Madhya Pradesh High Court
Case BriefsHigh Courts

Madhya Pradesh High Court | The Division Bench comprising of Subodh Abhyankar* and Satyendra Kumar Singh, JJ., reduces life imprisonment awarded to a rape convict into 20 years rigorous imprisonment considering the fact that the convict was kind enough to leave the victim alive, the victim in this case was a minor, a 4-year-old girl.

The appellant, Ramsingh who used to sell medicines and herbs, was accused of luring the victim, a 4-year-old girl to the tent by offering her one rupee and raping her and was later convicted for the same by the trial court. The appellant challenged the judgment of the trial court.

The appellant contended that he was falsely implicated as no FSL report was brought on record to support the prosecution’s case. The appellant also contended that since he had already undergone 15 years in jail since the time of his arrest and prayed that “his sentence may be reduced to the sentence already undergone by him”.

Opposing the appellant’s prayer, the State contended that the appellant does not deserve any leniency.

The Court observed that the statements of the two eyewitnesses were remained unshaken throughout the case and the doctor of the victim was of opinion that the injuries suffered by the prosecutrix could be caused by rape, therefore it is clear that the victim was subjected to rape.

Rejecting the contention of the appellant, the Court opined that not bringing the FSL report on record was the “gross negligence on the part of the police in prosecuting such heinous offences” and absence of FSL report doesn’t weaken the prosecution’s case when there is evidence on record to be appreciated by the Court.

The Court held that “the guilt of the appellant is proved beyond reasonable doubt” and therefore, the appellant was rightly convicted for the offence by the Trial Court.

Partly allowing the appeal, the Court did not find any error in the trial court’s judgment but found the case fit to get the benefit of remission and reduced the life imprisonment to 20 years rigorous imprisonment.

“In such circumstances, this Court does not find any error in appreciation of evidence by the trial Court and considering the demonic act of the appellant who appears to have no respect for the dignity of a woman and has the propensity to commit sexual offence even with a girl child aged 4 years, this Court does not find it to be a fit case where the sentence can be reduced to the sentence already undergone by him, however, considering the fact that he was kind enough to leave the prosecutrix alive, this Court is of the opinion that the life imprisonment can be reduced to 20 years’ rigorous imprisonment.”

[Ramu v. State of M.P., 2022 SCC OnLine MP 3020, decided on 18-10-2022]

On 27-10-2022, the Court took a suo motu cognizance under Section 362 CrPC and modified certain words of the judgment stating that “certain inadvertent mistake had crept in the judgment”.  

“It is brought to the notice of this court that certain inadvertent mistake has crept in the judgment delivered by this court on 18.10.2022, wherein the word “Kind” has been used to refer to the appellant who stands convicted of rape”

The Court stated that the mistake is obviously inadvertent as the Court has already held the act of the appellant as demonic and modified and replaced “however, considering the fact that he was kind enough to leave the prosecutrix alive” to “however, considering the fact that he did not cause any other physical injury to the victim”. 


Advocates who appeared in this case:

Ms. Sharmila Sharma, Counsel for the Appellant;

Mr. Sudanshu Vyas (G.A.), Counsel for the Respondent.


*Ritu Singh, Editorial Assistant has put this report together.

Case BriefsForeign Courts

   

Court of Appeal of the Republic of Singapore | In a case arising out of a vehemently contested arbitration where the Tribunal after carefully going through the viewpoints of both the parties considered it essential to revert the matter back to the Judge who ordered remission for the resolution of dispute, a bench comprising of Sundaresh Menon, CJ, Judith Prakash, JCA and Jonathan Hugh Mance*, IJ., dismissed the appeal with costs upholding the judgment given by the Tribunal while reiterating that the Tribunal’s jurisdiction is only revived “to the extent of” the remission ordered.

Factual Matrix

An appeal was filed under Or. 21 R. 20 of the Singapore International Commercial Court Rules, 2021 against an order of the International Judge.

CKH claimed that they raised numerous issues relating to the principal debt and interest which CKG had disputed as they fell outside the scope of the remission ordered. The Tribunal, after carefully going through the viewpoints of both the parties recorded in the judgment, that it considered it imperative for the parties to revert to the Judge who had ordered remission for the resolution of the dispute.

Appellant’s contention

The appellant contended that the Judge “erred in holding that the Tribunal’s determination of the amount of the Principal Debt had to be subject to appellant’s concessions” as to the amount of the principal debt outstanding in April, 2011. The appellant also contended that the imposition of an interest rate of 2% compounded monthly was never canvassed before the Tribunal in relation to the principal debt and hence, the rate of interest so imposed is not justified.

The appellant also submitted that they are entitled to challenge and require proof of what sums owe by way of the principal debt. The contention was raised that the parameters fixed by the recitals are not open to being revisited before the Tribunal on the basis of which the remission was ordered.

The appellant submitted that, even though the parties agreed that the outstanding Principal Debt would carry interest at the rate of 2% compounded monthly, they must be allowed to argue that the penalty so imposed was unreasonable and should be considered unenforceable. They also contended that during the period from 20-12- 2011 to 3-11- 2014, CKG was not claiming the Principal Debt and hence the penalty at the rate of 2% shall not be imposed for that period.

Opinion and Analysis

Placing the reliance on Soh Beng Tee & Co Pte Ltd. v. Fairmount Development Pte Ltd, [2007] 3 SLR(R) 86 at [27], L W Infrastructure Pte Ltd. v. Lim Chin San Contractors Pte Ltd., [2014] 1 SLR 1221 at [41]-[42] and AKN v. ALC, [2016] 1 SLR 966 at [47], the Court held that the order challenged was carefully defined and had precisely specified what a tribunal should do and apart from the remission ordered, “there was no ground on which the appellant or the Tribunal itself can seek to re-open or expand the subject matter of the award or arbitration.” It was also opined by the Court that it was highly unlikely that the BANI award could lead to double recovery.

The Court further observed that the remission was ordered on the parameters fixed by the Recitals and is not open to be revisited before the Tribunal on the remission.

The Court also concluded that all the arguments regarding the rate interest of 2% compounded monthly fell outside the scope of the limited remission ordered.

[CKH v. CKG, [2022] SGCA(I) 6, decided on 30-08-2022]


Advocates who appeared in this case:

Hee Theng Fong, Toh Wei Yi, Poon Pui Yee and Leong Shan Wei Jaclyn (Harry Elias Partnership LLP), Counsel for the Appellant;

Tan Beng Hwee Paul and Victor Yao Lida (Cavenagh Law LLP), Counsel for the Respondent.


*Ritu Singh, Editorial Assistant has put this report together.

