Team Code-

CHHATRAPATI SHRI SHIVAJI MAHARAJ FIFTH STATE LEVEL MOOT

COURT COMPETITION - 2024

Before
The Hon’ble Supreme Court of Indiyana

WRIT JURISDICTION
UNDER ART. 32 OF THE CONSTITUTION OF INDIA

INDRAYANI N.G.O. PETITIONERS

Versus
STATE OF GUJRANA RESPONDENTS
 WRIT PETITION (CRIMINAL)) NO. / 2024
UPON SUBMISSION TO THE HON’BLE JUDGES OF THE SUPREME COURT
OF INDIYANA

MEMORIAL ON BEHALF OF THE RESPONDENT

CHHATRAPATI SHRI SHIVAJI MAHARAJ FIFTH STATE LEVEL MOOT COURT COMPETITION

MEMORIAL ON BEHALF OF THE PETITIONER

Table of Contents

Sr. No. LIST OF CONTENT Page no.

1. LIST OF ABBREVATIONS 02

2. INDEX OF AUTHORITIES 03

3. STATEMENT OF JURISDICTION 05

4. STATEMENT OF FACTS 06

5. STATEMENT OF ISSUES 08

6. SUMMARY OF ARGUMENT 09

7. ARGUMENTS ADVANCED 11

8. PRAYER 25

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CHHATRAPATI SHRI SHIVAJI MAHARAJ FIFTH STATE LEVEL MOOT COURT COMPETITION

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LIST OF ABBREVIATIONS

CrPC Code of Criminal Procedure

& And

SC Supreme court

HC High Court

Govt Government

Ors. Others

Hon’ble Honourable

Art Article

SCC Supreme Court Case

No. Number

UOI Union Of India

v. Versus

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LIST OF AUTHORITIES

1. STATUTES

i. The Constitution Of India

ii. Criminal Procedure Code

iii. Indian Penal Code

2. CASES

i. STATE OF MAHARASHTRA VS. M.V. DABHOLKAR,

(1975) 2 SCC 702

ii. JASBHAI MOTIBHAI DESAI VS. ROSHAN KUMAR, HAJI

BASHIR AHMED, (1976) 1 SCC 671

iii. THAMMANNA VS. K. VEERA REDDY, (1980) 4 SCC 62

iv. JANATA DAL VS. H.S. CHOWDHARY, (1992) 4 SCC 305

v. SIMRANJIT SINGH AND IN SUBRAMANIAN SWAMY VS.

RAJU, (2013) 10 SCC 465

vi. TEHSEEN POONAWALLA VS. UNION OF INDIA, (2018) 6

SCC 72

vii. JAGDISH AND V. SRIHARAN

viii. RADHESHYAM BHAGWANDAS SHAH, LALA VAKIL V.

STATE OF GUJARAT

ix. MAHENDER SINGH V STATE OF HARYANA

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x. KEHAR SINGH V UNION OF INDIA

3. DICTIONARIES

1. Black’s Law Dictionary

4. WEBSITES

1. www.scconline.com

2. www.supremecourtofindia.nic.in

3. www.manupatrafast.in

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STATEMENT OF JURISDICTION

The Appellant submits this to the jurisdiction of this Hon’ble Supreme Court of Indriyani
under

Art. 32 of the Constitution of India.

Art. 32 in Constitution of India:

Remedies for enforcement of rights conferred by this Part

(1) The right to move the Supreme Court by appropriate proceedings for the
enforcement of the rights conferred by this Part is guaranteed
(2) The Supreme Court shall have power to issue directions or orders or writs,
including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto
and certiorari, whichever may be appropriate, for the enforcement of any of the rights
conferred by this Part
(3) Without prejudice to the powers conferred on the Supreme Court by clause ( 1 )
and ( 2), Parliament may by law empower any other court to exercise within the local
limits of its jurisdiction all or any of the powers exercisable by the Supreme Court
under clause ( 2 )
(4) The right guaranteed by this article shall not be suspended except as otherwise
provided for by this Constitution

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STATEMENT OF FACTS

● In 2002, violent riots broke out in Gujrana following the burning of the
Sabarmati Express Train, resulting in the reported deaths of over 1000
individuals.
● Sharifa Bano, along with her family, including her three-year-old daughter
Saniya, fled their village of Dharampur to escape the violence spreading in
Gaya.
● On March 3, 2002, while fleeing, Sharifa Bano's family was attacked by a
group of 20-30 individuals armed with weapons such as stickles, swords, and
sticks in Rampur village near Adilabad.
● During the attack, Sharifa Bano, who was 21 years old and five months
pregnant at the time, was among three women brutally gang-raped by the
assailants. Additionally, her three-year-old daughter, Saniya, was killed as her
head was smashed.
● Seven members of Sharifa Bano's family were found dead, while six were
reported missing. Only Sharifa Bano and a two-year-old child survived the
vicious assault.
● Sharifa Bano, nearly naked, managed to reach the local Police Station in
Limbgaon to register the case. However, the FIR failed to mention her rape,
and despite her identification of 12 assailants, they were not named in the
report.
● Due to death threats against Sharifa Bano, the trial was relocated from
Gujrana to Mahadesham. The charge sheet was filed against 20 individuals,
including six police officers and two government doctors.
● The trial lasted six years in the Special Court of CBI Mumbra, culminating in
the conviction of 11 accused individuals, including a Head Constable, for
gang rape and murder. The court also found six individuals not guilty due to

