod, had 
given a positive opinion about the premature release from jail; the 
Sessions Court, Mumbai, which pronounced the sentence had given 
a negative opinion about premature release; however, the Jail 
Advisory Committee of Gujarat had given a positive opinion about 
the convi ct’s premature release and the Superintendent, Godhra 
Sub-Jail had also given a positive opinion about the premature 
release. Thus, the Additional Director General of Police, Prisons and

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Correctional Administration, State of Gujarat gave a positive opinion 
regarding the premature release of Kesarbhai Khimabhai Vahoniya 
to the Additional Chief Secretary, Home Department, Government 
of Gujarat. So also, as regards the other convicts, namely, Salesh 
Chimanlal Bhatt, Pradip Ramanlal Modhhiya, Mitesh Chimanlal 
Bhatt, Bipinchand Kanhaiyalal Joshi, Rajubhai Babulal Soni, 
Bakabhai Khimabhai Vahoniya, Jaswantbhai Chaturbhai Nai 
(Rawal) and Ramesh Rupabhai Chandana. 
 
3.23.  On 28.06.2022, the Department of Home Affairs, 
Government of Gujarat, addressed a letter to the Secretary, Ministry 
of Home Affairs, Government of India, seeking sanction from the 
Government of India on the proposal for the premature release of 
the prisoners, respondent Nos.3 to 13. 
  
3.24.  By letter dated 11.07.2022, the Ministry of Home Affairs, 
Government of India conveyed its approval under Section 435 of the 
CrPC for the premature release of all 11 convicts, respondent Nos.3 
to 13. 
  
3.25. Pursuant to the concurrence of the Central Government, the 
State of Gujarat issued the impugned orders dated 10.08.2022.

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3.26.  In the above background, these writ petitions have been filed, 
praying, inter-alia, for issuance of a writ, order, or direction, 
quashing the Orders dated 10.08.2022. 
 
Counter affidavit of State of Gujarat: 
 4.  Under Secretary, Home Department, State of Gujarat (first 
respondent) has filed his affidavit stating that he is acquainted with 
the facts of the case as appearing from the official records of the 
case.  While denying every assertion, contention and statement 
made by the petitioner in Writ Petition (Crl.) No.319 of 2022, which 
was the first of the writ petitions filed before this Court, certain 
preliminary submissions have been advanced at the outset. 
 
4.1  It is contended that the public interest litigation (PIL) filed by 
the petitioners (Subhashini Ali and others) is neither maintainable 
in law nor tenable on facts.  That a  third party has no locus to 
challenge the orders of remission passed by a competent authority 
under the garb of a PIL. A PIL is not maintainable in a criminal 
matter as the petitioners are in no way connected with the 
proceedings with which the convicted persons have been granted 
remission.  Therefore, the writ petition may be dismissed on that 
ground alone. In support of this submission, reliance has been 
placed on Rajiv Ranjan Singh ‘Lalan’ (VIII) v s. Union of India,

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(2006) 6 SCC 613  (“Rajiv Ranjan”) ; Gulzar Ahmed Azmi v s. 
Union of India, (2012) 10 SCC 731 (“Gulzar Ahmed”); Simranjit 
Singh Mann v s. Union of India, (1992) 4 SCC 65 3 (“Simranjit 
Singh”); and, Ashok Kumar Pandey v s. State of West Bengal, 
(2004) 3 SCC 349  (“Ashok Kumar”). It is submitted that a third 
party/stranger either under the provisions of the CrPC or under any 
other statute is precluded from questioning the correctness of grant 
or refusal of ‘sanction for prosecution’ or the conviction and 
sentence imposed by the Court after a regular trial.  Similarly, a 
third party stranger is precluded from questioning a remission 
order passed by the State Government which is in accordance with 
law.  Therefore, dismissal of the petition at the threshold is sought.   
 
4.2.  It is next averred that the petitioners have not pleaded as to 
how they have the locus to seek a writ of certiorari for quashing the 
orders of remission passed by respondent no.1 with respect to the  
eleven convicts sentenced by the Special Judge, Greater Mumbai in 
Sessions Case No.634 of 2004.  That the petitioners have not 
pleaded as to how their fundamental rights have been abridged or 
how they are aggrieved by the action of the State Government.   
Therefore, filing of the writ petition as Public Interest Litigation (in 
short, ‘ PIL’) is an abuse of PIL jurisdiction and is motivated by

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political intrigues and machinations. In this regard, reliance has 
been placed on Tehseen Poonawalla v s. Union of India, (2018) 
6 SCC 72 (“Tehseen”); and Ashok Kumar.  
 
4.3.  It is further submitted that the petitioners not being aggrieved 
persons have invoked the jurisdiction of this Court under Article 32 
of the Constitution for extraneous purposes . As the petitioners are 
not the “persons aggrieved” , the writ petition is not maintainable .  
On the scope and ambit of the expression “person aggrieved”, 
reliance has been placed on State of Maharashtra v s. M.V. 
Dabholkar, (1975) 2 SCC 702  (“M.V. Dabholkar”); Jasbhai 
Motibhai Desai vs. Roshan Kumar, Haji Bashir Ahmed, (1976) 
1 SCC 671 (“Jasbhai Motibhai”); and Thammanna vs. K. Veera 
Reddy, (1980) 4 SCC 62 (“Thammanna”).   
 
4.4.  On merits, it is stated that one of the respondents/prisoners, 
namely, Radheshyam Bhagwandas Shah had filed Writ Petition 
(Crl.) No.135 of 2022 , inter alia, praying to consider his remission 
application.  This Court by its order dated 13.05.2022 held that the 
policy which will be applicable for deciding the remission 
application is the one which was in vogue at the time of conviction 
i.e. Premature Release of Convicts Policy of 1992.  Further, this 
Court held that for the purposes of Section 432 of the CrPC, the

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“appropriate Government” for considering the remission application 
is the State in which the offence was committed and not the State 
in which the trial was conducted and therefore, directed the State 
of Gujarat to consider the application of the prisoner within a period 
of two months. Accordingly, the State of Gujarat considered the 
application of the prisoners as per Section 432 read with Section 
435 of the CrPC along with the Premature Release of Convicts Policy 
of 1992. That, the State Government vide its Circular dated 
09.07.1992 had issued a policy for early release of prisoners who 
have completed fourteen years of imprisonment and who were 
imposed punishment of life imprisonment.  As per the aforesaid 
Policy of 1992, the Inspector General of Jail is mandated to obtain 
the opinion of the District Police Officer, District Magistrate, Jail 
Superintendent and Advisory Board Committee fo r early release of 
a convict. Thereafter, the Inspector General of Jail is mandated to 
give his opinion with the copy of the nominal roll and copy of the 
judgment and the recommendation of the Government.  Further, 
the Jail Advisory Board at the time of co nsideration of the 
premature release application shall be guided by the Policy of 1992.   
A copy of the policy has been annexed as Annexure R-2.  It is further 
submitted that the State Government considered the case of all the 
eleven convicts as per the Policy of 1992.  Further, the remission in

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these cases was not granted under the Circular governing grant of 
remission to prisoners as part of celebration as ‘Azadi Ka Amrit 
Mahotsav”.   
 
4.5. The State Government in fact directed the Additional Director 
General of Prison s, Ahmedabad to send the necessary proposal of 
remission as per the direction of this Court before 31.05.2022 vide 
letter dated 25.05.2022. A reminder was also sent on 08.06.2022.  
Ten proposals were received on 09.06.2022 and one proposal was 
received on 1 7.06.2022. The applications of the accused were 
considered according to the remission policy dated 09.07.1992 in 
accordance with the directions issued by this Court.  As laid down 
in the abovementioned policy, the Department received the opinions 
of the concerned District Police Officer, District Magistrate and 
Chairman of Jail Advisory Board Committee. It is further stated that 
the State Government has considered the opinions of the Inspector 
General of Prisons, Gujarat State, Jail Superintendent, Jail 
Advisory Committee, District Magistrate, Police Superintendent, 
CBI, Special Crime Branch, Mumbai and S essions Court, Mumbai 
(CBI).  Therefore, the opinions of seven authorities were considered. 
Further, having regard to the provisions of Section 435 of the CrPC, 
sanction of the Government of India was also necessary. As the CBI

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was a central investigating agency, the State Government obtained 
the approval/suitable orders of the Government of India.  The 
prisoners/convicts had completed fourteen years of imprisonment 
and the opinions of the concerned authorities were obtained as per 
Policy dated 09.07.1992 . The same was submitted to the Ministry 
of Home Affairs, Government of India vide letter dated 28.06.2022 
and sought the approval/suitable orders of the Government of 
India.  The Government of India vide its letter dated 11.07.1992 
conveyed its concurrence/approval. On considering all the 
opinions, the State Government decided to relea se the eleven 
convicts since they had completed fourteen years and above in jail 
and their behaviour was found to be good.   
 
4.6. Reliance has been placed on Jagdish and V. Sriharan  to 
contend that if a policy which is beneficial to the convict exists at 
the time of consideration of the application of premature release 
then the convict cannot be deprived of such beneficial policy and 
that judicial review of the order of remission is not permissible in 
law.  The Under Secretary has further proceeded to place the 
following facts to contend that the impugned orders are in 
accordance with law:

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“29. I say that the relevant records pertaining to the 
application for remission qua the prisoner, Kesharbhai 
Khimabhai Vahoniya, is as under:  
 
Sl. 
No. 
Document Opinion of the concerned 
Authority 
1. Premature release 
application dated 
19.02.2021. 
- 
2. Letter dated 11.03.2021 
from the Superintendent 
of Police, CBI, SCB, 
Mumbai. 
Prisoner should not be 
released prematurely.  
3. Letter dated 22.03.2021 
from the Special Judge 
(CBI), City Civil & 
Sessions Court, Gr. 
Bombay 
Considering the Govt. 
Resolution dated 
11.04.2008, issued by the 
State of Maharashtra, 
prisoner should not be 
released prematurely.  
4. Letter dated 07.03.2022 
from the Superintendent 
of Police, Dahod, 
Gujarat. 
No objection to the 
premature release of the 
prisoner. 
5. Letter dated 07.03.2022 
from the Collector & DM, 
Dahod, Gujarat 
No objection to the 
premature release of the 
prisoner. 
6. Opinion of the Jail 
Superintendent, Godhra 
Sub-Jail, Gujarat. 
No objection to the 
premature release of the 
prisoner.  
7. Opinion of the Jail 
Advisory Committee, 
dated 26.05.2022. 
The committee has 
unanimously given the 
opinion in favour of the 
premature release of the 
prisoner. 
8. Letter dated 09.06.2022 
to the Home 
Department, Govt. of 
Gujarat, from the Addl. 
Director General of 
Police, Prisons & 
Correctional 
No objection to the 
premature release of the 
prisoner.

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Administration, 
Ahmedabad. 
9. Letter dated 28.06.2022 
to the Ministry of Home 
Affairs, Govt. of India 
from Home Department, 
Govt. of Gujarat. 
Recommended premature 
release of the prisoner.  
 
Sought approval/suitable 
orders from the Govt. of 
India. 
10. Letter dated 11.07.2022 
to the Home 
Department, Govt. of 
Gujarat from the 
Ministry of Home Affairs, 
Govt. of India 
Approved the premature 
release of the prisoner.  
 
 Copy of the relevant records qua the prisoner, 
Kesharbhai Khimabhai Vahoniya is annexed herewith as 
ANNEXURE R-3. 
 
30.  I say that the relevant records pertaining to the 
application for remission qua the prisoner, Shaileshbhai 
Chimanlal Bhatt, is as under:  
 
Sl. 
No. 
Document Opinion of the concerned 
Authority 
1. Premature release 
application dated 
23.02.2021. 
- 
2. Letter dated 11.03.2021 
from the Superintendent 
of Police, CBI, SCB, 
Mumbai. 
Prisoner should not be 
released prematurely.  
3. Letter dated 22.03.2021 
from the Special Judge 
(CBI), City Civil & 
Sessions Court, Gr. 
Bombay 
Considering the Govt. 
Resolution dated 
11.04.2008, issued by the 
State of Maharashtra, 
prisoner should not be 
released prematurely.  
4. Letter dated 07.03.2022 
from the Superintendent 
of Police, Dahod, 
Gujarat. 
No objection to the 
premature release of the 
prisoner.

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5. Letter dated 07.03.2022 
from the Collector & DM, 
Dahod, Gujarat 
No objection to the 
premature release of the 
prisoner. 
6. Opinion of the Jail 
Superintendent, Godhra 
Sub-Jail, Gujarat. 
No objection to the 
premature release of the 
prisoner.  
7. Opinion of the Jail 
Advisory Committee, 
dated 26.05.2022. 
The committee has 
unanimously given the 
opinion in favour of the 
premature release of the 
prisoner. 
8. Letter dated 09.06.2022 
to the Home 
Department, Govt. of 
Gujarat, from the Addl. 
Director General of 
Police, Prisons & 
Correctional 
Administration, 
Ahmedabad. 
No objection to the 
premature release of the 
prisoner. 
9. Letter dated 28.06.2022 
to the Ministry of Home 
Affairs, Govt. of India 
from Home Department, 
Govt. of Gujarat. 
Recommended premature 
release of the prisoner.  
 
Sought approval/suitable 
orders from the Govt. of 
India. 
10. Letter dated 11.07.2022 
to the Home 
Department, Govt. of 
Gujarat from the 
Ministry of Home Affairs, 
Govt. of India 
Approved the premature 
release of the prisoner.  
 
Copy of the relevant records qua the prisoner, 
Shaileshbhai Chimanlal Bhatt is annexed herewith as 
Annexure-RG-4. 
 
31.  I say that the relevant records pertaining to the 
application for remission qua the prisoner, Pradip Ramanlal 
Modhiya, is as under:

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Sl. 
No. 
Document Opinion of the concerned 
Authority 
1. Premature release 
application dated 
23.02.2021. 
- 
2. Letter dated 11.03.2021 
from the Superintendent 
of Police, CBI, SCB, 
Mumbai. 
Prisoner should not be 
released prematurely. 
3. Letter dated 22.03.2021 
from the Special Judge 
(CBI), City Civil & 
Sessions Court, Gr. 
Bombay 
Considering the Govt. 
Resolution dated 
11.04.2008, issued by the 
State of Maharashtra, 
prisoner should not be 
released prematurely. 
4. Letter dated 07.03.2022 
from the Superintendent 
of Police, Dahod, 
Gujarat. 
No objection to the 
premature release of the 
prisoner. 
5. Letter dated 07.03.2022 
from the Collector & DM, 
Dahod, Gujarat 
No objection to the 
premature release of the 
prisoner. 
6. Opinion of the Jail 
Superintendent, Godhra 
Sub-Jail, Gujarat. 
No objection to the 
premature release of the 
prisoner. 
7. Opinion of the Jail 
Advisory Committee, 
dated 26.05.2022. 
The committee has 
unanimously given the 
opinion in favour of the 
premature release of the 
prisoner. 
8. Letter dated 09.06.2022 
to the Home 
Department, Govt. of 
Gujarat, from the Addl. 
Director General of 
Police, Prisons & 
Correctional 
Administration, 
Ahmedabad. 
No objection to the 
premature release of the 
prisoner. 
9. Letter dated 28.06.2022 
to the Ministry of Home 
Affairs, Govt. of India 
Recommended premature 
release of the prisoner.

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from Home Department, 
Govt. of Gujarat. 
Sought approval/suitable 
orders from the Govt. of 
India. 
10. Letter dated 11.07.2022 
to the Home 
Department, Govt. of 
Gujarat from the 
Ministry of Home Affairs, 
Govt. of India 
Approved the premature 
release of the prisoner. 
 
Copy of the relevant records qua the prisoner, Pradip 
Ramanlal Modhiya is annexed herewith as ANNEXURE RG-5. 
 
32.  I say that the relevant records pertaining to the 
application for remission qua the prisoner, Mitesh Chimanlal 
Bhatt, is as under:  
 
Sl. 
No. 
Document Opinion of the concerned 
Authority 
1. Premature release 
application dated 
18.02.2021. 
- 
2. Letter dated 10.03.2021 
from the Superintendent 
of Police, CBI, SCB, 
Mumbai. 
Prisoner should not be 
released prematurely.  
3. Letter dated 22.03.2021 
from the Special Judge 
(CBI), City Civil & 
Sessions Court, Gr. 
Bombay. 
Considering the Govt. 
Resolution dated 
11.04.2008, issued by the 
State of Maharashtra, 
prisoner should not be 
released prematurely.  
4. Letter dated 25.05.2022 
from the Superintendent 
of Police, Dahod, 
Gujarat. 
No objection to the 
premature release of the 
prisoner. 
5. Letter dated 25.05.2022 
from the Collector & DM, 
Dahod, Gujarat 
No objection to the 
premature release of the 
prisoner. 
6. Opinion of the Jail 
Superintendent, Godhra 
Sub-Jail, Gujarat. 
No objection to the 
premature release of the 
prisoner.

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7. Opinion of the Jail 
Advisory Committee, 
dated 26.05.2022. 
The committee has 
unanimously given the 
opinion in favour of the 
premature release of the 
prisoner. 
8. Letter dated 09.06.2022 
to the Home Department, 
Govt. of Gujarat, from 
the Addl. Director 
General of Police, Prisons 
& Correctional 
Administration, 
Ahmedabad. 
No objection to the 
premature release of the 
prisoner. 
9. Letter dated 28.06.2022 
to the Ministry of Home 
Affairs, Govt. of India 
from Home Department, 
Govt. of Gujarat. 
Recommended premature 
release of the prisoner.  
 
Sought approval/suitable 
orders from the Govt. of 
India. 
10. Letter dated 11.07.2022 
to the Home Department, 
Govt. of Gujarat from the 
Ministry of Home Affairs, 
Govt. of India 
Approved the premature 
release of the prisoner.  
 
Copy of the relevant records qua the prisoner, Mitesh 
Chimanlal Bhatt is annexed herewith as ANNEXURE RG-6. 
 
33.  I say that the relevant records pertaining to the 
application for remission qua the prisoner, Bipinchandra 
Kanaiyalal Joshi, is as under: 
 
Sl. 
No. 
Document Opinion of the concerned 
Authority 
1. Premature release 
application dated 
16.02.2021. 
- 
2. Letter dated 10.03.2021 
from the Superintendent 
of Police, CBI, SCB, 
Mumbai. 
Prisoner should not be 
released prematurely.

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3. Letter dated 22.03.2021 
from the Special Judge 
(CBI), City Civil & 
Sessions Court, Gr. 
Bombay. 
Considering the Govt. 
Resolution dated 
11.04.2008, issued by the 
State of Maharashtra, 
prisoner should not be 
released prematurely.  
4. Letter dated 07.03.2022 
from the Superintendent 
of Police, Dahod, 
Gujarat. 
No objection to the 
premature release of the 
prisoner. 
5. Letter dated 07.03.2022 
from the Collector & DM, 
Dahod, Gujarat. 
No objection to the 
premature release of the 
prisoner. 
6. Opinion of the Jail 
Superintendent, Godhra 
Sub-Jail, Gujarat. 
No objection to the 
premature release of the 
prisoner.  
7. Opinion of the Jail 
Advisory Committee, 
dated 26.05.2022. 
The committee has 
unanimously given the 
opinion in favour of the 
premature release of the 
prisoner. 
8. Letter dated 09.06.2022 
to the Home Department, 
Govt. of Gujarat, from 
the Addl. Director 
General of Police, Prisons 
& Correctional 
Administration, 
Ahmedabad. 
No objection to the 
premature release of the 
prisoner. 
9. Letter dated 28.06.2022 
to the Ministry of Home 
Affairs, Govt. of India 
from Home Department, 
Govt. of Gujarat. 
Recommended premature 
release of the prisoner.  
 
Sought approval/ suitable 
orders from the Govt. of 
India. 
10. Letter dated 11.07.2022 
to the Home Department, 
Govt. of Gujarat from the 
Ministry of Home Affairs, 
Govt. of India 
Approved the premature 
release of the prisoner.

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Copy of the relevant records qua the prisoner, 
Bipinchandra Kanaiyalal Joshi is annexed herewith as 
ANNEXURE RG-7. 
 
34.  I say that the relevant records pertaining to the 
application for remission qua the prisoner, Rajubhai Babulal 
Soni, is as under: 
 
Sl. 
No. 
Document Opinion of the concerned 
Authority 
1. Premature release 
application dated 
15.02.2021. 
- 
2. Letter dated 11.03.2021 
from the Superintendent 
of Police, CBI, SCB, 
Mumbai. 
Prisoner should not be 
released prematurely.  
3. Letter dated 22.03.2021 
from the Special Judge 
(CBI), City Civil & 
Sessions Court, Gr. 
Bombay. 
Considering the Govt. 
Resolution dated 
11.04.2008, issued by the 
State of Maharashtra, 
prisoner should not be 
released prematurely.  
4. Letter dated 07.03.2022 
from the Superintendent 
of Police, Dahod, 
Gujarat. 
No objection to the 
premature release of the 
prisoner. 
5. Letter dated 07.03.2022 
from the Collector & DM, 
Dahod, Gujarat. 
No objection to the 
premature release of the 
prisoner. 
6. Opinion of the Jail 
Superintendent, Godhra 
Sub-Jail, Gujarat. 
No objection to the 
premature release of the 
prisoner.  
7. Opinion of the Jail 
Advisory Committee, 
dated 26.05.2022. 
The committee has 
unanimously given the 
opinion in favour of the 
premature release of the 
prisoner. 
8. Letter dated 09.06.2022 
to the Home Department, 
Govt. of Gujarat, from 
the Addl. Director 
No objection to the 
premature release of the 
prisoner.

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General of Police, Prisons 
& Correctional 
Administration, 
Ahmedabad. 
9. Letter dated 28.06.2022 
to the Ministry of Home 
Affairs, Govt. of India 
from Home Department, 
Govt. of Gujarat. 
Recommended premature 
release of the prisoner.  
 
Sought approval/suitable 
orders from the Govt. of 
India. 
10. Letter dated 11.07.2022 
to the Home Department, 
Govt. of Gujarat from the 
Ministry of Home Affairs, 
Govt. of India 
Approved the premature 
release of the prisoner.  
 
Copy of the relevant records qua the prisoner, Rajubhai 
Babulal Soni is annexed herewith as ANNEXURE RG-8. 
 
35.  I say that the relevant records pertaining to the 
application for remission qua the prisoner, Bakabhai 
Khimabhai Vahoniya, is as under: 
 
Sl. 
No. 
Document Opinion of the concerned 
Authority 
1. Premature release 
application dated 
18.02.2021. 
- 
2. Letter dated 10.03.2021 
from the Superintendent 
of Police, CBI, SCB, 
Mumbai. 
Prisoner should not be 
released prematurely.  
3. Letter dated 22.03.2021 
from the Special Judge 
(CBI), City Civil & 
Sessions Court, Gr. 
Bombay. 
Considering the Govt. 
Resolution dated 
11.04.2008, issued by the 
State of Maharashtra, 
prisoner should not be 
released prematurely.  
4. Letter dated 07.03.2022 
from the Superintendent 
of Police, Dahod, 
Gujarat. 
No objection to the 
premature release of the 
prisoner.

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5. Letter dated 07.03.2022 
from the Collector & DM, 
Dahod, Gujarat. 
No objection to the 
premature release of the 
prisoner. 
6. Opinion of the Jail 
Superintendent, Godhra 
Sub-Jail, Gujarat. 
No objection to the 
premature release of the 
prisoner.  
7. Opinion of the Jail 
Advisory Committee, 
dated 26.05.2022. 
The committee has 
unanimously given the 
opinion in favour of the 
premature release of the 
prisoner. 
8. Letter dated 09.06.2022 
to the Home 
Department, Govt. of 
Gujarat, from the Addl. 
Director General of 
Police, Prisons & 
Correctional 
Administration, 
Ahmedabad. 
No objection to the 
premature release of the 
prisoner. 
9. Letter dated 28.06.2022 
to the Ministry of Home 
Affairs, Govt. of India 
from Home Department, 
Govt. of Gujarat. 
Recommended premature 
release of the prisoner.  
 
Sought approval/ suitable 
orders from the Govt. of 
India. 
10. Letter dated 11.07.2022 
to the Home 
Department, Govt. of 
Gujarat from the 
Ministry of Home Affairs, 
Govt. of India 
Approved the premature 
release of the prisoner.  
 
Copy of the relevant records qua the prisoner, Bakabhai 
Khimabhai Vahoniya is annexed herewith as ANNEXURE R -
9. 
 
36. I say that the relevant records pertaining to the 
application for remission qua the prisoner, Govindbhai 
Akhambhai Nai (Raval), is as under:

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Sl. 
No. 
Document Opinion of the concerned 
Authority 
1. Premature release 
application dated 
15.02.2021 
 
- 
2. Letter dated 10.03.2021 
from the Superintendent 
of Police, CBI, SCB, 
Mumbai. 
Prisoner should not be 
released prematurely. 
3. Letter dated 22.03.2021 
from the Special Judge 
(CBI), City Civil & 
Sessions Court, Gr. 
Bombay 
Considering the Govt. 
Resolution dated 
11.04.2008, issued by the 
State of Maharashtra, 
prisoner should not be 
released prematurely. 
4. Letter dated 07.03.2022 
from the Superintendent 
of Police, Dahod, 
Gujarat. 
No objection to the 
premature release of the 
prisoner.  
5. Letter dated 07.03.2022 
from the Collector & DM, 
Dahod, Gujarat 
No objection to the 
premature release of the 
prisoner. 
6. Opinion of the Jail 
Superintendent, Godhra 
Sub-Jail, Gujarat 
No objection to the 
premature release of the 
prisoner. 
7. Opinion of the Jail 
Advisory Committee, 
dated 26.05.2022 
The committee has 
unanimously given the 
opinion in favour of the 
premature release of the 
prisoner. 
8. Letter dated 09.06.2022 
to the Home 
Department, Govt. of 
Gujarat, from the Addl. 
Director General of 
Police, Prisons & 
Correctional 
Administration, 
Ahmedabad. 
No objection to the 
premature release of the 
prisoner. 
9. Letter dated 28.06.2022 
to the Ministry of Home 
Affairs, Govt. of India 
Recommended premature 
release of the prisoner.

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from Home Department, 
Govt. of Gujarat. 
Sought approval/ suitable 
orders from the Govt. of 
India 
10. Letter dated 11.07.2022 
to the Home 
Department, Govt. of 
Gujarat from the 
Ministry of Home Affairs, 
Govt. of India. 
Approved the premature 
release of the prisoner. 
 
37. Copy of the relevant records qua the prisoner, 
Govindbhai Akhambhai Nai (Raval) is annexed herewith as 
Annexure R-10. 
 
38. I say that the relevant records pertaining to the 
application for remission qua the prisoner, Jashvantbhai 
Chaturbhai Nai (Raval), is as under: 
 
Sl. 
No. 
Document Opinion of the concerned 
Authority 
1. Premature release 
application dated 
15.02.2021 
 
- 
2. Letter dated 10.03.2021 
from the Superintendent 
of Police, CBI, SCB, 
Mumbai. 
Prisoner should not be 
released prematurely. 
3. Letter dated 22.03.2021 
from the Special Judge 
(CBI), City Civil & 
Sessions Court, Gr. 
Bombay 
Considering the Govt. 
Resolution dated 
11.04.2008, issued by the 
State of Maharashtra, 
prisoner should not be 
released prematurely. 
4. Letter dated 07.03.2022 
from the Superintendent 
of Police, Dahod, 
Gujarat. 
No objection to the 
premature release of the 
prisoner.  
5. Letter dated 07.03.2022 
from the Collector & DM, 
Dahod, Gujarat 
No objection to the 
premature release of the 
prisoner.

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6. Opinion of the Jail 
Superintendent, Godhra 
Sub-Jail, Gujarat 
No objection to the 
premature release of the 
prisoner. 
7. Opinion of the Jail 
Advisory Committee, 
dated 26.05.2022 
The committee has 
unanimously given the 
opinion in favour of the 
premature release of the 
prisoner. 
8. Letter dated 09.06.2022 
to the Home 
Department, Govt. of 
Gujarat, from the Addl. 
Director General of 
Police, Prisons & 
Correctional 
Administration, 
Ahmedabad. 
No objection to the 
premature release of the 
prisoner. 
9. Letter dated 28.06.2022 
to the Ministry of Home 
Affairs, Govt. of India 
from Home Department, 
Govt. of Gujarat. 
Recommended premature 
release of the prisoner. 
 
Sought approval/ suitable 
orders from the Govt. of 
India 
10. Letter dated 11.07.2022 
to the Home 
Department, Govt. of 
Gujarat from the 
Ministry of Home Affairs, 
Govt. of India. 
Approved the premature 
release of the prisoner. 
  
Copy of the relevant records qua the prisoner, 
Jashvantbhai Chturbhai Nai (Raval) is annexed herewith as 
Annexure R-11.  
 
39. I say that the relevant records pertaining to the 
application for remission qua the prisoner, Rameshbhai 
Rupabhai Chandana, is as under:

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Sl. 
No. 
Document Opinion of the concerned 
Authority 
1. Premature release 
application dated 
25.02.2021 
 
- 
2. Letter dated 10.03.2021 
from the Superintendent 
of Police, CBI, SCB, 
Mumbai. 
Prisoner should not be 
released prematurely. 
3. Letter dated 22.03.2021 
from the Special Judge 
(CBI), City Civil & 
Sessions Court, Gr. 
Bombay 
Considering the Govt. 
Resolution dated 
11.04.2008, issued by the 
State of Maharashtra, 
prisoner should not be 
released prematurely. 
4. Letter dated 07.03.2022 
from the Superintendent 
of Police, Dahod, 
Gujarat. 
No objection to the 
premature release of the 
prisoner.  
5. Letter dated 07.03.2022 
from the Collector & DM, 
Dahod, Gujarat 
No objection to the 
premature release of the 
prisoner. 
6. Opinion of the Jail 
Superintendent, Godhra 
Sub-Jail, Gujarat 
No objection to the 
premature release of the 
prisoner. 
7. Opinion of the Jail 
Advisory Committee, 
dated 26.05.2022 
The committee has 
unanimously given the 
opinion in favour of the 
premature release of the 
prisoner. 
8. Letter dated 09.06.2022 
to the Home 
Department, Govt. of 
Gujarat, from the Addl. 
Director General of 
Police, Prisons & 
Correctional 
Administration, 
Ahmedabad. 
No objection to the 
premature release of the 
prisoner. 
9. Letter dated 28.06.2022 
to the Ministry of Home 
Affairs, Govt. of India 
Recommended premature 
release of the prisoner.

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from Home Department, 
Govt. of Gujarat. 
Sought approval/ suitable 
orders from the Govt. of 
India 
10. Letter dated 11.07.2022 
to the Home 
Department, Govt. of 
Gujarat from the 
Ministry of Home Affairs, 
Govt. of India. 
Approved the premature 
release of the prisoner. 
  
Copy of the relevant records qua the prisoner, 
Rameshbhai Rupabhai  Chandana is annexed herewith as 
Annexure R-12.  
 
40. I say that the relevant records pertaining to the 
application for remission qua the prisoner, Radheshyam 
Bhagwandas Shah @ Lala Vakil, is as under: 
 
Sl. 
No. 
Document Opinion of the concerned 
Authority 
1. Premature release 
application dated 
01.08.2019 
 
- 
2. Letter dated 14.08.2019 
from the Superintendent 
of Police, CBI, SCB, 
Mumbai. 
Prisoner should not be 
released prematurely. 
3. Letter dated 03.01.2020 
from the Special Judge 
(CBI), City Civil & 
Sessions Court, Gr. 
Bombay 
Objected to the premature 
release of the prisoner.  
4. Letter dated 13.02.2020 
from the Superintendent 
of Police, Dahod, 
Gujarat. 
Objected to the premature 
release of the prisoner. 
5. Letter dated 19.02.2020 
from the Collector & DM, 
Dahod, Gujarat 
Objected to the premature 
release of the prisoner. 
6. Opinion of the Jail 
Superintendent, Godhra 
Sub-Jail, Gujarat 
No objection to the 
premature release of the 
prisoner.

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7. Opinion of the Jail 
Advisory Committee, 
dated 20.07.2021 
9 out of 10 members of the 
Committee has 
recommended the 
premature release of the 
prisoner. 
8. Letter dated 18.08.2021 
to the Home 
Department, Govt. of 
Gujarat, from the Addl. 
Director General of 
Police, Prisons & 
Correctional 
Administration, 
Ahmedabad. 
 
Did not recommend to the 
premature release of the 
prisoner.  
9. Letter dated 28.06.2022 
to the Ministry of Home 
Affairs, Govt. of India 
from Home Department, 
Govt. of Gujarat. 
Recommended premature 
release of the prisoner. 
 