Bombay High Court
Case BriefsHigh Courts

   

Bombay High Court: In a petition filed by two convicts (‘petitioners’) challenging an order dated 09-07-2021 passed by Home Department, Government of Maharashtra directing their release after completion of 24 years of imprisonment including remission, as there are two different categories of crimes based on which remission is granted and their case seems to fall in a category having lesser year of imprisonment than 24 years as granted vide the impugned order, a Division Bench of Revati Mohite Dere and Madhav J Jamdar, JJ. held that even if it is assumed that the petitioners’ case falls under both the categories namely category no. 4 (c) and category no. 4 (d) of Guidelines dated 15-03-2010 (‘2010 Guidelines’), then also, the more beneficial category i.e., category no. 4 (c) will apply to the Petitioners’ case.

The petitioner claimed that the incident in question has taken place on account of a rivalry between two trade unions namely Mumbai Labour Union and Bhartiya Kamgar Sena. The deceased was a member of the Mumbai Labour Union, whereas, both, the Petitioners belonged to the Bhartiya Kamgar Sena. Petitioners i.e., Uday Dhaku Sutar and Ranjay Laxman Sawant (Accused 1 and 3) alongwith Prakash Yeragi (Accused 2), thus, were convicted for the offences punishable under Section 302 read with 34 of Penal Code, 1860 and were sentenced to suffer rigorous imprisonment for life.

Counsel for petitioners submitted that category 4 (c) of Guidelines dated 15th March, 2010 applies to the present case, whereas, the contention of the State is that category 4 (d) of said 2010 Guidelines is applicable.

Category 4 (c) covers Murder resulting from trade union activities and business rivalry mentioning 22 years as the period of imprisonment to be undergone including remission subject to a minimum of 14 years of actual imprisonment including set off period whereas Category 4 (d) covers murder committed by more than 1 person and mentions 22 years as the said period.

The Court noted that in the present case, murder has been committed by three persons, however, Guideline no. 4 (c) specifically contemplates murder resulting from trade union activities and does not further prescribe that the same will apply only if a murder has been committed by one person. What is relevant is murder should have been committed as a result of trade union activities and therefore, whether murder has been committed by more than one person/group of persons is totally irrelevant.

Placing reliance on State of Haryana v. Jagdish, (2010) 4 SCC 216, wherein the Court observed 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 benefit thereof.”

The Court remarked that it has been held by Supreme Court that in case of convicts the policy which was prevalent when the conviction takes place will apply and if any other liberal policy prevails on the date of consideration of case for premature release, then such policy will apply. The said principle of giving benefit to the convict of beneficial policy certainly applies to the two different policies/guidelines but the same will also apply to the categories in the same policy/guidelines, if case falls under both the categories.

Thus, the Court held that the present case is squarely governed by Guideline no. 4 (c) of Guidelines 2010, as the murder took place as a result of trade union activities and thereby quashed the impugned order.

[Uday Dhaku Sutar v. The State of Maharashtra, 2022 SCC OnLine Bom 2839, decided on 08-09-2022]


Advocates who appeared in this case:

Mr. Rupesh Jaiswal, Advocate, for the Petitioner in both the Writ Petitions;

Mr. J. P. Yagnik, APP, Advocate, for the Respondent-State in Writ Petition No. 4544 of 2021;

Ms. M. H. Mhatre, APP, Advocate, for the Respondent-State in Writ Petition No. 4545 of 2021.


*Arunima Bose, Editorial Assistant has put this report together.

Case Briefs

Supreme Court: On being appraised of high number of pending bail applications in 10-14 years old cases, the Division Bench of Sanjay Kishan Kaul and M.M. Sundresh, JJ., directed the Lucknow Bench of Allahabad High Court to decide all the cases in one go. The Bench directed,

“We would like a closure to all these matters of bail before the next date as the matters are directed to be taken up in one go.”

The Court had called a report from the Registrar of the Lucknow Bench of Allahabad High Court with regard to the submission that no criminal Bench available in the Court to hear matters for the last 25 days. Though the report suggested that the factual position was not what had been alleged, it also highlighted the number of convicts in jail for more than 14 years and 10 years whose appeals are pending consideration. The Court remarked,

“What is of concern to us is cases which are pending for 10 years and 14 years in appeal, where bail applications are also pending and some of them are in incarceration even without pending bail applications as they may have been disposed of.”

On the submission of the High Court that in single offence cases, the matters are referred for remission after 14 years of actual incarceration and 20 years with remission, the Court expressed,

“We see no reason why these cases are not dealt with in one go by asking the State Government to take a stand in respect of such cases which are single offence cases and pending for 10 years or more and unless there are special circumstances, all of them can be enlarged on bail.”

To clear the backlog of some appeals, the Court directed that as far as cases which meet the norms of remission, the State Government, irrespective of pendency of the appeal, should be forthwith asked to take a call on the plea of remission as it may also facilitate posting all of the matters at one go. Further, the Court suggested that the counsels appearing for the convicts could be asked whether they would be satisfied with cases being considered for remission or would also like to urge the matter in appeal.

Noticeably, as on 22-04-2022, there were 159 convicts incarcerated for more than 14 years and 191 convicts incarcerated for 10-14 years 191, whose bail applications were pending in the High Court; making it a total of 350 pending bail applications.

Consequently, the Court directed to reach a closure to all those matters of bail before the next date as the matters were directed to be taken up in one go. The matter is listed on 25-07-2022 for directions.

[Suleman v. State of U.P., Misc. Application No.764 of 2022 in Cr. A. No.491 of 2022, decided on 09-05-2022]


Appearance by:

For Petitioner(s): Mohd. Irshad Hanif, AOR and Aarif Ali, Mujahid Ahmad, Rizwan Ahmad, Advocates

For Respondent(s): AOR Ajay Vikram Singh and Nikhil Goel, Naveen Goel, Priyanka Singh, Ajay Kumar Prajapati, Narender Rana, Neelambar Jha, Advocates


Kamini Sharma, Editorial Assistant has put this report together 

Case BriefsSupreme Court

Supreme Court: In a landmark ruling, the Division Bench of Dinesh Maheshwari* and Aniruddha Bose, JJ., reversed Delhi High Court’s judgment holding that the Presidential order banning benefit of parole and remission to the appellant will also disentitle him of benefit of furlough.

By a detailed judgment the Bench clarified differences between remission, parole and furlough. Opening that the High Court had misunderstood furlough for remission, the Bench expressed,

“We need not elaborate to say that depriving of even the concession of furlough and thereby taking away an incentive/motivation for good conduct would not only be counter-productive but would be an antithesis to the reformative approach otherwise running through the scheme of Rules of 2018.”

