RADHESHYAM BHAGWANDAS SHAH @ LALA VAKIL VS STATE OF GUJARAT

RADHESHYAM BHAGWANDAS SHAH @ LALA VAKIL VS STATE OF GUJARAT 


Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले


NON­REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL ORIGINAL JURISDICTION
     WRIT PETITION(CRL.) NO(S). 135 OF 2022
RADHESHYAM BHAGWANDAS SHAH
@ LALA VAKIL …PETITIONER(S)
VERSUS
STATE OF GUJARAT & ANR. …RESPONDENT(S)
J U D G M E N T
Rastogi, J.
1. The present petition has been filed by the convict petitioner
seeking direction in the nature of Mandamus to the State of Gujarat
to consider his application for pre­mature release under the policy
dated   9th  July,   1992   which   was   existing   at   the   time   of   his
conviction.
2. The petitioner along with other co­accused persons faced trial
for the offence under Section 302, 376(2)(e )(g) read with Section
149 IPC committed in the State of Gujarat in 2004.
3. Indisputedly, the crime was committed in the State of Gujarat
but this Court in Transfer Petition(Crl.) No. 192 of 2004, in the
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peculiar   facts   and   circumstances   of   the   case,   considered   it
appropriate to transfer Sessions Case No. 161 of 2004 pending
before the learned Additional Sessions Judge, Dahod/Ahmedabad
to the competent Court in Mumbai for trial and disposal by an
Order dated 6th August 2004.
4. The learned trial Court, Mumbai in Sessions Case No. 634 of
2004, after holding trial, held the petitioner guilty and convicted
him for the afore­stated offences and sentenced him to undergo
rigorous   imprisonment   for   life   by   judgment   dated   21st  January
2008.
5. It may be relevant to note that one of the co­accused Ramesh
Rupabhai, who had faced trial along with the petitioner and later
convicted by judgment dated 21st  January 2008, approached the
High Court of Bombay by filing Criminal Writ Petition no. 305 of
2013 seeking pre­mature release but his application came to be
dismissed by the High Court of Bombay by Order dated 5th August,
2013 on the premise that the crime was committed in the State of
Gujarat   and   his   trial   came   to   be   transferred   in   the   peculiar
circumstances, under the directions of this Court by Order dated 6th
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August, 2004 and once the trial stands concluded and the prisoner
has been convicted, the appropriate prison would be the State of
Gujarat and accordingly the application filed by the co­accused
Ramesh Rupabhai for pre­mature release was left to be examined as
per the policy applicable in the State of Gujarat.
6. The present petitioner filed his petition for pre­mature release
under Sections 433 and 433A of the Code of Criminal Procedure,
1973(hereinafter being referred to as the “CrPC”) stating that he had
undergone more than 15 years 4 months of custody but his petition
filed in the High Court of Gujarat came to be dismissed taking note
of Section 432(7) CrPC and placing reliance on the judgment of this
Court in  Union   of   India  Vs.  V.   Sriharan  alias  Murugan  and
Others1
 on the premise that since the trial has been concluded in
the State of Maharashtra, the application for pre­mature release
has to be filed in the State of Maharashtra and not in the State of
Gujarat, as prayed by the petitioner by judgment impugned dated
17th July 2019.
1 2016(7) SCC 1
3
7. As   per   the   custody   certificate   which   has   been   placed   on
record, the petitioner, as on 1st  April 2022, has undergone the
sentence of more than 15 years 4 months without remission.
8. The   policy   with   which   the   petitioner   has   to   be   governed,
applicable in the State of Gujarat on the date of conviction, indeed
is Resolution No. JLK/3390/CM/16/Part/2/J dated 9th July 1992.
9. It has been settled by this Court in  State  of  Haryana  Vs.
Jagdish2
  that the application for grant of pre­mature release will
have to be considered on the basis of the policy which stood on the
date of conviction.  The relevant para is as under:­
“54. The State authority is under an obligation to at least exercise
its discretion in relation to an honest expectation perceived by the
convict, at the time of his conviction that his case for premature
release would be considered after serving the sentence, prescribed
in the short­sentencing policy existing on that date. The State has
to exercise its power of remission also keeping in view any such
benefit to be construed liberally in favour of a convict which may
depend upon case to case and for that purpose, in our opinion, it
should relate to a policy which, in the instant case, was in favour
of the respondent. In case a liberal policy prevails on the date of
consideration of the case of a “lifer” for premature release, he
should be given benefit thereof.”
10. Learned counsel for the respondents has placed reliance on
the judgment of this Court in  Union   of   India  Vs.  V.   Sriharan
2 2010(4) SCC 216
4
alias  Murugan  and  Others  (supra) and submits that since the
trial   has   been   concluded   in   the   State   of   Maharashtra,   taking
assistance   of   Section   432(7)   CrPC,   the   expression   ‘appropriate
Government’ as referred to under Section 433 CrPC in the instant
case, would be the State of Maharashtra and accordingly no error
has been committed by the High Court in the order impugned.
11. In   our   considered   view,   the   submission   made   by   learned
counsel for the respondents is not sustainable for the reason that
the crime in the instant case was admittedly committed in the State
of Gujarat and ordinarily, the trial was to be concluded in the same
State   and   in   terms   of   Section   432(7)   CrPC,   the   appropriate
Government in the ordinary course would be the State of Gujarat
but the instant case was transferred in exceptional circumstances
by   this   Court   for   limited   purpose   for   trial   and   disposal   to   the
neighbouring State (State of Maharashtra) by an order dated 06th
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. 
5
12. Indisputedly, in the instant case, the crime was committed in
the   State   of   Gujarat   which   is   the   appropriate   Government
competent to examine the application filed for pre­mature release
and that is the reason for which the High Court of Bombay in
Criminal Writ Petition No. 305 of 2013 filed at the instance of coaccused Ramesh Rupabhai under its Order dated 5th August, 2013
declined   his   request   to   consider   the   application   for   pre­mature
release and left the application to be examined according to the
policy   applicable   in   the   State   of   Gujarat   by   the   concerned
authorities.
13. The   judgment   on   which   the   learned   counsel   for   the
respondents has placed reliance may not be of any assistance for
the   reason   that   under   Section   432(7)   CrPC,   the   appropriate
Government can be either the Central or the State Government but
there cannot be a concurrent jurisdiction of two State Governments
under Section 432(7) CrPC.  
14. In the instant case, once the crime was committed in the State
of   Gujarat,   after   the   trial   been   concluded   and   judgment   of
conviction came to be passed, all further proceedings have to be
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considered including remission or pre­mature release, as the case
may be, in terms of the policy which is applicable in the State of
Gujarat where the crime was committed and not the State where
the trial stands transferred and concluded for exceptional reasons
under the orders of this Court.
15. Consequently,   the   petition   is   allowed.     The   judgment
impugned dated 17th July, 2019 is set aside.
16. The respondents are directed to consider the application of the
petitioner for pre­mature 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.
17. Pending application(s), if any, shall stand disposed of.
……………………………..J.
(AJAY RASTOGI)
……………………………..J.
(VIKRAM NATH)
NEW DELHI
MAY 13, 2022.
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