J.B. Pardiwala, J.:— Rule returnable forthwith. Ms. Jirga Jhaveri, learned APP waives service of Rule on behalf of the State.
2. The Registrar of this High Court is in receipt of a letter dated 10.10.2019 addressed by the Jail Superintendent, Rajkot Central Jail to this High Court in connection with the grant of remission to a convict by name Jayendrasinh Narubha Zala.
3. It appears from the material on record that Jayendrasinh Narubha Zala and other three co-accused were put on trial in the Court of the Additional Sessions Judge, Surendranagar in the Sessions Case No. 13 of 1998 for the offence of murder punishable under Section 302 read with Section 34 of the Penal Code, 1860. The trial Court convicted Jayendrasinh Narubha Zala and the other three co-accused vide judgment and order dated 12.3.2004. The trial Court sentenced Jayendrasinh Narubha Zala and other three co-accused to life imprisonment. Jayendrasinh Narubha Zala and others preferred Criminal Appeal No. 727 of 2004 before this High Court challenging the judgment and order of conviction and sentence. A Coordinate Bench of this Court, vide judgment and order dated 7.9.2009, partly allowed the appeal. The judgment and order of conviction and sentence passed by the trial Court came to be affirmed by this Court so far as Jayendrasinh Narubha Zala is concerned whereas the other three co-accused came to be acquitted. The State being dissatisfied with the judgment and order of acquittal so far as the co-accused are concerned, went before the Supreme Court. The Supreme Court allowed the appeal preferred by the State and remitted the matter to this Court for fresh hearing of the criminal appeal in which the other co-accused were acquitted. The Criminal Appeal No. 727 of 2004 was re-heard by a Coordinate Bench of this Court and vide judgment and order dated 14.12.2015, the appeal was allowed.
4. It appears from the letter of the Jail Superintendent that Jayendrasinh Narubha Zala has undergone more than 16 years of imprisonment. The Government is considering his case for remission of sentence under the provisions of Section 432 of the Code of Criminal Procedure, 1973 (‘the Code’ for short). However, in view of the provisions of Section 433A of the Code, the Government is seeking the opinion of this Court for the purpose of grant of benefit of remission of sentence to Jayendrasinh Narubha Zala.
5. The jail report indicates that the overall conduct of the convict has been good. There is nothing further to indicate that the convict is a hardcore criminal and may prove to be a menace or a threat to the society at large if the benefit of remission is granted and the convict is released from Jail. Nothing adverse has been reported by the Jail Authority.
6. The Supreme Court, in the case of Sangeet v. State of Haryana reported in (2013) 2 SCC 452, has observed that:
“Before actually exercising the power of remission under Section 432 Cr.P.C. the appropriate Government must obtain the opinion (with reasons) of the Presiding Judge of the convicting or confirming Court. Remission can, therefore be given only on a case-by-case basis and not in a wholesale manner.”
7. We quote the relevant observations of the Supreme Court made in the case of the Sangeet (supra) as contained in paras 77.5, 77.6, 77.7 thus:
“77.5. The grant of remissions is statutory. However, to prevent its arbitrary exercise, the legislature has built in some procedural and substantive checks in statue. These need to be faithfully enforced.
77.6. Remission can be granted under Section 432 Cr.P.C. in the case of a definite term of sentence. The power under this Section is available only for granting “additional” remission, that is, for a period over and above the remission granted or awarded to a convict under the Jail Manual or other statutory rules. If the term of sentence is indefinite (as in life imprisonment), the power under Section 432 CrPC can certainly be exercised but not on the basis that life imprisonment is an arbitrary or notional figure of twenty years of imprisonment.
77.7. Before actually exercising the power of remission under Section 432 CrPC the appropriate Government must obtain the opinion (with reasons) of the Presiding Judge of the convicting or confirming Court. Remissions can, therefore, be given only on a case-bicase basis and not in a wholesale manner.”
8. Having regard to the dictum as laid by the Supreme Court in the above referred decision, the matter has been referred to us so that we can express our opinion whether the sentence of life imprisonment deserves to be remitted or not.
9. The Constitution Bench of the Supreme Court, in the case of Union of India v. V. Sriharan alias Murugan, (2016) 7 SCC 1, per majority view, held that:
“Life imprisonment in terms of Sections 53 read with 45 IPC means the entirety of the life of the prisoner unless it is curtailed by remissions validly granted under Section 432 CrPC or Articles 72 or 161 of the Constitution. A life convict only has the right to claim remission, etc. as provided under Articles 72 and 161 of the Constitution to be exercisable by the President and the Governor of the State or under Section 432 Crpc.”
10. Having regard to the genesis of the occurrence, the period undergone by the convict in Jail and his overall conduct in the last sixteen years, we are of the view that the sentence of life imprisonment deserves to be remitted. The State Government shall accordingly do the needful in accordance with law.
11. One copy of this order shall be furnished to the learned Additional Public Prosecutor Ms. Jirga Jhaveri for its onward communication. One copy of this order shall also be forwarded to the Jail Superintendent, Rajkot, and the Jail Superintendent, in turn, shall take up the matter with the State Government for remission under Section 432 of the CPC.
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