Factual Background

The appellant – a life convict whose death sentence was commuted by the President of India vide order dated 15-11-2012 – had preferred the instant appeal on being aggrieved by the Delhi High Court’s order, dismissing his writ petition and declining his prayer to grant furlough. The High Court had held that the appellant was not entitled to furlough owing to the conditions of the order issued by the President of India in mercy petition that the appellant’s death sentence be converted to the one of imprisonment for life with additional direction that he would remain in prison ‘for the whole of the remainder of his natural life without parole and there shall be no remission of the term of imprisonment’.

The High Court opined that that the appellant was not entitled to seek furlough because he was not entitled to remission of any kind. However, the contention of the appellant was that the aforesaid terms of the order dated 15-11-2012 were of no debarment, so far as his entitlement to furlough under the Delhi Prison Rules, 20181 was concerned.

Decision of Death Sentence

The appellant was sentenced to death for the offence under Section 302 of the Penal Code, 1860 on accusation that he caused the death of his step-mother, step-brother and step-sister by multiple knife-blows. Finding it to be a case falling in ‘rarest of the rare category’, the High Court as well as the Supreme Court had confirmed the sentence of death awarded to him.

Mercy Petition

When the curative petition filed by the appellant was dismissed, the appellant approached the President in a mercy petition to grant pardon and to suspend, remit or commute his sentence. By the order dated 15-11-2012, the President modified the sentence of death awarded to the one of imprisonment for life with the requirements that he would remain in prison for the whole of remainder of his natural life without parole and there shall be no remission of the term of imprisonment.

Law on Furlough

Furlough is defined in Section 2(h) of the Delhi Prison Act, 2000 as: –

“Furlough means leave as a reward granted to a convicted prisoner who has been sentenced to RI for 5 years or more and has undergone 3 years thereof”

The objectives of parole and furlough are set forth in Rules 1197 to 1200 of the Delhi Prison Rules, 2018; Rule 1199 states that furlough means release of a prisoner for a short period of time after a gap of certain qualified numbers of years of incarceration by way of motivation for maintaining good conduct and to remain disciplined in the prison. This is purely an incentive for good conduct in the prison. Therefore, the period spent by the prisoner outside the prison on furlough shall be counted towards his sentence.

Rule 1223 states following requirements to be eligible for furlough:

  1. Good conduct in the prison and should have earned rewards in last 3 Annual good conduct report and continues to maintain good conduct.
  2. The prisoner should not be a habitual offender.
  3. The prisoner should be a citizen of India.

The ideology behind granting furlough is that convicts too must breathe fresh air for at least some time provided they maintain good conduct consistently during incarceration and show a tendency to reform themselves and become good citizens.

High Court Misunderstood Furlough for Remission

Rejecting the reasoning of the High Court that once it had been provided by the President that the appellant would remain in prison for whole of the reminder of his natural life without parole and without remission, all his other rights, particularly those emanating from good jail conduct, as available in the Rules, 2018 would stand foreclosed, the Bench stated that in the Rules, 2018, the eligibility requirement to obtain furlough is of ‘3 Annual good conduct reports’ and not ‘3 Annual good conduct remissions’.

The Bench opined that in the scheme of the Rules, 2018 it cannot be said that earning rewards is equivalent to earning remissions and even if he (the appellant) would spend some time on furlough, that will not come to his aid so as to seek remission because of the fact that he has to remain in prison for whole of the reminder of his natural life.

Difference between Parole, Remission and Furlough

Further, the Bench noted that the presidential order dated 15-11-2012 bars parole as also remission but significantly, there is no mention of the treatment of entitlement towards furlough. While differentiating between remission, parole and furlough, the Bench observed that parole is akin to temporary suspension of execution of sentence. There cannot be any temporary suspension of execution of sentence qua the appellant inasmuch as the sentence awarded to him has to run in perpetuity and during the whole of his natural life. Moreover, for parole, conduct is not a decisive factor.

However, in contradistinction to parole, in furlough, the prisoner is deemed to be serving the sentence inasmuch as the period of furlough is not reduced from actual serving period. And, the conduct is predominantly decisive of entitlement towards furlough. Thus, even if the appellant would be on furlough, he would be deemed to be serving the sentence for all time to come. The Bench opined that,

“…the High Court proceeded on the assumption that the matter was being considered for grant of remission and ‘consequently’ for grant of furlough under the Delhi Prison Rules, 2018. The Court was of the view that since the convict in question would not get remission, he would not be entitled to furlough. The Court assumed that remission was a prerequisite for furlough.”

Hence, the Bench held that the entitlement of furlough cannot be decided in the case of the present nature with reference to the question as to whether any remission would be available or not.

Noticing that the whole of the scheme of granting furlough is based on reformation and is an incentive for maintaining good conduct, the Bench held that even if the appellant is to remain in prison for the whole of remainder of his life, the expectations from him of good conduct in jail would always remain; and the lawful consequences of good conduct, including that of furlough, cannot be denied.

Verdict

In the above backdrop, the Bench concluded that since the appellant had 3 Annual good conduct reports in his favour, he could not be denied furlough with reference to the order dated 15-11-2012, as the said order could not be construed to take away the rights flowing from his maintaining good conduct; neither the requirements of his maintaining good conduct are whittled down nor the reformative approach and incentive for good conduct cease to exist in his relation.

Therefore, the Bench disapproved blanket denial of furlough to the appellant in the orders impugned, and directed the authorities concerned to decide the case of the appellant for grant of furlough in accordance with law. The impugned judgment and orders were set aside; and the case of the appellant for grant of furlough was restored for reconsideration of the Director General of Prisons, to be decided preferably within two months.

[Atbir v. State (NCT of Delhi), 2022 SCC OnLine SC 527, decided on 29-04-2022]


*Judgment by: Dinesh Maheshwari


Appearance by:

For the Appellant: Advocate Neha Kapoor

For the State: Additional Solicitor General S. V. Raju


Kamini Sharma, Editorial Assistant has put this report together 

Case BriefsSupreme Court

Supreme Court: In a significant case relating to State’s power of remission under Section 432 of CrPC, the Division Bench of Dr Dhananjaya Y Chandrachud* and Aniruddha Bose, JJ., directed the presiding officer concerned to re-assess the matter— holding that an opinion accompanied by inadequate reasoning would not serve the purpose for which the exercise under Section 432 (2) is to be undertaken, which is to enable the executive to make an informed decision taking into consideration all the relevant factors.

The instant petition was filed by a convict—who was undergoing imprisonment for life upon being convicted u/s 302 read with S. 149 of the Penal Code, 1860—to seek for issuance of a writ directing the State government to grant him pre-mature release.