Sought approval/ suitable 
orders from the Govt. of 
India 
 
10. Letter dated 11.07.2022 
to the Home 
Department, Govt. of 
Gujarat from the 
Ministry of Home Affairs, 
Govt. of India. 
 
Approved the premature 
release of the prisoner. 
  
Copy of the relevant records qua the prisoner, 
Radheshyam Bhgwandas Shah @ Lala Vakil is annexed 
herewith as Annexure R-13.”  
 
4.7  Therefore, it has been contended that PIL is not maintainable 
as it is misconceived and devoid of any merit and as such is liable 
to be dismissed.

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5. Respondent No.2 has not filed any pleading in this matter. 
Even though respondent Nos.3 to 13 have filed their counter 
affidavits, we do not find it necessary to advert to the same as they 
would be replicating the stand of the State of Gujarat. 
 
Submissions:  
6. We have heard learned counsel Ms. Shobha Gupta for the 
petitioner in Writ Petition (Crl.) No.491 of 2022 ; learned ASG, Sri 
S.V. Raju appearing on behalf of the State of Gujarat and Union of 
India; and learned senior counsel Mr. Sidharth Luthra and other 
counsel for respondent Nos.3 to 13  and perused the material on 
record.  
 
6.1  We have also heard learned senior counsel and learned 
counsel Ms. Indira Jaising, Ms. Vrinda Grover and Ms. Aparna Bhat, 
for the petitioners in the public interest litigations.  
 
6.2  We have perused the material on record as well as the judicial 
dicta cited at the Bar.   
 
7. Learned counsel for the petitioner in Writ Petition (Crl.) 
No.491 of 2022, Ms. Shobha Gupta at the outset submitted that the 
en-masse remission granted to respondent Nos.3 to 13 by Orders 
dated 10.08.2022 has not only shattered the victim-petitioner and

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her family but has also shocked the collective conscience of the 
Indian society. That in the present case, the right of the victim and 
the cry of the society at large ha ve been ignored by the State and 
Central Governments while recommending the grant of remission to 
all convicts in the case. 
  
7.1. It was asserted that though the crime was committed in the 
State of Gujarat, the investigation and trial were carried out in the 
State of Maharashtra pursuant to the orders of this Court . Hence, 
in view of the unambiguous language of Section 432(7)(b), only the 
State of Maharashtra would be the appropriate government  which 
could have considered the applications filed by respondent Nos.3 to 
13 seeking remission of their sentences. Learned counsel has placed 
reliance on the following judgments to buttress h er argument, 
namely, State of M.P. vs. Ratan Singh, (1976) 3 SCC 470 (“Ratan 
Singh”); Government of A.P. vs. M.T. Khan, (2004) 1 SCC 616  
(“M.T. Khan”); Hanumant Dass vs. Vinay Kumar, (1982) 2 SCC 
177 (“Hanumant Dass”) and V. Sriharan. 
 
7.2. According to learned counsel, once a competent Court in the 
State of Maharashtra had tried and convicted the accused then that 
State is the ‘ appropriate Government’. Therefore, the Orders of 
remission passed by the State of Gujarat in respect of respondent

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Nos.3 to 13 is without jurisdiction and a nullity and thus, are liable 
to be quashed. 
 
7.3. As regards the applicability of the relevant remission policy, 
learned counsel for the petitioner submitted that since the 
‘appropriate government’ in the instant case is the State of 
Maharashtra, the remission policy of the State of Maharashtra 
would be applicable. Thus, the remission policy of the State of 
Gujarat dated 09.07.1992 would be wholly inapplicable. It was 
contended that the remission policy dated 09.07.1992 of the State 
of Gujarat was not even in existence as on the date for consideration 
of the remission applications as it was scrapped by way of a Circular 
dated 08.05.2014 pursuant to the letter of the Central Government 
circulated to all the States/UTs requiring the implementation of the 
judgment of this Court in Sangeet vs. State of Haryana, (2013) 2 
SCC 452 (“Sangeet”), wherein this Court held that before actually 
exercising the power of remission under Section 432  of the CrPC, 
the appropriate government must obtain the opinion of the 
Presiding Judge of the convicting or confirming court and that the 
remission shall not be granted in a wholesale manner , such as, on 
the occasion of Independence Day etc . That pursuant to the 
cancellation of the policy dated 09.07.1992, the State of Gujarat

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came up with a new remission policy dated 23.01.2014, and even 
this policy would not entitle remission of the accused herein, for two 
reasons: firstly, because the remission policy of the State of 
Maharashtra would be applicable as it is the ‘appropriate 
government’, and secondly, the 2014 policy of the State of Gujarat 
bars the grant of remission to convicts of heinous crimes. 
 
7.4. Relying on the opinion of the Special Judge, Sessions Court, 
Greater Mumbai, it was submitted that the Special Judge had 
rightly stated that the remission policy applicable in the present 
case would be the Policy dated 11.04.2008 of the State of 
Maharashtra in respect of which the Circular dated 13.06.2008 of 
the State of Maharashtra  was issued , wherein a convict of 
communal crime, gang rape and murder would fall under the 
categories 2(c), 2(d) and 4 (e) of the Policy which prescribes that the 
minimum period of imprisonment to be undergone by the convict 
before remission can be considered would be twenty eight  years. 
Thus, respondents-convicts were not entitled to be granted 
remission as they had  not completed the minimum period of 
imprisonment as per the applicable remission policy. 
 
7.5. It was further contended that the remission orders under 
challenge failed to meet the criteria laid down by this Court in

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Sangeet; and Ram Chander vs. State of Chhattisgarh, (2022) 
12 SCC 52 (“Ram Chander”) , wherein it has been stated that the 
appropriate government must obtain the opinion of the Presiding 
Judge of the convicting court before deciding the remission 
application. That the State of Gujarat granted remission to all the 
convicts by completely ignoring the negative opinions expressed by 
two major stakeholders i.e., the Presiding Judge of the convicting 
Court in Mumbai and the prosecuting agency (CBI). 
 
7.6. Reliance was placed on the decisions of this Court in State 
of Haryana vs. Mohinder Singh , (2000) 3 SCC 394  (“Mohinder 
Singh”); Sangeet; Ratan Singh, and Laxman Naskar vs. State 
of West Bengal, (2000) 2 SCC 595  (“Laxman Naskar”)  to 
emphasize that a convict cannot claim remission as a matter of 
right. The remission policies only give a right to the convict to be 
considered and do not provide an indefeasible right to remission. 
  
7.7. Further, reference was made to the dicta of this Court in 
Mohinder Singh ; Epuru Sudhakar vs. State of A.P., (2006) 8 
SCC 161  (“Epuru Sudhakar”) ; Maru Ram ; Sangeet; Ratan 
Singh and Laxman Naskar to contend that the decision to grant 
remission should be well informed, reasonable and fair and that the 
power cannot be exercised arbitrarily.

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7.8. Emphasizing the gravity of the offence s in this case and the 
grotesque nature of the crime s committed by the accused, learned 
counsel Ms. Shobha Gupta  submitted that while considering the 
application for remission, the appropriate government was required 
to bear in mind the effect of its decision on the victim and the family 
of the victims, the society as a whole and the precedent it would set 
for the future. To buttress the said submission, she relied on Epuru 
Sudhakar, Swamy Shraddhananda (2) vs. State of Karnataka, 
(2008) 13 SCC 767 , (“Shraddhananda”), and Jagdish. Reliance 
was also placed on the decision in Laxman Naskar wherein this 
Court had discussed the factors to be considered before granting 
remission. 
  
7.9. It was urged that the prerogative power of remission is not 
immune from judicial review, vide Epuru Sudhakar wherein it was 
observed that judicial review of the order of remission is available 
on the following grounds:  (i) non-application of mind; (ii) order is 
mala fide; (iii) order has been passed on extraneous or wholly 
irrelevant considerations;  (iv) relevant materials kept out of 
consideration; (v) order suffers from arbitrariness.

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7.10. It was contended that in the present case, remission was 
granted to all the convicts mechanically and without application of 
mind to each of the cases a nd that the relevant factors were not 
considered. That the State Government failed to consider the 
relevant material and make an objective assessment while 
considering the application s of the convicts for remission. The 
nature and gravity of the crime, the impact of the remission order s 
on the victim  and her family, witnesses and society at large, were 
not considered. That mere good behaviour in jail and completion of 
fourteen years in jail are not the only pre-requisites while 
considering the application for premature release of the convicts. 
 
7.11. Attention was drawn to the fact that respondent No.3 herein 
had approached the High Court of Gujarat by way of Crl. Application 
No.4573 of 2019 seeking a direction to the State Government to 
consider his application for remission. The High Court vide Order 
dated 17.07.2019 dismissed the same in view of Section 432  of the 
CrPC. Respondent No.3’s second application was also dismissed 
vide Order dated 13.03.2020 passed by the Gujarat High Court. 
That in fact, within fourteen days of the First Order dated  
17.07.2019, respondent No.3 had approached the Government of 
Maharashtra by way of an application dated 01.08.2019. Upon his

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application, opinion was sought from the (i) Investigating Agency 
(CBI) and the (ii) Presiding Officer of the convicting court (Special 
Judge, Sessions Court, Greater Mumbai) , both of whom opined in 
the negative  and against remission being granted to the said 
respondent.  Further, the Superintendent of Police, Dahod, vide 
letter dated 03.02.2020 gave a negative opinion by noting that the 
victim and her relatives stated that respondent No.3 should not be 
released. The District Magistrate, Dahod, also gave a negative 
opinion vide letter dated 19.02.202 0, so also the Jail Advisory 
Committee at its meeting held on 20.07.2021. That it was thereafter 
that respondent No.3 approached this Court by filing Writ Petition 
(Crl.) No.135 of 2022  and by Order dated 13.05.2022 this Court 
directed the State of Gujarat to consider respondent No.3’s 
application within a period of two months from the date of the order. 
  
7.12. Further adverting to the sequence of events, it was stated that 
in the meanwhile, the rest of the convicts  had also applied 
separately for remission in February 2021. The Presiding Officer 
(Special Judge, Greater Mumbai) vide a common letter dated 
22.03.2021 gave a negative opinion against the premature release 
of the remaining ten convicts, respondent Nos.4 to 13 herein. That 
thereafter, for one good year, their case was kept pending and only

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after 07.03.2022 the new Superintendent of Police, Dahod, gave a 
‘no objection’ for the premature release of all the convicts by 
separate letters of the same date. The District Magistrate, Dahod, 
also gave a positive opinion in favour of the premature release of all 
the convicts. On 26.0 5.2022, a meeting of the Jail Advisory 
Committee of Gujarat was held and this time, all the members of 
the Committee gave a positive opinion. The Additional Director 
General of Police, Prisons and Correctional Administration vide 
letter dated 09.06.2022 this time gave a positive opinion and did not 
raise any objection for the release of the ten convicts. 
 
7.13. That although the reference by the Jail Advisory Committee to 
the State Government, was only qua respondent Nos.4 to 13, the 
State Government erroneously recommended the name of 
respondent No.3 also, to the Central Government for remission even 
in the absence of any application pending before the State 
Government. 
  
7.14. Learned counsel for the petitioner next submitted that the 
Presiding Judge’s reasoned negative opinion opposing the 
premature release was disregarded and this was contrary to the 
mandate of Section 432(2) of the CrPC. The remission Orders dated 
10.08.2022 of respondent No.1 are in the teeth of the negative

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opinion of the Presiding Judge, Special Judge (CBI), Sessions Court, 
Greater Mumbai , dated 03.01.2020 and 22.03.2021, thereby, 
defeating the purpose of Section 432(2) of the CrPC. Further, the 
remission Orders dated 10.08.2022 are conspicuously silent about 
the opinion of the Presiding Judge to be mandatorily obtained under 
Section 432(2) of the CrPC. Not even a reference is made to the said 
opinion. This amounts to an erasure of record by removing from 
consideration a document that is statutorily mandated to be 
considered and judicially held to be determinative. Reliance was 
placed on Ram Chander to contend that the opinion of the 
Presiding Judge of the court that convicted the offender will ‘have a 
determinative effect’ on the exercise of executive discretion under 
Section 432 of the CrPC. Further, reference was made to the 
decision of this Court in V. Sriharan, wherein a Constitution Bench 
of this Court held that the procedure stipulated in Section 432(2) of 
the CrPC is mandatory and that the opinion of the Presiding Judge 
of the Court which had tried the convict is critical and an essential 
safeguard to check that the power of remission is not exercised 
arbitrarily. 
 
7.15. It was next contended that the premature release was 
granted illegally as the imprisonment in default for the non-payment

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of fine was not served.  The Trial Court while sentencing the 
respondents-convicts had also imposed a fine of Rs. 2,000/- on each 
of them, for each of the fourteen counts of murder and three counts 
of rape and in the event of default in payment of said fine, sentenced 
them to suffer rigorous imprisonment for a further period of two 
years each for each count. The total fine payable by the 
respondents-convicts amounted to Rs.34,000/ - each and, in 
default, they were liable to serve rigorous imprisonment for a period 
of thirty-four years (two years each for each count). The Trial Court 
had further directed that the ‘substantive sentences’ shall run 
concurrently and that the period of detention, if any, undergone by 
the respondents -convicts during the investigation, enquiry, trial, 
shall be set off against the terms of imprisonment, not being 
imprisonment in default of payment of fine imposed on the accused. 
That as per the nominal roll of respondent Nos.3 to 13, none of them 
had paid the fine sentenced by the Trial Court, making them liable 
to serve the penalty of rigorous imprisonment for default in payment 
of fine. But the respondents have neither paid the fine of Rs. 
34,000/- to which each of them was sentenced, nor have they served 
any sentence in default of the non-payment of fine.  It was submitted 
that the penalty of imprisonment ordered for default in payment of 
fine stands on a completely different footing from the substantive

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sentence of imprisonment to be undergone for an offence. While 
under Section 432 of the CrPC, the Government has the power to 
remit ‘punishment for offence’, the executive discretion does not 
extend to waiving off the penalty of imprisonment for default in 
payment of fine under Section 64 of the IPC. In this regard, reliance 
was placed on Sharad Hiru Kolambe vs. State of Maharashtra , 
(2018) 18 SCC 718 (“Sharad Kolambe”) and Shantilal vs. State 
of M.P., (2007) 11 SCC 243 (“Shantilal”). 
 
7.16. It was asserted that respondent No.1 while granting 
premature release failed to apply its mind and address the 
determinative factors outlined by this Court in Laxman Naskar . 
Thus, the orders of remission are vitiated by the vice of arbitrariness 
for non -consideration of relevant  facts and fact ors. According to 
learned counsel for the petitioners , a bare perusal of the Order s 
dated 10.08.2022 would make it clear that premature release was 
granted mechanically and arbitrarily, without giving due 
consideration to the factors enumerated in Laxman Naskar, qua 
each of the respondents-convicts. That the Order(s) dated 
10.08.2022 are conspicuous in their silence on the behavior and the 
following acts of misconduct of each of the respondents -convicts,

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including the offences committed while on parole/furlough , 
namely,: 
i. Case Crime No.1121001200158/2020 was registered 
against the respondent-convict, Mitesh Chimanlal  
Bhatt, under Sections 354, 304 and 306 of the IPC, 
committed on 19.06.2020 during parole/furlough ; 
and 
ii. Case Crime No.02/2015 was registered against the 
respondent-convict, Rameshbhai Rupabhai Chadana 
under the Prisons Act. 
 
7.17. It was further submitted that it is trite that in cases where a 
convict has been sentenced to more than one count of life 
imprisonment, he can only be released if remission is duly granted 
as per law for each count of life imprisonment. That it is a matter of 
record that the respondents-convicts were sentenced on fifteen 
counts of life imprisonment. However, the Orders dated 10.08.2022 
have not granted remission for each of the fifteen counts and is only 
a generic and blanket order, making the release  of the convicts 
illegal and arbitrary. 
 
7.18. That respondent No.3 approached this Court in Writ Petition 
(Crl.) No.135 of 2022, without disclosing that he ha d already acted

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on the judgment of the Gujarat High Court dated 17.07.2019 and 
had submitted his application to the Home Department, State of 
Maharashtra, and that his application had already been considered 
by the authorities concerned, whereby, the major stakeholders had 
written against the grant of remission to him. Further, when the 
matter was listed before this Court, no notice was issued to the 
petitioner – victim and neither was she heard by this Court in the 
matter. 
 
7.19. That the Orders dated 10.08.2022 have blatantly ignored the 
grave and real apprehension regarding the safety and security of the 
victims-survivors raised by public functionaries whose opinions are 
required to be taken into account by respondent No.1 State before 
granting premature release as per the 1992 policy. That this Court 
in a catena of judgments, such as, Epuru Sudhakar and Rajan vs. 
Home Secretary, Home Department of Tamil Nadu  (2019) 14 
SCC 114 (“Rajan”) has highlighted the importance of considerin g 
the impact of premature release on the victims in particular and the 
society in general. That even the Superintendent of Police, Dahod, 
on 03.02.2020 had recommended against the release of 
Radheyshyam Bhagwandas Shah as he had cited the possibility of 
peace being disturbed. The Sessions Judge, Panchmahal at Godhra

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also raised questions regarding the security of the victim – petitioner 
herein.  
 
7.20. Learned counsel next asserted that the en-masse and non-
speaking “sanction” of the Central Government dated 11.07.2022 
under Section 435(1)(a) of the  CrPC does not meet the statutory 
requirement of “consultation”. The said sanction conveys its 
approval for the premature release of eleven convicts sans any 
reason as to why the case of each respondent-convict is deemed fit 
for grant of remission. Thus, the approval was granted without 
considering the relevant factors outlined in Laxman Naskar. 
 
7.21. That non-application of mind is evident in the non -speaking 
and stereotyped orders dated 10.08.2022  which are bereft of any 
reason. The Orders are devoid of reasons or grounds as to why the 
respondents-convicts were found fit for the grant of remission. All of 
the eleven orders are a verbatim replication of each other, having 
only substituted the name and personal details of the respondents-
convicts. Further, the recommendations of the Jail Advisory 
Committee dated 26.05.2022 as regards remission of respondent 
Nos.3 to 13 are untenable , being arbitrary and mechanical and 
vitiated by non-application of mind. The said opinions are verbatim

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and mechanical reproductions of each other that show no 
independent consideration of facts of each case of the convicts. 
 
7.22  With the aforesaid submissions, it was prayed that Writ 
Petition (Crl.) No.491 of 2022 be allowed and a writ, order or 
direction be issued quashing the Order s dated 10.08.2022 passed 
by the State of Gujarat by which the convicts in Sessions Case No. 
634 of 2004, Mumbai (respondent Nos.3 to 13 herein), were released 
prematurely. 
 
8. Learned senior counsel Ms. Indira Jaising appearing for the 
petitioner in Writ Petition  (Crl.) No.326 of 2022, at the outset 
submitted that the petitioner is a Member of Parliament and is a 
public personality and consequently possesses the locus to file this 
petition as a bona fide person and citizen of India. That the 
petitioner seeks to discharg e her fundamental duty under Article 
51A(e) of the Constitution of India, seeking to promote harmony and 
the spirit of brotherhood amongst the people of India, as well as to 
denounce the derogation of the dignity of women. That the 
petitioner seeks to uphold the rule of law and thus is not a mere 
busybody.

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8.1. The following submissions were made to contest the orders of 
remission: 
(i) that when the actions of the State cause some harm 
to the general public, an action by a concerned 
citizen would be maintainable and reliance was 
placed on B.P Singhal vs. Union of India, (201 0) 
6 SCC 331 (“B.P Singhal”) in this regard. 
(ii) that the impugned decisions of remission is 
characterized by arbitrariness and mala fides and 
bear no consideration of relevant fact ors That the 
power of the executive must be exercised in line with 
constitutional ideals and must be for the benefit of 
the public. In this regard, reliance is placed on 
Maru Ram and S.P. Gupta vs . Union of India , 
(1981) Supp SCC 87 (“S.P. Gupta”).  
(iii) that there exists no statutory right of appeal against 
an order of remission. The only avenue available to 
assail an order of remission is either under Article 
32 or Article 226. Reliance was placed on Epuru 
Sudhakar and Ram Chander. Further, the 
jurisdiction of this Court is not ousted by the 
existence of alternative legal remedies. Reliance was

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placed on a Constitution Bench decision of this 
Court in Kavalappara Kottarathil Kochuni vs. 
States of Madras and Kerala, (1960) 3 SCR 887 
(“Kochuni”).  
(iv) that the present proceedings pertain to 
administrative law and not criminal law and as a 
result, the principle of being a stranger to the 
criminal proceeding does not apply to the case at 
hand. Nevertheless, this Court has entertained 
petitions filed by ‘strangers’ in criminal matters in 
the past, as in the case of K. Anbazhagan vs. 
Superintendent of Police, (2004) 3 SCC 767 (“K. 
Anbazhagan”). 
(v) that such exercises of executive power may be 
challenged on the basis of the grounds laid down in 
Epuru Sudhakar and Maru Ram.  
(vi) that an important question of law arises in the 
present proceedings, namely , whether it is 
appropriate to grant remission after a period of 
fourteen years to convicts of heinous crimes. That a 
further question arises , as to whether , the victims 
of such crimes must be heard and due

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consideration given to their vulnerability prior to the 
grant of remission. That there needs to be a 
consideration of how compliant such executive 
actions and the associated policies are with 
constitutional morality. Therefore, this Court may 
quash the remission orders passed under Section 
432 of the CrPC if they appear to be poorly 
reasoned.  
(vii) that there is a need to situate the crimes committed 
in the larger context of sectarian and communal 
violence that was ensuing in the 2002 riots  in 
Gujarat State . That the crimes were specifically 
targeted at the victim on the basis of her religion 
and gender. That these heinous crimes constitute 
crimes against humanity. It was submitted that the 
nature of the crime is important to consider while 
deciding whether to grant remission. The 
heinousness of the crimes committed by respondent 
Nos.3 to 13, the communal motivation of the crimes 
and the context in which those took place are 
contended to have not been considered by the State 
while granting remission. Reliance was placed on

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Sanaboina Satyanarayana vs. Government of 
Andhra Pradesh, (2003) 10 SCC 78 (“Sanaboina 
Satyanarayana”), wherein a certain Government 
Order issued by the State of Andhra Pradesh that 
excluded from the scope of remission those 
prisoners who had committed crimes against 
women and were sentenced to life imprisonment 
was upheld by this Court considering the nature of 
the offences.  
(viii) that the Executive is bound not merely by 
provisions of the CrPC but also by the overarching 
spirit of the Constitution that seeks to promote the 
upliftment of women, children, and minorities and 
to protect these groups from further vulnerability 
and marginalization. That the policies and actions 
of the State must be guided by this vision. 
(ix) that, in accordance with the aforementioned 
constitutional principles, grant of remission to 
those persons sentenced to life imprisonment and 
accused of crimes under the Scheduled Castes and 
Schedules Tribes (Prevention of Atrocities) Act, the 
Explosive Substances Act and the Indian Arms Act,

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as well as crimes against women under Sections 
376 and 354 of the IPC must not be permissible. 
Factors such as the opinion of the Presiding Judge, 
public interest, potential for recidivism, impact on 
the victims and on society and the nature of the 
offence must be borne in mind by the State, as held 
in Epuru Sudhakar, Sanaboina Satyanarayana 
and Zahid Hussain vs. State of West Bengal, 
2001 (3) SCC 750  (“Zahid Hussain”) . That the 
non-consideration of these factors proves the mala 
fide, arbitrary and unreasonable manner in which 
the impugned orders were passed.  
(x) that the 1992 Policy of remission of the State of 
Gujarat does not contain any substantive 
guidelines pertaining to remission and merely deals 
with procedural formalities. That the 2014 Policy is 
thus the first instance at which categories of crimes 
for wh ich remission may not be granted was 
outlined. As such, it is the 2014 Policy that would 
apply to the question of remission for respondent 
Nos.3 to 13.

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(xi) that the grant of remission to the respondent Nos.3 
to 1 3 is in violation of India’s obligations under 
international law, specifically instruments such as 
the International Covenant on Civil and Political 
Rights and the Convention on the Elimination of All 
Forms of Discrimination Against Women. That rape 
was used as a tool of oppression by the perpetrators 
and the victim in the instant case experienced 
significant trauma as a consequence.  
(xii) that the grant of remission in the instant case is in 
violation of the obligation to prevent crimes against 
humanity, which itself forms a part of the norm of 
jus cogens. That there is a link between the 
peremptory norm of jus cogens and fundamental 
values, making the former non-derogable and a part 
of domestic law even if not explicitly codified. 
Reliance was placed on State of Punjab vs. Dalbir 
Singh, (2012) 3 SCC 346 (“Dalbir Singh”) on this 
aspect.  
(xiii) that the acts of violence that were committed in 
Gujarat in 2002 are crimes against humanity, 
owing to their widespread nature and communal

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motivations. That remission must not be granted to 
perpetrators of crimes of such gravity.  
 
8.2  With the above submission s learned senior counsel for the 
petitioners sought quashing of the impugned orders.  
 
9.  Learned counsel Ms. Vrinda Grover for the petitioner in Writ 
Petition (Crl.) No.352 of 2022, submitted that it was absolutely 
necessary to consider the opinion of the Presiding Judge. Reliance 
was placed on Ram Chander  and V. Sriharan . Her further 
submissions are recorded as under: 
(i) that the Presiding Judge, namely the Special Judge 
(CBI), Sessions Court, Mumbai gave negative 
opinions dated 03.01.2020 and 22.03.2021 as to 
grant of remission to respondent Nos.3 to 13. The 
said opinion was well -reasoned and took into 
account all of the relevant factors, but this was 
completely disregarded by the respondent -State.  
(ii) that a fine was imposed on each of the respondent-
convicts as a part of their sentence, amounting to 
Rs. 34,000/- per person. That they had defaulted in 
paying these fines and thus would be required to 
undergo rigorous imprisonment for a further period

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of 34 years. The Trial Court had clarified that these 
sentences were substantive in nature and would 
run concurrently. In this context, reliance was 
placed on Sharad Kolambe and Shantilal.  
(iii) reiterating the submissions regarding the remission 
orders being arbitrary by virtue of non -
consideration of relevant factors, it was urged that 
the criteria outlined in the decision of this Court in 
Laxman Naskar were not considered at all. 
Reliance was further placed on the decision of this 
Court in Mohinder Singh, wherein it was held that 
the decision to grant remission must be reasonable, 
well-informed and fair. That non -application of 
mind and the mechanical nature of the remission 
orders utterly belie these principles. 
(iv) that reference has only been made to four 
documents, namely (1) the order of this Court dated 
13.05.2022, (2) the letter of the Additional Director 
General of Police and Inspector General of Prisons, 
State of Gujarat at Ahmedabad, (3) the Department 
Circular dated 09.07.1992 and (4) the letter of the 
Ministry of Home Affairs, Government of India in the

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impugned orders of remission . It was contended 
that the non-consideration of determinative factors 
has rendered the remission orders mechanical and 
arbitrary, with reliance placed on what is described 
as the untenable and unlawful en-masse approval 
of the Central Government.  
(v) that one of the criteria that is required to be 
considered which was highlighted in Laxman 
Naskar is the possibility of reformation and 
recidivism. That these factors have been given no 
consideration as there is no mention of the 
respondent-convicts’ behavior while in prison, as 
well as offences committed while out on 
parole/furlough. That a case has been registered 
against one of the respondent-convicts under 
Sections 304, 306 and 354 IPC  while on parole . 
That a range of punishments were imposed on the 
respondent-convicts in prison hence, the possibility 
of recidivism cannot be entirely ruled out.  
(vi) that there is a real and grave apprehension of 
danger to the victim if the respondent-convicts are 
released into society. This has been reflected in the

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recommendation of Superintendent of Police, 
Dahod as well as the questions raised by the 
Principal and Sessions Judge, Panchmahal at 
Godhra in the Jail Advisory Committee meeting 
dated 26.05.2022. 
(vii) that remission must be granted for each particular 
count of life imprisonment, as all of these are 
superimposed over each other. Remission granted 
qua one sentence does not automatically extend to 
the others as well. That a generic, mechanical and 
unreasoned blanket order of remission has been 
passed by the respondent-State, as remission is not 
stated to have been granted for all of the life 
sentences of each respondent-convict.  
(viii) that Section 435(1)(a) of the CrPC makes it 
mandatory for the State Government to consult the 
Central Government regarding the exercise of power 
to grant remission. But the en-masse and non -
speaking nature of the sanction granted by the 
Central Government, merely conveys approval of 
the premature release of the respondent-convicts,

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which do not meet the requirement of ‘consultation’. 
Reliance was again placed on Laxman Naskar.  
(ix) further, the opinion of the Sessions Judge, 
Panchmahal, Godhra is of a casual and perfunctory 
character, that doesn’t pay heed to the heinous 
nature of the crimes committed. 
(x) it was further submitted that the remission orders 
having thus been established as unreasoned, 
untenable and vitiated by arbitrariness and mala 
fides, there is a need for judicial intervention in the 
same.  
 
10.  Learned counsel for the petitioner in Writ Petition  (Crl.) 
No.319 of 2022, Ms. Aparna Bhat submitted that the aforesaid writ 
petition has been filed purely in the interest of the general public 
and out of concern for the impact on society if the respondents-
convicts were released. That there is no political agenda behind the 
filing of this writ petition by the petitioner, who is a member of a 
national political party and an advocate for women’s rights.  
 
11.  Sri Mohammad Nizamuddin Pasha, learned counsel 
appearing on behalf of the petitioner in Writ Petition (Crl.) No.403 
of 2022 submitted that the cases which are at stages prior to

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conviction. i.e., investigation and trial must be treated as being on 
a different footing as guilt would not have been established and the 
fair trial rights of the accused still subsisted. However, there is no 
right to remission post-conviction as held in V. Sriharan. That it is 
only upon conviction that the need for the accused to remain in 
prison becomes a concern of the society. That all theories of 
punishment, including those of retributivism and utilitarianism, 
emphasize the impact on society as being of primary importance. 
Reliance was placed on T.K. Gopal vs. State of Karnataka, 
(2000) 6 SCC 168  (“T.K. Gopal”), Narinder Singh vs. State of 
Punjab, (2014) 6 SCC 466  (“Narinder Singh”) , Shailesh 
Jasvantbhai vs. State of Gujarat, (2006) 2 SCC 359 (“Shailesh 
Jasvantbhai”) and Ahmed Hussain Vali Mohammed Saiyed vs. 
State of Gujarat, (2009) 7 SCC 254 (“Mohammed Saiyed”). 
 
12. Sri. S.V. Raju, learned Additional Solicitor General of India, 
appearing on behalf of the State of Gujarat and Union of India, at 
the outset submitted that the writ petitions filed by persons other 
than the victim are not maintainable. That the said persons are 
strangers and have no locus -standi to challenge the remission 
orders passed by the State of Gujarat. The said petitioners are in no 
way connected with the proceedings which convicted the

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respondents herein nor the proceedings which culminated in the 
grant of remission to the convicts.  Reliance was placed on the 
decisions of this Court in Rajiv Ranjan ; Gulzar Ahmed Azmi ; 
Simranjit Singh  and Ashok Kuma r to contend that no third 
party/stranger’s interference in criminal matters is permissible in 
law in the garb of filing a PIL. 
 
12.1. Referring to Writ Petition (Crl.) No.319 of 2022, it was 
contended that nowhere has the petitioner therein, namely , 
Subhasini Ali pleaded as to how her fundamental rights had been 
abridged and as to how she was aggrieved by the action of the State 
Government. That the petitioner therein was nothing but an 
interloper and a busybody and not a ‘person aggrieved’ as per the 
dicta of this Court in M. V. Dabholkar and Jasbhai Motibhai .  
Thus, the PIL filed by such a person is nothing but an abuse of the 
PIL jurisdiction of this Court and against the principles laid down 
in Tehseen and Ashok Kumar. Therefore, learned ASG sought for 
dismissal of all the PILs challenging the impugned orders of 
remission on the ground of maintainability.  
 
12.2. It was next contended that there was no illegality in the 
Orders granting remission to respondent Nos.3 to 13, dated 
10.08.2022. That this Court in Writ Petition (Crl.) No.135 of 2022

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vide judgment dated 13.05.2022 had held that the policy which 
would be applicable for deciding the remission application was the 
one which was in vogue at the time of conviction i.e., the premature 
release policy of 1992 and that for the purposes of Section 432 of 
the CrPC, the ‘appropriate government’ for considering the 
remission application is that State in which the offence was 
committed and not the State in which the trial was conducted and 
therefore, had directed the State of Gujarat to consider the 
application of respondent No.3, Radheshyam Bhagwandas Shah.  
Accordingly, the respondent-State of Gujarat had considered the 
application of the convict as per the procedure prescribed under 
Section 432 of the CrPC read with Section 435  of the CrPC, along 
with the Premature Release of Convicts Policy of 1992. The State 
Government considered the cases of all eleven prisoners as per the 
policy of 1992 and remission was granted on 10.08.2022. 
  
