Radheshyam Bhagwandas Shah @ Lala Vakil vs The State Of Gujarat

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)

JUDGMENT

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. Signature Not Verified Digitally signed by Rachna Date: 2022.05.13

3. 17:41:07 IST Reason: Indisputedly, the crime was committed in the State of Gujarat

but this Court in Transfer Petition(Crl.) No. 192 of 2004, in the 1 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 21 st 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 21 st 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 5 th 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 6 th

2 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 9 th 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 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.

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12. Indisputedly, in the instant case, the crime was committed in

the State of Gujarat which is the appropriate Government

competent to examine the application filed for pre­mature release

and that is the reason for which the High Court of Bombay in

Criminal Writ Petition No. 305 of 2013 filed at the instance of co­

accused Ramesh Rupabhai under its Order dated 5 th 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

6 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 9 th

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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