Evidently, on 25-09-2021, the petitioner completed 16 years of imprisonment without remission and submitted an application for premature release under Rule 358 of the Chhattisgarh Prisons Rule 1968. Pursuant to which opinion of the Special Judge, Durg was sought by the government as mandated u/s 432 of the CrPC on whether the petitioner could be released on remission which was answered in negative. Resultantly, the petitioner’s application for remission was rejected by the government.

Judicial Review vis-à-vis Power of Remission

Though the appropriate government has the absolute discretion to decide whether the application for remission should be allowed, it had been clarified by the Supreme Court in catena of judgments that while the grant of remission is the exclusive prerogative of the executive and the court cannot supplant its view, the Court can direct the authorities to re-consider the representation of the convict. Therefore, the prerogative of the executive is subject to the rule of law and fairness in state action embodied in Article 14 of the Constitution.

Hence, the Court concluded that though the Courts cannot usurp the power of the government and grant remission itself, they can review the decision of the government to determine whether it was arbitrary and ask the government to reconsider the matter.

Duty of the Presiding Judge and Value attached to his Opinion

Sub-section (2) of Section 432 of the CrPC provides that the appropriate government may take the opinion of the presiding judge of the court before or by which the person making an application for remission has been convicted on whether the application should be allowed or rejected, together with the reasons for such opinion.

In Union of India v. Sriharan, (2016) 7 SCC 1, the Constitution Bench had held that the procedure stipulated in Section 432(2) is mandatory and the decision of the government on remission should be guided by the opinion of the presiding officer of the concerned court. 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, the Bench opined that it could not 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 Bench remarked,

“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.”

However, the Bench clarified that the provision does not mean that the appropriate government should mechanically follow the opinion of the presiding judge and held that 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 had been laid down in Laxman Naskar v. Union of India, (2000) 2 SCC 595, the government may request the presiding judge to consider the matter afresh.

Noticeably, in Laxman Naskar’s case (supra), the Court had laid down following factors to be considered by the presiding officer—assessing (i) whether the offence affects the society at large; (ii) the probability of the crime being repeated; (iii) the potential of the convict to commit crimes in future; (iv) if any fruitful purpose is being served by keeping the convict in prison; and (v) the socio-economic condition of the convict’s family.

Factual Analysis and Conclusion

In the instant case, the Special Judge, Durg had referred to the crime for which the petitioner was convicted and had simply stated that—“in view of the facts and circumstances of the case it would not be appropriate to grant remission.”

Hence, the Bench opined that there was nothing to indicate that the presiding judge took into account the factors laid down in Laxman Naskar’s case (supra), which had rendered the opinion to be in the teeth of the provisions of Section 432 (2) of the CrPC which require that the presiding judge’s opinion must be accompanied by reasons. The Bench stated,

“…an opinion accompanied by inadequate reasoning would not satisfy the requirements of Section 432 (2) of the CrPC. Further, it will not serve the purpose for which the exercise under Section 432 (2) is to be undertaken, which is to enable the executive to make an informed decision taking into consideration all the relevant factors.”

In view of the above, the Bench concluded that the petitioner’s application for remission should be re-considered and directed the Special Judge, Durg to provide an opinion on the application afresh accompanied by adequate reasoning while taking into consideration all the relevant factors that govern the grant of remission as laid down in Laxman Naskar’s case (supra).

Additionally, the Bench directed that the Special Judge, Durg must provide his opinion within a month and the State of Chhattisgarh must take a final decision on the petitioner’s application for remission afresh within a month of receiving the opinion of the Special Judge, Durg.

[Ram Chander v. State of Chhattisgarh, 2022 SCC OnLine SC 500, decided on 22-04-2022]


*Judgment by: Justice Dr Dhananjaya Y Chandrachud


Appearance by:

For the Petitioner: Advocate MD Irshad Hanif

For the State of Chhattisgarh: Advocate Sumeer Sodhi


Kamini Sharma, Editorial Assistant has put this report together

Case BriefsSupreme Court

Supreme Court: While addressing the plea of a murder convict seeking remission on the ground of blindness, the Division Bench comprising of Sanjay Kisan Kaul and M. M. Sundresh, JJ., directed him to under go medical assessment under Rule 363 of the M.P. Prison Rules and thereafter approach the Governor under Article 161 of the Constitution.

The appellant herein was convicted along with three others in connection with an incident which caused death of two brothers of the complainant and injuries to his father. At the inception itself, by an Order dated 29-01-2010, in view of a medical certificate produced by the appellant that he is visually impaired and is suffering from 100% blindness, the appellant was granted exemption from surrendering and finally on 18-10-2011 the appellant was granted bail.

Notably, the appellant had already undergone sentence of 9 years 10 months and 6 days including remission (actual period 8 years 1 month and 23 days). While pleading remission of sentence to the sentence already undergone, the appellant submitted that instead of canvassing the appeal on merits, an alternative course might be adopted; i.e. Rule 363 of the M.P. Prison Rules, 1968 which provides that where the Medical Officer of the prison is of the opinion that the convicted prisoner has gone completely and incurably blind not as a result of any voluntary act of the prisoner or that a convict prisoner has become completely decrepit or has become disabled on account of incurable physical informity which incapacitated him from the commission of further crime on his release and as such where the release of such a prisoner is not likely to be attended with mischief or danger, he shall report the case of the prisoner to the Superintendent.

The appellant contended that since he is visually impaired to the extent of suffering permanently from 100% blindness and that was not a result of any voluntary act of the prisoner, the aforementioned provision would come to his aid for consideration of his case for release from serving out the remaining sentence.

Considering the case of State of Haryana v. Raj Kumar, (2021) 9 SCC 292, wherein it was held that the benefit of remission can only be granted by the State Government if a prisoner has undergone a minimum period of imprisonment of 14 years without remission as well as the provisions of 432, 433 & 433A of the CrPC read with Article 161 of the Constitution, the Bench agreed that the State can recommend and the power would have to be exercised by the Governor under Article 161 of the Constitution albeit on the aid and advise of the State.

Accordingly, the Bench directed that the appellant, though on bail, to report to the Medical Officer of the prison and stay in observation for few days if required to enable the authorities concerned to comply with procedure enshrined in Rule 363 of the M.P. Prison Rules, 1968 and assess disability of the appellant. Thereafter, the case of the appellant was directed to be laid before the Government.

Hence, the Bench observed that it is only after compliance of Rule 363 that the case of the appellant could be referred to the Governor for exercise of power under Article 161 of the Constitution. Therefore, the Bench directed that the appellant to invoke Rule 363 of the said rules and make an application with all the relevant material within three weeks and simultaneously apply to the Governor under Article 161 of the Constitution.

Since the Court had not addressed the appeal on merit, the matter was directed to listed for directions on 19-07-2022.