12.3.  That further, the Order (s) dated 10.08.2022 w ere passed 
after duly considering the opinions expressed by Inspector General 
of Prisons, Gujarat State; Jail Superintendent; Jail Advisory 
Committee, District Magistrate; Superintendent of Police, CBI, 
Special Crime Branch, Mumbai; and the Special Court, Mum bai 
(CBI). That as per Section 435 of the CrPC, it is indispensable to

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obtain the sanction of the Government of India in cases in which 
the investigation of the offence was carried out by a central 
investigation agency. In the present case, the investigation was 
carried out by CBI, hence, the State Government obtained the 
approval of Government of India. 
  
12.4. It was next submitted that respondent Nos.3 to 13 had 
completed more than fourteen years in custody, that their behaviour 
had been good and the opinions of the concerned authorities had 
been obtained as per the policy of 09.07.1992. The State 
Government submitted the opinions of the concerned authorities to 
the Ministry of Home Affairs, Government of India vide letter dated 
28.06.2022 and sought the approval of the Government of India 
which conveyed its concurrence/approval under Section 435 of the 
CrPC for the premature release of eleven convicts vide letter dated 
11.07.2022. Hence, after following the du e procedure, Orders were 
issued on 10.08.2022 to release the convicts  which would not call 
for any interference by this Court. 
 
12.5.  Reliance was placed on the judgment of this Court in 
Jagdish wherein it was held that if a policy which is beneficial to 
the convict exists at the time of consideration of his application for 
premature release, then the convict cannot be deprived of such a

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beneficial policy. It was held in the said case that, “In case a liberal 
policy prevails on the date of consideration of the case of a “lifer” for 
premature release, he should be given the benefit thereof.” That 
bearing in mind such considerations, the applications of respondent 
Nos.3 to 13 for remission were considered and decided. 
  
12.6. 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) of the CrPC, the 
appropriate government in the ordinary course would be the State 
of Gujarat. However, the trial in  the instant case was transferred 
under exceptional circumstances by this Court to the neighboring 
State of Maharashtra for the limited purpose of trial and disposal by 
an order dated 06.08.2004 but after the conclusion of trial and the 
prisoners being convicted, the matter stood transferred to the State 
where the crime was committed and thus, the State of Gujarat was 
the appropriate government for the purpose of Section 432(7) of the 
CrPC. 
 
12.7  It was submitted that the Orders dated 10.08.2022 were 
passed by the Government of Gujarat after following the due 
procedure laid down in this regard and on an application of mind.

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Therefore, the same do not call for any interference by this Court in 
these petitions. 
 
13. Learned Counsel for respondent No.3, Sri Rishi Malhotra at 
the outset attacked the maintainability of the writ petitions on the 
ground that in substance, the petitions seek to challenge the 
judgment of this  Court dated 13.05.2022 in Writ Petition  (Crl.) 
No.135 of 2022; that the same is impermissible and is in the teeth 
of the judgment of a Constitution Bench of this Court in Rupa 
Ashok Hurra vs. Ashok Hurra, (2002) 4 SCC 388, (“Rupa Ashok 
Hurra”) wherein it has been held that a writ petition assailing the 
judgment or order of this Court after the dismissal of the Review 
Petition is not maintainable. Thus, the only remedy, if any, available 
to the petitioner-victim herein against the dismissal of the Review 
Petition, is to file a Curative Petition as propounded by this Court in 
the case of Rupa Ashok Hurra.  
 
13.1. Sri Rishi Malhotra further submitted that in this proceeding 
this Court cannot sit over the judgment passed by another co -
ordinate bench . It was further submitted that this Court by its 
judgment dated 13.05.2022 was right in categorically directing the 
State of Gujarat to consider the application for premature release of 
respondent No.3 in terms of the policy dated 09.07.1992 which was

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applicable on the date of conviction. That after duly taking into 
account the fact that respondent No.3 had undergone over fifteen 
years of imprisonment and that no objections were received from 
the Jail Superintendent, Godhra and that nine out of ten members 
of the Jail Advisory Committee had recommended his premature 
release. That coupled with the aforesaid facts the Home Department 
of the State of Gujarat as well as the Union Government had 
recommended and approved the premature release of respondent 
No.3. This clearly demonstrates that the remission order was 
correct. Further, it is nowhere mentioned in the 1992 policy that all 
stakeholders must give a unanimous opinion for the release of the 
convict. All it says is that the State Government should collate 
various opinions from different quarters in order to arrive at a 
decision. 
 
13.2. As regards the contention of learned counsel for the 
petitioner-victim to the effect that the Orders are illegal inasmuch 
as those were passed without consulting the Presiding Judge of the 
convicting court as required under Section 432(2) of the CrPC, it 
was submitted that the said provision categorically stipulates that 
the appropriate government ‘may require’ the Presiding Judge of the 
Trial Court to give his opinion, hence obtaining such an opinion is

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not mandatory; whereas, Section 435 of the CrPC uses the word 
‘shall’ in respect to the State Government to act only after 
consultation with the Central Government. The legislature is 
conscious to use the words ‘may’ and ‘shall’ whenever it deems 
appropriate and necessary  and that the said procedure has been 
followed in the instant case. 
 
14. At the outset, learned senior counsel appearing for 
respondent No.13, Sri Sidharth Luthra contended that a writ 
petition does not lie against the final order of this Court, thus the 
petitioners could have only filed a Curative Petition. He further 
submitted as follow: 
 
i) In this regard reliance was placed on the decision of this Court 
in Rupa Ashok Hurra, wherein it was held that a writ petition 
under Article 32 assailing a final judgment of this Court is not 
maintainable. That since the Review Petition against the Order 
dated 13.05.2022 has been dismissed by this Court, similar 
contentions cannot be re -agitated in the guise of the present 
writ petition.  Reliance was also placed on the decision of this 
Court in Naresh Shridhar Mirajkar vs. State of 
Maharashtra, AIR 1967 SC 1  (“Naresh Shridhar 
Mirajkar”), wherein it has been held that a writ shall not lie

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against an order of a Constitutional Court. It was thus 
submitted that the order dated 13.05.2022 has attained finality 
and cannot be questioned by way of a writ petition  under 
Article 32. Furthermore, in view of the Rules framed by this 
Court, Order XLVIII thereof lays down how an order of this 
Court can be questioned by means of a Curative Petition and 
thus, a natural corollary is that the same cannot be done 
through a writ petition. 
ii) As regards the issue of appropriate government and 
appropriate policy, learned senior counsel Sri Luthra 
submitted that the said issues stood settled in view of this 
Court’s Order dated 13.05.2022. The judgments of this Court 
in Rashidul Jafar vs. State of U.P., 2022 SCC OnLine SC 
1201 (“Rashidul Jafar”); State of Haryana vs. Raj Kumar, 
(2021) 9 SCC 292  (“Raj Kumar”)  and Hitesh vs. State of 
Gujarat ( Writ Petition  (Crl.) No.467/2022) (“Hitesh”) were 
pressed into service wherein it had been held that the policy as 
on the date of conviction would apply, and therefore, the 1992 
Policy of the State of Gujarat will apply for the grant of 
remission in the present case. 
iii) Learned senior counsel thereafter raised the plea that in India, 
a reformative/rehabilitative and penal sentencing policy is

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followed and not one which is punitive in nature. The same was 
reiterated when the Model Prison Act, 2023 was finalized which 
aims at “reforming prison management and ensuring the 
transformation of inmates into law -abiding citizens and their 
rehabilitation in society.” Furthermore, in the case of Vinter vs. 
The United Kingdom (Applications Nos.66069/09, 130/10 
and 3896/10),  (2016) III ECHR 317 (“Vinter “) in the context 
of rehabilitation and reformation it was held by the European 
Court of Human Rights tha t, “Moreover, if such a person is 
incarcerated without any prospect of release and without the 
possibility of having his life sentence reviewed, there is the risk 
that he can never atone for his offence: whatever the prisoner 
does in prison, however exceptional his progress towards 
rehabilitation, his punishment remains fixed and unreviewable.” 
Learned senior counsel submitted that respondent No.13 had 
exhibited unblemished behaviour in prison and there was no 
criminality attached to his conduct in prison. 
iv) Sri Luthra refuted the argument of the petitioners that in the 
light of the grievous nature of the offence, the convicts herein 
do not deserve remission. At the stage of remission, the length 
of sentence or the gravity of the original crime cannot be the 
sole basis for refusing premature release as held in Satish vs.

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State of UP , (2021) 14 SCC 580  (“Satish”). Therefore, any 
argument regarding the factual nature of the crime or the 
impact it had on society are not relevant for consideration of 
remission was the submission of Sri Luthra.  
v)  That it is open for the High Court as well as this Court to modify 
the punishment by providing for a specific period of 
incarceration without remission, considering the purported 
heinous nature of the offence  but neither the High Court nor 
this Court chose to exercise the said power to incarcerate the 
private respondents herein for a duration which was non -
remittable. This shows that the a foresaid argument advanced 
by the petitioner is only a red herring. 
vi)  It was emphasized t hat an order of remission passed by an 
authority merely affects the execution of the sentence, without 
interfering with the sentence passed by the Court. Therefore, 
since the matter has already attained finality, it is not possible 
to question the validity  of such an order on factual grounds 
alone, such as , the nature of crime, impact on society and 
society’s cry for justice.  
vii)  Learned senior counsel submitted that the mere fact that fine 
had not been paid or that there was a default in payment of the 
fine imposed does not impact the exercise of the power of

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remission. The sentence is something which an offender must 
undergo unless it is set aside or remitted in part or in whole 
either in appeal, or in revision, or in other appropriate judicial 
proceedings or ‘otherwise’, whereas, a term of imprisonment 
ordered in default of payment of fine stands on a different 
footing vide Shantilal; Abdul Gani vs. State of Madhya 
Pradesh, (1950) SCC OnLine MP 119  (“Abdul Gani”)  and 
Shahejadkham Mahebubkham Pathan vs. State of 
Gujarat, (2013) 1 SCC 570  (“Shahejadkham 
Mahebubkham Pathan”) . Further, reliance was place d on 
Sharad Kolambe, wherein it was observed by this Court that, 
“If the term of imprisonment in default of payment of fine is a 
penalty which a person incurs on account of non-payment of fine 
and is not a sentence in strict sense, imposition of such default 
sentence is completely different and qualitatively distinct from a 
substantive sentence.” 
 
15. Learned senior counsel appearing for respondent No.7 Mrs. 
Sonia Mathur, while adopting the submissions of other senior 
counsel further contended as under:

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15.1. That as per Section 432 (7)(b) of the CrPC and the judicial 
precedent set in Radheshyam Bhagwandas Shah , the 
appropriate government would be the State of Gujarat. The said 
judgment has attained finality as the Review Petition filed against 
the said judgment was dismissed by this Court on 13.12.2022. 
Thus, the said judgment must be followed for the sake of j udicial 
propriety. 
 
15.2. As to the nature of the requirement under Section 432 (2) of 
the CrPC, i.e., whether mandatory or directory, it was submitted 
that as observed by this Court in Ram Chander the opinion so 
obtained is not to be mechanically followed and the government has 
the discretion to seek an opinion afresh. That the said view would 
demonstrate that the discretion vests with the concerned 
government as to whether or not to seek and rely upon the opinion 
of the Presiding Judge of the Trial Court. 
  
15.3. As regards the contentions of the learned counsel for the 
petitioner-victim as to non-payment of fine, it was submitted that a 
fine of Rs.6,000 /- was paid by respondent No.7 without any 
objection on 27.09.2019 before the Sessions Court, Greater 
Mumbai. However, without prejudice to the said payment, there is 
no provision in the Prison Manual of Gujarat, which bars remission

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from being granted if the fine is not paid. The grant of remission 
cannot be restricted just because a convict is not financially capable 
to bear the fine. The same would cause discrimination based on the 
economic and financial capacity of a convict to pay  fine, resulting 
in the violation of Articles 14 and 21 of the Constitution.  
 
15.4. We have heard learned counsel for the other respondents. 
With the aforesaid submissions, it was prayed that these writ 
petitions be dismissed.  
 
Reply Arguments: 
16. Ms. Shobha Gupta, learned counsel for the petitioner-victim 
submitted in her rejoinder on the point that the writ petition was 
maintainable under Article 32 of the Constitution as follows:  
(i) that the order of grant of remission being an 
administrative order, there was neither a statutory 
nor substantive right of appeal available to the 
aggrieved parties. The only remed y available w as to 
file a writ petition under Article 226 of the 
Constitution before the High Court of Gujarat, or to 
file a writ petition before this Court under Article 32 
of the Constitution.

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(ii) that this Court has on multiple occasions entertained 
writ petitions under Article 32 of the Constitution in 
those cases where there existed a “gross violation of 
fundamental rights”, or when an executive or 
administrative decision “shocked the conscience of 
the public, the nation or of this Court”. In this context, 
reliance was placed on the judgments of this Court in 
Epuru Sudhakar ; Satpal vs . State of Haryana , 
(2000) 5 SCC 170 (“Satpal”) and Mohammed Ishaq 
vs. S. Kazam  Pasha, (2009) 12 SCC 748  
(“Mohammed Ishaq”). It was submitted that a similar 
issue of maintainability arose in Mohammed Ishaq, 
wherein this Court observed that the mere existence 
of an alternative remedy in the form of Article 226 does 
not preclude an aggrieved person from approaching 
this Court directly under Article 32. The rule requiring 
the exhaustion of alternative remedies  was described 
as being one of “convenience and discretion” as 
opposed to being absolute or inflexible in nature.  
(iii)  that this Court ha d in the past entertained writ 
petitions under Article 32 filed by convicts seeking 
intervention in matters of premature release or the

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issuance of appropriate directions. Reliance was 
placed on the judgments in Ram Chander, Laxman 
Naskar and Rajan.  
(iv)  that this Court had earlier entertained a writ petition 
filed by none other than respondent No.3 himself and 
no question was raised as to the maintainability of 
that writ petition. All of the other private respondents 
are beneficiaries of the order dated 13.05.2022 passed 
by this Court in the aforesaid writ petition. It is thus 
incongruous to raise the objection of maintainability 
only against the writ petition filed by the petitioner-
victim. That the petitioner-victim was totally unaware 
of Writ Petition (Crl.) No.135 of 2022 filed by 
respondent No.3 seeking premature release before 
this Court. The petitioner learnt about the release, like 
the general public  did, from the news and social 
media. That the petitioner had barely begun to recover 
from the shock of respondent Nos.3 to 13 being 
released when several PILs were filed, and this Court 
was already seized of the matter. This left the 
petitioner with no choice but to approach this Court.

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(v) that the petitioner had also filed a Review Petition 
seeking review of the order dated 13.05.2022, wherein 
this Court held the State of Gujarat to be the 
appropriate government to consider the grant of 
remission, being the State in which the crime took 
place. The said order was per incuriam and contrary 
to the judgements of this Court.  On this aspect, 
reliance was again placed on V. Sriharan, Rattan 
Singh, M. T. Khan and Hanumant Dass. Hence, the 
petitioner was under the impression that the said 
Review Petition and this writ petition  would be 
considered together  by this Court.  But the Review 
Petition has been dismissed. Hence, this writ petition 
has to be considered on its own merits.  
(vi)  that the challenge to the maintainability of this writ 
petition is fallacious in the context of the specific 
argument raised by respondent Nos.1 and 2, namely, 
that the direction given by this Court as on 
13.05.2022 was a mandate that was merely being 
adhered to in the remission order and therefore the 
same would not be open to challenge. That this further 
exemplifies non-application of mind and  a hasty and

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mechanical manner of granting remission by 
misrepresenting about the order dated 13.05.2022.  
(vii)  It was submitted that the ‘right to justice’ was 
recognized as an indispensable human and 
fundamental right in Anita Kushwaha vs. Pushap 
Sudan, (2016) 8 SCC 509 (“Anita Kushwaha”), and 
that this writ petition was maintainable on that basis 
also.  
 
In light of the aforementioned submissions, learned counsel 
contended that the filing of a writ petition under Article 32 before 
this Court is the most efficacious remedy available to the petitioner.  
 
16.1. Reiterating her submissions regarding the non -consideration 
of the negative opinions of the investigating agency, namely the CBI 
as well as the Judge of the Special CBI Court, Mumbai, learned 
counsel went on to refute the claim of the learned Additional 
Solicitor-General that the relevant opinion would be that of the 
Presiding Judge of the Godhra Court who was convinced of the 
merits of grant of remission. That this contention of learned ASG 
would contradict the plain language of Section 432(2) which 
specifies that the Presiding Judge should have been the one who 
awarded or confirmed the sentence. Reliance was again placed on

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the judgments of this Court in  Sangeet, Ram Chander and V. 
Sriharan.  Learned counsel further contended that the submission 
of the learned ASG that the use of the word ‘may’ in Section 432(2) 
would imply that there is no necessary requirement to seek the 
opinion of the Presiding Judge is erroneous in light of the dictum of 
this Court in V. Sriharan. 
 
16.2. It was next contended that a letter dated 17.11.2021 was filed 
along with the application dated 10.08.2022. The said letter  by the 
State of Gujarat addressed to the State of Maharashtra detailed that 
the State of Gujarat possessed no powers of remission with respect 
to respondent No.3 and that the appropriate government in this 
respect would be the State of Maharashtra. Despite taking this view, 
which is in accordance with the position of law laid down by this 
Court in various cases, including  V. Sriharan, no review petition 
was filed by the State challenging the 13.05.2022 order. 
 
16.3. It was next submitted that the learned Additional Solicitor -
General had placed on record the opinion of the CBI dated 
09.07.2022 where in, after an apparent change of mind, grant of 
remission to respondent Nos.3 to 13 was recommended. That 
neither of the documents, namely, the letter of the State of Gujarat 
and the changed opinion of the CBI find any mention in the counter-

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affidavit filed by the State on 17.10.2022. It was further submitted 
that these additional documents establish the rapid timeline of the 
process adopted by the Central Government in affirming the orders 
of remission, as the State Government’s communication was 
received on 06.07.202 2, the opinion of the CBI was sought and 
received on 09.07.2022 and the Central Government expressed its 
concurrence on 11.07.2022.   
 
16.4. It was further contended that respondent No.3 produced a 
document dated 18.06.2022 during the course of his arguments, 
stating that the same was the opinion of the Presiding Judge of the 
Mumbai Special Court (CBI). However, the veracity of the said 
document cannot be established as the State claimed to be not in 
possession of and is entirely unaware of the same. 
 
16.5. Learned counsel reiterated that the above facts  reveal non -
application of mind and the mechanical manner in which the orders 
of remission were passed in the instant case.  
 
16.6. Learned counsel for the petitioners next submitted that on 
30.08.2023, the fine amounts owed were deposited by respondent 
Nos.3 to 13. That this is as an admission on their part of the non -
payment of fine.  It was contended that they would ordinarily have

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had to undergo a further period of six years of imprisonment. That 
non-consideration of this fact further proves the non-application of 
mind and a mechanical exercise of power by the State of Gujarat 
and Union of India in granting remission.  
 
16.7. Learned counsel went on to submit that in Writ Petition (Crl.) 
No.135 of 2022 filed by respondent No.3, there was no mention of 
material particulars, such as, the name of the petitioner-victim and 
the nature of the crimes in question, i.e., gang rape and mass 
murder in the petition. Also the fact that his application for grant 
of remission before the State of Maharashtra had been negatively 
opined by all the concerned authorities. That respondent No.3 did 
not place on record the judgements and orders of the Trial Court, 
High Court, and this Court that had upheld his conviction. That he 
made “incorrect and misleading” statements with reference to the 
orders of the Bombay High Court dated 05.08.2013  and Gujarat 
High Court dated 17.07.2019, namely , that the two courts had 
given differing opinions, and this fact played a role in this Court’s 
decision-making while passing the order dated 13.05.2022. 
Respondent No.3 made it seem like both High Courts were sending 
him to the other State and that there was a contradiction.  However, 
the aforesaid order of the Bombay High Court was dealing with the

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transfer of convicts to another jail in their parent State and did not 
discuss the issue of remission, which could not have arisen in the 
year 2013.  
 
16.8. It was reiterated that the investigating agency of the State of 
Gujarat had filed a closure report stating that the accused persons 
were not traceable. That the FIR contained erroneous recording of 
facts merely to hinder the investigative process. That the case was 
transferred by this Court to the State of Maharashtra as a 
consequence of the tainted nature of investigation. That the only 
reason the petitioner could get justice was because the investigation 
was conducted by the CBI. That this demonstrates the highly biased 
and partisan treatment of the petitioner by the State of Gujarat. 
That the State has been granting parole and furlough to the 
respondents in a liberal manner once they were transferred to the 
Godhra Jail. That in light of the highly diabolical and gruesome 
nature of the crimes, the treatment awarded to the respondents by 
the State indicates favouritism and leniency. 
 
16.9. Learned counsel reiterated that the nature of the crimes 
committed by the respondent Nos.3 to 13 were unusual and 
egregious. That these crimes were very shocking to the society as a 
whole and the treatment of the respondents upon being granted

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remission invoked a common sense of pain in the nation. That in 
fact the Bombay High Court had described the brutal treatment of 
the victims by the respondent Nos.3 to 13, which was reflected in 
the condition of the dead bodies. These factors require that 
respondents Nos.3 to 13 be treated differently from other ordinary 
criminals.  
 
17. Learned senior counsel, Ms. Indira Jaising, appearing for the 
petitioner in Writ Petition (Crl.) No.326 of 2022 in her rejoinder at 
the outset submitted that the State of Gujarat does not have a policy 
of any kind for the release of prisoners under Section 43 2 of the 
CrPC. That the 1992 Policy merely outlines the procedure to be 
followed when releasing convicts on remission. That the State must 
abide by the law laid down by this Court as well as the 
constitutional mandate to protect the fundamental rights of women, 
particularly when they are victims of sexual violence in relation to 
ethnic conflict.  
 
17.1  Further, it was contended that the State of Gujarat is not the 
appropriate government and therefore the order of this Court dated 
13.05.2022 is per incuriam by virtue of failing to follow the binding 
precedent in V. Sriharan. That the impugning of the order of the 
Gujarat High Court that held the State of Maharashtra to be the

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appropriate Government in Writ Petition (Crl.) No.135 of 2022, filed 
by respondent No.3, is completely contrary to the position of law 
laid down in Naresh Shridhar Mirajkar, wherein it was held that 
no writ petition alleging the violation of fundamental rights would 
lie against the judgement or order of a court.  That the respondent 
No.3 committed fraud on this Court by misrepresenting the order 
of the Bombay High Court dated 05.08.2013 in Writ Petition (Crl.) 
No.135 of 2022. That the question of two High C ourts taking 
“dramatically different views” did not arise as the issue of 
appropriate Government was not in question before the Bombay 
High Court at all. That this amounts to suppressio veri, expression 
falsi. That this Court in Union of India vs . Ramesh Gandhi , 
(2012) 1 SCC 476  (“Ramesh Gandhi”) , has held that any 
judgement that is a consequence of misrepresentation of necessary 
facts would constitute fraud and would be treated as a nullity. That 
this error of the Court cannot lead to the deprivation of justice to 
the victims. While the criminal justice system must strive to adopt 
a reformative approach, proportionality of sentence must be treated 
as an equally important ideal. Reliance was placed on the 
judgements of this Court in Alister Anthony Pareira vs. State of 
Maharashtra, (2012) 2 SCC 648  (“Alister Anthony Pareira”) ,

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Ravji vs. State of Rajasthan , (1996) 2 SCC 175  (“Ravji”) and 
Soman vs. State of Kerala, (2013) 11 SCC 382 (“Soman”).   
 
18. Ms. Vrinda Grover, learned counsel for the petitioner in Writ 
Petition (Crl.) No.352 of 2022 reiterated the contentions as to the 
centrality and non -optional nature of seeking the opinion of the 
Presiding Judge under Section 432(2) of the CrPC, the non -serving 
of the concurrent sentences for the non -payment of fine by the 
respondent Nos.3 to 13 as well as the need to consider the nature 
of the crime s and the impact on public welfare while considering 
the grant of remission. Reliance was placed on the judgment of this 
Court in Ram Chander, Sharad Kolambe, Devendra Kumar vs . 
State of Uttaranchal , (2013) 9 SCC 363  (“Devendra Kumar”)  
and Abdul Gani.  
 
18.1. It was further submitted that the State of Gujarat has not 
considered the possibility of recidivism and whether there was any 
evidence of reformation of respondent Nos.3 to 13.  That as per the 
record, respondent Nos.3 to 13 have not demonstrated any sign of 
reform and have not expressed any remorse for the crimes they have 
committed. That their applications for remission do not contain 
reference to feelings of remorse felt by them for their actions. The 
non-payment of fine is further indication of the absence of remorse.

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Also fresh cases have been registered against two of the 
respondents, and this serves as proof of their non-reformation.  
 
18.2. It was also contended that reliance cannot be placed on 
documents, such as, letter dated 09.07.2022 of the C.B.I, wherein 
an affirmative opinion on remission was expressed as well as a letter 
produced by respondent No.3 containing the affirmative opinion of 
the Special Judge (C.B.I), Civil and Sessions Court , Mumbai  as 
these documents have not been listed among the documents relied 
upon by the State of Gujarat while granting remission to the 
respondent Nos.3 to 13.  
 
19. Ms. Aparna Bhat, learned counsel for the petitioner in Writ 
Petition (Crl.) No.319 of 2022 in her rejoinder submitted that the 
remission granted by the State of Gujarat to respondent Nos.3 to 
13 was violative of Article 14 of the Constitution of India. That 
prison statistics from the year 2021 reveal that 66.7% of the 
convicts in Gujarat are undergoing life imprisonment, at least a 
fraction of whom have completed fourteen years of incarceration. 
That no special case has been made out either by the State of 
Gujarat or the Union of India as to why respondent Nos.3 to 13 are 
singularly entitled to remission over all of the other convicts. 
Reliance was placed on judgements in S. G. Jaisinghani vs. Union

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of India , AIR 1967 SC 1427  (“S. G. Jaisinghani”) and E.P. 
Royappa vs . State of T.N., (1974) 4 SCC 3  (“E.P. Royappa”) , 
wherein this Court held that arbitrary and mala fide  exercise of 
power by the State would constitute a violation of Article 14 of the 
Constitution. That discretionary and en-masse remission on festive 
occasions was held to be impermissible in the case of Sangeet.  
 
19.1. It was further submitted that there is no right to remission 
that a convict can necessarily avail. That remission must be an 
exercise of discretion  judiciously by the concerned authorities. 
Reliance was placed on the judgments of this Court in Sangeet, V. 
Sriharan, State of Haryana vs. Mahender Singh, (2007) 13 SCC 
606 (“Mahender Singh”); Mohinder Singh, Maru Ram and Shri 
Bhagwan vs . State of Rajasthan , (2001) 6 SCC 296  (“Shri 
Bhagwan”). 
 
20. Mr. Mohammad Nizamuddin Pasha, learned counsel for the 
petitioner in Writ Petition  (Crl.) No.403 of 2022 reiterated the 
contention that materials not relied upon by the State of Gujarat 
while deciding on the question of remission for respondent Nos.3 to 
13 cannot be used to justify the decision retrospectively. Reliance 
was placed on the decision of this Court in OPTO Circuit India 
Ltd. vs. Axis Bank, (2021) 6 SCC 707  (“OPTO Circuit”) . That

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contrary to the submission of the learned ASG, the State has to 
consider the gravity of the offence while deciding whether to grant 
remission or not. That in cases, where the crimes are of a much less 
serious nature, remission has not been granted owing to the 
perceived seriousness of the offences by the State but in these cases 
of gruesome crime, remission has been simply granted . Further, 
there is a need to consider the fact that the victim and the convicts 
live in close proximity while granting remission, which fact has been 
considered in other cases but not in the impugned remission 
orders. 
 
Points for consideration: 
21.  Having heard learned senior counsel and learned counsel for 
the respective petitioners as well as learned ASG, learned senior 
counsel and learned counsel for the respondents, the following 
points would arise for our consideration:-  
1) Whether the petition filed by one of the victims in Writ 
Petition (Crl.) No.491 of 2022 under Article 32 of the 
Constitution is maintainable? 
2) Whether the writ petitions  filed as Public Interest 
Litigation (PIL) assailing the impugned orders of 
remission dated 10.08.2022 are maintainable?

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3) Whether the Government of the State of Gujarat was 
competent to pass the impugned orders of remission? 
4) Whether the impugned orders of remission passed by 
the respondent -State of Gujarat in favour of 
respondent Nos.3 to 13 are in accordance with law? 
5) What Order? 
 
The aforesaid points shall be considered in seriatim.  
A detailed narration of facts and contentions would not call for 
reiteration at this stage.  
 
  Re: Point No.1: “Whether the petition filed by one of the 
victims in Writ Petition (Crl.) No.491 of 2022  under 
Article 32 of the Constitution is maintainable?”  
 
22. Sri Rishi Malhotra, learned counsel for respondent No.3, while 
placing reliance on the decisions of this Court, made a specific plea 
regarding maintainability of Writ Petition (Crl.) No.491 of 2022 filed 
by the victim by contending that the said petitioner had filed a 
review petition challenging the order dated 13.05.2022 passed in 
Writ Petition (Crl.) No.135 of 2022 and the same was dismissed.  
Therefore, the only remedy open to the petitioner was to file a 
curative petition in terms of the judgment of this C ourt in Rupa 
Ashok Hurrah and not challenging the remission orders by filing a

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fresh writ petition.  We shall answer this contention in detail while 
considering point No.3. 
 
22.1. One of the contentions raised by learned Senior Counsel, Sri 
S. Guru Krishna Kumar  appearing for one of the private 
respondents was that the petitioner in Writ Petition (Crl.) No.491 of 
2022, Bilkis Bano, ought to have challenged the orders of remission 
before the Gujarat High Court by filing a petition under Article 226 
of the Constitution rather than invoking Article 32 of the 
Constitution before this Court. In this regard, it was submitted that 
by straightaway filing a petition under Article 32 of the Constitution 
a right of approaching this Court by way of an appeal by an 
aggrieved party has been lost. It was submitted that if victims file 
petitions under Article 32 of the Constitution before this Court 
challenging orders of remission, floodgate s would be opened and 
persons such as the petitioner would straightaway file writ petitions 
before this Court. That when an alternative remedy of filing a writ 
petition under Article 226 of the Constitution is available which is 
also a wider remedy than Article 32 of the Constitution, the petition 
filed by the writ petitioner in Writ Petition (Crl.) No.491 of 2022 
must be dismissed reserving liberty to her to approach the High 
Court, if so advised.

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 Similar arguments were made by learned senior counsel Sri 
Chidambaresh. 
 
22.2. At the outset, we state that Article 32 of the Constitution is a 
part of Part -III of the Constitution of India  which deals with 
Fundamental Rights. The right to file a petition under Article 32 of 
the Constitution is also a Fundamental Right. In the instant case, 
the petitioner - Bilkis Bano has filed her writ petition under Article 
32 of the Constitution in order  to enforce her Fundamental Rights 
under Article 21 of the Constitution which speaks of right to life and 
liberty and Article 14 which deals  with right to equality and equal 
protection of the laws. The object and purpose of Article 32 of the 
Constitution which is also recognised to be the “soul of the 
Constitution” and which is a Fundamental Right in itself is for the 
enforcement of other Fundamental Rights in Part-III of the 
Constitution. We think that the aforesaid constitutional remedy is 
also to enforce the goals enshrined in the Preamble of the 
Constitution, which speak of justice, liberty, equality and fraternity. 
Bearing in mind the expanded notion of access to justice which also 
includes speedy remedy , we think that the petition filed by the 
petitioner in Writ Petition (Crl.) No.491 of 2022 cannot be dismissed 
on the ground of availability of an alternative remedy under Article

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226 of the Constitution or on the ground of its maintainability 
under Article 32 of the Constitution before this Court.  
 
