'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 18

Justice 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 authority

The 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 different

The 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 constitutional powers which grant pardon, reprieve, respite or remit the sentence or to suspend, remit or commute the sentence of any person convicted of an offence under the Union Law or involving Military Courts. Hon'ble Governor having the same power under Article 161 of the Constitution in the matter of State Government and such powers are amenable to writ jurisdiction. The powers to grant the remission or remit the sentence without or without the condition are under the domain of State  Government". 

The court observed that the conditions mentioned in the circular were not followed and straightway letter was issued without verifying the record or contents of the application of Jadeja's son "accepting the same as gospel truth"; the letter was thus not in consonance with the circular. 

"Not only that, in the said letter, word used is "રાજ્યમાફી" (Rajya Mafi), which means “pardon”. The word “pardon” means to completely absolve a person of the offence and its consequences and said power is only under Articles 72 and 161 of the Constitution of India and are to be exercised by Hon'ble The President of India and Hon'ble Governor only based on recommendation or advice of Minister of Council and herein, no such deligation of power to respondent No.3 to pass any such order and no any order is passed by the Government or such name of the Governor also...The application dated 29.01.2018 was filed for “pardon” by son of respondent No.4. Word “pardon” means to  completely absolve a person of offence and its consequences. “Remission” means lessening the amount of sentence without changing its characteristics...".

The court thereafter said that the authority's letter reveals that benefit of “pardon” is extended, which means that the convict is completely absolved of offence and its consequences. It was issued by the authority on his own and not on behalf of the State Government or in the name of the Governor and that too without following any due procedure.

The court further observed that the then Add DGP Jail's functions as a government servant/officer are provided under Rules 257 and 258 of Chapter X of Jail Manual. Nowhere, the power of remission or to exercise power under Article 161 of the Constitution is entrusted or bestowed upon him, the court said. 

Observing that remission is reduction of sentence without changing the characteristics of sentence and due to this guilt of offender is not affected, the court observed that  remission "does not mean acquittal".

The court said that even if it is accepted that the then Add DGP Jail had administrative control, even then he should have only forwarded the proposal for consideration to the appropriate government. Instead he had himself acted as an "appellate authority or appropriate government" and without verifying anything straightway accepted the request made by Jadeja's son, the court said. 

"he was well-versed with the procedure and his power also, he has passed an order of pardon which is not only against the settled principle of law but also without authority," the court added. 

State's silence in not challenging pardon 'speaks volumes'

The court took note of observations made the court in two earlier pleas where it said "though respondent No.4 was in jail, he was attending the election rallies".

The court said that a report was called from the PDJ, Jail Authority and other authorities and authorities were directed to look into the issue.

"though State has not carry the issue and rather than considering the issue, has swept the issue under carpet and benefit of remission is extended to respondent No.4. Though it was the duty of the State to reach to logical conclusion but State has not inquired into said allegation and though State was aware of the fact that respondent No.3 has exercised the power without jurisdiction, till date neither recalled the said letter / order dated 29.01.2018 nor challenged the said decision and remained silent for quite a long which speaks volume," the court said. 

It thereafter said that the State did not challenge or recall the letter issued by the then Additional DGP Jail; hence the Court has to ensure that the rule of law prevails over the abuse of process of law which may result from inaction or arbitrary action of protecting the offender or failure by the different authorities in discharge of statutory duty or other obligations. 

"It is said that justice should remain loyal to the rule of law and justice cannot be done without adherence to rule of law. The concept of justice encompasses not just the right of convict but also the right of victims also. The law abiding section of society looks forward to the Court as a vital instrument for preservation of peace and curtailment of crime...The State remained silent for quite a long time and it appears that the State was in complicit" the court added.

Allowing the plea and cancelling Jadeja's release the high court concluded by saying "Be You So High, Law Is Above You". 

Case title: SORATHIYA HARESHBHAI RAMESHBHAI v/s STATE OF GUJARAT & ORS.

Click Here To Read/Download Order 

Citation : 2025 LiveLaw (Guj) 137