[Banshi v. State of M.P., Criminal Appeal No.1944 of 2011, decided on 02-03-2022]


Kamini Sharma, Editorial Assistant has put this report together


Case BriefsSupreme Court

Supreme Court: In a case where a man had brutally raped and murdered a 7-year-old girl, the 3-judge bench of AM Khanwilkar, Dinesh Maheshwari* and CT Ravikumar, JJ has reversed the concurrent findings of the Courts below and has commuted the death sentence into that of imprisonment for life, with the stipulation that the appellant shall not be entitled to premature release or remission before undergoing actual imprisonment for a period of 30 years.

The Court observed,

“The heinous nature of crime like that of present one, in brutal rape and murder of a seven-year-old girl child, definitely discloses aggravating circumstances, particularly when the manner of its commission shows depravity and shocks the conscience. But, at the same time, it is noticeable that the appellant has no criminal antecedents, comes from a very poor socio-economic background, has a family comprising of wife, children and aged father, and has unblemished jail conduct.”

The Trial Court and the High Court had sentenced the appellant to death for enticing a seven-year-old girl to accompany him on the pretext of picking lychee fruits; having thereafter committed rape upon the child; having caused her death; and having dumped the dead body near a bridge on the riverbank, after having dragged the dead body over a distance of one and one-quarter kilometres.

The Supreme Court, however, noticed that both the Trial Court as also the High Court have taken the abhorrent nature of crime alone to be the decisive factor for awarding death sentence in the present case.

The Trial Court convicted the appellant on 07.12.2016 and on the next day, proceeded to award the sentence. The sentencing order did not indicate if the appellant was extended reasonable opportunity to make out a case of mitigating circumstances by bringing relevant material on record. The sentencing order also failed to satisfy if the Trial Court consciously pondered over the mitigating factors before finding it to be a ‘rarest of rare’ case.

The Trial Court also observed that ‘if such heinous crime is committed by him, it is not justifiable to show any sort of mercy in the punishment.’

The High Court confirmed the order of the Trial Court, with a cursory observation that there were no substantial mitigating factors and the aggravating circumstances were aplenty, after making rather intense comments on the menace of rape and brutal murder of children as also on the society’s abhorrence of such crime.

In such circumstances, the Court observed that the approach of the Trial Court and High Court had been that the accused-appellant was about 33-34 years of age at the time of occurrence and was supposed to be sensible. The Supreme Court, hence, held that the impugned orders awarding and confirming death sentence could only be said to be of assumptive conclusions, where it has been assumed that death sentence has to be awarded because of the ghastly crime and its abhorrent nature.

Disagreeing with the concurrent findings of the Courts below, the Supreme Court held that,

“There is nothing on record to rule out the probability of reformation and rehabilitation of the appellant, in our view, it would be unsafe to treat this case as falling in ‘rarest of rare’ category.”

It observed that when the appellant is not shown to be a person having criminal antecedents and is appellant is not shown to be a person having criminal antecedents and is not a hardened criminal, it cannot be said that there is no probability of him being reformed and rehabilitated. His unblemished jail conduct and having a family of wife, children and aged father would also indicate towards the probability of his reformation.

It was, however, observed that even when the present case is taken to be not falling in the category of ‘rarest of rare’ so as to require termination of the life of the appellant yet, the impact of the offences in question on the conscience of the society as a whole cannot be ignored. Hence, commutation of death sentence to life imprisonment without application of the provisions of premature release/remission before mandatory actual imprisonment, was found to be just and reasonable.

The Court, hence, awarded the punishment of imprisonment for life to the appellant for the offence under Section 302 IPC while providing for actual imprisonment for a minimum period of 30 years. All the substantive sentences to run concurrently.

[Pappu v. State of Uttar Pradesh, 2022 SCC OnLine SC 176, decided on 09.02.22]

*Judgment by: Justice Dinesh Maheshwari

Case BriefsSupreme Court

Supreme Court: The bench of MR Shah* and Sanjiv Khanna, JJ has answered the following three important questions on the revisional jurisdiction of the High Court:

Whether the High Court in exercise of the revisional jurisdiction under Section 401 Cr.P.C. can set aside the order of acquittal and convicting the accused by converting the finding of acquittal into one of conviction?

The Court held that sub-section (3) of Section 401 Cr.P.C. prohibits/bars the High Court to convert a finding of acquittal into one of conviction. Though the High Court has revisional power to examine whether there is manifest error of law or procedure etc., however, after giving its own findings on the findings recorded by the court acquitting the accused and after setting aside the order of acquittal, the High Court has to remit the matter to the trial Court and/or the first appellate Court, as the case may be.

Referring to the ruling in K. Chinnaswamy Reddy v. State of Andhra Pradesh, AIR 1962 SC 1788, the Court noticed that if the order of acquittal has been passed by the trial Court, the High Court may remit the matter to the trial Court and even direct retrial. However, if the order of acquittal is passed by the first appellate court, in that case, the High Court has two options available, (i) to remit the matter to the first appellate Court to rehear the appeal; or (ii) in an appropriate case remit the matter to the trial Court for retrial and in such a situation the procedure in decision in K. Chinnaswamy Reddy can be followed.

In K. Chinnaswamy, it was held that,

“It will depend upon the facts of each case whether the High Court would order the appeal court to rehear the appeal or would order a retrial by the trial court. Where, as in this case, the entire evidence is there and it was the appeal court which ruled out the evidence that had been admitted by the trial court, the proper course in our opinion is to send back the appeal for rehearing to the appeal court. In such a case the order of the trial court would stand subject to the decision of the appeal court on rehearing. In the present case it is not disputed that the entire evidence has been led and the only defect is that the appeal court wrongly ruled out evidence which was admitted by the trial court. In the circumstances we are of opinion that the proper course is to direct the appeal court to rehear the appeal and either maintain the conviction after taking into consideration the evidence which was ruled out by it previously or to acquit the accused if that is the just course to take. We should like to add that the appeal court when it rehears the appeal should not be influenced by any observations of the High Court on the appreciation of the evidence and should bring to bear its own mind on the evidence after taking into consideration that part of the evidence which was considered inadmissible previously by it.”

In a case where the victim has a right of appeal against the order of acquittal, now as provided under Section 372 Cr.P.C and the victim has not availed such a remedy and has not preferred the appeal, whether the revision application is required to be entertained at the instance of a party/victim instead of preferring an appeal?