22.3. There is another stronger reason as to why the said petitioner 
has approached this Court by filing a petition under Article 32 of 
the Constitution rather than invoking Article 226 of the 
Constitution before the High Court. That is because earlier, one of 
the respondents, namely, r espondent No.3 Radheshyam 
Bhagwandas Shah had preferred Writ Petition (Crl.) No.135 of 2022 
invoking Article 32 of the Constitution before this Court by seeking 
a direction to the State of Gujarat to consider his case for remission 
under the Policy of 1992 . This Court issued a categorical direction 
to that effect. In fact, the respondent-State has understood the said 
direction as if it was a command or a direction to grant remission 
within a period of two months. But, before this Court  in the said 
proceedings, one of the serious contentions raised by the State of 
Gujarat was that it was not the appropriate Government to grant 
remission which contention was negatived by the order dated 
13.05.2022. In fact, that is one of the grounds raised by the 
petitioner v ictim to assail the orders of remission granted to 
respondent Nos.3 to 13. That being so, the High Court of Gujarat 
would not have been in a position to entertain the aforesaid

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contention in view of the categorical direction issued by this Court 
in Writ Petition (Crl.) No.491 of 2022 disposed on 13.05.2022. In 
the teeth of the aforesaid order of this Court, the contention 
regarding the State of Gujarat not being the competent State to 
consider the validity of the orders of remission in a petition filed 
under Article 226 of the Constitution, particularly, when the 
question of competency was raised, could not have been dealt with 
by the Gujarat High Court on the principle of judicia l propriety. 
Therefore, for this reason also the petitioner in Writ Petition (Crl.) 
No.135 of 2022 has, in our view, rightly approached this Court 
challenging the orders of remission. The contentions of learned 
Senior Counsel, Sri S. Guru Krishna Kumar and Sri Chidambaresh 
are hence, rejected.  Thus, we hold that Writ Petition (Crl.) No.491 
of 2022 filed under Article 32 of the Constitution is clearly 
maintainable. 
 
  Re: Point No.2: “Whether the writ petitions filed as Public 
Interest Litigation (PIL) assailing the impugned orders of 
remission dated 10.08.2022 are maintainable?” 
 
23. We now record the submissions made with regard to 
maintainability of the Public Interest Litigation (PIL) assailing the 
orders of remission in favour of respondent Nos.3 to 13 herein.

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23.1. Learned ASG appearing for the State of Gujarat as well as 
Union of India submitted that the writ petitions filed as public 
interest litigations are not maintainable as the petitioners are 
strangers to the impugned orders of remission and they are in no 
way connected with the matter.  In this context, reliance was placed 
on certain decisions referred to above including Rajiv Ranjan,  
Simranjit Singh, and, Ashok Kumar, to contend that there can 
be no third party interference in criminal matters in the garb of 
filing public interest litigations. It was also contended that the 
petitioners who have filed the public interest litigation are 
interlopers and busybodies and are not persons who are aggrieved. 
In the aforesaid context, reliance was placed on M.V. Dabholkar 
and Jasbhai Motibhai.  
  
23.2. Shri Sidharth Luthra, learned senior counsel has also voiced 
the arguments of the respondents by referring to certain decisions 
of this Court while contending that the grant of remission is in the 
exclusive domain of the State and although no convict can seek 
remission as a matter of fundamental right has nevertheless the 
right to be considered for remission.  Tha t remission is a matter 
between the convict and the State and, therefore, there can be no 
third party inference in such a matter.  The detailed submissions of

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the learned counsel have already been adverted to above and, 
therefore, it is unnecessary to reproduce the same once again.  
 
23.3. Respondent No.3 has challenged the locus of the petitioners 
in Writ Petition (Crl.) No.319 of 2022 and connected writ petitions 
and contended that the petitioners therein are not related to the 
said case and are third-party/strangers to the case. If petitions filed 
by third - party strangers are entertained by this Court, then it 
would unsettle the settled position of law and would open floodgates 
for litigation. Learned counsel for respondent No.3 Sri Rishi 
Malhotra placed reliance on the decision of this Court in Janata 
Dal vs. H.S. Chowdhary, (1992) 4 SCC 305 (“Janata Dal”) which 
was reiterated and followed in Simranjit Singh and in 
Subramanian Swamy vs. Raju, (2013) 10 SCC 465 
(“Subramanian Swamy”) where it has consistently been held that 
a third party, who is a total stranger to the prosecution has no 'locus 
standi' in criminal matters and has no right whatsoever to file a 
petition under Article 32. 
 
23.4. In Simranjit Singh, this Court was faced with the situation 
where a conviction of some of the accused persons by this Court 
under the Terrorist and Disruptive Activities  (Prevention) Act, 
(TADA Act ) was sought to be challenged under Article 32 of the

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Constitution by the President of the Akali Dal (M), namely, Simranjit 
Singh Mann which was dismissed. In paragraph 5 of the judgment 
in Simranjit Singh , this Court categorically dealt with the said 
issue and held that the petition under Article 32 of the Constitution 
was not maintainable for the simple reason that the petitioner 
therein did not seek to enforce any of his fundamental rights nor 
did he com plain that any of his fundamental rights were being 
violated. This Court was of the view that a total stranger in a 
criminal case cannot be permitted to question the correctness of a 
decision. 
 
24. Per contra , learned senior counsel, Ms. Indira Jaising, has 
made her submissions on the issue of locus standi of the petitioner 
in Writ Petition (Crl.) No.326 of 2022. According to her, even when 
no specific legal injury is caused to a person or to a determinate 
class or group of persons by an act or omission of the State or any 
public authority but when an injury is caused to public interest, a 
concerned citizen can maintain an action for vindicating the rule of 
law and setting aside the unlawful action or enforcing the 
performance of public duty. (Vide B.P Singhal).  
 
24.1. She asserted that the  writ petition raises questions of great 
public importance in that, in a democracy based on the rule of law,

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no authority has any unfeterred and unreviewable discretion. All 
powers vested in an authority, are intended to be used only for 
public good. The exercise of executive power must be informed by 
the finer canons of constitutionalism, vide Maru Ram. That the 
impugned decision of granting remission to the convicts violates 
rule of law, is arbitrary and not based on any relevant 
consideration. Therefore, the writ petition filed by the petitioner in 
public interest is maintainable.  In this regard relian ce was placed 
on S.P. Gupta. 
 
24.2. As regards respondents’ contention that by entertaining the 
petition under Article 32 of the Constitution the convicts have been 
denied the right of appeal, it was submitted that there exists no 
statutory right of appeal against an order denying or permitt ing 
remission. Such an order can only be challenged under Article 226 
or Article 32 of the Constitution. Further, a Constitution Bench of 
this Court in Kochuni observed that, “…the mere existence of an 
adequate alternative remedy cannot per se be a good and sufficient 
ground for throwing out a petition under Article 32, if the existence 
of a fundamental right and a breach, actual or threatened, of such 
right is alleged and is prima facie established on the petition.”

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24.3. As regards the respondents’ submission that a stranger to the 
criminal proceedings under any circumstance cannot file a petition 
under Article 32, it was contended that the instant proceedings are 
not criminal in nature, they fall within the realm of admin istrative 
law as they seek to challenge orders of remission which are 
administrative decisions. Learned senior counsel brought to our 
notice the fact that this Court had entertained a petition filed by a 
DMK leader under Section 406 of the CrPC seeking the  transfer of 
a pending criminal trial against his political opponent, J. 
Jayalalithaa, from the State of Tamil Nadu to the State of Karnataka 
vide K. Anbazhagan.  
 
25. Ms. Vrinda Grover, learned counsel for the petitioner in Writ 
Petition (Crl.) No.352 of 2022, at the outset, submitted that the said 
petition has been filed in the larger public interest by the petitioners 
who have vast knowledge and practical expertise on issues of public 
policy, governance and upholding the rule of law. Their petition 
challenges not only the arbitrary and mala fide exercise of executive 
prerogative under Section 432 of the CrPC, but also prays for a shift 
in practices related to the grant of remission by bringing in more 
accountability and transparency to the process of grant of

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remission. Thus, the writ petition is maintainable as a Public 
Interest Litigation. 
 
25.1. Learned counsel contended that the petition does not 
constitute an intervention into criminal proceedings but is rather a 
challenge to arbitrary executive action, which is amenable to 
judicial review. That it is settled law that the exercise of power under 
Section 432  of the  CrPC is an administrative act which neither 
retracts from a judicial order nor does it wipe out the conviction of 
the accused and is merely an executive prerogative exercised after 
the judicial function in a criminal proceeding has come to an end 
vide Epuru Sudhakar and Ashok Kumar. 
 
25.2. It was further submitted that all the judgments cited by the 
respondents-convicts as also the respondent-State to argue that the 
petitioners have no locus standi in the matter refer to different 
stages of criminal proceedings, viz. petitions related to 
investigation, trial, sentencing or quashing of the FIR. However, the 
present petition is a challenge to the arbitrary and mala fide  
administrative action which has arisen after the criminal 
proceedings have attained finality in the eye of law.

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25.3. Learned counsel submitted that it is trite that the exercise of 
executive discretion is subject to rule of law and fairness in State 
action as embodied in Article 14 of the Constitution. The exercise of 
such discretion under Section 432 of the CrPC which is arbitrary or 
mala fide amounts to State action in violation of constitutional and 
statutory obligations and is detrimental to public interest. Learned 
counsel placed reliance on the decision of this Court in S. P. Gupta 
to submit that this Court ha s in many cases held that in case of 
public injury caused by an act or omission of the State which is 
contrary to the rule of law, any member of the public acting bona 
fide can maintain an action for redressal of a public wrong. In the 
case at hand, the mala fide and arbitrary grant of premature release 
to the respondents-convicts by State action is de hors constitutional 
mandate and abets immunity for violence against women. ( Vide 
Sheonandan Paswan vs. State of Bihar, (1987) 1 SCC 288  
(“Sheonandan Paswan”)  and Abdul Wahab K. vs. State of 
Kerala, (2018) 18 SCC 448 (“Abdul Wahab”). 
 
25.4. Learned counsel next submitted that this Court in 
Subramanian Swamy, while adjudicating on the locus of a public-
spirited intervenor in a case requiring interpretation of the Juvenile 
Justice (Care and Protection  of Children) Act, 2015, held that the

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intervenor had sought an interpretation of criminal law which 
would have a wide implication beyond the scope of the parties in 
that case and hence, allowed the same. Thus, when larger questions 
of law are involved, which include interpretation of statutory  
provisions for the purpose of grant of premature release/remission, 
public-spirited persons who approach the Court in a bona fide  
manner, ought not to be prevented from assisting the Court to 
arrive at a just and fair outcome. 
 
25.5. Learned counsel Ms. Grover further submitted that in cases 
where offences have shocked the conscience of the society, spread 
fear and alarm amongst citizens and have impugned on the secular 
fabric of society, like in the instant case, this Court has allowed 
interventions by members of the public seeking to bring to the 
attention of the Court the inaction and apat hy on the part of the 
State in discharging its duty within the criminal justice system. It 
has been held in some cases that the technical rule of locus cannot 
shield the arbitrary and illegal exercise of executive discretion in 
violation of constitutional and statutory principles, once the same 
have been brought to the attention of this Court. 
 
26. Learned counsel for the petitioner in Writ Petition  (Crl.) 
No.319 of 2022, Smt. Aparna Bhat submitted that the petitioner

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has locus standi to approach this Court against the remission 
orders dated 10.08.2022. It was submitted that upholding the 
constitutional values and protection of all citizens is the 
responsibility of the State and there is a legitimate expectation that 
the State conducts all its actions in accordance with constitutional 
values. That the aforesaid petition has been filed in public interest 
as the premature release of respondent Nos.3 to 13 cannot be 
permitted since the convicts pose a danger to society. Tha t the 
petitioners in the connected matters fulfil the wide ambit of the 
expression "person aggrieved” as envisaged under PIL jurisdiction 
since they are challenging the release of convicts who have 
committed heinous and grave offences against society. 
 
26.1. On the issue of locus standi of the petitioners to approach this 
Court, the learned counsel relied on para 6 of A.R Antulay vs. 
Ramdas Sriniwas Nayak, (1984) 2 SCC 500 (“A.R Antulay”) .  
Further, it was submitted that in Sheonandan Paswan, this Court 
relied on A. R. Antulay and held that if a citizen can set the 
machinery of criminal law in motion, she is also entitled to oppose 
the unwarranted withdrawal of prosecution in an offence against 
society.

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26.2. Learned counsel further placed reliance on the dictum of this 
Court in Manohar Lal  vs. Vinesh Anand, (2001) 5 SCC 407 , 
wherein it was held that the doctrine of locus standi is totally foreign 
to criminal jurisprudence and that society cannot afford to have a 
criminal escape his liability. Also, in Ratanlal vs. Prahlad Jat , 
(2017) 9 SCC 340,  this Court held that a crime is not merely an 
offence committed in relation to an individual but is also an offence 
against society at large and it is the duty of the State to punish the 
offender. 
27. Although, we have recorded the detailed submissions made 
on behalf of the respective parties, we do not think it is necessary 
to answer the point regarding maintainability of the PILs in this case 
inasmuch as one of the victims, namely, Bilkis Bano has also filed 
a writ petition invoking Article 32 of the Constitution  assailing the 
orders of remission  which we have held to be maintainable.  The 
consideration of that petition on its merits would suffice in the 
instant case. Hence, we are of the view that the question of 
maintainability of the PILs challenging the orders of remission in 
the instant case would not call for an answer from us owing to the 
aforesaid reason. As a result, we hold that consideration of the point 
on the maintainability of the PILs has been rendered wholly 
academic and not requiring an answer in this case. Therefore, the

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question regarding maintainability of a PIL challenging orders of 
remission is kept open to be considered in any other appropriate 
case.  
 
28.  Before we consider point No.3, we shall deal with the concept 
of remission.   
Remission : Scope & Ambit 
29. Krishna Iyer, J. in Mohammad Giasuddin vs. State of A.P., 
(1997) 3 SCC 287 , quoted George Bernard Shaw the famous 
satirist who said, “If you are to punish a man retributively, you must 
injure him. If you are to reform him, you must improve him and, men 
are not improved by injuries .”  According to him, humanity today 
views sentencing as a process of reshaping a person who has 
deteriorated into criminality and the modern community has a 
primary stake in the rehabilitation of the offender as a means of 
social defence.  
 
29.1. Further, quoting a British Buddhist -Christian Judge, it was 
observed that in the context of karuna (compassion) and 
punishment for  karma (bad deeds) , ‘The two things are not 
incompatible. While an accused is punished for what he has done, a 
quality of what is sometimes called mercy, rather than an emotional

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hate against the man for doing something harmful must be deserved. 
This is what compassion is about.’ 
 
30. Learned senior counsel Sri Sidharth Luthra, drew our 
attention to the principles covering grant of remission and 
distinguished it from concepts, such as commutation, pardon, and 
reprieve, with reference to a judgment of this Court in State (Govt. 
of NCT of Delhi) vs. Prem Raj, (2003) 7 SCC 121 ( “Prem Raj”). 
Articles 72 and 161 deal with clemency powers of the President of 
India and the Governor of a State, and also include the power to 
grant pardons, reprieves, respites or remissions of punishment or 
to suspend, remit or commute the sentences in certain cases.  The 
power under Article 72 inter alia extends to all cases where the 
punishment or sentence is for an offence against any law relating 
to a matter to which the executive power of the Union extends and 
in all cases where the sentence is a sentence of death.  Article 161 
states that the Government of a State shall have the power to grant 
pardons, reprieves, respites or remissions of punishment or to 
suspend, remit or commute the sentence of any person convicted of 
any offence against any law relating to a matter to which the 
executive power of the State extends.  It was observed in the said 
judgment that the powers under Articles 72 and 161 of the

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Constitution of India are absolute and cannot be fettered by any 
statutory provision , such as, Sections 432, 433 or 433 -A of the 
CrPC or by any prison rule. 
  
30.1. It was further observed that a  pardon is an act of grace, 
proceeding from the power entrusted with the execution of the law, 
which exempts the individual on whom it is bestowed from the 
punishment the law inflicts for a crime he has committed. It affects 
both the punishment prescribed for the offence and the guilt of the 
offender.  But pardon has to be distinguished from “amnesty” which 
is defined as a “general pardon of political prisoners; an act of 
oblivion”.  An amnesty would result in the release of the convict but 
does not affect disqualification incurred, if any. ‘Reprieve’ means a 
stay of execution of a sentence, a postponement of a capital 
sentence. Respite means awarding a lesser sentence instead of the 
penalty prescribed in view of the fact that the accused has had no 
previous conviction. It is something like a release on probation for 
good conduct under Section 360 of the CrPC.  On the other hand, 
remission is reduction of a sentence without changing its character. 
In the case of a remission , the guilt of the offender is not affected, 
nor is the sentence of the court, except in the sense that the person 
concerned does not suffer incarceration for the entire period of the

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sentence, but is relieved from serving out a part of it. Commutation 
is change of a sentence to a lighter sentence of a different kind . 
Section 432 empowers the appropriate Government to suspend or 
remit sentences.  
  
30.2. Further, a remission of sentence does not mean acquittal and 
an aggrieved party has every right to vindicate himself or herself.  
In this context, reliance was placed on Sarat Chandra Rabha vs. 
Khagendranath Nath, AIR 1961 SC 334  (“Sarat Chandra 
Rabha”), wherein a Constitution Bench of this Court while 
distinguishing between a pardon and a remission observed that an 
order of remission does not wipe out the offence; it also does not 
wipe out the conviction. All that it does is to have an effect on the 
execution of t he sentence; though ordinarily a convicted person 
would have to serve out the full sentence imposed by a court, he 
need not do so with respect to that part of the sentence which has 
been ordered to be remitted. An order of remission thus, does not 
in any way interfere with the order of the court; it affects only the 
execution of the sentence passed by the court and frees the 
convicted person from his liability to undergo the full term of 
imprisonment inflicted by the court  even though the order of 
conviction and sentence passed by the court still stands as it is.

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The power to grant remission is an executive power and cannot have 
the effect which the order of an appellate or revisional court would 
have of reducing the sentence passed by the trial court and 
substituting in its place the reduced sentence adjudged by t he 
appellate or revisional court.  According to Weater's Constitutional 
Law, to cut short a sentence by an act of clemency is an exercise of 
executive power which abridges the enforcement of the judgment 
but does not alter it qua the judgment. 
 
30.3. Reliance was placed on Mahender Singh, to urge that a right 
to be considered for remission, keeping in view the constitutional 
safeguards of a convict under Articles 20 and 21 of the Constitution 
of India, must be held to be a legal one. Such a legal right emanates 
from not only the Prisons A ct but also from the Rules framed 
thereunder. Although no convict can be said to have any 
constitutional right for obtaining remission in his sentence, the 
policy decision itself must be held to have conferred a right to be 
considered therefor. Whether by reason of a statutory rule or 
otherwise if a policy decision has been laid down, the persons who 
come within the purview thereof are entitled to be treated equally, 
vide State of Mysore  vs. H. Srinivasmurthy, (1976) 1 SCC 817  
(“H. Srinivasmurthy”).

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30.4. In Mahender Singh , this Court was considering the 
correctness of a judgment of the Punjab and Haryana High Court 
in which a circular /letter issued by the State of Haryana laying 
down criteria for premature release of the prisoners had been 
declared to be unconstitutional. In the above context, this Court 
considered the right of the convict to be considered for remission 
and not on what should be the criteria when the matter was taken 
up for grant thereof.  
30.5. Satish was pressed into service to contend that the length of 
the sentence or the gravity of the original crime cannot be the sole 
basis for refusing premature release. Any assessment regarding a 
predilection to commit crime upon release must be based on 
antecedents as well as conduct of the prisoner while in jail, and not 
merely on his age or apprehensions of the victims and witnesses. It 
was observed that although, a convict cannot claim remission as a 
matter of right, once a law has been made by the appropriat e 
legislature, it is not open for the executive authorities to 
surreptitiously subvert its mandate.  It was further observed that 
where the authorities are found to have failed to discharge their 
statutory obligations despite judicial directions, it would then not 
be inappropriate for a constitutional court while exercising its

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powers of judicial review to assume such task onto itself and direct 
compliance through a writ of mandamus.  Considering that the 
petitioners therein had served nearly two decades of incarceration 
and had thus suffered the consequences of their actions, a balance 
between individual and societal welfare was struck by granting the 
petitioners therein conditional pr emature release, subject to their 
continuing good conduct.  In the said case, a direction was issued 
to the State Government to release the prisoner s therein on 
probation in terms of Section 2 of the U.P. Prisoners Release on 
Probation Act, 1938 within a period of two weeks. The respondent 
State was reserved liberty with the overriding condition that the 
said direction could be reversed or recalled in favour of any party or 
as per the petitioner therein. 
 
31.  The following judgments of this Court are apposite to the 
concept of remission:   
(a)  In Maru Ram, a Constitution Bench considered the validity 
of Section 433 -A of the CrPC.  Krishna Iyer, J. speaking for the 
Bench observed, “Ordinarily, where a sentence is for a definite 
term, the calculus of remissions may benefit the prisoner     to 
instant release at the point where the subtraction results in 
zero”.          However, “when it comes to life imprisonment, where the

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sentence is indeterminate and of an uncertain duration, the 
result of subtraction from an uncertain quantity is still an 
uncertain quantity and release of the prisoner cannot follow except 
on some fiction of quantification of a   sentence of uncertain 
duration. 
(i)  Referring to Gopal Vinayak Godse  vs. State of 
Maharashtra, (1961) 3 SCR 440 , it was observed that the 
said judgment is an authority for the  proposition that a 
sentence of imprisonment for life is one of “imprisonment for 
the whole of the remaining period of the convicted person’s  
natural life”, unless the said sentence is committed or remitted 
by an appropriate  authority under the  relevant provisions  of 
law. 
(ii)  In Gopal Vinayak Godse , a distinction was drawn between 
remission, sentence  and life sentence. Remission limited a 
time, helps computation but does  not ipso jure  operate as 
release of the prisoner. But, when the sentence awarded by the 
Judge is for a fixed term, the effect of remissions may be to 
scale down the term to be endured and reduce it to nil, while 
leaving the factum and quantum of sentence intact. However, 
when the sentence is a life  sentence, remissions, quantified in

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time, cannot reach a point of zero.  Since Section 433 -A deals 
only with life sentences, remissions cannot entitle a prisoner to 
release. It was further observed that remission, in  the case of 
life imprisonment, ripens into a reduction of sentence of the  
entire balance only when a final release order is made. If 
this is not done, the prisoner will continue in custody. The 
reason is, that life sentence is nothing less than life long 
imprisonment and remission vests no right to release when the 
sentence is life imprisonment. Nor is any vested right to 
remission cancelled by compulsory fourteen years jail life as a 
life sentence is a sentence for whole life.  
(iii)  Interpreting Section 433-A it was observed that there are three 
components in it which is in the nature of saving clause. 
Firstly, the CrPC generally governs matters covered by it. 
Secondly, if a special or local law exists covering the same area, 
the latter law will be saved and will prevail, such as short  
sentencing measures and remission scheme s promulgated by 
various States. The third component is, if there is a specific 
provision to the  contrary then, whether it would override the 
special or local law. It was held that Section 433 -A picks out 
of a mass  of imprisonment cases a specific class of life 
imprisonment cases and  subjects it explicitly to a

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particularized treatment. Therefore, Section 433 -A applies in 
preference to any special or local law. This is because Section 
5 of the CrPC expressly declares that specific provision, if any, 
to the contrary will prevail over any special or local law. 
Therefore, Section 433-A would prevail and escape exclusion of 
Section 5. The Constitution Bench concluded that Section 433-
A is supreme over the remission rules and  short-sentencing 
statutes made by various States. Section 433-A does not permit 
parole or other related release within a span of fourteen years.  
(iv)  It was further observed that  criminology must include 
victimology as a major component of its concerns.  When a 
murder or other grievous offence is committed the victims or 
other aggrieved persons must receive reparation and social 
responsibility of the criminal to restore the l oss or he al the 
injury which is part  of the punitive exercise which means the 
length of the prison term is no reparation to the crippled or 
bereaved.  
(v)  Fazal Ali, J. in his concurring judgment in Maru Ram observed 
that crime is rightly described as an act of war fare against the 
community touching new depths of lawlessness. According to 
him, the  object of imposing  deterrent sentence is three-fold.

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While holding that the deterrent form of punishment may 
not be      a most suitable or ideal form of punishment yet, the fact 
remains that the deterrent punishment prevents occurrence of 
offence.  He further observed that Section 433-A is actually 
a social piece  of legislation which by one stroke seeks to 
prevent dangerous criminals from repeating offences and on 
the other  hand protects the society from harm and distress 
caused to innocent persons.  While opining that where section 
433-A applies, no question of reduction  of sentence arises at 
all unless the President of India or the Governor of a State 
choose to exercise their wide powers under Article 72 or Article 
161 of the Constitution respectively which also have to be 
exercised according  to sound legal principles as, any reduction 
or modification in the deterrent  punishment would , far from 
reforming the criminal, be counter-productive. 
(b)  Mohinder Singh is a case which arose under Section 432 on 
remission of sentence in which the difference between the terms 
`bail’, ` furlough’ and ` parole’ having different connotations were 
discussed. It was observed that furloughs are variously  known as 
temporary leaves, home visits or temporary community release and 
are usually granted when a convict is suddenly faced with a  severe

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family crisis such as death or grave illness in the immediate family 
and often the convict/inmate is accompanied by an officer as part 
of the terms of temporary release of special leave which is granted 
to a prisoner facing a family crisis. Parole is a release of a prisoner 
temporarily for a special purpose or completely before the expiry of 
the sentence or on promise of good behaviour. Conditional release 
from imprisonment is to entitle a convict to serve remainder of his 
term outside the  confines of an institution on his satisfactorily 
complying all terms and conditions provided in the parole order.  
(c)  In Poonam Latha vs. M.L. Wadhwan, (1987) 3 SCC 347  
(“Poonam Latha”) , it was observed that parole is a professional 
release from confinement but it is deemed to be part of 
imprisonment. Release on parole is a wing of reformative process 
and is expected to provide opportunity to the prisoner to transform 
himself into a useful citizen. Parole is thus, a grant of partial liberty 
or lessening of restrictions to  a convict prisoner but release on 
parole does not change the status of the prisoner. When a prisoner 
is undergoing sentence and confined in jail or is on parole or 
furlough his position is not similar to a convict who is  on bail. This 
is because a convict on bail is not entitled to the benefit of the 
remission system.  In other words, a prisoner is not eligible for

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remission of sentence during the period he is on bail or his sentence 
is temporarily suspended. Therefore, such a prisoner who is on bail 
is not entitled to get  remission earned during the period he is on 
bail.  
 
32.  Apart from the constitutional provisions, the re are also  
provisions of the CrPC which deal with remission of convicts.  
Sections 432, 433, 433A and 435 of the CrPC are relevant and read 
as under: 
“432. Power to suspend or remit sentences.— (1) When 
any person has been sentenced to punishment for an 
offence, the appropriate Government may, at any time, 
without conditions or upon any conditions which the 
person sentenced accepts, suspend the execution of his 
sentence or remit the whole or any part of the punishment 
to which he has been sentenced. 
(2) Whenever an application is made to the appropriate 
Government for the suspension or remission of a sentence, 
the appropriate Government may require the presiding 
Judge of the Court before or by which the conviction was 
had or confirmed, to state his op inion as to whether the 
application should be granted or refused, together with his 
reasons for such opinion and also to forward with the 
statement of such opinion a certified copy of the record of 
the trial or of such record thereof as exists. 
(3) If any condition on which a sentence has been 
suspended or remitted is, in the opinion of the appropriate 
Government, not fulfilled, the appropriate Government 
may cancel the suspension or remission, and thereupon 
the person in whose favour the sentenc e has been 
suspended or remitted may, if at large, be arrested by any 
police officer, without warrant and remanded to undergo 
the unexpired portion of the sentence.

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(4) The condition on which a sentence is suspended or 
remitted under this section may be one to be fulfilled by 
the person in whose favour the sentence is suspended or 
remitted, or one independent of his will. 
(5) The appropriate Government may, by general rules 
or special orders, give directions as to the suspension of 
sentences and the conditions on which petitions should be 
presented and dealt with: 
Provided that in the case of any sentence (other than a 
sentence of fine) passed on a male person above the age of 
eighteen years, no such petition by the person sentenced 
or by any other person on his behalf shall be entertained, 
unless the person sentenced is in jail, and— 
(a)  where such petition is made by the person sentenced, 
it is presented through the officer in charge of the jail; 
or 
(b)  where such petition is made by any other person, it 
contains a declaration that the person sentenced is 
in jail. 
(6) The provisions of the above sub -sections shall also 
apply to any order passed by a Criminal Court under any 
section of this Code or of any other law which restricts the 
liberty of any person or imposes any liability upon him or 
his property. 
(7) In this section and in Section 433, the expression 
“appropriate Government” means,— 
(a)  in cases where the sentence is for an offence against, 
or the order referred to in sub -section (6) is passed 
under, any law relating to a matter to which the 
executive power of the Union extends, the Central 
Government; 
(b)  in other cases, the Government of the State within 
which the offender is sentenced or the said order is 
passed. 
433. Power to commute sentence .— The appropriate 
Government may, without the consent of the person 
sentenced, commute—

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(a)   a sentence of death, for any other punishment 
provided by the Indian Penal Code (45 of 1860); 
(b) a sentence of imprisonment for life, for imprisonment 
for a term not exceeding fourteen years or for fine; 
(c)  a sentence of rigorous imprisonment, for simple 
imprisonment for any term to which that person 
might have been sentenced, or for fine; 
(d)  a sentence of simple imprisonment, for fine. 
 
433A. Restriction on powers of remission or 
commutation in certain cases. — Notwithstanding 
anything contained in Section 432, where a sentence of 
imprisonment for life is imposed on conviction of a person 
for an offence for which death is one of the punishments 
provided by law, or where a sentence of death imposed on 
a person has been commuted under Section 433 into one 
of imprisonment for life, such person shall not be released 
from prison unless he had served at least fourteen years of 
imprisonment. 
 
435. State Government to act after consultation with 
Central Government in certain cases .— (1) The powers 
conferred by Sections 432 and 433 upon the State 
Government to remit or commute a sentence, in any case 
where the sentence is for an offence— 
(a)  which was investigated by the Delhi Special Police 
Establishment constituted under the Delhi Special 
Police Establishment Act, 1946 (25 of 1946), or by 
any other agency empowered to make investigation 
into an offence under any Central Act other than this 
Code, or 
(b)  which involved the misappropriation or destruction 
of, or damage to, any property belonging to the 
Central Government, or 
(c) which was committed by a person in the service of 
the Central Government while acting or purporting 
to act in the discharge of his official duty, 
shall not be exercised by the State Government except 
after consultation with the Central Government.

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(2) No order of suspension, remission or commutation 
of sentences passed by the State Government in relation 
to a person, who has been convicted of offences, some of 
which relate to matters to which the executive power of the 
Union extends, and who has bee n sentenced to separate 
terms of imprisonment which are to run concurrently, 
shall have effect unless an order for the suspension, 
remission or commutation, as the case may be, of such 
sentences has also been made by the Central Government 
in relation to the offences committed by such person with 
regard to matters to which the executive power of the 
Union extends.” 
 
32.1. Sub-section (1) of Section 432 is an enabling provision which 
states that when any person has been sentenced to punishment for 
an offence, the appropriate Government may, at any time, without 
conditions or upon any condition which the person sentenced 
accepts, suspend the execution of his sentence or remit the whole 
or any part of the punishment to which he has been sentenced. The 
pertinent provision involved in this case is sub-section (2) which 
deals with an application made to the appropriate Government for 
the suspension or remission of a sentence  and the appropriate 
Government may require the Presiding Judge of the Court before or 
by which the conviction was had or confirmed, to state his opinion 
as to , whether, the application should be granted or refused, 
together with his reasons for such opinion and also to forward with 
the statement of such opinion a certified copy of the record of the 
trial or of such record thereof as exists.  Sub -section (3) deals with

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cancellation of the suspension or remission in the event of there 
being any non -fulfilment of any condition imposed by the 
appropriate Government whereupon the person in whose favour the 
sentence has been suspended or remitted, may be arrested by the 
police officer, without warrant and remanded to undergo the 
unexpired portion of the sentence, if such a person is at large.  Sub-
section (4) states that the condition on which a sentence is 
suspended or remitted under this section may be one to be fulfilled 
by the person in whose favour the sentence is suspended or 
remitted, or one independent of his will.  The appropriate 
Government may, by general rules or special orders, give directions 
as to the suspension of sentences and the conditions on which 
petitions should be presented and dealt with vide sub-section (5) of 
Section 432 of the CrPC.  The proviso to sub-section (5) states that 
in the case of any sentence (other than a sentence of fine) passed 
on a male person above the age of eighteen years, no such pet ition 
by the person sentenced or by any other person on his behalf shall 
be entertained, unless the person sentenced is in jail, and it is 
presented through the officer in -charge of the jail; or  where such 
petition is made by any other person, it contains a declaration that 
the person sentenced is in jail.  Sub-section (6) of Section 432 states 
that the provisions of this Section would apply to any order passed

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by a Criminal Court under any section of the CrPC or of any other 
law which restricts the liberty of any person or imposes any liability 
upon him or his property.   
 
