Read Judgment: RADHESHYAM BHAGWANDAS SHAH @ LALA VAKIL v. STATE OF GUJARAT & ANR 

Tulip Kanth

New Delhi, May 14, 2022: Directing that the application of the convict-petitioner for pre-mature release may be decided in terms of the policy applicable in the State of Gujarat, the Supreme Court has held that once the crime was committed in Gujarat and judgment of conviction came to be passed, all further proceedings including remission or pre-mature release have to be considered 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.

Referring to the judgment of the Top Court in State of Haryana Vs. Jagdish wherein it was held that the application for grant of pre-mature release will have to be considered on the basis of the policy which stood on the date of conviction, the Division Bench of Justice Ajay Rastogi and Justice Vikram Nath opined that 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 July 9,1992.

In this case, the petitioner along with other co-accused persons faced trial for the offence under Section 302, 376(2)(e )(g) r/w Section 149 IPC committed in the State of Gujarat in 2004. This Court in a Transfer Petition transferred the  case to the Trial Court of Mumbai which ordered the conviction of the petitioner and sentenced him to undergo rigorous imprisonment for life. Thus, the petitioner filed his petition for pre-mature release under Sections 433 and 433A of the Code of Criminal Procedure, 1973( 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.

The Division Bench asserted that 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 was the reason for which the Bombay High Court declined the request of the coaccused, Ramesh Rupabhai, 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.

On the issue that the respondents had relied on the judgment of the Top Court in Union of India Vs. V. Sriharan alias Murugan and Others , the Bench said, “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.” 

Hence, allowing the application, the Bench directed the official respondents to consider the application of the petitioner for pre-mature release in terms of its policy dated July 9, 1992 which is applicable on the date of conviction and decided the same within a period of two months. 

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