After the amendment in Section 372 Cr.P.C. after 2009 and insertion of proviso to Section 372 Cr.P.C., a victim has a statutory right of appeal against the order of acquittal. Therefore, no revision shall be entertained at the instance of the victim against the order of acquittal in a case where no appeal is preferred and the victim is to be relegated to file an appeal. Even the same would be in the interest of the victim himself/herself as while exercising the revisional jurisdiction, the scope would be very limited, however, while exercising the appellate jurisdiction, the appellate Court would have a wider jurisdiction than the revisional jurisdiction. Similarly, in a case where an order of acquittal is passed in any case instituted upon complaint, the complainant (other than victim) can prefer an appeal against the order of acquittal as provided under sub-section (4) of Section 378 Cr.P.C., subject to the grant of special leave to appeal by the High Court.

As observed in Mallikarjun Kodagali v. State of Karnataka, (2019) 2 SCC 752, so far as the victim is concerned, the victim has not to pray for grant of special leave to appeal, as the victim has a statutory right of appeal under Section 372 proviso and the proviso to Section 372 does not stipulate any condition of obtaining special leave to appeal like subsection (4) of Section 378 Cr.P.C. in the case of a complainant and in a case where an order of acquittal is passed in any case instituted upon complaint. The right provided to the victim to prefer an appeal against the order of acquittal is an absolute right.

Hence, in a case where the victim and/or the complainant, as the case may be, has not preferred and/or availed the remedy of appeal against the order of acquittal as provided under Section 372 Cr.P.C. or Section 378(4), as the case may be, the revision application against the order of acquittal at the instance of the victim or the complainant, as the case may be, shall not be entertained and the victim or the complainant, as the case may be, shall be relegated to prefer the appeal as provided under Section 372 or Section 378(4), as the case may be.

While exercising the powers under sub-section (5) of Section 401 Cr.P.C. treating the revision application as petition of appeal and deal with the same accordingly, the High Court is required to pass a judicial order?

The High Court may treat the application for revision as petition of appeal and deal with the same accordingly is concerned, firstly the High Court has to pass a judicial order to treat the application for revision as petition of appeal. The High Court has to pass a judicial order because sub-section (5) of Section 401 Cr.P.C. provides that if the High Court is satisfied that such revision application was made under the erroneous belief that no appeal lies thereto and that it is necessary in the interests of justice so to do. While treating with the application for revision as petition of appeal and deal with the same accordingly, the High Court has to record the satisfaction as provided under sub-section (5) of Section 401 Cr.P.C.

Therefore, where under the Cr.P.C. an appeal lies, but an application for revision has been made to the High Court by any person, the High Court has jurisdiction to treat the application for revision as a petition of appeal and deal with the same accordingly as per sub-section (5) of Section 401 Cr.P.C., however, subject to the High Court being satisfied that such an application was made under the erroneous belief that no appeal lies thereto and that it is necessary in the interests of justice so to do and for that purpose the High Court has to pass a judicial order, may be a formal order, to treat the application for revision as a petition of appeal and deal with the same accordingly.

[Joseph Stephen v. Santhanasamy, 2022 SCC OnLine SC 90, decided on 25.01.2022]


*Judgment by: Justice MR Shah


Counsels

For Accused: Senior Advocate S. Nagamuthu

For State: Advocate Dr. Joseph Aristotle

Case BriefsSupreme Court

Supreme Court: Explaining the provision of remission under Section 34 (4) of the Arbitration and Conciliation Act, 1996, the bench of R. Subhash Reddy* and Hrishikesh Roy, JJ has held that under guise of additional reasons and filling up the gaps in the reasoning, no award can be remitted to the Arbitrator, where there are no findings on the contentious issues in the award.

Factual Background

I-Pay Clearing Services Private Limited, the appellant, entered into an agreement with ICICI Bank Limited, the respondent, to provide technology and manage the operations and processing of the Smart Card based loyalty programs for HPCL. It was for HPCL, which was to improve fuel sales at their retail outlets. The appellant was required to develop various software application packages for management of Smart Card based loyalty programs. The said agreement was followed by another agreement, as per which, the appellant was to develop a software for postpaid Smart Card Loyalty Program akin to a Credit Card under the name “Drive Smart Software”. To further expand their customer base, the respondent requested the appellant to also develop a “Drive Track Fleet Card” management solution for the fleet industry. However, in view of sudden move by the Respondent in abruptly terminating the Service Provider Agreement dated 04.11.2002, it was alleged by the appellant that all its operations were paralyzed and that it has suffered losses of over Rs.50 crores, on account of loss of jobs of its employees, losses on account of employee retrenchment compensation, etc. The appellant made a total claim of Rs.95 crores against the respondent.

Justice R.G.Sindhakar (Retd.), who was appointed as Sole Arbitrator, passed award dated 13.11.2017, directing the respondent to pay to the appellant Rs. 50 Crores, together with interest @18% per annum from the date of award till payment and further directed to pay an amount of Rs.50,000/- towards the costs.

Aggrieved by the award of learned Sole Arbitrator, the respondent filed application under Section 34(1) of the Act for setting aside the award claiming that there was accord and satisfaction between the parties and the contractual obligations between the parties was closed mutually and amicably.

The award of the learned Arbitrator was mainly questioned on the ground that it suffers from patent illegality, inasmuch as there is no finding recorded in the award to show that the respondent-ICICI Bank has illegally and abruptly terminated the contract. It was argued that without addressing the vital issue viz. whether there was an illegal and abrupt termination of the contract or not, as pleaded, the Arbitrator has allowed the claim to the extent of Rs.50 crores, as such, the same is patently illegal and erroneous. Thus, it is pleaded that in view of settled legal position that lack of reasons or gaps in the reasoning, is a curable defect under Section 34(4) of the Act, award can be remitted to the arbitrator to give reasons.

The Bombay High Court, however, was of the view that the defect in the award is not curable, as such, there is no merit in the application filed by the appellant under Section 34(4) of the Act and dismissed the same.

Analysis

  • Section 31 of the Act deals with ‘form and contents of arbitral award’. As per the same, an arbitral award shall be made in writing and shall be signed by the members of the Arbitral Tribunal. The arbitral award shall state the reasons, upon which it is based, unless parties agree that no reasons are to be given, or the award is an arbitral award on agreed terms under Section 30 of the Act.
  • The recourse to a Court against an arbitral award is to be in terms of Section 34(1) of the Act. As per Section 34(2A) of the Act, if the arbitral award arising out of arbitrations other than international commercial arbitrations, is vitiated by patent illegality, same is a ground for setting aside the award.
  • As per Section 34(4) of the Act, on receipt of an application under subsection (1), in appropriate cases on a request by a party, Court may adjourn the proceedings for a period determined by it in the order to give the Arbitral Tribunal an opportunity to resume the arbitral proceedings or to take such other action as in the opinion of Arbitral Tribunal, will eliminate the grounds for setting aside the arbitral award.

Considering the abovementioned provisions, the Court held that when it is the specific case of the respondent that there is no finding at all, on the question as to “whether the contract was illegally and abruptly terminated by the respondent?”, remission under Section 34(4) of the Act, is not permissible.