32.2. The expression “appropriate Government” used in Section 432 
as well as in Section 433, is defined in sub -section (7) of Section 
432.  It expresses that in cases where the sentence is for an offence 
against, or the order referred to in sub-section (6) is passed under, 
any law relating to a matter to which the executive power of the 
Union extends, the Central Government; and  in other cases, the 
Government of the State within which the offender is sentenced or 
the said order is passed. 
 
32.3. Section 433-A is a restriction on the powers of remission or 
commutation in certain cases.  It begins with a non-obstante clause 
and states that notwithstanding anything contained in Section 432, 
where a sentence of imprisonment for life is imposed on conviction 
of a person for an offence for which death is one of the punishments 
provided by law, or where a sentence of death imposed on a person 
has been commuted under Section 433 into one of imprisonment 
for life, such person shall not be released from prison unless he had 
served at least fourteen years of imprisonment.

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32.4. Section 434 states that the powers conferred by Sections 432 
and 433 upon the State Government may in case of sentences of 
death also be exercised by the Central Government concurrently.   
 
32.5. The necessity for the State Government to act in consultation 
with the Central Government in certain cases is mandated in 
Section 435. The powers conferred by Sections 432 and 433 upon 
the State Government to remit or commute a sentence, in any case 
where the sentence is for an offence (a) which was investigated by 
the Delhi Special Police Establishment constituted under the Delhi 
Special Police Establishment Act, 1946, or by any other agency 
empowered to make investigation into an offence under any Central 
Act other than the CrPC, or (b) which involved the misappropriation 
or destruction of, or damage to, any property belonging to the 
Central Government, or (c) which was committed by a person in the 
service of the Central Government while acting or purporting to act 
in the discharge of his  official duty, shall not be exercised by the 
State Government except after consultation with the Central 
Government. Sub-section (2) of Section 435 states that no order of 
suspension, remission or commutation of senten ces passed by the 
State Government in relation to a person, who has been convicted 
of offences, some of which relate to matters to which the executive

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power of the Union extends, and who has been sentenced to 
separate terms of imprisonment which are to run concurrently, 
shall have effect unless an order for the suspension, remission or 
commutation, as the case may be, of such sentences has also been 
made by the Central Government in relation to the offences 
committed by such person with regard to matters to which the 
executive power of the Union extends. 
 
 With the above backdrop of provisions , we move to consider 
Point No.3. 
Point No.3 : Whether the Government of State of Gujarat 
was competent to pass the impugned orders of 
remission? 
 
33. The point for consideration revolves around the definition of 
the expression “appropriate Government”. In other words, whether 
the first respondent – State of Gujarat was competent to pass the 
orders of remission in the case of respondent Nos.3 to 13  herein is 
the question. The meaning and import of the expression 
“appropriate Government” has to be discerned from the judgments 
of this Court in the light of sub -section (7) of Section 432 of the 
CrPC.  
 
33.1. The contentions raised by the learned counsel for the 
petitioner in Writ Petition (Crl.) No.491 of 2022 as well as the

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arguments of learned ASG appearing for Union of India as well as 
State of Gujarat on this aspect need not be reiterated.   
 
33.2. The expression “appropriate Government” no doubt has been 
defined in sub -section (7) of Section 432 to mean that  in cases 
where the sentence is for an offence against, or the order referred 
to in sub-section (6) is passed under, any law relating to a matter 
to which the executive power of the Union extends, the Central 
Government; in other cases, the Government of t he State within 
which the offender is sentenced or the said order is passed.  The 
expression “appropriate Government” also finds place in sub -
section (1) of Section 432 which, as already discussed above, states 
that when any person has been sentenced to punishment for an 
offence, the appropriate Government may, at any time, without 
conditions or upon any condition which the person sentenced 
accepts, suspend the execution of his sentence or remit the whole 
or any part of the punishment to which he has been sentenced. 
 
33.3. Sub-section (1) of Section 432 of the CrPC deals with a power 
vested with the appropriate Government which is an enabling 
power.  The discretion vested with the appropriate Government has 
to be exercised judiciously in an appropriate case and not to abuse 
the same.  However, when an application is made to the appropriate

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Government for the suspension or remission of a sentence such as 
in the instant case  by a convict, the appropriate Government may 
seek the opinion of the Presiding Judge of the Court before or by 
which the conviction was had or confirmed and on considering the 
reasons for such opinion, may consider the application for 
remission vide sub-section (2) of Section 432 of the CrPC.   
 
33.4. On a combined reading of sub -sections (1) and (2) of Section 
432, it is apparent that the conviction and sentence of the Court 
which had tried the case assumes significance and the appropriate 
Government may have to seek the opinion of the Presiding Judge of 
the Court before which the conviction took place, before passing an 
order of remission. This is particularly so when an application is 
filed by or on behalf of a convict seeking remission. Therefore, 
logically the expression appropriate Government in cl ause (b) of 
sub-section (7) of Section 432 also states that the Government of 
the State within which the offender is sentenced or the said order 
is passed which is the appropriate Government.  The aforesaid 
consistency is significant inasmuch as the intent of the Parliament 
is, it is only the Government of the State within which the offender 
was sentenced which is competent to consider an application for 
remission and pass an order remitting the sentence of a convict.

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This clearly means that the place of occurrence of the incident or 
place of imprisonment of the convict are not relevant considerations 
and the same ha ve been excluded from the definition of the 
expression appropriate Government in clause (b) of sub -section (7) 
of Section 432.  If the intention of the Parliament was that 
irrespective of the Court before which the trial and conviction had 
taken place, the order of remission can be considered by the 
Government within whose territorial jurisdiction the offence has 
been committed or the offender is imprisoned, the same would have 
been indicated by the definition.  On the contrary, the definition of 
appropriate Government is otherwise.  The intention of the 
Parliament is that the Government of the State within which the 
offender was tried and sentenced, is the appropriate Government to 
consider either under sub-section (1) of Section 432 of the CrPC or 
on an application made by the convict for remission of the sentence 
under sub -section (2) of Section 432  of the  CrPC. This places 
emphasis on the place of trial and sentence of the offender rather 
than the place or location where the crime was committed. Such an 
interpretation would also include a situation, such as in the present 
case, where not only the investigation but also the trial of 
respondents No.3 to 13 herein was transferred from the State of 
Gujarat to the State of Maharashtra and particularly to the Special

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Court at Mumbai.  Thus, the aforesaid definition also takes within 
its scope and ambit a circumstance wherein the trial is transferred 
by this Court for reasons to be recorded and which is in the interest 
of justice from one State to another State. 
 
33.5. There may be various reasons for transferring of a trial from 
a competent Court within the territorial jurisdiction of one State to 
a Court of equivalent jurisdiction in another State, as has been done 
in the instant case . But what is certain is that the transfer of the 
trial to a court in another State would be a relevant consideration 
while considering as to which State has the competency to pass an 
order of remission.  Thus, the definition of appropriate Government 
in sub -section (7) of Section 432 clearly indicates that the 
Government of the State within which the offender is sentenced, is 
the appropriate Government to pass an order of remission.   
 
33.6. In almost all cases, the court before which the offender was 
sentenced is located within the territory of a State Government 
wherein the offence occurred and, therefore, in such a case, there 
can be no further doubt about the  meaning of the  expression 
appropriate Government.  But according to us, even in a case where 
the trial has been transferred by this Court from a court of 
competent jurisdiction of a State to a court in another State, it is

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still the Government of the State within which the offender was 
sentenced which is the appropriate Government which has  the 
jurisdiction as well as competency to pass an order of remission  
under Section 432 of the CrPC.  Therefore, it is not the Government 
of the State within whose territory  the offence occurred or  the 
convict is imprisoned which can assume the power of remission.   
33.7. In this regard, the following judgments of this Court may be 
relied upon: 
(a) In Ratan Singh,    on discussing Section 401 of the erstwhile 
CrPC (corresponding to Section 432 of the present CrPC) it was 
observed that the test to determine the appropriate Government is 
to locate the State where the accused was convicted and  sentenced 
and the Government of that State would be the appropriate  
Government within the meaning of Section 401 of the CrPC.  In the 
said case, it was observed that the accused was convicted and 
sentenced in the State of Madhya  Pradesh and though he was 
discharging his sentence in a jail in Amritsar in the State of Punjab, 
the appropriate Government under section 401 (1) of the erstwhile 
CrPC to exercise the discretion for remission of the sentence was the 
State of Madhya Pradesh. It was further observed that even under 
the new Code i.e. CrPC, 1973 as per sub-section (7) of Section 432

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thereof, the phrase appropriate Government had the same meaning 
as the latter provision had been  bodily lifted from Section 402(3) of 
the erstwhile CrPC. On a review of  the case law and the statutory 
provisions of the CrPC the following propositions were culled out: 
“9. …(1) that a sentence of imprisonment for life does 
not automatically expire at the end of 20 years including 
the remissions, because the administrative rules framed 
under the various Jail Manuals or under the Prisons Act 
cannot supersede the statutory provisions of the Indian 
Penal Code. A sentence of imprisonment for life means a 
sentence for the entire life of the prisoner unless the 
appropriate Government chooses to exercise its discretion 
to remit either the whole or a part o f the sentence under 
Section 401 of the Code of Criminal Procedure; 
 
(2) that the appropriate Government has the 
undoubted discretion to remit or refuse to remit the 
sentence and where it refuses to remit the sentence no writ 
can be issued directing the State Government to release 
the prisoner. 
 
(3) that the appropriate Government which is 
empowered to grant remission under Section 401 of the 
Code of Criminal Procedure is the Government of the State 
where the prisoner has been convicted and sentenced, that 
is to say, the transferor State and not the transferee State 
where the prisoner may have been transferred at his 
instance under the Transfer of Prisoners Act; and 
 
(4) that where the transferee State feels that the 
accused        has completed a period of 20 years it has merely 
to forward  the request of the prisoner to the concerned 
State Government, that is to say, the Government of the 
State where the prisoner was convicted and sentenced and 
even if this request is rejected by the State Government the 
order of the  government cannot be interfered with by a 
High Court in its writ jurisdiction.”

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(b) The aforesaid decision was reiterated in Hanumant Dass. In 
the said case, the incident had occurred in Dharmshala and when 
the matter was pending before the Sessions Court, Dharmshala in 
Himachal Pradesh at the instance  of the complainant, on an 
application moved before this Court, the  case was transferred 
from Himachal Pradesh to the Sessions Court at  Gurdaspur in 
Punjab.  
(c) Insofar as clemency power of a Governor of a State under 
Article 161 of the Constitution to grant remission to prisoners 
convicted by courts outside the State but undergoing sentences in 
jails in the State is  concerned, this Court in  M.T. Khan observed 
that the appropriate government on whose advice the Governor has 
to act while  granting remission to such a prisoner was to be 
decided on the basis of the aid and  advice of the Council of 
Ministers of the State which had convicted the accused and not the 
State where the accused/convict is transferred to be lodged in the 
jail. In this case it was held that since the judgment of  conviction 
had been passed in the States of Madhya Pradesh and 
Maharashtra and the convict was lodged in the State of Andhra 
Pradesh, the appropriate Governments were the States of Madhya 
Pradesh and Maharashtra even  under Article 161 of the

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Constitution. Hence, the appeals filed by the Government  of 
Andhra Pradesh were allowed. 
(d) V. Sriharan is a judgment of a Constitution Bench of this 
Court wherein the  Government of Tamil Nadu had proposed to 
remit the sentence of life  imprisonment to release seven convicts 
who were convicted in the Rajiv Gandhi assassination case – State, 
through Superintendent of Police, CBI vs. Nalini, (1999) 5 SCC 
253 (“Nalini”). While discussing the phrase “appropriate 
Government”, it was observed that barring  cases falling under 
Section 432(7)(a), in all other cases where the offender is sentenced 
or the sentence or order is passed within the territorial jurisdiction 
of the State co ncerned, that State Government would be the  
appropriate Government.  Following the earlier decisions it was 
observed that  even if an offence is committed in State-A, but, the 
trial takes place  and the sentence is passed in State-B, it is the 
latter State which shall        be the appropriate Government. 
 
33.8. In our view, on a plain reading of sub -section (7) of Section 
432 of the CrPC and considering the judgments of this Court, it is 
the State of Maharashtra, which had the jurisdiction to consider 
the application for remission vis-à-vis respondent Nos.3 to 13 
herein as they were sentenced by the Special Court, Mumbai .

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Hence the applications filed by respondent Nos. 4 to 13 seeking 
remission had to be simply rejected by the State of Gujarat  owing 
to lack of jurisdiction to consider them. This is because 
Government of Gujarat is not the appropriate Government within 
the meaning of the aforesaid provision.  The High Court of Gujarat 
was therefore right in its order dated 17.07.2019.  
 
33.9. When an authority does not have the jurisdiction to deal with 
a matter or it is not within the powers of the authority i.e. the State 
of Gujarat in the instant case, to be the appropriate Government 
to pass orders of remission under Section 432  of the CrPC, the 
orders of remission would have no legs to stand.  On the aspect of 
jurisdiction and nullity of orders passed by an authority, the 
decision of the House of Lords in Anisminic v s. Foreign 
Compensation Commission, (1969) 2 WLR 163 : (1969) 1 All 
ER 208 (“Anisminic”), is of significance and the same can be cited 
by way of analogy.  The House of Lords in the said case held that 
the Foreign Compensation Commission had committed an error 
which was a jurisdictional error as its decision was based on a 
matter which it had no right to take into account and so its decision 
was a nullity and subject to judicial review.  Although in 
Anisminic, the scope and ambit of the concept of “jurisdictional

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error” or “error of jurisdiction ” was very much extended , and of a 
very broad connotation, in the instant case we are primarily dealing 
with a narrower concept i.e. when an authority , which is the 
Government of State of Gujarat in the instant case , was lacking 
jurisdiction to consider the applications for remission.  Just as an 
order passed by a Court without jurisdiction is a nullity, in the 
same vein, an order passed or action taken by an authority lacking 
in jurisdiction is a nullity and is non est in the eye of law.  
 
33.10. On that short ground alone the orders of remission 
have to be quashed.  This aspect of competency of the Government 
of State of Gujarat to pass the impugned orders of remission goes 
to the root of the matter and the impugned orders of remission are 
lacking in competency and hence a nullity.  The writ petition filed 
by the victim would have to succeed on this reasoning. But the 
matter does not rest at that. 
 
34. Learned ASG appearing for respondent Nos.1 and 2, has 
placed strong reliance on the order of this Court dated 13.05.2022 
to contend that in view of the directions issued by this Court in Writ 
Petition No.135 of 2022, respondent No.1 – State of Gujarat had to 
consider the applications for remission filed by respondents No.3 to 
13 herein.  Further, the consideration had to be made as per the

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1992 Policy of Remission of the State of Gujarat.  Hence, the 
appropriate Government in the case of respondent Nos.3 to 13 was 
the Government of Gujarat in terms of the order of this Court dated 
13.05.2022.  It was further  contended that the offences had also 
occurred within the State of Gujarat. Therefore, the first respondent 
– State of Gujarat had no option but to consider the applications 
filed by respondent Nos.3 to 13 herein and pass the orders dated 
10.08.2022 granting remission to them. 
 
35. Learned counsel for the petitioner in Writ Petition (Crl.) 
No.491 of 2022 has countered the above submission contending 
that one of the convicts-Radheshyam Bhagwandas Shah , 
respondent No.3 herein, had initially approached the High Court of 
Gujarat by filing Criminal Application No.4573 of 2019 for a 
direction to consider his application for remission by the State of 
Gujarat.  By order dated 17.07.2019 the High Court disposed of 
Criminal Application No.4573 of 2019 by observing that he should 
approach the appropriate Government being  the State of 
Maharashtra. His second such application before the Gujarat High 
Court was also dismissed vide order dated 13.03.2020.  That when 
the said prisoner filed Writ Petition (Crl.) No.135 of 2022 before this 
Court, he did not disclose the following facts:

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(i) that within fourteen days of the order dated 
17.07.2019, he had approached the Government of 
Maharashtra vide application dated 01.08.2019;  
(ii) that the CBI had given a negative recommendation 
vide its letter dated 14.08.2019;  
(iii) that the Special Judge (CBI), Mumbai  had given a 
negative recommendation vide  his letter dated 
03.01.2020;  
(iv) that the Superintendent of Police, Dahod , Gujarat 
had given a negative recommendation vide his letter 
dated 03.02.2020; and,  
(v) that the District Magistrate, Dahod , Gujarat  had 
given a negative recommendation vide his letter 
dated 19.02.2020. 
35.1. Further, the writ petitioner also made a misleading statement 
by referring to the order dated 05.08.2013 of the Bombay High 
Court in juxtaposition to the order of the Gujarat High Court dated 
17.07.2019 to contend that there was a divergent opinion between 
the two High Courts, which aspect constrained him to file Writ 
Petition (Crl.) No.135 of 2022  before this Court .  That the order 
dated 05.08.2013 passed by the Bombay High Court was dealing 
with transfer of the convicts in Maharashtra jail to their parent

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State (State of Gujarat) that too, in the year 2013, when the issue 
of remission did not arise at all. But t he said writ petitioner 
projected as if the two High Courts had contradicted themselves in 
their orders and, therefore, he was constrained to file the writ 
petition invoking the jurisdiction of this Court under Article 32 of 
the Constitution.  
 
35.2. It was contended that on account of the suppression of facts 
as well as misleading this Court with erroneous facts, the order 
dated 13.05.2022 is vitiated by fraud and is hence a nullity and the 
same cannot be binding on the parties to the said order or to the 
petitioner Bilkis Bano who, in any case, was not arrayed as a party 
in the said writ petition. 
 
36. It is necessary to highlight the salient aspects of the order 
passed by this Court in  the case of  Radheshyam Bhagwandas 
Shah dated 13.05.2022 in Writ Petition (Crl.) No.135 of 2022.  That 
was a petition filed by one of the convicts , respondent No.3 herein, 
seeking a direction to consider his application for premature release 
under the policy dated 09.07.1992 of the State of Gujarat which 
was existing at the time of his conviction. The relevant pleadings in 
the said writ petition are extracted as under:

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“Question of Law: 
 
A. Whether the policy dated 9.7.92, which was existing at 
the time of the conviction will prevail for considering 
the case of the petitioner for premature release? 
 
B. Whether in view of ‘State of Haryana Vs. Jagdish, 
(2010) 4 SCC 216’, a policy which is more liberal and 
prevailing would be given preference as compared to 
the policy which is sought to be made applicable at the 
time of consideration of the cases of premature 
release? 
 
x  x x 
FACTS OF THE CASE: 
 
x  x x 
 
That at this juncture it would be pertinent to mention 
herein that one of the co -accused Ramesh Rupabhai  
had approached the Bombay High Court by way of Crl. 
W.P. No.305/2013.  In the said order, the Bombay 
High Court clarified that the undertrials in this case 
were lodged in Maharashtra Jail only because of the 
fact that at that time the Trial was pending in the State 
of Maharashtra (transferred from Gujarat to 
Maharashtra by the Supreme Court).  The High Court 
further clarified that once the Trial has concluded and 
the prisoner has been convicted, the appropriate 
prison would be the State of Gujarat and acco rdingly, 
the said prisoners were transferred to the State of 
Gujarat from the State of Maharashtra... 
 
At this juncture, the petitioner had approached the 
Gujarat High Court on the ground that despite he 
having undergone more than actual sentence of 14 
years, his case was not being considered by the 
respondent/authorities for premature release.  The 
Gujarat High Court vide its order dated 17.7.19 with 
great respect took a completely a diametrically opposite 
view as that of Bombay High Court and erroneously

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held that since the petitioner’s case was tried in the 
State of Maharashtra, therefore, his case for premature 
release has to be considered by the State of 
Maharashtra and not by the State of Gujarat. 
 
Hence the instant Writ Petition under Article 32 of the 
Constitution issuing a writ of Mandamus or any other 
similar direction to the State of Gujarat praying inter 
alia that the case of the petitioner may be considered 
as per the policy dated 9.7.92 (i.e. policy existing at the 
time of conviction of the petitioner) in the light of 
settled decision in “State of Haryana Vs. Jagdish, 
(2010) 4 SC 216”. 
 
x  x x 
 
PRAYER: 
 
In the light of the above -mentioned facts and 
circumstances, the petitioner through this instant writ 
petition prays before this Hon’ble Court as under: 
 
A. Issue a writ,  order or direction in the nature of 
Mandamus to the Respondent/State of Gujarat to 
consider the case of the petitioner for premature 
release under the policy dated 9.7.92 i.e. the policy 
which was existing at the time of conviction. 
 
B. Or in the alternative, issue a writ, order or direction 
in the nature of Mandamus to the 
respondent/Union of India to consider the case of 
the petitioner in light of “UOI Vs. V. Sriharan, (2016) 
7 SCC 1.” and 
 
C. Pass any such further Order(s)/direction(s) as this 
Hon’ble Court may deem fit and proper in the facts 
and circumstances of the case.” 
 
36.1. The aforesaid pleadings do not indicate that State of Gujarat 
had no jurisdiction to consider his application for remission. Also,

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there was no pleading that he had filed any application before the 
Government of Gujarat. Thirdly, there is no mention that the policy 
of 09.07.1992 had been cancelled. Moreover, the said policy was 
not at all applicable as the writ petitioner was convicted in 
Maharashtra State and therefore, Government of Gujarat was not 
the appropriate Government. 
 
36.2. On the above basis , this Court passed the order dated 
13.05.2022, the relevant portion of which reads as under:  
“6. The present petitioner filed his petition for pre -mature 
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 Others , (2016) 7 SCC 1 , on the premise 
that since the trial has been concluded in the State of 
Maharashtra, the application for pre -mature 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 17th July 2019.  
 
xxx  xxx   xxx 
 
10. Learned counsel for the respondents has placed 
reliance on the judgment of this Court in Union of India 
vs. V. Sridharan 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.

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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 neighbouring State (State of 
Maharashtra) by an order dated 06 th 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.  
 
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 
pre-mature 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-accused Ramesh Rupabhai 
under its Order dated 5 th August, 2013 declined his 
request to consider the application for pre -mature 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 considered including remission or 
pre-mature release, as the case  may be, in terms of the 
policy which is applicable in the State of Gujarat where the

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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 
impugned dated 17th July, 2019 is set aside.  
 
16. The respondents are directed to consider the 
application of the petitioner for pre -mature 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.” 
 
 
36.3. The following aspects are noted by this Court in the order 
dated 13.05.2022:  
(i) that the crime was committed in the State of Gujarat 
but this Court in Transfer Petition (Crl.) No.192 of 
2004 had 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 order dated 06.08.2004.   
(ii) that the trial court, Mumbai in Sessions Case No.634 
of 2004, on completion of the trial held the said 
respondent as well as the other accused guilty and 
sentenced them to undergo rigorous imprisonment for 
life by judgment and order dated 21.01.2008.

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(iii) that one of the co -accused Ramesh Rupabhai had 
approached the Bombay High Court by filing Writ 
Petition (Crl.) No.305 of 20 13 seeking premature 
release but his application was dismissed by order  
05.08.2013 on the premise that the crime was 
committed in the state of Gujarat and his trial was 
transferred to the competent court in Maharashtra 
and once the trial had concluded and sentence has 
been passed, the appropriate Government would be 
the State of Gujarat and accordingly, the application 
filed by the said co-accused for premature release was 
to be examined as per the policy applicable in the 
State of Gujarat.    
(iv) that the judgment on which learned counsel for the 
State of Gujarat had placed reliance ( V. Sriharan) 
was not of any assistance for the reason that under 
Section 432 (7)  of the  CrPC, the appropriate 
Government can be either Central or State 
Government but there cannot be a concurrent 
jurisdiction of two State Governments under the said 
provision.

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(v) that once the crime was committed in the State of 
Gujarat, after the trial has been concluded and the 
judgment of conviction came to be passed, all further 
proceedings had to be considered including remission 
or pre-mature 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 stood transferred and concluded for 
exceptional reasons under the order of this Court. 
(vi) Consequently, the writ petition was allowed . Further 
even in the absence of there being any challenge , the 
order dated 17.07.2019 passed by the Gujarat High 
Court in a petition filed by the same petitioner 
(respondent No.3) under Article 226 of the 
Constitution was set aside by this Court in the writ 
petition filed by him under Article 32 of the 
Constitution. 
(vii) Further, it was not brought to the notice of this Court 
that the policy dated 09.07.1992 had been cancelled 
and was no more effective. In the absence of the same, 
direction was issued to the State of Gujarat to 
consider the case of the petitioner therein f or pre -

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mature release in terms of the said policy within a 
period of two months. 
 
36.4. Our inferences on the Order of this Court  dated 13.05.2022 
passed on the aforesaid writ petition are as under:  
(i) that the convict who approached this Court, namely, 
Radheshyam Bhagwandas Shah respondent No.3 
herein had stated that he had undergone about 15 
years 4 months of custody; 
(ii) that respondent No.3 herein  had not stated that his 
writ petition filed in the High Court of Gujarat had 
been dismissed by taking note of Section 432 (7) of the 
CrPC and on the basis of the decision in V. Sriharan 
as the trial had been concluded in the State of 
Maharashtra; 
(iii) that respondent No.3 had not stated that the 
application for premature release had been filed by 
him in the State of Maharashtra and not in the State 
of Gujarat as directed by the judgment of the Gujarat 
High Court dated 17.07.2019;

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(iv) Respondent No.3 herein who had filed the writ petition 
had not disclosed that he had acted upon the order 
dated 17.07.2019 passed by the Gujarat High Court 
inasmuch as– 
(a) he had approached the Government of 
Maharashtra vide application dated 01.08.2019; 
(b) the CBI had given a negative recommendation 
vide its letter dated 14.08.2019; 
(c) the Special Judge (CBI), Mumbai  had given a 
negative recommendation vide his letter dated 
03.01.2020; 
(d) the Superintendent of Police, Dahod, Gujarat had 
given a negative recommendation vide his letter 
dated 03.02.2020; and, 
(e) the District Magistrate, Dahod, Gujarat had given 
a negative recommendation vide his letter dated 
19.02.2020. 
(v) that the respondent No.3 had not assailed the order 
dated 17.07.2019 passed by the Gujarat High Court 
as there is a bar in law to assail an order passed by 
High Court under Article 226, under Article 32 of the 
Constitution.

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(vi) Interestingly, in the writ petition, the respondent State 
of Gujarat placed reliance on the judgment in V. 
Sriharan and contended that the trial had been 
concluded in the State of Maharashtra and therefore 
the expression appropriate government under section 
432 of the CrPC would be the State of Maharashtra 
and that no error had been committed by the High 
Court in its order dated 17.07.2019. 
(vii) Strangely, this Court held that the aforesaid 
submission on behalf of the State of Gujarat was not 
sustainable as the crime had been 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) of the Code of Criminal Procedure, 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 
neighbouring State (State of Maharashtra) by an order 
dated 06.08.2004 but after the conclusion of trial and 
the prisoner being convicted, stood transferred to the 
State where the crime was committed remain the

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appropriate Government for the purpose of Section 
432(7) Code of Criminal Procedure.”  This portion of the 
order of this Court is contrary to the judgments of this 
Court discussed above. This implies that the said 
order is per se per incuriam. 
(viii) This Court went on to hold that the High Court of 
Bombay had declined to interfere in Criminal Writ 
Petition No.305 of 2013 filed by the co -accused 
Ramesh Rupabhai by its order dated 05.08.2013  
without realising what the prayer in the said writ 
petition was, which was filed in the year 2013 , as at 
that point of time,  the issue of remission had not 
arisen at all. The Bombay High Court had declined to 
entertain the Writ Petition filed by one of the convicts 
by holding to consider his plea for transfer to a jail in 
State of Gujarat. 
(ix) Interestingly, no review petition was filed against the 
order of this Court dated 13.05.2022  by the State of 
Gujarat for seeking a review of the said order but the 
victim – petitioner in  Writ Petition (Crl.) No.491 of 
2022 – had filed a review petition which has been 
rejected by this Court.

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(x) that although the respondent No.3  who approached 
this Court as well as the State of Gujarat had termed 
the order of the Gujarat High Court dated 17.07.2019 
as “impugned Order”,  the said order was not at all 
impugned or assailed in the proceedings before this 
Court. What was filed by the convict  i.e., respondent 
No.3 before this Court was a writ petition under 
Article 32 of the Constitution  seeking a direction to 
the State of Gujarat to consider his remission 
application; 
(xi) More significantly, while a reference has been made to 
Criminal Writ Petition No.305 of 2013 filed by one of 
the co -accused Ramesh Rupabhai  in the year 2013 
before the Bombay High Court seeking a direction for 
transfer of the convicts from Maharashtra Jail to 
Gujarat Jail, the reference to the Order of the Gujarat 
High Court  dated 17.07.2019  dismissing the writ 
petition filed by respondent No.3 herein directing him 
to approach the Maharashtra State for remission was 
only in the context of the said order being 
“diametrically opposite” to the view of the Bombay 
High Court without explaining and by suppression of

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the backgrounds under which the two writ petitions 
were filed before the respective High Court.  
(xii) In fact, there was no  pleading or  prayer for seeking 
setting aside of the Gujarat High Court Order dated 
17.07.2019 nor was there any challenge to the said 
Order. That said Order had attained final ity as no 
Special Leave Petition as against the said Order was 
filed by the writ petitioner, Radheshyam Bhagwandas 
Shah respondent No.3 herein before this Court; rather 
he had acted upon it . Curiously, in the writ petition 
filed under Article 32 of the Constitution, the Order 
dated 17 .07.2019 has been set aside even in the 
absence of there being any prayer thereto  nor any 
discussion of the same. 
(xiii) Further, contrary to Section 432 (7) and the 
judgements of the Constitution Bench and other 
benches of this Court, a writ of mandamus was issued 
to the State of Gujarat to consider the prayer of the 
writ petitioner for premature release in terms of its 
policy dated 09.07.1992.  It was not brought to the 
notice of this Court by any party that the said policy 
had been cancelled and had been substituted by

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another policy in the year 2014. What was the effect 
of cancellation of the policy dated 09.07.1992 was not 
brought to the notice of this Court either by the writ 
petitioner or by the State of Gujarat. 
(xiv) In Sangeet & Another vs. State of Haryana, (2013) 
2 SCC 452 , this Court speaking through Lokur, J., 
observed that a convict undergoing a sentence does 
not have right to get a remission of sentence but he 
certainly does have a right to have his case considered 
for the grant of remission.  The term of sentence 
spanning the life of the convict can be curtailed by the 
appropriate Government for good and valid reasons in 
exercise of its powers under Section 432  of the CrPC.  
The said Section provides for some procedural and 
substantive checks on the arbitrary exercise of this 
power.  While observing that there is no decision of 
this Court detailing the procedure to be followed for 
the exercise of power under Section 43 2 of the CrPC, 
it was stated that sub-section (2) to sub-section (5) of 
Section 432 of the CrPC lay down the basic procedure, 
which is making of an application to the appropriate 
Government for the suspension or remission of a

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sentence, either by the convict or someone on his 
behalf.  Thus, the representation has to be made to 
the appropriate Government in terms of the provisions 
under Section 432  of the  CrPC. It was further 
observed that the exercise of power by the appropriate 
Government under sub -section (1) of Section 432  of 
the CrPC cannot be suo motu for the simple reason 
that this sub-section is only an enabling provision. In 
other words, the appropriate Government is enabled 
to “override” a judicially pronounced sentence, subject 
to fulfillment of certain conditions.  Those conditions 
are found either in the jail manual or in statutory 
rules.  Therefore, sub-section (1) of Section 432 of the 
CrPC cannot be read to enable the appropriate 
Government to “further override” the judicial 
pronouncement over and above what is permitted by 
the jail manual or the statutory rules.  On such an 
application being made, the appropriate Government 
is require d to approach the Presiding Judge of the 
Court before or by which the conviction wa s made or 
confirmed to opine (with reasons) whether the 
application should be granted or refused. Thereafter,

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the appropriate Government may take a decision on 
the remission application and pass orders granting 
remission subject to some conditions, or refusing 
remission. There has to be an application of mind to 
the issue of grant of remission and the power of 
remission cannot be exercised arbitrarily.  It was 
further observed that a convict undergoing life 
imprisonment is expected to remain in custody till the 
end of his life, subject to any remission granted by the 
appropriate Government under Section 432  of the  
CrPC which in turn is subject to the procedural 
checks in that Section and the substantive check in 
Section 433-A of the CrPC. 
Pursuant to the judgment in Sangeet, the 
Government of India vide its communication dated 
01.02.2013 made to all the Home Secretaries of the 
States and Union Territories, stated that there is a 
need to relook at the manner in which remissions of 
sentence are made with reference to Section 432 read 
with Section 433-A of the CrPC and hence requested 
that there should be scrupulous compliance of the 
aforesaid provisions and not to grant remission in a

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wholesale manner. Thereafter, on 08.05.2013, the 
Home Department, Government of Gujarat issued a 
Circular referring to the decision of this Court dated 
20.11.2012 in Sangeet and in order to implement the 
same and also taking note of the communication of 
the Government of India dated 01.02.2013, the 
Circular dated 09.07.1992 was cancelled in following 
manner: 
“… Therefore, the provisions of circular 
No.JLK/3390/CM/16/part/2/J dated 
09.07.1992 of the Home Department 
hereinabove referred to in Srl. No.1, hereby 
stand cancelled.”  
 