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lack of evidence, while charges against two accused were abated due to their
deaths.
● The convictions were upheld by both the High Court and the Supreme Court
of Indiyana. Consequently, all convicted individuals are serving life
imprisonment in Rajkot Jail, Gujrana.
● Subsequently, Mahesh Vora and others sought remission of the sentences
from the Gujrana Government, which was granted according to legal
provisions.
● Indrayani N.G.O. challenged this decision by filing a Writ Petition in the
Hon’ble Supreme Court of Indiyana

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ISSUES RAISED

1. WHETHER THE WRIT PETITION IS MAINTAINABLE IS THE HON’BLE

SUPREME COURT OF INDIYANA ?

2. WHETHER THE DECISION OF THE GUJRANA GOVERNMENT IS

LEGAL AND CORRECT IN VIEW OF LAW ?

3. WHETHER THE DECISION GIVEN BY GUJRANA GOVERNMENT

VIOLATES THE SPIRIT AND CONTEXT OF THE PROVISION OF SEC 432
OF CODE OF CRIMINAL PROCEDURE, 1973 ?

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SUMMARY OF ARGUMENT

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SUMMARY OF ARGUMENTS

Issue 1 - 1. The respondent argues that the writ petition filed by the NGO is not maintainable as
they are considered strangers to the case of remission and lack the necessary connection or
aggrieved status. Citing legal precedents such as State of Maharashtra vs. M.V. Dabholkar, it's
emphasized that a "person aggrieved" must demonstrate a material adverse effect or denial of a
legal right, which the petitioner fails to establish.

2. Referring to Jasbhai Motibhai Desai vs. Roshan Kumar, it's asserted that the petitioner lacks
locus standi as they haven't been denied or deprived of a legal right, suffered no legal grievance,
and have no legal basis for their claim against the impugned order of remission.

3. The respondent argues that the grant of remission is solely within the jurisdiction of the state, and
third-party interference, as represented by the petitioner NGO, is unwarranted. They stress that the
petitioners are unrelated third parties to the case and have no legitimate grounds for intervention.

4. Drawing from legal precedents like Simranjit Singh Mann v. Union of India, it's argued that
allowing third-party petitions would disrupt settled legal principles and open floodgates for
frivolous litigation. Moreover, the petitioner fails to demonstrate a violation of fundamental rights
or a direct aggrievement.

5. The respondent contends that filing the petition as a Public Interest Litigation (PIL) is an abuse of
PIL jurisdiction driven by political motives, as demonstrated in Tehseen Poonawalla vs. Union of
India. Additionally, it's suggested that an alternative and wider remedy under Article 226 of the
Constitution is available, making the petition under Article 32 unnecessary and should be
dismissed.

Issue 2 -
1. The respondent argues that the State of Gujrana, where the offense occurred, is the appropriate
authority to consider remission applications, as per Section 432 of the CrPC, regardless of where
the trial took place. Legal precedents, including Radheshyam Bhagwandas Shah v. State of Gujarat,
support this interpretation, reinforcing the state's jurisdiction over remission decisions.

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2. Remission of sentence, according to the respondent, does not equate to acquittal but rather affects
the execution of the sentence. Citing Sarat Chandra Rabha vs. Khagendranath Nath, it's emphasized
that remission alters the enforcement of the sentence without interfering with the court's order of
conviction and sentence.

3. The respondent underscores the progressive and humane approach of Gujrana's remission
policies, which prioritize prevention, reformation, and compassion in the criminal justice system.
By recognizing the rights of both victims and offenders, Gujrana's policies aim to strike a delicate
balance between accountability and rehabilitation, setting a positive example for other jurisdictions.

Issue 3 -

1. The respondent argues that the decision of the Gujrana government to grant remission aligns with
Section 432 of the Criminal Procedure Code (CrPC), which vests the power to suspend or remit
sentences with the appropriate government. Citing legal precedents like Kehar Singh v Union of
India, it's emphasized that every prisoner has the right to be considered for remission, providing
hope for life convicts.

2. It's contended that since the crime was committed in the State of Gujrana, it remains the
appropriate government competent to examine remission applications, despite the trial being
transferred to another state. Legal principles and previous judgments support this interpretation,
ensuring consistency with the provisions of Section 432(7) of the CrPC.