It was explained that Section 34(4) of the Act, can be resorted to record reasons on the finding already given in the award or to fill up the gaps in the reasoning of the award.

Explaining the difference between ‘finding’ and ‘reasons’, the Court noticed that ‘finding is a decision on an issue’[1] and ‘reasons are the links between the materials on which certain conclusions are based and the actual conclusions’[2].

Hence, in absence of any finding on the question as to “whether the contract was illegally and abruptly terminated by the respondent?”, it cannot be said that it is a case where additional reasons are to be given or gaps in the reasoning.

Further, Section 34(4) of the Act itself makes it clear that it is the discretion vested with the Court for remitting the matter to Arbitral Tribunal to give an opportunity to resume the proceedings or not. The words “where it is appropriate” itself indicate that it is the discretion to be exercised by the Court, to remit the matter when requested by a party.

When application is filed under Section 34(4) of the Act, the same is to be considered keeping in mind the grounds raised in the application under Section 34(1) of the Act by the party, who has questioned the award of the Arbitral Tribunal and the grounds raised in the application filed under Section 34(4) of the Act and the reply thereto. Merely because an application is filed under Section 34(4) of the Act by a party, it is not always obligatory on the part of the Court to remit the matter to Arbitral Tribunal.

It was explained that the discretionary power conferred under Section 34(4) of the Act, is to be exercised where there is inadequate reasoning or to fill up the gaps in the reasoning, in support of the findings which are already recorded in the award.

“Under guise of additional reasons and filling up the gaps in the reasoning, no award can be remitted to the Arbitrator, where there are no findings on the contentious issues in the award. If there are no findings on the contentious issues in the award or if any findings are recorded ignoring the material evidence on record, the same are acceptable grounds for setting aside the award itself. Under guise of either additional reasons or filling up the gaps in the reasoning, the power conferred on the Court cannot be relegated to the Arbitrator. In absence of any finding on contentious issue, no amount of reasons can cure the defect in the award. “

[I-Pay Clearing Services Private Limited v. ICICI Bank Limited, 2022 SCC OnLine SC 4, decided on 03.01.2021]


*Judgment by: Justice R. Subhash Reddy


Counsels

For Appellant: Senior Advocates Dr. Abhishek Manu Singhvi and Nakul Dewan,

For Respondent: Senior Advocate K.V.Vishwanathan


[1] Income Tax Officer, A Ward, Sitapur v. Murlidhar Bhagwan Das, AIR 1965 SC 342

[2] J. Ashoka v. University of Agricultural Sciences, (2017) 2 SCC 609

Case BriefsSupreme Court

Supreme Court: Dealing with an issue relating to special remission being granted to certain categories of prisoners by the Governor of Haryana on the occasion of the Independence Day i.e., 15th August, 2019, in exercise of powers conferred by Article 161 of the Constitution of India, The 3-judge bench of UU Lalit, MM Shantanagoudar and Vineet Saran referred the question to a larger bench and framed the following issue:

“Whether in exercise of power conferred under Article 161 of the Constitution a policy can be framed, whereunder certain norms or postulates are laid down, on the satisfaction of which the benefit of remission can thereafter be granted by the Executive without placing facts or material with respect to any of the cases before the Governor and whether such exercise can override the requirements under Section 433-A of the Code.”

In the matter before the Court, the appellant was convicted under Section 302 read with Section 34 of the Penal Code and sentenced to suffer life imprisonment and to other punishments including fine and default sentence under certain other offences. The Supreme Court had rejected his bail application in 2017 and when t\the Court took up the second bail application for consideration, it was reported that after having completed 8 years of actual sentence and the Appellant being aged above 75 years, in accordance with the existing policy of the State Government, he was prematurely released in 2019.

The Court, therefore, called upon the State to file an affidavit indicating whether the policy permitted premature release even before completion of actual sentence of 14 years in connection with an offence punishable under Section 302 IPC. State submitted before the Court that special remission was granted to certain categories of prisoners by the Governor of Haryana on the occasion of the Independence Day i.e., 15th August, 2019, in exercise of powers conferred by Article 161 of the Constitution of India. The individual facts and circumstances of the case were not even placed before the Governor.

While hearing the matter, the Court noticed that the consistent line of cases decided by this Court has laid down that the principles of Section 433-A of the Code do not and cannot apply to the exercise of constitutional power either under Article 72 or under Article 161 of the Constitution.

“It has always been accepted that no limitation can be read into the exercise of such constitutional power that the sovereign power would not be bound by restrictions emanating from Section 433-A of the Code.”

In Maru Ram v. Union of India, (1981) 1 SCC 107 , the Constitution Bench of this Court considered the validity of Section 433-A of the Code. The majority Judgment cautioned that mere length of imprisonment may not by itself regenerate goodness in a convict and stated that the rules of remission may be effective guidelines of a recommendatory nature.

“The decisions of this Court rendered since Maru Ram and some of them being decisions of the Benches of three Judges of this Court, do show that the relevant material must be placed before the Governor in order to enable him to exercise the power under Article 161 of the Constitution and failure on that count could result in quashing of the concerned orders of remission issued under Article 161 of the Constitution.”

The Court further noticed that the modalities adopted in the present matter, unmistakably, show that the individual facts and circumstances of the case were not even placed before the Governor. The basic aspects viz., the manner in which the crime was committed, the impact of the crime on the Society and the seriousness of the crime got completely suppressed and relegated in the background under the norms laid down in the policy and it was then left to the Executive to see whether any individual case came within the parameters laid down by the policy. The basic facts and circumstances of the case were not even looked into.

Hence, considering that the decision in Maru Ram was rendered by the Constitution Bench, the Court thought it proper to refer the matter to a larger bench.

[Pyare Lal v. State of Haryana, 2020 SCC OnLine SC 583 , order dated 17.07.2020]

Case BriefsSupreme Court

Each criminal trial is but a quest for search of the truth.

Supreme Court: The Bench comprising of Ranjan Gogoi, Navin Sinha and K.M. Joseph, JJ. disposed of a criminal appeal filed against the judgment of Delhi High Court whereby the order of the trial court acquitting the appellant was reversed and she was convicted under Sections 302, 307 and 34 IPC.

The appellant, along with other co-accused, was alleged to have murdered the family (brother, sister, and mother) of her son-in-law (PW 1). As per prosecution case, the motive for the crime being that the accused were not happy with the marriage of her daughter with PW 1. The trial court, after appreciation of evidence, convicted four out of seven accused;  the appellant and two others were acquitted. However, the High Court, on an appeal, reversed the order of acquittal as far as the appellant was concerned. She was sentenced to undergo life imprisonment. Further, she was denied any remission in sentence until she completed 25 years in custody. Aggrieved thereby, the present appeal was filed by the appellant.