 
Thereafter, on 23.01.2014, the State Government 
constituted a Committee headed by the Additional 
Chief Secretary (Home) for considering the policy and 
guidelines to be followed for the purpose of remission 
and pre-mature release of the prisoners. After careful 
consideration, the State Government issued 
guidelines/policy for consideration of cases of 
remission and premature release of the prisoners.  In 
the said policy, it was categorically mentioned that 
“the prisoners who are convicted for the crimes” as

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mentioned in Annexure-I, shall not be considered for 
remission. Annexure -I contained the classes of 
prisoners who shall not be granted state remission as 
well as for premature release. Clause IV (a) and (d) 
read as follows: 
(a) A prisoner or prisoners sentenced for group 
murder of two or more persons. 
 
x       x        x 
 (d)  Prisoners convicted for murder with rape or gang 
rape. 
 
(xv) Realising that respondent Nos.3 to 13 would not be 
released under the Remission Policy dated 
23.01.2014, which had substituted the earlier 
Policy dated 09.07.1992, which had been cancelled, 
the writ petition was filed by respondent No.3 
herein before this Court seeking a specific direction 
to the State of Gujarat to consider his case as per 
the Policy dated 09.07.1992 which had by then 
been cancelled and substituted by another Policy 
dated 23.01.2014. 
(xvi) What is the effect of cancellation of the said policy 
by the State of Gujarat in light of the judgement of 
this Court in Sangeet and the communication of

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Union of India issued to each of the states including 
the State of Gujarat ?  Does it mean that the said 
policy of 09.07.1992 had stood cancelled and 
therefore got effaced and erased from the statute 
book and substituted by a new policy of 2014 which 
had to be considered.  There was no pleading or 
discussion to that effect. 
 
36.5  Thus, by suppressing material aspects and by misleading this 
Court, a direction was sought and issued to the respondent State 
of Gujarat to consider the premature release or remission of the writ 
petitioner, i.e., respondent No.3  on the basis of the policy dated 
09.07.1992. 
 
37. More pertinently , respondent No.3  had suppressed the fact 
that on the basis of the judgment of the Gujarat High Court in the 
writ petition that he had filed,   the convict had acted upon it and 
had made an application to the State of Maharashtra for remission 
on 01.08.2019 and the said application was being processed  
inasmuch as the stakeholders had given their opinion on the 
application, such as, the Presiding Judge of the court which had 
convicted the accused ;  the Director - CBI as well as the Director 
General and Inspector General of Police, State of Maharashtra who

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were all unanimous  in their opinion  inasmuch as they had all 
negatived grant of remission to the convict – Radheshyam Bhagwan 
Das.  Suppressing all this, the writ petition was filed by respondent 
No.3 invoking Article 32 of the Constitution and the same was 
allowed by also setting aside the Order of the Gujarat High Court 
dated 17.07.2019 and thereby setting at naught the steps taken 
pursuant to the said Order of the Gujarat High Court. 
 
38. At this stage, we may point out that if respondent No.3 had 
felt aggrieved by the order of the Gujarat High Court dated 
17.07.2019, it was open to him to have challenged the said order 
before this Court by filing a special leave petition, but he did not do 
so. Rather, he complied with the order of the Gujarat High Court by 
filing remission application  dated 01.08.2019 before the 
Government of Maharashtra where , not only the process for 
consideration of the remission prayer was initiated, but opinions of 
various authorities were also obtained. When the opinions were 
found to be negative, respondent No.3 filed Writ Petition  (Crl.) 
No.135 of 2022 before this Court seeking a direction to the State of 
Gujarat to consider his remission application suppressing the 
above material facts. This he could not have done, thereby

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misrepresenting and suppressing relevant facts, thus playing fraud 
on this Court.  
 
39.  We have no hesitation in holding that neither the order of the 
Gujarat High Court dated 17.07.2019 could have been challenged 
by respondent No.3 or for that matter by anybody else before this 
Court in a writ proceeding under Article 32 of the Constitu tion of 
India nor the said order of the High Court could have been set aside 
in a proceeding under Article 32 thereof. This proposition of law has 
been settled long ago by a nine-Judge bench decision of this Court 
in Naresh Sh ridhar Mirajkar vs. State of M aharashtra, AIR 
1967 SC 1, which is binding on us. 
 
39.1. When an oral order of the learned Judge passed in the original 
suit of the Bombay High Court was challenged by the petition er 
therein by way of a writ petition under Article 226 of the 
Constitution of India before the Bombay High Court, the writ 
petition was dismissed by a division bench of the Bombay High 
Court on the ground that the impugned order was a judicial order 
of the High Court and was not amenable to writ jurisdiction under 
Article 226. Thereafter, the petitioner therein moved this Court 
under Article 32 of the Constitution of India for enforcement of his 
fundamental rights under Article 19(1)(a) and (g) of the Constitution

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of India. This Court observed that the impugned order was passed 
by the learned Judge in the course of trial of a suit before him after 
hearing the parties. This Court took the view that the restraint order 
was passed to prohibit publication of evidence in the media during 
the progress of the trial and could not be construed as imposing a 
permanent ban on the publication of the said evidence.  
 
39.2. The question which fell for consideration before this Court 
was whether a judicial order passed by the High Court prohibiting 
the publication in newspapers of evidence given by a witness 
pending the hearing of the suit, was amenable to be corrected by a 
Writ of Certiorari of this Court under Article 32 of the Constitution 
of India. In the above context, this Court first held that a judicial 
verdict pronounced by a court in a matter brought before it for its 
decision cannot be said to affect the fundamental rights of citizens 
under Article 19(1) of the Constitution of India. Thereafter, this 
Court proceeded to hold that if any judicial order was sought to be 
attacked on the ground that it was inconsistent with Article 14 or 
any other fundamental rights, the proper remedy to challenge such 
an order would be by way of an appeal or revision as may be 
provided by law. It would not be open to the aggrieved person to 
invoke the jurisdiction of this Court under Article 32 of the

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Constitution and to contend that a Writ of Certiorari should be 
issued to quash such an order. This Court observed that it would 
be inappropriate to allow the petitioners to raise the question about 
the jurisdiction of the High Court to pass the impugned o rder in a 
proceeding under Article 32. Rejecting the argument of the 
petitioners, this Court held that judicial orders passed by High 
Courts in or in relation to proceedings pending before the High 
Courts are not amenable to be corrected by this Court exer cising 
jurisdiction under Article 32 of the Constitution of India. This being 
the law of the land, it is binding on all the courts including benches 
of lesser coram of this Court.  
 
40. Before proceeding further, it may also be mentioned that it 
was only respondent No.3 who had approached this Court by filing 
a writ petition under Article 32 of the Constitution of India being 
Writ Petition (Crl.) No.135 of 2022, seeking a direction to the State 
of Gujarat to consider his pre -mature release. None of the other 
convicts, i.e. respondent Nos.4 to 13 had approached this Court or 
any High Court seeking such a relief. Therefore, in so far these 
respondents are concerned, there was no directio n of this Court or 
any court to the State of Gujarat to consider their pre -mature 
release.

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41. We are of the considered view that the writ proceedings before 
this Court is pursuant to suppression and misleading of this Court 
and a result of suppressio veri suggestio falsi.  Hence, in our view, 
the said order was obtained by fraud played on this Court and 
hence, is a  nullity and non est  in law . In view of the aforesaid 
discussion, we hold that consequently the order dated 13.05.2022 
passed by this Court in Writ Petition (Crl.) No.135 of 2022 in the 
case of Radheshyam Bhagwandas Shah is hit by fraud and is a 
nullity and non est in the eye of law and therefore cannot be given 
effect to and hence, all proceedings pursuant to the said order are 
vitiated. 
 
42.  It is trite that fra ud vitiates everything.  It is a settled 
proposition of law that fraud avoids all judicial acts.  In S.P. 
Chengalvaraya Naidu v s. Jagannath  (Dead) through LRs , 
(1994)  1 SCC 1  (“S.P. Chengalvaraya Naidu”) , it has been 
observed that “ fraud avoids all judicial acts , ecclesiastical or 
temporal.”  Further, “no judgment of a court, no order of a minister 
would be allowed to stand if it has been obtained by fraud. Fraud 
unravels everything” vide Lazarus Estates Ltd. vs. Beasley , 
(1956) 1 ALL ER 341 (“Lazarus Estates Ltd.”).

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43.  It is well -settled that writ jurisdiction is discretionary in 
nature and that the discretion must be exercised equitably for 
promotion of good faith vide State of Maharashtra vs. Prabhu, 
(1994) 2 SCC 481 (“Prabhu”). This Court has further emphasized 
that fraud and collusion vitiate the most solemn precedent in any 
civilized jurisprudence ; and that fraud and justice never dwell 
together (fraus et jus nunquam cohabitant ). This maxim has never 
lost its lustre over the centuries. Thus, any litigant who is guilty of 
inhibition before the Court should not bear the fruit and benefit of 
the court’s orders. This Court has also held that fraud is an act of 
deliberation with a desire to secure something which is othe rwise 
not due. Fraud is practiced with an intention to secure undue 
advantage. Thus, an act of fraud on courts must be viewed 
seriously. 
 
43.1. Further, fraud can be established when a false representation 
has been made (i) knowingly, or (ii) without belief in its truth, or (iii), 
recklessly, being careless about whether it be true or false . While 
suppression of a material document would amount to a fraud on 
the Court, suppression of material facts vital to the decision to be 
rendered by a court of law is equally serious. Thus, once it is held 
that there was a fraud in judicial proceedings all advantages gained

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as a result of it h ave to be withdrawn. In such an eventuality, 
doctrine of res judicata or doctrine of binding preceden t would not 
be attracted since an order obtained by fraud is non est in the eye 
of law.  
 
43.2. In K.D. Sharma v s. Steel Authority of India Limited , 
(2008) 12 SCC 481  (“K.D. Sharma”) , this Court held that the 
jurisdiction of the Supreme Court under Article 32 and of the High 
Court under Article 226 of the Constitution is extraordinary, 
equitable and discretionary and it is imperative that the petitioner 
approaching the Writ Court must come with clean hands and put 
forward all the facts before the Court without concealing or 
suppressing anything and seek an appropriate relief. If there is no 
candid disclosure of relevant and material facts or the petitioner is 
guilty of misleading the Court, his petition may be dismissed at the 
threshold without considering the merits of the claim. It was held 
thus: 
“38. The above principles have been accepted in our 
legal system also. As per settled law, the party who 
invokes the extraordinary jurisdiction of this Court 
Under Article 32 or of a High Court Under Article 226 of 
the Constitution is supposed to be truthfu l, frank and 
open. He must disclose all material facts without any 
reservation even if they are against him. He cannot be 
allowed to play "hide and seek" or to "pick and choose" 
the facts he likes to disclose and to suppress (keep back) 
or not to disclose (conceal) other facts. The very basis of

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the writ jurisdiction rests in disclosure of true and 
complete (correct) facts. If material facts are suppressed 
or distorted, the very functioning of writ courts and 
exercise would become impossible. The Petitioner must 
disclose all the facts having a bea ring on the relief 
sought without any qualification. This is because "the 
court knows law but not facts". 
 
39. … Suppression or concealment of material facts is 
not an advocacy. It is a jugglery, manipulation, 
maneuvering or misrepresentation, which has no place 
in equitable and prerogative jurisdiction. If the applicant 
does not disclose all the material facts fairly and truly 
but states them in a distorted manner and misleads the 
court, the court has inherent power in or der to protect 
itself and to prevent an abuse of its process to discharge 
the Rule nisi and refuse to proceed further with the 
examination of the case on merits. If the court does not 
reject the petition on that ground, the court would be 
failing in its duty. In fact, such an applicant requires to 
be dealt with for contempt of court for abusing the 
process of the court.” 
 
43.3. In K. Jayaram vs. Bangalore Development Authority, 
2021 SCC OnLine SC 1194 (“K. Jayaram”), a bench of this Court 
headed by Sri Nazeer, J. noticed that the appellants therein had not 
come to the Court with clean hands. The appellants in the said case 
had not disclosed the filing of a suit and its dismissal and also the 
dismissal of the appeal against the judgment of the Civil Court. This 
Court stressed that the parties have to disclose the details of all 
legal proceedings and litigations either past or present concerning 
any part of the subject matter of dispute which is within their 
knowledge in order to check multiplicity of proceedings pertaining

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to the same subject -matter and more importantly to stop the 
menace of soliciting inconsistent orders through different judicial 
forums by suppressing material facts either by remaining silent or 
by making misleading statements in the pleadings in order to 
escape the liability of making a false statement. This Court observed 
that since the appellants therein had not disclosed the filing of the 
suit and its dismissal and also the dismissal of the appeal against 
the judgment of the civil court, the appellants had to be non-suited 
on the ground of suppression of material facts.  They had not come 
to the court with clean hands and they had also abused the process 
of law, therefore, they were not entitled to the extraordinary, 
equitable and discretionary relief. 
  
43.4. A Division Bench of this Court comprising Justice B. R. Gavai 
and Justice C.T. Ravikumar placing reliance on the dictum in S.P. 
Chengalvaraya Naidu, held in Ram Kumar vs. State of Uttar 
Pradesh, AIR 2022 SC 4705, that a judgment or decree obtained 
by fraud is to be treated as a nullity.  
 
44.  We wish to consider the case from another angle. The order of 
this Court dated 13.05.2022 is also per incuriam for the reason that 
it fails to follow the earlier binding judgments of this Court 
including that of the Constitution Bench in V. Sriharan vis-à-vis

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the appropriate Government which is vested with the power to 
consider an application for remission as per sub -section (7) of 
Section 432 of the CrPC and that of the nine Judge Bench decision 
in Naresh Shridhar Mirajkar that an order of a High Court cannot 
be set aside in a proceeding under Article 32 of the Constitution.  
 
44.1. In State of U.P. vs. Synthetics and Chemicals Ltd., (1991) 
4 SCC 139  (“Synthetics and Chemicals Ltd .”), a two Judge 
Bench of this Court (speaking through Sahai J. who also wrote the 
concurring judgment along with Thommen, J.) observed that the 
expression per incuriam means per ignoratium. This principle is an 
exception to the rule of stare decisis. The ‘quotable in law’ is avoided 
and ignored if it is rendered, ‘ in ignoratium  of a statute or other 
binding authority’. It would result in a judgment or order which is 
per incuriam. In the case of Synthetics and Chemicals Ltd ., the 
High Court relied upon the observations in paragraph 86 of the 
judgment of the Constitution Bench in Synthetics and Chemicals 
Ltd., namely, “sales tax cannot be charged on industrial alcohol in 
the present case, because under the Ethyl Alcohol (Price Control) 
Orders, sales tax cannot be charged by the State on industrial 
alcohol” and struck down the levy.

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 In Synthetics and Chemicals Ltd ., before the  two-judge 
bench, it was categorically argued by the learned Advocate General 
appearing for the appellant State of Uttar Pradesh that the reference 
to “sales tax” in the judgment of this Court in the earlier round of 
the litigation was accidental and did not arise from the judgment.  
This was because the levy of sales tax was not in question at any 
stage of the arguments nor was the question considere d as it was 
not in issue. The Court gave no reason whatever for abruptly stating 
that “sales tax was not levi able by the State by reason of the Ethyl 
Alcohol (Price Control) Orders.”  In fact, the question which arose 
for consideration in the earlier litigation was in regard to the validity 
of “vend fee and other fees” charged by the States.   The argument 
was that such impost, to the extent that it fell on industrial alcohol, 
encroached upon the legislative field reserved for Parliament in 
respect of a controlled industry coming under Entry 52 of List I 
(read with Entry 33 of List III). Vend fee or transport fee and similar 
fees, unless supported by quid pro quo, this Court held, interfered 
with the control exercised by the Central Government under the 
Industries (Development and Regulation) Act, 1951 (for short “IDR 
Act, 1951”) and the various orders made thereunder with respect to 
prices, licences, permits, dis tribution, transport, disposal, 
acquisition, possession, use, consumption, etc., of articles related

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to a controlled industry, industrial alcohol being one of them.  But 
none of the observations in the judgment warranted the abrupt 
conclusion, to which the court came, that the power to levy taxes 
on sale or purchase of goods referable to Entry 54 of List II was 
curtailed by the control exercised by the Central Government under 
the IDR Act. The casual reference to sales tax in the concluding 
portion of the judgment was accidental and  per incuriam was the 
submission. 
 While considering the said plea, this Court observed that “the 
only question which had to be determined between the same parties 
reported in (1990) 1 SCC 109 (Synthetics and Chemicals Ltd. 
vs. State of U.P.) was “whether intoxicating liquor in Entry 8 in List 
II was confined to potable liquor or includes all liquors.” Answering 
this question, this Court categorically held that intoxicating liquor 
within the meaning of Entry 8 of List II was confined to potable  
liquor and did not include industrial liquor.  This Court did not deal 
with the taxing power of the State under Entry 54 of List II which 
deals with ‘taxes on the sale or purchase of goods other than 
newspapers, subject to the provisions of Entry 92 -A of List I’.  The 
power of the State to levy taxes on sale or purchase of goods under 
that entry was not the subject matter of discussion by this Court

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although in paragraph 86 of the leading judgment of this Court, 
there was a reference to sales tax.  
Therefore, the only question that was considered by the seven-
judge bench of this Court was whether the State could levy “excise 
duty” or “vend fee” or “transport fee” and the like by recourse to 
Entry 51 or 8 in List II in respect of industrial alcohol. Entry 52 List 
II was not applicable to fee or charges in question.  Entry 52 List II 
refers to “Taxes on the entry of goods into a local area for 
consumption, use or sale therein”. Further, the observation that 
sales tax cannot be charged by the State on in dustrial alcohol was 
an abrupt observation without a preceding discussion, and 
inconsistent with the reasoning adopted by this Court in earlier 
decisions from which no dissent was expressed on the point. 
However, the aforesaid observation with reference to  Entry 52 of 
List II in connection with excise duty and sales tax when neither 
falls under that entry, was held to be per incuriam.   
This was because this Court by a detailed discussion in the 
seven-judge bench decision had observed that the impugned 
statutory provisions purportedly levying fees or enforcing 
restrictions in respect of industrial alcohol were impermissible in 
view of the control assumed by the Central Government in exercise 
of its power under Section 18 -G of the IDR Act in respect of a

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declared industry falling under Entry 52 of List I, read with Entry 
33 of List III.  
It was in the above background that this Court considered the 
question whether or not the power of the State to levy tax on the 
sale or purchase of goods falling under Entry 54 of List II would 
comprehend industrial alcohol. This was because the taxing pow er 
under Entry 54 of List II was subject to taxing power of the 
Parliament under Entry 92 -A of List I.  Therefore, it was observed 
that the provisions in question by which sales tax could be levied 
within the scope and ambit of Entry 54 List II was contrary to what 
had been stated (in paragraph 86) by the seven -judge bench 
decision between the same parties.  It was observed that the 
aforesaid decision of this Court was not an authority for the 
proposition canvassed by the assessee in challenging the provision. 
This Court could not have intended to say that the Price Control 
Orders made by the Central Government under the IDR Act 
imposed a fetter on the legislative power of the State under Entry 
54 of List II to levy taxes on the sale or purchase of goods. Th e 
reference to sales tax in paragraph 86 of that judgment was merely 
accidental or per incuriam and therefore, had no effect.

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In the earlier litigation of  Synthetics and Chemicals Ltd., 
the question was whether the State Legislature could levy vend fee 
or excise duty on industrial alcohol. The seven -Judge Bench 
answered in the negative as industrial alcohol being unfit for 
human consumption, the State legislature was incompetent to levy 
any duty of excise either under Entry 51 or Entry 8 of List II of the 
Seventh Schedule. While doing so , the Bench recorded the above 
conclusion. It was not preceded by any discussion. No reason or 
rationale could be found in the judgment. Therefore, it was held by 
the two-Judge Bench that the same was per incuriam and was liable 
to be ignored in a subsequent matter between the same parties. The 
courts have taken recourse to this principle for relieving from 
injustice being perpetrated by unjust precedents. It was observed 
that uniformity and consistency are core of judicial discipline. But, 
if a decision proceeds contrary to the law declared, it cannot be a 
binding precedent. It was further observed that the seven -Judge 
Bench in Synthetics and  Chemicals Ltd . did not  discuss the 
matter and had observed that the State cannot levy sales tax on 
industrial alcohol. In the subsequent matter which arose from the 
High Court between the same parties, it was held by this Court that 
the conclusion of law by the Constitution Bench that no sales or 
purchase tax could be levied on industrial alcohol was per incuriam

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and also covered by the rule of sub-silentio and therefore, was not a 
binding authority or precedent. 
Thus, although it is the ratio decidendi which is a precedent 
and not the final order in the judgment , however, there are certain 
exceptions to the rule of precedents which are expressed by the 
doctrines of per incurium and sub silentio.  Incuria legally means 
carelessness and per incurium may be equated with per ignorantium. 
If a judgment is rendered in ignorantium of a statute or a binding 
authority, it becomes a decision per incurium.  Thus, a decision 
rendered by ignorance of a previous binding decision of its own or 
of a court of coordinate or higher jurisdiction or in ignorance of the 
terms of a statute or of a rule having the force of law is per incurium. 
Such a per incurium decision would not have a precedential value.  
If a decision has been rendered per in curium, it cannot be said that 
it lays down good law, even if it has not been expressly overruled 
vide Mukesh K . Tripathi vs. Senior Divisional Manager, LIC ,  
(2004) 8 SCC 387 (para 23).  Thus, a decision per incurium is not 
binding. 
 
44.2. Another exception to the rule of precedents is the rule of sub-
silentio.  A decision is passed sub-silentio when the particular point 
of law in a decision is not perceived by the court or not present to

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its mind or is not consciously determined by the court and it does 
not form part of the ratio decidendi it is not binding vide Amrit Das 
vs. State of Bihar, (2000) 5 SCC 488.  
  
45.  One of the contentions raised in the present case was that 
since this Court in the order dated 13.05.2022 had directed that 
the State of Gujarat was the appropriate Government, the same was 
binding on the parties even though it may be contrary to the earlier 
decisions of this Court. We cannot accept such a submission having 
regard to what has been observed above in the case of Synthetics 
and Chemicals Ltd.  which was also with regard to the application 
of the same doctrine between the very same parties  inasmuch as 
when a judgment has been delivered per incuriam or passed sub-
silentio, the same cannot bind either the parties to the judgment or 
be a binding precedent for the future  even between the same 
parties. Therefore, for this reason also, the order dated 13.05.2022 
would not bind the parties thereto and particularly, to the petitioner 
in Writ Petition (Crl.) No.491 of 2022 who was in any case  not a 
party to the said writ proceeding. 
46. Having regard to the above discussion and in light of the 
provisions of the CrPC, the judgments of this Court and our own 
understanding of the order dated 13.05.2022 passed by a

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coordinate Bench of this Court in Writ Petition No.135 of 2022, we 
hold as follows:  
(i)  that the Government of State of Gujarat (respondent 
No.1 herein)  had no jurisdiction to  entertain the 
applications for remission or  pass the orders of 
remission on 10.08.2022 in favour of respondent No.3 
to 13 herein as it was not the appropriate Government 
within the meaning of sub -section (7) of Section 432 
of the CrPC;  
 
(ii)  that th is Court’s order dated 13.05.2022 being 
vitiated and obtained by fraud is therefore a nullity 
and non est in law. All proceedings taken pursuant to 
the said order also stand vitiated and are non est in 
the eye of law. 
 
47.  Point No.3 is accordingly answered. 
 
 
Point No.4 : Whether the impugned order of remission 
passed by the respondent - State of Gujarat in favour 
of respondent Nos.3 to 13 are in accordance with 
law? 
 
48. We have perused the original record which is the English 
translation from Gujrati language.

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48.1. Even according to the respondent State of Gujarat 
Radheshyam Bhagwandas Shah has not made any application 
seeking remission before the Superintendent, Godhra Sub -Jail or 
the State of Gujarat on 01.08.2019. 
 
48.2. All the other applications were made even prior to the order of 
this Court made in Writ Petition (Crl.) No.135 of 2022 on 
13.05.2022.  Within next few days i.e. on 26.05.2022, the Jail 
Advisory Committee gave its opinion recommending grant of 
remission.  T he recommendation of ADG and IG of Jails was 
received in almost cases on 09.06.2022. In two cases, (i) the 
recommendation of the ADG and IG was received on 18.08.2021 
and 09.06.2021 [in the case of Govind Bhai Akham Bhai Nai 
(Raval)] and (ii) on 18.0 8.2021 [in the case of Radheyshyam 
Bhagwandas Shah]. 
 
48.3. The communication of the State Government to the Central 
Government was made on 28.06.2022; the second respondent 
Union of India gave its concurrence on 11.07.2022; and, the order 
of remission was made on 10.08.2022. 
 
48.4.  We extract one of the orders of remission dated 10.08.2022 
in the case of respondent No.3 as under:

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“GOVERNMENT OF GUJARAT 
Order Number JLK/83202/2978/J 
Secretariat House, Gandhinagar, 
Dated: 10/08/2022. 
 
Reference:  
 
(1) Order of the Hon’ble Supreme Court date:13/05/2022, 
Writ Petition (Criminal) No.135/2022. 
 
(2) The Additional Director General of Police and Inspector 
General of Prisons, State of Gujarat, Ahmedabad/letter 
dated:17/06/2022 No:- JUD/14 Year/2/4754/2022. 
 
(3) Department Circular Date: 09/7/1992, 
No.JLK/3390/CM/16/Part-2/J. 
 
(4) Ministry of Home, The Government of India, Letter dated: 
11/07/2022, No.15/05/2022/JC-II 
 
::FORWARD:: 
 
Mr. Radheshyam Bhagwandas Shah, From Godhra 
Sub Jail filed Writ Petition in the Hon’ble Supreme Court 
as per reference No.1 and Hon’ble Supreme Court passed 
order to take decision as per policy mentioned in reference 
No.3 within two months regarding Pre -mature release 
application of Mr. Shah. The premature release proposal 
was prepared and sent by the Additional Director General 
of Police and Inspector General of Prisons as per the letter 
of reference No.2. The provision under Section 432 of CrPC 
the State Government has power for pre -mature release, 
however provision under Section 435(1)(A) of CrPC. 
Indicates that any case investigated by any agency which 
is established by Union Government Rules,  in those cases 
it is need to be consulted with Central Gover nment is 
required. This case was investigated by CBI, therefore the 
State Government of Gujarat in consultance with Central 
Government letter dated 28/06/2022. Pursuant to which 
the Ministry of Home Affairs of the Government of India 
has given a positive o pinion regarding the release of the 
prisoner from the letter reference (4), considering all the 
details, the release of Mr. Radheshyam Bhagwandas Shah 
was under consideration.

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::ORDER:: 
 
Provision under Criminal Procedure Code, 1973 
Section 443(A), power given to State Government under 
Section 432 of Criminal Procedure Code, 1973, the convict 
prisoner Radheshyam Bhagwandas Shah’s life sentence 
remitted under the following conditions and taken decision 
by Government to release him from immediate effect. 
  
::CONDITIONS:: 
 
(1) He shall to furnish surety of two gentlemen about after 
releasing him, he will behave good up to two years and also 
given undertaking he will not breach public peace and 
harass parties and witnesses. 
 
 
(2) After being released from prison if he commits cognizable 
offense causing grievous hurt to anyone or property then 
he may be re-arrested and shall serve the remaining of his 
sentence. 
  
(3)  After released from jail he must give his attendance in 
nearest police station, once in a month till one year. 
 
The jail authority shall read and explain above 
conditions to him and before releasing him, prior to his 
release from prison, the jail authority must keep a written 
record indicating that he has understood the said 
conditions and that he agrees to these conditions of release 
from prison. 
  
By order of the Governor of Gujarat and in his name.  
 
---sd--- 
(Mayursinh Vaghela) 
Under Secretary 
Home Department.”

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48.5. Though we have extracted one of the remission orders, we 
observe that having given our categorical finding on Point No. 3, it 
may not be necessary to dilate on certain aspects of Point No.4 , 
though it is quite evident that the said order is a non-speaking one 
reflecting complete non -application of mind.   All orders dated 
10.08.2022 are a stereotyped and cyclostyled orders. 
48.6.  Be that as it may, it would be useful to refer to the following 
judgments in the context of passing an order of remission in terms 
of Section 432 read with Section 435 of the CrPC. 
(a)   V. Sriharan  is a judgment of this Court wherein the 
Constitution Bench answered seven questions out of which the 
following questions are relevant for the purposes of this case:  
   “xxx     xxx  xxx 
8.3. (iii) Whether the power under Sections 432 and 433 of 
the Criminal Procedure Code by the appropriate 
Government would be available even after the 
constitutional power under Articles 72 and 161 by the 
President and the Governor is exercised as well as the 
power exercised by this Court under Article 32? 
 
8.4. (iv) Whether the State or the Central Government have 
the primacy under Section 432(7) of the Criminal 
Procedure Code? 
 
8.5. (v) Whether there can be two appropriate 
Governments under Section 432(7)? 
 
8.6. (vi) Whether power under Section 432(1) can be 
exercised suo motu  without following the procedure 
prescribed under Section 432(2)?

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8.7. (vii) Whether the expression “consultation” 
stipulated in Section 435(1) really means 
“concurrence”?” 
 
(i) This Court observed that the procedure to be followed under 
Section 432(2) is mandatory and that suo moto  power of 
remission cannot  be exercised under Section 432(1) and it can 
only be initiated b y an application of the person convicted as 
provided under Section 432(2)   and the  ultimate order of 
suspension of sentence or remission should be guided by  the 
opinion to be rendered by the Presiding Officer of the Court 
concerned. In this case the earlier judgement of this court in 
Sangeet was approved. 
 
(b)  In Sangeet, it was observed that a convict undergoing a 
sentence does not have a right to get  remission of sentence, 
however, he certainly does have a right to  have his case 
considered for the grant of remission as held in Mahender Singh 
and Jagdish. It was further observed in the said case that there 
does not seem to be any decision of this Court detailing the 
procedure to be followed for the exercise of power under Section 432 
of the CrPC which only lays down the basic procedure i.e. by making 
an application to the appropriate Government for the suspension or 
remission of a sentence,  either by the convict or someone on his

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behalf. It was observed that sub -section (1) of Section 432 of the 
CrPC is only an enabling provision to override a judicially 
pronounced sentence, subject to the fulfilment of certain 
conditions. These conditions are found either in the Jail Manual or 
in statutory rules. It was pertinently observed that when an 
application for remission is made the appropriate Government may 
take a decision on the  remission application and pass orders 
granting remission subject to certain conditions or , refuse 
remission. But there has to be an application of mind      on the 
remission application so as to eliminate discretionary en-masse 
release of convicts on “festive” occasions, since each release 
requires a case by case scrutiny. It was observed that the power 
of remission cannot  be exercised arbitrarily and the decision to 
grant remission has to be well informed, reasonable and fair to all 
concerned. The statutory procedure under Section 432 of the CrPC 
provides a check on the possible misuse of power of the appropriate 
Government. 
(i) It was further observed that there is a misconception that a 
prisoner serving a life sentence has an indefeasible right to be 
released on completion of fourteen years or twenty years of 
imprisonment; however, in reality, the prisoner has no such

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right. A convict undergoing life imprisonment is expected to 
remain in  custody till the end of his life, subject to any 
remission granted by the  appropriate Government under 
Section 432 of the  CrPC which, in turn, is subject to the 
procedural checks in that section and the substantive check 
in    Section 433-A of the CrPC. That the application of Section 
432 of the CrPC to a convict is limited inasmuch as, a convict 
serving a definite term of imprisonment is entitled to earn a 
period of remission under a st atutory rule framed by the 
appropriate Government or under the Jail Manual.  The said 
period is then offset against the term of punishment given to 
him. Thus, upon completion of the requisite period of 
incarceration, a prisoner’s release  is automatic. However, 
Section 432 of the CrPC will apply only when a convict is to be 
given an “additional” period of remission for his release i.e., 
the period    to what he has earned as per the Jail Manual 
or the statutory rules.        That in the case of convict undergoing 
life imprisonment, the period of  custody is indeterminate. 
Remissions earned or awarded to such a life  convict are only 
notional and Section 432 of the CrPC reduces the period of 
incarceration by an order passed by an appropriate

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Government which  cannot be reduced to less than fourteen 
years as per Section 433 -A of the CrPC. This Court after a 
detailed discussion came to the following conclusions on 
the aspect of grant of remissions: 
“77.5. The grant of remissions is statutory. However, 
to prevent its arbitrary exercise, the legislature has 
built in some procedural  and substantive checks in 
the statute. These need to be faithfully enforced. 
 
