'Govt's Silence Speaks Volumes': Gujarat High Court Slams State For Not Recalling 'Illegal' Pardon Of Murder Convict

The Gujarat High Court on Friday (August 23) cancelled the premature, "illegal" release of a murder convict, following a "pardon" granted by the then Additional DGP Jail in 2018 after observing that the same was granted without authority and without following due procedure. Quoting from the Brihadaranyakopanishad, the high court at the outset said, "Law is the king of kings, far more powerful and right than they; nothing can be mightier than law, by whose aid, as by that of the highest monarch, even the weak may prevail over the strong"In doing so the high court said that the basis on which the authority granted pardon was a 2017 circular issued by the state government which in fact pertained to remission of convicts and not the grant of pardon to convicts. Explaining the difference between the two, the court also pulled up the state government observing that even though the State was aware that the the then Additional DGP Jail exercised power without jurisdiction, till date it neither recalled the pardon letter nor did it challenge it. The court thus said that the State's silence for a long time "speaks volumes" indicating that it was "complicit". The court thus directed the convict to surrender by September 18Justice Hasmukh Suthar passed the 90-page order while hearing a plea by the grandson of a former MLA Popatbhai Sorathiya who was shot in 1988 by one Aniruddhsinh Mahipatsinh Jadeja (respondent no. 4). The grandson had challenged a 2018 letter issued by the then Additional DGP Jail to the Superintendent, Junagadh Jail for releasing Jadeja. On independence day in 1989 during flag hoisting ceremony at a school in Gondal, Sorathiya was shot dead by Jadeja. Jadeja was apprehended on spot; FIR was registered.A sessions case was lodged in 1989; Jadeja was given benefit of doubt and acquitted. State moved the Supreme Court against acquittal; the appeal was partly allowed in 1997 and Jadeja was convicted for murder and sentenced to life. Jadeja was however absconding and was taken into custody only in 2000.In 2017 State Government issued a resolution in exercise of power under Article 161 of the Constitution granting remission to certain convicts, including those serving life sentences who had completed 12 years. One of the conditions was that the remission was one-time and cannot be extended further. benefit was not granted to Jadeja at that time.Thereafter, Jadeja's son submitted an application on 29.01.2018 to the then Add DGP Jail requesting to grant remission for his father and on the same day, the then Add DGP Jail directed the Jail Superintendent to grant remission to Jadeja on the ground that he had completed 18 years of sentence. Against this the deceased's grandson moved the high court.Pardon letter issued without authorityThe court read the circular and the letter and said:"it appears that respondent No.3 (additional DGP Jail) has arbitrarily issued the letter without any authority and ignoring the settled principles of law as respondent No.3 does not fall in the category of “Government” or “Appropriate Government”. Even if for the sake of argument we accept that there was an authority to respondent No.3 for issuing such letter, even though circular was issued with certain embargo and conditions...without following any stipulation prescribed under the Circular dated 25.01.2017 , straightway without considering anything, on the same day i.e. on 29.01.2018, respondent No.3 has issued the impugned letter. Though policy was floated only for the year 2017, though the benefit is extended for the period subsequent thereto, which is illegal"The court noted the State's submission that the 2017 circular issued was one time thing to extend the special benefit to the prisoners who had served sentence of 12 years with certain conditions and following the recommendation of Advisory Board Committee. The court rejected the then Add DGP Jail's argument that he only followed directions as a controlling authority of Jail Administration being the Head of the Jails of the Gujarat and he had sent a communication to Jail Superintendent, Junagadh to consider Jadeja's case. Thus it was upon the Jail Superintendent to follow the stipulation provided under the Circular and had only passed instruction, The court observed that conditions mentioned in the circular were not followed and the authority's stand appears to be afterthought, calling his action "nothing but abuse of power and colorable exercise of power".State Circular granted remission not pardon, both are differentThe court said that the 2017 Circular granted benefit of remission and not pardon. The court observed:"The word “remission” refers to the reduction of duration of prisoner's sentence without altering the nature of sentence. It allows the convict to be released earlier than the original term prescribed by the Court provided that they meet a specific eligibility criteria. Articles 72 and 161 of the Constitution of India are...

'Govt's Silence Speaks Volumes': Gujarat High Court Slams State For Not Recalling 'Illegal' Pardon Of Murder Convict

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