While adjudicating, the Supreme Court discussed the weightage of evidence by different witnesses, the duty of a Judge, and the proportionality of sentence in a criminal trial. A few of the important points as discussed and reiterated by the Court are delineated hereinafter:

  • In a criminal trial, normally the evidence of wife, husband, son or daughter is given great weightage on the principle that there is no reason for them not to speak the truth and shield the real culprit.
  • There is no reason why the same principle cannot be applied when such a witness deposes against a closely related accused.
  • It would require great courage of conviction and moral strength for a daughter to depose against her mother.
  • While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole inspires confidence.
  • The prosecution evidence may suffer from inconsistencies here and discrepancies there, but that is a shortcoming from which no criminal case is free. The main thing to be seen is whether those inconsistencies go to the root of the matter or pertain to insignificant aspects thereof.
  • The duty of a Judge presiding over a criminal trial is not merely to see that no innocent person is punished, but also to see that a guilty person does not escape. One is as important as the other. Both are public duties which a Judge has to perform.
  • Sentencing has always been a vexed question as part of the principle of proportionality. Once the appellant has been convicted with the aid of Section 34 IPC, there appears no justification to single out that convict for differential treatment in sentencing.

In the facts and circumstances of the present case, the Court held that the judgment impugned whereby the order of appellant’s acquittal passed by the trial court was reversed by the High Court, did not require interference. However, on the basis of the last point as delineated hereinabove, the direction given by the High Court for denial of remission in sentence to the appellant for 25 years was set aside. The appeal was disposed of in terms above. [Shamim v. State (NCT of Delhi), 2018 SCC OnLine SC 1559, decided on 19-09-2018]

Case BriefsSupreme Court

Supreme Court:  The Bench comprising of A.K. Sikri and Ashok Bhushan JJ., addressed an appeal of a convict punished under Sections 302, 498-A and 506 IPC and modified the punishment granted to the convict by the High Court.

In the instant case, the appellant was punished for the offence of killing his wife and thereafter tried to kill himself. For the said convict the trial court awarded death sentence, which was further converted into life imprisonment for the reason that the circumstances were not to be put into the category of ‘rarest of the rare’ case. The High Court on awarding the same also stated that the minimum period of the sentence would be of 30 years without remission.

Therefore, a notice was issued that whether the High Court was justified in putting a cap of 30 years of life imprisonment or not?

While keeping the facts and circumstances of the case into consideration, the Supreme Court decided that the High Court should not have stated that the life sentence for a minimum period of 30 years must be served without remission.  The appeal was disposed of by deleting the portion of the impugned order by making it a case of life imprisonment simpliciter. [Nitin Balkishan Gaikwad v. State of Maharashtra, 2018 SCC OnLine SC 690, dated 09-07-2018]

Case BriefsSupreme Court

Supreme Court: Deciding the matter regarding the Court’s power to remit or pardon, the bench of Dipak Misra and Shiva Kirti Singh, JJ held that the argument that when a pardon or remission can be given under Article 72 or 161 of the Constitution by the constitutional authority, this Court can exercise the similar power under Article 32 of the Constitution of India is absolutely based on an erroneous premise. It further said that Article 32 of the Constitution can be only invoked when there is violation of any fundamental right or where the Court takes up certain grievance which falls in the realm of public interest litigation.

In the present case, the petitioner convicted under Section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act), had prayed for the issue of writ of mandamus commanding the Government to grant remission to them. It was contended that Chapter XIX of the New Punjab Jail Manual, 1996 lays down remission and award to the convicts depending upon good conduct and performance of duties allotted to them while they are undergoing sentence, but the benefit under the Chapter XIX of the Manual is not made available to the convicts under the NDPS Act on the ground that Section 32-A of the NDPS Act bars entitlement to such remission. However, it was further contended that the constitutional validity of Section 32-A of the NDPS Act and Section 433-A CrPC has been upheld in Dadu v. State of Maharashtra, (2000) 8 SCC 437 and Maru Ram v. Union of India, (1981) 1 SCC 107, respectively, and that the said provision does not come in the way of executive for exercising the constitutional power under Article 72 or 161 of the Constitution, hence, the denial to grant remission is totally arbitrary.

The Court, hence, held that the constitutional power engrafted under Articles 72 and 161 of the Constitution is different than the statutory power enshrined under Section 433-A CrPC. The petitioners do not have a right to seek remission under the Code because of Section 32A of the NDPS Act. However, they can always seek relief either under Article 71 or 161 of the Constitution, as the case may be, as it is in a different domain. Stating that the Article 32 of the Constitution of India enables a citizen to move this Court for enforcement of his fundamental rights, the Court held that the argument to invoke Article 142 in conjunction with Article 32 of the Constitution is absolutely fallacious. [Tara Singh v. Union of India, 2016 SCC OnLine SC 631, decided on 29.06.2016]

Case BriefsSupreme Court

Supreme Court: In the matter where the Court was hearing the petition against the order of the Punjab & Haryana High Court which directed the State of Gujarat to reconsider the application of premature release of the respondent who was convicted for offence committed under Section 3(3) of the Terrorist and Disruptive Activities (Prevention) Act, 1987 by the Designated Judge, Ahmedabad, it was held that the State of Gujarat is not the appropriate Government to consider the premature release of the convict as the offence was committed under the law made by the Parliament and not the State Legislature.

Considering the law laid down in G.V. Ramanaiah v. Superintendent of Central Jail, Rajahmundry, (1974) 3 SCC 531, the bench of Dipak Misra and Shiva Kirti Singh, JJ said that in the event of the conviction and sentence covered by the law made by the Parliament or the provisions of the Constitution even if the Legislature of the State is also empowered to make a law on the same subject and coextensive, the Appropriate Government will be the Union Government having regard to the prescription contained in the proviso to Article 73(1)(a) of the Constitution. Hence, the Court said that the High Court had erroneously opined that the State of Gujarat is the appropriate Government because it was guided by the principle that the respondent was convicted and sentenced in the State of Gujarat and had later sought transfer to the Central Prison, Punjab. It was further said that a Judge is expected to act in consonance and accord with the legal principles and he cannot assume the power on the basis of his individual perception or notion.

Hence, the Court, setting aside the order of the High Court, granted liberty to the respondent to submit a representation/application before the competent authority of the Union of India within a period of eight weeks and directed the authority to consider the same as expeditiously as possible in accordance with law and the guidelines framed for premature release. [State of Gujarat v. Lal Singh, 2016 SCC OnLine SC 633, decided on 29.06.2016]