77.6. Remission can be granted under Section 432 
Cr.P.C. in the case of a definite term of sentence. The 
power under this section is available only for granting 
“additional” remission, that is, for a period  over and 
above the remission granted or awarded to a convict 
under the Jail Manual or other statutory rules. If the 
term of sentence is indefinite (as in life imprisonment), 
the power under Section 432 Cr.P.C. can certainly be 
exercised but not on the basis that life imprisonment 
is an arbitrary  or notional  figure of twenty  years of 
imprisonment. 
 
77.7. Before actually exercising the power of 
remission under Section 432 Cr.P.C. the appropriate 
Government must obtain the opinion (with reasons) of 
the Presiding Judge of the convicting or confirming  
Court. Remissions can, therefore, be given only on a 
case-by-case basis and not in a wholesale manner.” 
 
 
(c) Ram Chander was a case of a writ petition being filed before 
this Court under Article 32 of Constitution seeking a direction to the 
respondent-State therein to grant him premature release. This 
Court speaking through  Dr. D.Y. Chandrachud., J., (presently the 
learned Chief Justice) considered the aspect of judicial review of

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power of remission and referred to Mohinder Singh to observe that 
the power of remission cannot be exercised arbitrarily and the 
decision  to grant remission should be informed, reasonable and fair. 
In this context, reliance was placed on Laxman Naskar wherein 
this Court, stipulated the factors that govern the grant of remission 
namely: 
i. Whether the offence is an individual act of crime 
without affecting the society at large? 
ii. Whether there is any chance of future recurrence 
of committing                                                                         crime? 
iii. Whether the convict has lost his potentiality in 
committing  crime? 
iv. Whether there is any fruitful purpose of confining 
this convict       any more? 
v. Socio-economic condition of the convict’s family.” 
 
(i) That while grant of remission is the exclusive prerogative of the 
executive, the Court cannot supplant its view. The Court can 
direct the authorities to reconsider the representation of the 
convict vide Rajan. Therefore, while there can be no direction 
to release a prisoner forthwith or to remit the remaining 
sentence, at best there can only be a direction issued to the

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State to consider the representation made for remission 
expeditiously on its own merits and in accordance with law. In  
this case, reliance was placed on Halsbury’s Law of India 
(Administrative Law) to observe that sufficiency of reasons, in a 
particular case, depends       on the facts of each case while 
considering an application for remission. It was further 
observed that mechanical or stereo typed reasons are not 
adequate as also, a mere repetition of the statutory language in 
the order will not make the  order a reasoned one. In the 
aforesaid case, the application for remission was directed to be 
reconsidered with adequate reasoning and taking into    
consideration all the relevant factors that govern the grant of 
remission as laid down in Laxman Naskar. 
(d)  Epuru Sudhakar is also a case where a writ petition was filed 
under Section 32 of the Constitution challenging an order of 
Government of Andhra Pradesh, whereby a convict (respondent No.2 
therein) was granted remission of unexpired period of  about seven 
years’ imprisonment. The petition was filed by the son of the  
murdered persons while the convict was on bail in the murder case 
of petitioner No.1’s father therein. In the writ petition  it was alleged, 
inter alia, that the grant of remission was illegal as relevant

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materials were not placed before the Governor and the impugned 
order was made without application of mind and based on irrelevant 
and extraneous materials and therefore, liable to be set aside. That 
was a case  where remission or grant of pardon was under Article 
161 of the Constitution by the Governor of the  State of Andhra 
Pradesh. This Court, while considering the philosophy  underlining 
the power of pardon or the power of clemency observed that the said 
power exercised by a department or functionary of the Government 
is in the context of its political morality. Reliance was placed on  
Biddle, Warden vs. Perovich, 274 US 480 (1927)  (“Biddle”) in 
which case, Holmes, J of  the United States Supreme Court had 
observed on the rationale of pardon in the following words: 
“…a pardon in our days is not a private act of grace 
from an individual happening to possess power. It is 
a part of the constitutional scheme.  When granted, it 
is the determination of the ultimate authority that the 
public welfare will be better served by inflicting less 
than what the judgment fixed…” 
 
 
(i) It was observed that the prerogative of mercy exercised by a 
State as a prerogative power of a Crown as in England (U.K.) or 
of the President of India or  Governor of a State in India is 
reviewable as an administrative action in case there is an abuse 
in the exercise of the prerogative power. That the   prerogative 
power to pardon or grant clemency or for that matter remission

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of sentence being a discretionary power, it must be exercised 
for the public good and the same can be examined by the Courts 
just as any other discretionary power which is vested with the 
executive. Therefore,  judicial review of the exercise or non -
exercise of the power of pardon by the President  or Governor is 
available in law. That any exercise of public power, including  
constitutional power, shall not be exercised arbitrarily or 
mala  fide vide Maru Ram. It was observed in the said case that, 
considerations of religion, caste, colour or   political loyalty are 
totally irrelevant and fraught with discrimination. The        function 
of determining whether the act of a constitutional or statutory  
functionary falls within the constitutional or legislative 
conferment of power or is vitiated by self-denial or an erroneous 
appreciation of the full  amplitude of the power, is a matter for 
the Court to decide vide Kehar Singh vs. Union of India, 
(1989) 1 SCC 204 (“Kehar Singh”). 
(ii) In Epuru Sudhakar, two other aspects were also considered: 
one relating to the desirability of indicating reasons in the order 
granting pardon/remission and the other, relating to the power 
to withdraw the  order of granting pardon/remission, if 
subsequently, materials are placed  to show that certain

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relevant materials were not considered or certain  materials of 
extensive value were kept out of consideration. It was observed 
that the affected party need not be given the reasons but that 
does not mean that there should not be legitimate or relevant 
reasons for passing the order. It was also observed that in the 
absence of any specific reference under Article s 72 or 161 of 
Constitution with regard to withdrawal of an order of remission, 
there is no bar for such power being exercised. 
(iii) On a consideration of the facts of the said case, it was observed 
that, irrelevant and extraneous materials had entered into the 
decision-making process, thereby vitiating it. The order 
granting remission impugned in the writ petitions was set aside 
being unsustainable and directed to be reconsidered and the 
writ petition was allowed to that extent. Kapadia, J., as  the 
learned Chief Justice then was, in his concurring opinion 
observed that, exercise of executive clemency is a matter of 
discretion and yet subject to certain standards. The discretion 
has to be exercised or public considerations allowed. Therefore, 
the principle of exclusive cognizance would not apply when the 
decision impugned is in derogation of a constitutional 
provision. It was further stated that granting of pardon has the

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effect of eliminating conviction without addressing the  
defendant’s guilt or innocence. 
(iv) The exercise of the prerogative power is subject to judicial 
review and rule of law which is the basis for evaluation of all 
decisions.  Rule of law cannot be compromised on the grounds 
of political expediency as “to go by such consideration would be 
subversive of the fundamental principles of rule of law and it 
would amount to setting a dangerous precedent.”  
 
(e) In Mansukhlal Vithaldas Chauhan vs. State of Gujarat, 
(1997) 7 SCC 622, the basis on which the legality of an 
administrative decision could be reviewed was stated.  It could be 
on whether, a decision making authority  exceeding its powers 
committed an error of law; committed a breach of  rules of natural 
justice; reached a decision which no reasonable tribunal would have 
reached or abused its powers. In other words, the judicial review of 
the order of the President or the Governor under Article 72 or Article 
161 of the Constitution, as the case may, is available and such  
orders can be impugned on the following grounds: 
i. that the order has been passed without application 
of mind;

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ii. that the order is mala fide; 
iii. that the order has been passed on extraneous or 
wholly irrelevant considerations; 
iv. that relevant materials have been kept out of 
consideration; 
v. that the order suffers from arbitrariness. 
 
(f) Further, in Swamy Shraddananda , it was observed that 
judicial notice has to be taken of the fact that remission, if allowed 
to life convicts in a mechanical manner without any sociological or 
psychiatric appraisal of  the convict and without any proper 
assessment as to the effect of early release of a particular convict on 
the society.  It was  further observed that, the power of executive 
clemency is not only for the benefit of the convict but what has to 
be borne in mind is the effect of the decision on the family of the 
victims, society as a  whole and the precedent which it sets for the 
future. Thus, the exercise of  power depends upon the facts and 
circumstances of each case and has to be judged from case to case. 
Therefore, one cannot draw the guidelines for regulating exercise of 
power. Further, the exercise or non -exercise of power of pardon or 
remission is subject to judicial review and a  pardon obtained by 
fraud or granted by mistake or granted for improper reasons would

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invite judicial review and the vindication of the rule of law being the 
main object of judicial review, the mechanism for giving effect to that 
justification varies.  Thus, rule of law should be  the overarching 
conditional justification for judicial review. 
(g) In Rajan, it was  observed that where a person has been 
convicted on several counts for different offences in relation to which 
life imprisonment has been granted, the convict may succeed in 
being released prematurely only if the  competent authority passes 
an order of remission concerning all the life  sentences awarded to 
the convict on each count which is a matter to be considered  by 
the competent authority. 
 
48.7. With regard to the remission policy applicable in a given case, 
the following judgments are of relevance:  
(a) In Jagdish, a three Judge Bench of this Court considered the 
conflicting opinions expressed in State of Haryana vs. Balwan, 
(1999) 7 SCC 355  (“Balwan”) on the one hand and Mahendar 
Singh, and State of Haryana vs. Bhup Singh, (2009) 2 SCC 268 
(“Bhup Singh”) on the other. The question considered by the three-
Judge bench was, whether, the policy which provides for  remission 
and sentence should be that which was existing on the date of  the 
conviction of the accused or should it be the policy that existed on

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date of consideration of his case for premature release by the 
appropriate authority.  Noting that remission policy would be 
changed from time to time and after referring to the various 
decisions of this Court, including  Gopal Vinayak Godse and 
Ashok Kumar, this Court observed that,  liberty is one of the most 
precious and cherished possessions of a human  being and he would 
resist forcefully any attempt to diminish it. Similarly,  rehabilitation 
and social reconstruction of a life convict, as an objective of  
punishment become a paramount importance in a welfare State. 
The State has to achieve the goal of protecting the society from the 
convict and also rehabilitate the offender. The remission policy 
manifests a         process of reshaping a person who, under certain 
circumstances, has indulged in criminal activities and is required to 
be rehabilitated. Thus, punishment should not be regarded as the 
end but only a means to an end. Relevancy of circumstances to an 
offence such as the state of mind of the convict when the offe nce 
was committed, are factors to be taken note  of. It was further 
observed as under: 
“46. At the time of considering the case of premature 
release of a life  convict, the authorities may require to 
consider his case mainly taking into consideration whether 
the offence was an individual act of crime without affecting 
the society at large; whether there was any chance of  
future recurrence of committing a crime; whether the 
convict had lost  his potentiality in committing the crime;

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whether there was any fruitful  purpose of confining the 
convict any more; the socio -economic condition   of the 
convict’s family and other similar circumstances.” 
 
 (i) That the executive power of clemency gives an opportunity to 
the convict to reintegrate into the society. However, the power 
of clemency must  be pressed into service only in appropriate 
cases. Ultimately, it was held  that the case for remission has 
to be considered on the strength of the policy that was existing 
on the date of conviction of the accused. It was further observed 
that in case no liberal policy prevails on the date of 
consideration of the case of a convict under life imprisonment 
for premature release, he should be given the benefit thereof 
subject of course to Section 433-A of the CrPC. 
 
48.8. At this juncture, it is relevant to refer to the following 
decisions of this Court, wherein orders of remission have been 
quashed and set aside by this Court on various grounds:  
(a) In Swaran Singh vs. State of Uttar Pradesh, (1998) 4 SCC 
75, a three-Judge Bench of this Court considered the question as 
to scope of judicial review of an order of a Governor under Article 
161 of the Constitution of India. In the said case, a Member of the 
Legislative Assembly of the State of Uttar Pradesh had been 
convicted of the offence of murder and within a period of less than

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two years, he was granted remission from the remaining long period 
of his life sentence. The son of the deceased moved the Allahabad 
High Court challenging the aforesaid action of the Governor and the 
same having been dismissed, the matter had been brought to this 
Court.  This Court noticed that the Governor exercised the power to 
grant remission, without being appraised of material facts 
concerning the prisoner , such as , his involvement in five other 
criminal cases of serious nature, the rejection of his e arlier 
clemency petition and the report of the jail authority that his 
conduct inside the jail was far from satisfactory and that out of the 
two years and five months he was supposed to have been in jail, he 
was in fact out on parole during the substantial  part thereof. The 
Court further held that when the Governor was not in the know of 
material facts, the Governor was deprived of the opportunity to 
exercise the power to grant remission in a fair and just manner and 
that the order granting remission fringe d on arbitrariness. 
Therefore, the order of the Governor granting remission, was 
quashed, with a direction to re-consider the petition of the prisoner 
in light of the materials which the Governor had no occasion to 
know earlier. As regards the question as to the power of judicial 
review over an order passed by the Governor under Article 161 of 
the Constitution, the following observations were made:

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“10. A Constitution Bench of this Court has considered the 
scope of judicial review of exercise of powers under Articles 
72 and 161 of the Constitution of India in Kehar Singh  v. 
Union of India (1989) 1 SSC 204 . The bench after 
observing that the Constitution of India is a constitutive 
document which is fundamental to the governance of the 
country under which people of India have provided a 
constitutional polity consisting of certain primary organs, 
institutions and functionaries to exercise the powers 
provided in the Constitution, proceeded to add thus: 
 
"All power belongs to the people and it is 
entrusted by them to specified institutions and 
functionaries with the intention of working out, 
maintaining and operating a constitutional 
order." 
 
The Constitution Bench laid down that judicial review 
of the Presidential order cannot be exercised on the merits 
except within the strict limitations defined in  Maru Ram 
v. Union of India (1981) 1 SCC 107 . The limitations of 
judicial review over exercise of powers under Articles 72 
and 161 of the Constitution have been delineated in the 
said decision by the constitution Bench. It has been 
observed that “all public power, including constitutional 
power, shall never be exercisable arbitrarily or mala fide, 
and ordinarily guidelines for fair and equal execution are 
guarantors of valid play of power.” The bench stressed the 
point that the power being of the greatest moment, cannot 
be a law unto itself but it must be informed by the finer 
canons of constitutionalism. 
 
11. It was therefore, suggested by the bench to make rules 
for its own guidance in the exercise of the pardon power 
keeping a large residuary power to meet special situations 
or sudden developments. 
 
12. In view of the aforesaid settled legal position, we cannot 
accept the rigid contention of the learned counsel for the 
third respondent that this Court has no power to touch the 
order passed by the Governor under  Article 161  of the 
constitution. If such power was exercised arbitrarily, mala 
fide or in absolute disregard of the finer canons of the

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constitutionalism, the by -product order cannot get the 
approval of law and in such cases, the judicial hand must 
be stretched to it.” 
(underlining by us) 
 
 
(b) In Joginder Singh vs. State of Punjab, (2001) 8 SCC 306  
the facts were that the respondents-convicts therein were convicted 
for offences punishable under Sections 324, 325 and 326 read 
with Section 34 of the IPC and had been awarded a sentence of one 
year and six months which was challenged upto the High Court of 
Punjab and Haryana and was confirmed. On the dismissal of the 
Revision Petition by the High Court, the convicts surrendered before 
the Superintendent of the concerned jail and on the same day were 
released by the jail authorities on being granted the b enefit of 
remission. It is of importance to note that during the period of trial 
ending with confirmation of conviction in the Revision Petition by 
the High Court, the convicts (earlier accused) were almost all at the 
time out  on bail except for a period of about 2 months and 25 days 
when they were in jail, serving part of their sentence. The appellant 
before this Court, who was the complainant, unsuccessfully 
challenged the remission order before the High Court and thereafter 
approached this Court by way of a Special Leave Petition. The 
primary ground of challenge before this Court was that the periods 
of remission permissible under successive notifications issued

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between 13. 07.1988 and 29. 07.1998 (period between date of 
conviction by the Chief Judicial Magistrate and the date on which 
the conviction and sentence was upheld by the High Court) were 
cumulatively allowed to the convicts. That is to say that the 
maximum period of remission permis sible under each of the seven 
notifications issued between the said dates was to be cumulatively 
taken into account to grant a total remission of 17 and a half 
months. It was contended before this Court that the said approach 
was erroneous in construing successive policies of remission. It was 
further contended that while applying the period of remission 
granted by the Government under any remission notification, the 
period during which an accused person was out on bail cannot be 
taken into account.  
(i) This Court while allowing the appeal of the appellant therein -
complainant held that the High Court fell in error   in holding 
that the  convicts were entitled to the benefit of the period of 
remission given by the various notifications cumulatively to be 
counted against the period during which they were out on bail.  
(c) In Satpal, the order of the Governor granting remission to 
convicts therein, in the exercise of power conferred by Article 161 of 
the Constitution of India read with  Section 132  of the Code of 
Criminal Procedure was assailed by the brother and widow of the

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deceased. The primary ground raised before this Court was that the 
power to grant remission was exercised without application of mind, 
and that the said power was exercised by the Governor having 
regard to extraneous considerations and even without the aid  and 
advice of the Government, namely, the concerned Minister.  This 
Court examined the said case having regard to the parameters of 
judicial review in relation to an order granting remission by the 
Governor. It was noted that the Governor had proceeded to grant 
remission of sentence without any knowledge as to the period of 
sentence already served by the convicts and if a t all they had 
undergone any period of imprisonment. It was noted that an order 
granting remission would be arbitrary and irrational if passed 
without knowledge or consideration  of material facts.  
49.  On a reading of the aforesaid judgments what emerges is that 
the power to grant remission on an application filed by the convict 
or on his behalf, is ultimately an exercise o f discretion by the 
appropriate Government. It is trite that where there is exercise of 
legal power coupled with discretion by administrative authorities, 
the test is, whether, the authority concerned was acting within the 
scope of its powers.  This would not only mean that the concerned 
authority and in the instant case, the appropriate Government had

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not only the jurisdiction and authority vested to exercise its powers 
but it exercised its powers in accordance with law  i.e., not in an 
arbitrary or perverse manner without regard to the actual facts or 
unreasonably or which would lead to a conclusion in the mind of 
the Court that there has been an improper exercise of discretion.  If 
there is improper exercise of discretion, it is an instance of an abuse 
of discretion.  There can be abuse of discretion when the 
administrative order or exercise of discretion smacks of mala fides 
or when it is for any purpose based on irrelevant consideration by 
ignoring relevant consideration or it is due to a colourable exercise 
of power; it is unreasonable and there is absence of proportionality.  
There could also be an abuse of discretion where there is failure to 
apply discretion owing to mechanical exercise of power, non -
application of mind, acting under dictation or by seeking assistance 
or advice or there is any usurpation of power. 
  
49.1. It is not necessary to dilate upon each of the aforesaid aspects 
of abuse of discretion in the instant case, as we have observed that 
the consideration of the impugned orders o r manner of exercise of 
powers is unnecessary, having regard to the answer given by us to 
Point No.3.

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50.  However, it would be relevant to refer to one aspect of abuse 
of discretion, namely, usurpation of power. Usurpation of power 
arises when a particular discretion vested in a particular authority 
is exercised by some other authority in whom such power does not 
lie.  In such a case, the question whether the authority which 
exercised discretion was competent to do so arises. 
 
50.1. Applying the said principle to the instant case, we note that 
having regard to the definition of “appropriate Government” and the 
answer given by us to Point No.3, the exercise of discretion and the 
passing of the impugned orders of remission in the case o f 
respondent Nos.3 to 13 herein was an instance of usurpation of 
power. It may be that this Court by its order dated 13.05.2022 
passed in Writ Petition No.135 of 2022 had directed the first 
respondent State of Gujarat to consider the case of respondent No.3 
under the 1992 Policy of the State of Gujarat, by setting aside the 
order of the High Court of Gujarat dated 17.07.2019.  What is 
interesting is that in the said writ petition, the State of Gujarat had 
correctly submitted before this Court that the app ropriate 
Government in the instant case was State of Maharashtra and not 
the State of Gujarat.  The said contention was in accordance with 
the definition of appropriate Government under clause (b) of sub -

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section (7) of Section 432 of the CrPC.  However, the said contention 
was rejected by this Court  contrary to several judgments of this 
Court including that of the Constitution Bench in V. Sriharan.  But 
the State of Gujarat failed to file a review petition seeking correction 
of the order of this Court dated 13.05.2022 , (particularly when we 
have now held that the said order is a nullity).  Complying with the 
said order can also be said to be an instance of usurpation of power 
when the provision, namely, clause (b) of sub-section (7) of Section 
432 states otherwise. 
 
50.2. We fail to understand as to , why, the State of Gujarat, first 
respondent herein, did not file a review petition seeking correction 
of the order dated 13.05.2022 passed by this Court in Writ Petition 
No.135 of 2022 in the case of respondent No.3 herein.  Had the 
State of Gujarat filed an application seeking review of the said order 
and impressed upon this Court that it was not the “appropriate 
Government” but the State of Maharashtra was the “appropriate 
Government”, ensuing litigation would n ot have arisen  at all.  On 
the other hand, in the absence of filing any review petition seeking 
a correction of the order passed by this Court dated 13.05.2022, 
the first respondent-State of Gujarat herein has usurped the power 
of the State of Maharashtra and has passed the impugned orders of

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remission on the basis of an order of this Court dated 13.05.2022 
which, in our view, is a nullity in law.  
 
50.3. In this regard it is necessary to dilate on the background to 
this case and refer to the previous orders passed by this Court as 
under:- 
The first order is dated 16.12.2003, referring the matter to the 
CBI for investigation; the second is an order of transfer of the trial 
from the competent Court in Gujarat to the Special Court at 
Mumbai and the third is an order passed by this Court granting 
compensation to the petitioner in Writ Petition (Crl.) No.491 of 
2022. The relevant portions of the aforesaid orders read as under:-  
W.P.(Crl.) No.118 of 2003, dated 16.12.2003 – 
referring matter to the CBI for investigation; 
 
“ORDER 
 
“Considering the nature of the allegations made, Shri 
Mukul Rohtagi learned Additional Solicitor General 
appearing for the respondents accepts that further 
investigation in this case may be done by the CBI, though 
he does not concede that the Gujarat Police is incompetent 
to investigate the matter. Hence, we direct the CBI to take 
over further investigation of this case and report to this 
Court from time to time. 
  
Let a report be filed by the CBI within eight weeks. 
 
List after report is filed.”

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Transfer Petition (Crl.) No.192 of 2004, dated 
06.08.2004  – transfer of the trial from the 
competent Court in Gujarat to the Special 
Court at Mumbai; 
 
ORDER 
 
“We are of the view that on account of the nature and 
the allegations of the case, session case No.161 of 2004 
before the Additional Sessions Judge, Dahod now 
transferred to Additional Sessions Judge of IVth Court of 
the City Civil Sessions Court Ahmedabad (CBI Case 
No.RCZ/S/2004, SCB Mumbai) title CBI vs. Jaswantbhai 
Chaturbhai & Others be transferred to any competent 
Court in Mumbai for trial and disposal. This order be 
placed before the Chief Justice of Bombay High Court who 
shall designate the competent  Court as he may deem fit. 
The transfer petition is accordingly allowed. 
  
This order is based on the perceptions of the CBI as 
recorded in its report and should not be taken as a 
reflection on the competence or impartiality of the 
judiciary in the State of Gujarat.  
 
Having regard to the peculiar facts of this case the 
State of Gujarat shall bear the expenditure of the defence 
of the accused in accordance with the provisions of the 
Section 304 of the Code of Criminal Procedure.  
 
It is made clear that for the purpose of this case the 
Central Government will appoint the public prosecutor.” 
 
 
Criminal Appeal Nos.727 -733 of 2019, order 
dated 23.04.2019 - compensation  
 
ORDER 
 
“The appellant, Bilkis Yakub Rasool, is a victim of 
riots which occurred in the aftermath of the Godhra 
train burning incident in the State of Gujarat on 
February 27, 2002. While eventually, the perpetrators of 
the crime including the police personnel stan d

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punished, the appellant, who was aged twenty-one years 
and pregnant at that time, having lost all members of 
her family in the diabolical and brutal attacks needs to 
be adequately compensated. Additional facts which we 
must note are that the appellant was repeatedly 
gangraped and was a mute and helpless witness to her 
three-and-a-half-year-old daughter being butchered to 
death. This factual position is undisputed and 
unchallenged in light of the findings of the trial court 
upheld by the High Court and this Court.  
 
The appellant, we are informed, is presently about 
forty years of age and is without any home and lives with 
her daughter who was born after the incident. She has 
been coerced to live life of a nomad and as an orphan, 
and is barely sustaining herself on the charity of NGOs, 
having lost company of her family members. The 
gruesome and horrific acts of violence have left an 
indelible imprint on her mind which will continue to 
torment and cripple her. 
 
We do not have to search and elaborate upon 
principles of law to come to the conclusion that the 
appellant deserves to be adequately compensated. It is 
only the quantum of compensation that needs to be 
worked out by the Court. Time and again this Court has 
held that the compensation so awarded must be just and 
fair, and the criteria objective. However, this case has to 
be dealt with differently as the loss and suffering evident 
from the facts stated above surpass normal cases. 
Taking into account the totality of the facts of the case, 
we are of the view that compensation of Rs.50,00,000/- 
(Rupees fifty lakh only) to be paid by the State 
Government within two weeks from today, on proper 
identification, would meet the ends of justice. Coupled 
with the aforesaid relief, we deem it proper to further 
direct the State Government to provide the appellant 
with an employment under the State, if she wishes so 
and is inclined, and also to offer her government 
accommodation at a place of her choice, if she is willing 
to live in such accommodation.

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With the aforesaid direction, the appeals relating to 
compensation are disposed of.” 
 
 
The aforesaid orders clearly indicate why this Court had 
transferred the investigation and trial to the CBI and to the State of 
Maharashtra respectively.  
 
50.4. Such being the case, it was the State of Maharashtra which 
was the appropriate Government which had to consider the 
appellant for remission vis-à-vis respondent Nos.3  to 13 herein. 
Instead, being unsuccessful before the High Court of Gujarat, 
respondent No. 3 surreptitiously  filed the writ petition before this 
Court seeking a direction to consider his case for remission without 
disclosing the full  and material facts before this Court . Relief was 
granted by this Court by conferring jurisdiction on State of Gujarat 
which it did not possess as per Section 432 (7) of the CrPC, in the 
guise of consideration for remission on the basis of the 09.07.1992 
policy, which had also stood cancelled in the year 2013. Taking 
advantage of this Court’s order dated 13.05.2022, all other convicts 
also sought consideration of their case  by the Government of 
Gujarat for remission even in the absence of any such direction in 
their cases by this Court. Thus, the State of Gujarat has acted on 
the basis of the direction issued by this Court but contrary to the

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letter and spirit of law. We have already said that the State of 
Gujarat never sought for the review of the order of this Court dated 
13.05.2022 by bringing to the notice of this Court that it was 
contrary to Section 432 (7) and judgments of this Court. 
 
50.5. Instead, the State of Gujarat has acted in tandem and was 
complicit with what the petitioner -respondent No.3 herein  had 
sought before this Court. This is exactly what this Court had 
apprehended at the previous stages of this case and had intervened 
on three earlier occasions in the interest of truth and justice  by 
transferring the investigation of the case to the CBI and the trial to 
the Special Court at Mumbai . But, in our view, when no 
intervention was called for in the writ petition filed by one of the 
convicts /respondent No. 3 herein, this Court was misled to issue 
directions contrary to law and on the basis of supp ression and 
misstatements made by respondent No.3 herein. We have held that 
order of this Court dated 13.05.2022 to be a nullity and non est in 
the eye of law. Consequently, exercise of discretion by the State of 
Gujarat is nothing but an instance of usurpation of jurisdiction and 
an instance of abuse of discretion. If really State of Gujarat had in 
mind the provisions of law and the judgments of this Court, and 
had adhered to the rule of law, it would have filed a review petition

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before this Court by contending that it was not the appropriate 
Government. By failing to do so, not only  are the earlier orders of 
this Court in the matter have been vindicated but more importantly, 
rule of law has been breached in usurping power not vested in it 
and thereby aiding respondent Nos.3  to 13. This is a classic case 
where the order of this Court dated 13.05.2022 has been used for 
violating the rule of law while passing orders of remission in favour 
of respondent Nos.3  to13 in the absence of any  jurisdiction by 
respondents – State of Gujarat. Therefore, without going into the 
manner in which the power of remission has been exercised, we 
strike down the orders of remission on the ground of usurpation of 
powers by the State of Gujarat  not vested in it . The orders of 
remission are hence quashed on this ground also.  
 
Section 432(2) of the CrPC : Opinion of the Presiding Judge of 
the convicting court:  
 
51.  Sub-section (2) of Section 432 of the CrPC states that when 
an application is made to the appropriate Government, inter alia, 
for remission of a sentence, the appropriate Government may 
require the Presiding Judge of the Court before or by which the 
conviction was had or confirmed, to state his opinion , as to, 
whether, the application should be granted or refused, together with 
his reasons for such opinion and also to forward with the statement

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of such opinion a certified copy of the record of the trial or of such 
record thereof as  exists. 
 
52.  Learned ASG Sri S.V. Raju submitted that the expression 
“appropriate Government may require the opinion of the Presiding 
Judge of the Court ” indicates that this is not a mandatory 
requirement, therefore, in the instant case the opinion of the 
Presiding Judge of the Court by which respondent Nos.3 to 13 were 
convicted, namely, the Special Judge, Mumbai, was unnecessary.   
It was further submit ted that since the State of Gujarat was 
considering the applications for remission filed by respondent Nos.3 
to 13, the opinion of local Sessions Judge at Dahod was obtained 
as a member of the Jail Advisory Committee and there was a 
positive opinion for grant of remission to respondent Nos.3 to 13 
herein. 
  
52.1. This contention was however refuted by the learned counsel 
Ms. Shobha Gupta by reiterating her submission that the 
expression “may require” in sub -section (2) of Section 432 of the 
CrPC ought to be read as “shall require”.  This is evident from the 
dicta of this Court.  In this regard, reliance was placed on certain 
judgments of this Court which we shall advert to in the first 
instance as under:

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(i)  In Sangeet, it was observed that before actually exercising 
the power of remission under Section 432  of the CrPC, the 
appropriate Government must obtain the opinion (with reasons) of 
the Presiding Judge of the convicting or confirming Court.  
Remissions can, therefore, be given only on a case -by-case basis 
and not in a wholesale manner.  
(ii)  Further, in V. Sriharan, it was observed that the declaration 
of law made by this Court in Sangeet referred to above, is correct 
and further the procedure to be followed under Section 432(2) of 
the CrPC is mandatory.  The manner in which the opinion is to be 
rendered by the Presiding Judge can always be regulated and 
settled by the concerned High Court and the Supreme Court by 
stipulating the required procedure to be followed as and when any 
such app lication is forwarded by the appropriate Government.   
Therefore, it was observed that the suo motu power of remission 
cannot be exercised under Section 432(1) of the CrPC and it can 
only be initiated based on an application of the person convicted 
under Section 432(2) of the  CrPC and the ultimate order of 
remission should be guided by the opinion to be rendered by the 
Presiding Officer of the Court concerned.

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(iii)  This Court, in Ram Chander, has specifically dealt with the 
value of the opinion of the Presiding Judge with reference to 
paragraph 61 of Sangeet and paragraphs 148 and 149 of V. 
Sriharan referred to above and observed in paragraphs 25 and 26 
as under: 
“25. In Sriharan (supra) , the Court observed that the 
opinion of the presiding judge shines a light on the nature 
of the crime that has been committed, the record of the 
convict, their background and other relevant fact ors. 
Crucially, the Court observed that the opinion of the 
presiding judge would enable the government to take the 
‘right’ decision as to whether or not the sentence should 
be remitted. Hence, it cannot be said that the opinion of 
the presiding judge is only a relevant factor, which does 
not have any determinative effect on the application for 
remission. The purpose of the procedural safeguard under 
Section 432 (2) of the CrPC would stand defeated if the 
opinion of the presiding judge becomes just another factor 
that may be taken into consideration by the government 
while deciding the application for remission. It is possible 
then that the procedure under Section 432 (2) would 
become a mere formality.  
26. However, this is not to say that the appropriate 
government should mechanically follow the opinion of the 
presiding judge. If the opinion of the presiding judge does 
not comply with the requirements of Section 432 (2) or if 
the judge does not consider the relevant factors for grant 
of remission that have been laid down in Laxman Naskar 
v. Union of India (supra),  the government may request 
the presiding judge to consider the matter afresh.”  
 
(iv) In paragraph 27, it was further observed that the Presiding 
Judge in the said case had not taken into account the factors which 
have been laid down in Laxman Naskar and that the opinion was

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a mechanical one bereft of reasons and therefore, inadequate and 
not in accordance with law. Consequently, the petitioner’s 
application for remission was directed to be considered afresh with 
a direction to the Special Judge, Durg to provide an opinion on the 
application afresh accompanied with adequate reasoning, taking 
into account all the relevant factors that govern the grant of 
remission as laid down in Laxman Naskar. A direction was issued 
to State of Chhattisgarh in the said case to take a final deci sion on 
the application for remission afresh within a month after receiving 
the opinion of the Special Judge, Durg. Consequently, the petition 
filed under Article 32 was allowed in the aforesaid terms. 
 
52.2. Thus, the consistent view of this Court which emerges is that 
the expression “may” has to be interpreted as “shall” and as a 
mandatory requirement under sub-section (2) of Section 432 of the 
CrPC. The said provision has sufficient guidelines as to how the 
opinion must be provided by the Presiding Judge of the Court which 
has convicted the accused inasmuch as – 
(i) the opinion must state as to whether the application 
for remission should be granted or refused and for 
either of the said opinions, the reasons must be 
stated;

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(ii) naturally, the reasons must have a bearing on the 
facts and circumstances of the case;  
(iii) the reasons must be in tandem with the record of the 
trial or of such record thereof as exists;   
(iv) the Presiding Judge of the Court before or by which 
the conviction was had or confirmed, must also 
forward along with the statement of such opinion 
granting or refusing remission, a certified copy of the 
record of the trial or of such record thereof as exists.  
 
52.3. Having regard to the requirements which the Presiding Judge 
must comply with while stating his opinion to the appropriate 
Government on an application for remission of sentence made by a 
convict, it cannot be held that the expression “may” in the said 
provision is not mandatory nor can it be left to the whims and 
fancies of the appropriate Government either to seek or not to seek 
the opinion of the Presiding Judge or the Court before which the 
conviction had taken place. 
 
52.4. In the instant case, what is interesting is that when 
respondent No.3 - Radheshyam Bhagwandas Shah filed his 
application for remission before the State of Maharashtra pursuant 
to the order of the Gujarat High Court dated 17.07.2019, the State

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of Maharashtra sought the opinion of the Special Judge at Mumbai 
who gave a negative opinion. This was one of the reasons for 
respondent No.3 to file the Writ Petition (Crl.) No.135 of 2022 before 
this Court. However, subsequently, when a direction was issued by 
this Court to the first respondent State of Gujarat to consider the 
application for remission, the opinion of the local Sessions Court at 
Dahod was obtained and the opinion of the Special Judge, Mumbai 
where the trial had taken place was ignored. The Sessions Court at 
Dahod obviously had not complied with the mandatory 
requirements noted above under sub -section (2) of Section 432  of 
the CrPC inasmuch as the opinion was not forwarded along with 
reasons having regard to the record of the trial as no trial had taken 
place before the Sessions Court, Dahod. Further, the Presiding 
Judge of the Sessions Court, Dahod also did not forward any 
certified copy of the record of the trial.   Moreover, learned Sessions 
Judge at Dahod was also a member of the Jail Advisory Committee.   
 
52.5. We further observe that t he Presiding Judge of the Court 
before which the conviction happens can never be a Member of the 
Jail Advisory Committee, inasmuch he is an independent authority 
who should give his opinion on the application seeking remission 
which is a mandatory requirement as per the requirements of sub-

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section (2) of Section 432.  In the instant case, the opinion given by 
the District & Sessions Judge at Dahod is vitiated for two reasons : 
firstly, because he was not the Presiding Judge before which the 
conviction of respondent Nos.3 to 13 took place; and, secondly , if 
the Presiding Judge of the Court where the conviction occurred is 
an independent authority which must be consulted by the 
appropriate Government then he c ould not have been a Member of 
the Jail Advisory Committee as in the instant case. 
  
52.6. On perusal of the counter affidavit of the respondent -State of 
Gujarat, it is noted that pursuant to the applications filed by 
respondent Nos.4 to 13 (respondent No.3 had filed his application 
before State of Maharashtra on 01.08.2019) seeking pre -mature 
release or remission, opinion of the Special Judge (CBI), City Civil & 
Sessions Court, Greater Mumbai was taken by the State of Gujarat 
and in respect of all the respondent Nos.3 to 1 3 the categorical 
opinion was that having regard to the Government’s Resolution 
dated 11.04.2008, issued by the State of Maharashtra, said 
prisoners should not be release d pre-maturely. Had the State  of 
Maharashtra considered the applications of respondent Nos.3 to 13 
for remission, this vital opinion of the Presiding Judge of the Court 
which had convicted them would have carried weight in the mind of

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the Government of the State of Maharashtra as well as the terms of 
the Government’s Resolution dated 1 1.04.2008 which was the  
applicable policy for remission. In fact, the first respondent, namely, 
the Government of the State of Gujarat , which  usurped the power 
of the Government of the State of Maharashtra , simply brus hed 
aside the opinion of the Special Judge (CBI), Greater Mumbai. 
Instead the opinion of the Sessions Judge, Godhra , District 
Panchmahal within whose jurisdiction the offences had occurred 
and who was a member of the Jail Advisory Committee was 
highlighted by Sri S.V. Raju, learned ASG appearing for the State of 
Gujarat. Although this opinion is also a negative opinion, the same 
is not in accordance with sub-section (2) of Section 432 of the CrPC 
and, therefore, is of no consequence except when viewed from the 
prism of being an opinion of one of the members of the Jail Advisory 
Committee, Dahod Jail.  
 
53.  As we have held , in the first place, the first respondent State 
of Gujarat was not at all the appropriate Government, therefore, the 
proceedings of the Jail Advisory Committee of Dahod Jail, which 
had recommended remission is itself vitiated and further, there is 
no compliance of sub -section (2) of Section 432 of the CrPC in the 
instant case in as much as the said opinion was not considered by

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the appropriate Government . On that score also, the orders of 
remission dated 10.08.2022 are vitiated.     
 
Sentence in default of fine: 
 
54.  Learned counsel Mrs. Shobha Gupta contended that 
respondent Nos.3 to 13 had not paid the fine and therefore, in the 
absence of payment of fine, the default sentence ought to have been 
undergone by the said respondents.  This aspect of the matter has 
been lost sight of or ignored while granting the orders of remission 
and therefore, the orders of remission are vitiated on that score.   
 
54.1. In response to the above arguments, learned senior counsel , 
Sri Sidharth Luthra , at the outset , submitted that although 
applications for payment of fine have been filed and are pending 
consideration before this Court , nevertheless respondent Nos.3 to 
13 have now on their own tendered the fine and the same has been 
accepted by the Special Court at Mumbai. 
 
54.2. In this regard, following judgments were referred to at the bar: 
(a)  In Shantilal vs. State of Madhya Pradesh, (2007) 11 SCC 
243 (“Shantilal”) , the contention was that the term of 
imprisonment in default of payment of fine is not a sentence.  It is 
a penalty which a person incurs on account of non-payment of fine.

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This sentence must be undergone by the offender unless it is set -
aside or remitted in part or in whole, either in appeal or in revision 
or in other appropriate judicial proceedings or otherwise.  However, 
a term of imprisonment ordered in default of payment of fine stands 
on a different footing. A person is required to undergo imprisonment 
for default in payment of fine either because he is unable to pay the 
amount of fine or refuses to pay such amount.  He, therefore, can 
always avoid to undergo imprisonment in default of payment of fine 
by paying such amount.  It is, therefore, not only the power, but the 
duty of the Court to keep in view the nature of offence, and 
circumstances under which it was committed, the position of the 
offender and other relevant considerations before ordering the 
offender to suffer imprisonment in default of payment of fine.  
(i) The further question considered was, whether, a Court of law 
can order a convict to remain in jail in default of payment of 
fine.  It was observed that even in the absence of a specific 
provision in the law empowering a Court to order imprisonment 
in default of payment of fine, such power is implicit and is 
possessed by a Court administering criminal justice. In this 
regard, reference was made to Sections 40 to 42 and Sections 
63 to 70 IPC as well as Section 30 of the CrPC which deals with 
a sentence of imp risonment in default of payment of fine and

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Section 25 of the General Clauses Act, 1897 which deals with 
recovery of fine.  It was observed that even in the absence of a 
provision to the contrary viz. that no order of imprisonment can 
be passed in default of payment of fine, such power is explicit 
and can always be exercised by a court having regard to Section 
30 of the CrPC.  
(b)  In Sharad Hiru Kolambe vs. State of Maharashtra, (2018) 
18 SCC 718 (“Sharad Hiru Kolambe”), the point for consideration 
was regarding quantum of fine that was imposed by way of a default 
sentence in case of non -payment of fine.  It was contended that 
though the substantive sentence stood remitted and the appellant 
was directed to be released on completion of fourteen years of actual 
sentence, the appellant would still be inside till he completes 
twenty-four years. This was because the trial court in the said case 
directed “all sentences shall run concurrently”, therefore, all default 
sentences must also run concurrently inter se.  It was contended 
that the default sentences so directed was unconscionable and 
excessive. 
(i) This Court speaking through Lalit, J. (as the learned Chief 
Justice then was) observed that  if the term of imprisonment in 
default of payment of fine is a penalty which a person incurs 
on account of non -payment of fine and is not a sentence in a

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strict sense, imposition of such default sentence is completely 
different and qualitatively distinct from a substantive sentence. 
Theoretically, if the default sentences awarded in respect of 
imposition of fine in connection with two or more offences are 
to be clubbed or directed to run concurrently, there would not 
be any occasion for the persons so sentenced to deposit the fine 
in respect of the second or further offences. It would effectively 
mean imposition of one single or combined sentence of fine. 
Such an exercise would render the very idea of imposition of 
fine with a deterrent stipulation while awarding sentence in 
default of payment of fine to be meaningless. If imposition of 
fine and prescription of mandatory minimum is designed to 
achieve a specific purpose, the very objective will get defeated 
if the default sentences were directed to run concurrently.  
Therefore, the contention regarding concurrent running of 
default sentences was rejected.  It was observed that there is 
no power of the Court to  order the default sentence s to run 
concurrently but if a prisoner does not pay the fine or refuses 
to pay the fine then he must undergo the default sentence s so 
imposed. 
(c)  In Shahejadkhan Mahebubkhan Pathan vs. State of 
Gujarat, (2013) 1 SCC 570 (“Shahejadkhan Mahebubkhan

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Pathan”), this Court speaking through Sathasivam, J. (as the 
learned Chief Justice then was) held that the term of imprisonment 
in connection with a fine is not a sentence but a penalty which a 
person incurs on account of non-payment of fine. But on the other 
hand, if a sentence is imposed, an offender must undergo the same 
unless it is modified or varied in part or whole in the judicial 
proceedings or by way of remission. But the imprisonment order in 
default of fine stands on different footing .  When such a sentence 
on default of payment of fine is imposed, the person is required to 
undergo imprisonment either because he is unable to pay the fine 
or refuses to do so. The only way he can avoid to undergo 
imprisonment in default of payment of fi ne is by paying such 
amount. 
 
54.3. The aforesaid dicta would therefore clearly indicate that the 
sentence of imprisonment awarded to a person for committing an 
offence is distinct than the imprisonment ordered to be undergone 
in default of payment of fine. The latter is not a substantive 
sentence for commission of the offence but is in the nature of 
penalty for default in payment of fine.  
 
54.4. In the instant case, while considering the applications for 
remission, the Jail Advisory Committee did not take into

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consideration whether respondent Nos.3 to 13 convicts had 
tendered the fine which was imposed by the Special Court and 
affirmed by the High Court as well as by this Court.  Therefore, this 
is an instance of leaving out of a relevant consideration from the 
gamut of facts which ought to have been considered by the Jail 
Advisory Committee. Had the respondent State of Gujarat 
considered the opinion from the Presiding Judge of the Court which 
had convicted, respondent Nos.3 to 13 herein, the aspect regarding 
non-payment of fine would have surfaced.   In the absence of non -
compliance with the direction  to pay fine, there would be default 
sentence which would be in the nature of penalty.  The question 
whether the default sentence or penalty had to be undergone by 
these respondents, was a crucial consideration  at the time of 
recommending remission  to the State Government by the Jail 
Advisory Committee. This aspect of the matter has also not been 
taken into consideration by the State Government while passing the 
impugned orders of remission. Realising this, during the pendency 
of these writ petitions, applications were filed seeking permission to 
tender the fine amount.  However, even before the said applications 
could be considered and orders passed thereon, the respondents 
convicts have paid the fine amount  and have produced receipts in 
that regard. This fact would not alter the consideration of the case

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of respondent Nos.3 to 13 herein inasmuch the fact of payment of 
fine ought to have been a point which had to be taken into 
consideration prior to the passing of the orders of remission as there 
could be no relaxation in the sentence with regard to payment  of 
fine. There can only be reduction in the substantive sentence to be 
undergone by way of imprisonment for which the application 
seeking remission is filed.  Remission of sentence , which is for 
reduction of the period of imprisonment , cannot however rela te to 
the payment of fine at all.  Since there was non-application of mind 
in this regard, the impugned orders of remission are contrary to law 
and are liable to be quashed on this count as well. 
 
  In view of the above, the other contentions based on 
Wednesbury principles do not require consideration  in the present 
case and hence all contentions on the said aspect are left open.  
  
55. We however would like to indicate the factors that must be 
taken into account while entertaining an application for remission 
under the provisions of the CrPC, which are however not exhaustive 
of the test s which we have discussed above. They can be 
adumbrated as under:

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(a) The application for remission under Section 432 of the 
CrPC could be only before the Government of the State 
within whose territorial jurisdiction the applicant was 
convicted (appropriate Government) and not before 
any other Government within whose territorial 
jurisdiction the applicant may have been transferred 
on conviction or where the offence has occurred. 
(b) A consideration for remission must be by way of an 
application under Section 432 of the CrPC which has 
to be made by the convict or on his behalf.  In the first 
instance whether there is compliance of Section 433A 
of the  CrPC must be noted inasmuch as a person 
serving a life sentence cannot seek remission unless 
fourteen years of imprisonment has been completed. 
(c) The guidelines under Section 432(2) with regard to the 
opinion to be sought from the Presiding Judge of the 
Court which had convicted the applicant must be 
complied with mandatorily.  While doing so it is 
necessary to follow the requirements of the said 
Section which are highlighted by us, namely, 
(i) the opinion must state as to whether the 
application for remission should be granted or

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refused and for either of the said opinions, the 
reasons must be stated;   
(ii) the reasons must have a bearing on the facts and 
circumstances of the case;  
(iii) the opinion must have a nexus to the record of 
the trial or of such record thereof as exists;   
(iv) the Presiding Judge of the Court before or by 
which the conviction was had or confirmed, must 
also forward along with the statement of such 
opinion granting or refusing remission, a certified 
copy of the record of the trial or of such record 
thereof as exists.  
(d) The policy of remission applicable would therefore be 
the Policy of the State which is the appropriate 
Government and which has the jurisdiction to 
consider that application.  The policy of remission 
applicable at the time of the conviction could apply 
and only if for any reason, the said policy cannot be 
made applicable a more benevolent policy, if in vogue, 
could apply.    
(e) While considering an application for remission, there 
cannot be any abuse of discretion.  In this regard, it is

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necessary to bear in mind the following aspects  as 
mentioned in Laxman Naskar, namely, - 
(i) Whether the offence is an individual act of crime 
without affecting the society at large? 
(ii) Whether there is any chance of future 
recurrence of committing                                                                         crime? 
(iii) Whether the convict has lost his potentiality in 
committing  crime? 
(iv) Whether there is any fruitful purpose of 
confining this convict       any more? 
(v) Socio-economic condition of the convict’s family. 
 
(f) There has also to be consultation in accordance with 
Section 435  of the  CrPC wherever the same is 
necessitated. 
(g) The Jail Advisory Committee which has to consider 
the application for remission may not have the District 
Judge as a Member inasmuch as the District Judge, 
being a Judicial Officer may coincidently be the very 
judge who may have to render an opinion 
independently in terms of sub -section (2) of Section 
432 of the CrPC.

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(h) Reasons for grant or refusal of remission should be 
clearly delineated in the order by passing a speaking 
order.  
(i) When an application for remission is granted under 
the provisions of the Constitution, the following 
among other tests may apply to consider its legality by 
way of judicial review of the same. 
(i) that the order has been passed without 
application of mind; 
(ii) that the order is mala fide; 
(iii) that the order has been passed on extraneous or 
wholly irrelevant considerations; 
(iv) that relevant materials have been kept out of 
consideration; 
(v) that the order suffers from arbitrariness. 
 
Summary of Conclusions:  
56. On the basis of the aforesaid discussion, we arrive at the 
following summary of conclusions: 
a) We hold that the Writ Petition (Crl.) No.491 of 2022 filed under 
Article 32 of the Constitution before this Court is maintainable 
and that it was not mandatory for the petitioner therein to have

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filed a writ petition under Article 226 of the Constitution before 
the Gujarat High Court. 
b) Since Writ Petition (Crl.) No.491 of 2022 has been filed by one 
of the victims invoking Article 32 of the Constitution before this 
Court which has been entertained by us , the question , 
whether, the writ petitions filed as public interest litigation 
assailing the impugned orders of remission dated 10.08.2022 
are maintainable , is kept open  to be raised in any other 
appropriate case. 
c) In view of Section 432 (7) read with Section 432 (1) and (2) of  
the CrPC, we hold that the Government of the State of Gujarat 
had no jurisdiction to entertain the prayers seeking remission 
of respondent Nos.3 to 13 herein as it was not the appropriate 
Government within the meaning of the aforesaid provisions. 
Hence, the orders of remission dated 10.08.2022 made in 
favour of respondent Nos.3 to 13 herein are illegal, vitiated and 
therefore, quashed. 
d) While holding as above, we also hold that the judgment dated 
13.05.2022 passed by this Court is a nullity and is non est in 
law since the said order was sought by suppression of material 
facts as well as by misrepresentation of facts  (suppressio veri,

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suggestio falsi ) and therefore , fraudulently obtained at the 
hands of this Court. 
i) Further, the petitioner in Writ Petition (Crl.) No.491 of 
2022 not being a party to the said writ proceeding, the 
same is not binding on her and she is entitled in law to 
question the orders of remission dated 10.08.2022 from all 
angles including the correctness of the order dated 
13.05.2022. 
ii) In addition to the above,  the said order, being contrary to 
the larger bench decisions of this Court, (holding that it is 
the Government of the State within which the offender is 
sentenced which is the appropriate Government which can 
consider an application seeking remission of a sentence) is 
per incuriam and is not a binding precedent .  Hence, the 
impugned orders of remission dated 10.08.2022 are 
quashed on the above grounds.  
e) Without prejudice to the aforesaid conclusions, we further hold 
that the impugned orders of remission dated 10.08.2022 
passed by the respondent -State of Gujarat in favour  of 
respondent Nos.3 to 13 are not in accordance with law for the 
following reasons:

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i) That the  Government of the  State of Gujarat 
had usurped the powers of the State of 
Maharashtra which only could have considered 
the applications seeking remission.  Hence, the 
doctrine of usurpation of powers applies in the 
instant case. 
ii) Consequently, the Policy dated 09.07.1992 of 
the State of Gujarat was not applicable to the 
case of respondent Nos.3 to 13 herein. 
iii) That opinion of the Presiding Judge of the Court 
before which the conviction of respondent Nos.3 
to 13 was made in the instant case i.e. Special 
Court, Mumbai (Maharashtra) was rendered 
ineffective by the Government of the State of 
Gujarat which in any case had no jurisdiction 
to entertain the plea for remission of 
respondent Nos.3 to 13 herein. T he opinion of 
the Sessions Judge at Dahod was wholly 
without jurisdiction as the same was in breach 
of sub -section (2) of the Section 432 of the 
CrPC.

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iv) That while considering the applications seeking 
remission, the Jail Advisory Committee, Dahod 
and the other authorities had lost sight of the 
fact that respondent Nos.3 to 13 herein had not 
yet paid the fine ordered by the Special Court, 
Mumbai which had been confirmed by the 
Bombay High Court.  Ignoring this relevant 
consideration also vitiated exercise of discretion 
in the instant case. 
 
56.1. Having declared and held as such, we now move to point No.5. 
 
Point No.5: What Order? 
57. Respondent Nos.4 to 13, who had made application s to the 
first respondent -State of Gujarat seeking remission of their 
sentences, have been granted remission by the impugned orders 
dated 10.08.2022, while it is not known whether respondent No.3 
had made any application to seek remission to the State of Gujarat 
as the same is not adverted to in the counter affidavit .  The 
application seeking remission by respondent No.3 before the State 
of Gujarat has not been brought on record as he had filed his 
application before the State of Maharashtra. Respondent Nos.3 to13 
have been released pursuant to the orders of remission dated

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10.08.2022 and set at liberty.  We have now quashed the orders of 
remission. Since 10.08.2022, respondent Nos.3 to 13 have been the 
beneficiaries of the orders passed by an incompetent authority 
inasmuch as the impugned orders are not passed by the 
appropriate Government within the meaning of Section 432 of the 
CrPC. So long as the said orders impugned were not set-aside, they 
had carried the stamp of validity and hence till date the impugned 
orders of remission were deemed to have been valid. Respondent 
Nos.3 to 13 are out of jail.  Since we have quashed the orders of 
remission, what follows? 
 
58.  In our view, the most important constitutional value is 
personal liberty which is a fundamental right enshrined in Article 
21 of our Constitution.  It is in fact an inalienable right of man and 
which can be deprived of or taken away only in accordance with 
law. That is the quintessence of Article 21. But, this is a case where 
respondent Nos.3 to 13 have been granted liberty and have been 
released from imprisonment by virtue of the impugned orders of 
remission dated 10.08.2022 which we have declared and quashed 
as wholly without jurisdiction and non est . Having quashed the 
orders of remission made in favour of respondent Nos.3 to 13, 
should they be sent back to prison? Whether respondent No.3 to 13

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must have the benefit of their liberty despite obtaining the same 
from an incompetent authority with the aid of an order of this Court 
obtained fraudulently and therefore, the same being illegal and 
carry a stamp of being a nullity and non est in the eye of law? This 
has been a delicate question for consideration before us.  
 
59.  Learned counsel for the petitioner in Writ Petition (Crl.) 
No.491 of 2022 has vehemently contended that there being failure 
of rule of law in the instant case, justice would be done by this Court 
only when respondent Nos.3 to 13 are returned to the prison. They 
can be granted remission only in accordance with law.  On the other 
hand, respective learned senior counsel and counsel for the 
respondents Nos.3 to 13 who have appeared have pleaded that they 
have been enjoying liberty since 10.08.2022  and in spite of there 
being any error in the orders of remission, although the orders of 
remission may be quashed, by exercising jurisdiction under Article 
142 of the Constitution, these respondents may not be subjected to 
imprisonment once again and they may remain out of jail  as free 
persons. In other words, their liberty may be protected. 
 
60.  We have given our anxious thought to the aforesaid divergent 
contentions. The primary question  that now arises for our 
consideration is this: when is liberty of a person protected? Article

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21 of the Constitution states that no person shall be deprived of his 
liberty except in accordance with law. Conversely, w e think that a 
person is entitled to protection of his liberty only in accordance with 
law. When a person’s liberty cannot be violated in breach of a law, 
can a person’s liberty be protected even in the face of a breach or 
violation of law? In other words, s hould rule of law prevail over 
personal liberty of a person or vice-versa? Further, should this 
Court weigh in favour of a person’s freedom and liberty even when 
it has been established that the same was granted in violation of 
law? Should the scales of justice tilt against rule of law ? In 
upholding rule of law are we depriving respondent Nos.3 to 13 their 
right to freedom and liberty? We wish to  make it clear  that only 
when rule of law prevails will liberty and all other fundamental 
rights would prevail under our Constitution including the right to 
equality and equal protection of law as enshrined in Article 14 
thereof. In other words, whether liberty of a person would have any 
meaning at all under our Constitution in the absence of rule of law 
or the same being ignored or turned a blind eye ? Can rule of law 
surrender to liberty earned as a consequence of its breach ? Can 
breach of rule of law be ignored in order to protect a person’s liberty 
that he is not entitled to?

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61. Before we proceed further,  we wish to reiterate what this 
Court has spoken on the concept of rule of law  through its various 
judgments. 
 
62.  Rule of law means wherever and whenever the State fails to 
perform its duties, the Court would step in to ensure that the rule 
of law prevails over the abuse of the process of law. Such abuse may 
result from, inter alia, inaction or even arbitrary action of protecting 
the true offenders or failure by different authorities in discharging 
statutory or other obligations in consonance with the procedural 
and penal statutes. Breach of the rule of law, amounts to negation 
of equality under Article 14 of the Constitution.  
 
63.  More importantly, rule of law means, no one, howsoever high 
or low, is above the law; it is the basic rule of governance and 
democratic polity. It is only through the courts that rule of law 
unfolds its contours and establishes its concept. The concept of rule 
of law is closely intertwined with adjudication by courts of law and 
also with the consequences of decisions taken by courts. Therefore, 
the judiciary has to carry out its obligations effectively and true to 
the spirit with which it is sacredly entrusted the task and always in 
favour of rule of law. There can be no rule of law if there is no 
equality before the law; and rule of law and equality before the law

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would be empty words if their violation is not a matter of judicial 
scrutiny or judicial review and relief and all these features would 
lose their significance if the courts don’t step in to enforce the rule 
of law. Thus, the judiciary is the guardian of the rule of law and the 
central pillar of a democratic State. Therefore, the judiciary has to 
perform its duties and function effectively and remain true to the 
spirit with which they are sacredly entrusted to it.  
 
In our view, this Court must be a beacon in upholding rule of 
law failing which it would give rise to an impression that this Court 
is not serious about rule of law and, therefore, all Courts in the 
country could apply it selectively and thereby lead to a situation 
where the judiciary is unmindful of rule of law. This would result in 
a dangerous state of affairs in our democracy and democratic polity.  
 
64. Further, in a democracy where rule of law is its essence, it has 
to be preserved and enforced particularly by courts of law. 
Compassion and sympathy have no role to play where rule of law is 
required to be enforced. If the rule of law has to be preserved as the 
essence of democracy, it is the duty of th e courts to enforce the 
same without fear or favour, affection or ill-will.

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65. The manner of functioning of the court in accord with the rule 
of law has to be dispassionate, objective and analytical. Thus, 
everyone within the framework of the rule of law must accept the 
system, render due obedience to orders made and in the event of 
failure of compliance, the rod of justice must descend down to 
punish. It is mainly through the power of judicial review conferred 
on an independent institutional authority such as the High Court 
or the Supreme Court that the rule of law is maintained and every 
organ of the State is kept within the limits of the law. Thus, those 
concerned with the rule of law must remain unmindful and 
unruffled by the ripples caused by it. Rule of law does not mean 
protection to a fortunate few. The very existence of the rule of law 
and the fear of being brought to book operates as a deterrent to 
those who have no scruples in killing others if it suits their ends. In 
the words of Krishna Iyer, J., “the finest hour of the rule of law is 
when law disciplines life and match es promise with performance”. 
In ADM, Jabalpur vs. Shivakant Shukla, H.R. Khanna, J. in his 
dissenting judgment said, “rule of law is the antithesis of 
arbitrariness”. 
66. In this context, it would also be useful to refer to the notion of 
justice in the present case. It is said that justice should remain loyal 
to the rule of law. In our view, justice cannot be done without

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adherence to rule of law. This Court has observed “the concept of 
“justice” encompasses not just the rights of the convict, but also of 
the victims of crime as well as of the law abiding section of society 
who look towards the courts as vital instruments f or preservation 
of peace and the curtailment or containment of crime by punishing 
those who transgress the law. If the convicts can circumvent the 
consequences of their conviction, peace, tranquility and harmony 
in society will be reduced to chimera.” (vide Surya Baksh Singh 
vs. State of UP, (2014) 14 SCC 222) 
 
67. This Court has further observed that the principle of justice 
is an inbuilt requirement of the justice delivery system and 
indulgence and laxity on the part of the law courts would be an 
unauthorized exercise of jurisdiction and thereby, put a premium 
on illegal acts. Courts have to be mindful of not only the spelling of 
the word “justice” but also the content of the concept. Courts have 
to dispense justice and not justice being dispensed with. In fact, the 
strength and authority of courts in India are because they are 
involved in dispensing justice. It should be their life aim.  
 
68. The faith of the people in the efficacy of law is the saviour and 
succour for the sustenance of the rule of law. Justice is supreme 
and justice ought to be beneficial for the society. Law courts exist

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for the society and ought to rise to the occasion to do the needful in 
the matter. Respect for law is one of the cardinal principles for an 
effective operation of the Constitution, law and the popular 
Government. The faith of the people is the source to in vigorate 
justice intertwined with the efficacy of law. Therefore, it is the 
primary duty and the highest responsibility of this Court to correct 
arbitrary orders at the earliest and maintain the confidence of the 
litigant public in the purity of the founta in of justice and thereby 
respect rule of law. 
 
69.  In the same vein, we say that Article 142 of the Constitution 
cannot be invoked by us in favour of respondent Nos.3 to 13 to allow 
them to remain out of jail as that would be an instance of this 
Court’s imprimatur to ignore rule of law and instead aid persons 
who are beneficiaries of orders which in our view, are null and void 
and therefore non est in the eye of law.  Further, we cannot be 
unmindful of the conduct of respondent Nos.3 to 13, particularly 
respondent No.3 who has abused the process of law and t he court 
in obtaining remission.  In such a situation , arguments with an 
emotional appeal though may sound attractive become hollow and 
without substance when placed in juxtaposition with our reasoning 
on the facts and circumstances of this case. Therefore, in complying

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with the principles of rule of law which encompasses the principle 
of equal protection of law as enshrined in Article 14 of the 
Constitution, we hold that ‘deprivation of liberty’ vis-à-vis 
respondent Nos.3 to 13 herein is justified in as much as the said 
respondents have erroneously and contrary to law been set at 
liberty. One cannot lose sight of the fact that the said respondents 
were all in prison for a little over fourteen years (with liberal paroles 
and furloughs gr anted to them from time to time). They had lost 
their right to liberty once they were convicted and were imprisoned.  
But, they were released pursuant to the impugned remission orders 
which have been quashed by us. Consequently, the status quo ante 
must be restored. We say so for another reason in the event 
respondent Nos.3 to 13 are inclined to seek remission in accordance 
with law, they have to be in prison as they cannot seek remission 
when on bail or outside the jail. Therefore, for these reasons we hold 
that the plea of ‘protection of the liberty’ of respondent Nos.3  to 13 
cannot be accepted by us.   
 
70. We wish to emphasize that in the instant case rule of law must 
prevail.  If ultimately rule of law is to prevail and the impugned 
orders of remission are set -aside by us, then the natural 
consequences must follow. Therefore, respondent Nos.3 to 13 are

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directed to report to the concerned jail authorities within two weeks 
from today. 
 
Conclusion: 
71.  Consequently, we pass the following orders: 
a. Writ Petition (Crl.) No.491 of 2022 is allowed in the 
aforesaid terms. 
b. Other Writ Petitions stand disposed of. 
c. Pending applications, if any, stand disposed of. 
 
72. Before parting, we place on record our appreciation of all 
learned senior counsel, learned ASG and learned counsel appearing 
for the respective parties for their effective assistance in the matter. 
 
 
 
……………………………….J.  
                                                   (B.V. NAGARATHNA) 
 
 
 
……………………………….J.  
                                              (UJJAL BHUYAN) 
New Delhi;  
January 08, 2024.