3. The petitioner's reliance on the case law of Manu Ram v Union of India is highlighted to
emphasize that the executive power under Section 432 of the CrPC is unfettered, allowing for
judicious exercise of discretion by the appropriate government in considering remission
applications.
4. The respondent asserts that the grant of remission by the Gujrana government was not arbitrary
but well within the rights of the convict to apply and seek remission. The decision aligns with legal
provisions and principles, ensuring fairness and adherence to due process in the criminal justice
system.

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ARGUMENTS ADVANCED

ISSUE 1 - WHETHER THE WRIT PETITION IS MAINTAINABLE IN

THE HON’BLE SUPREME COURT OF INDIYANA ?

1.1 It is most respectfully submitted that the writ petition filed by the Indrayani N.G.O. are
not maintainable as the petitioner are stranger to the impugned order of remission and
they are in no way connected with the matter. There can be no third party interference
in the criminal matter in the grab of filing of the public interest litigation. It was also
contended that the petitioner who have filed the writ petition are interlopers and
busybodies and are not aggrieved persons and ambit of the expression “person
aggrieved” reliance has been placed on State of Maharashtra vs. M.V. Dabholkar1
; Jasbhai Motibhai Desai vs. Roshan Kumar2,; and Thammanna vs. K. Veera
Reddy3
1.2 The ratio laid down in State of Maharashtra vs. M.V. Dabholkar 4 whereby the
definition of “person aggrieved” is explained –
a. The words `person aggrieved" are found in several
statutes. The meaning of the words "person aggrieved"
will have to be ascertained with reference to the purpose
and the provisions of the statute. Some times, it is said that
the words "person aggrieved" correspond to the
requirement of locus standi which arises in relation to
judicial remedies.

1
, (1975) 2 SCC 702
2 1976 AIR 578
3
(1980) 4 SCC 62
4
supra

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b. Where a right of appeal to Courts against an
administrative or judicial decision is created by statute,
the right is invariably confined to a person aggrieved or a
person who claims to be aggrieved. The meaning of the
words "a person aggrieved" may vary according to the con
text of the statute. One of the meanings is that a person will
be held to be aggrieved by a decision if that decision is
materially adverse to him. Normally, one is required to
establish that one has been 'denied or deprieved of
something to which one is legally entitled in order to make
one "a person aggrieved". Again a person is aggrieved if
a legal burden is imposed on him. The meaning of the
words a "person aggrieved" is sometimes given a
restricted meaning in certain statutes which provide
remedies for the protection of private legal rights. The
restricted meaning requires denial or deprivation of legal
rights.

The Respondent relies upon the ration laid down in Jasbhai Motibhai Desai vs.
Roshan Kumar5 disputes the locus of the petitioner i.e the NGO in the present case –

2. In the light of the above discussion, it is demonstrably clear that

the appellant has not been denied or deprived of a legal right. He
has not sustained injury to any legally protected interest. In fact,
the impugned order does not operate as a decision against him,
much less does it wrongfully affect his title to something. He has
not been subjected to a legal wrong. He has suffered no legal
grievance. He 'has no legal peg for' a justiciable claim to hang
on. Therefore he is not a 'person aggrieved' and has no locus
standi to challenge……….

5 1976 AIR 578

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1.3 It is submitted that the grant of remission is in the exclusive domain of the State and
although no convict can seek remission as a matter of fundamental right has
nevertheless the right to be considered for remission. That remission is a matter
between the convict and the State and, therefore, there can be no third party inference
in such a matter. The locus of the petitioners in Writ Petition (Crl.) No.319 of 2022
and connected writ petitions and contended that the petitioners therein are not related
to the said case and are third-party/strangers to the case.
1.4 If petitions filed by third- party strangers are entertained by this Court, then it would
unsettle the settled position of law and would open floodgates for litigation. In Janata
Dal vs. H.S. Chowdhary6which was reiterated and followed in Simranjit Singh and
in Subramanian Swamy vs. Raju7 where it has consistently been held that a third
party, who is a total stranger to the prosecution has no 'locus standi' in criminal matters
and has no right whatsoever to file a petition under Article 32.
1.5 It is submitted that in Simranjit Singh Mann v. Union of India 8, this Court was faced
with the situation where a conviction of some of the accused persons by this Court
under the Terrorist and Disruptive Activities (Prevention) Act, (TADA Act) was
sought to be challenged under Article 32 of the Constitution by the President of the
Akali Dal (M), namely, Simranjit Singh Mann which was dismissed. In paragraph 5 of
the judgment in Simranjit Singh, this Court categorically dealt with the said issue and
held that the petition under Article 32 of the Constitution was not maintainable for the
simple reason that the petitioner therein did not seek to enforce any of his fundamental
rights nor did he complain that any of his fundamental rights were being violated. This
Court was of the view that a total stranger in a criminal case cannot be permitted to
question the correctness of a decision and also the petitioners have not pleaded as to
how their fundamental rights have been abridged or how they are aggrieved by the
action of the State Government.

6
(1992) 4 SCC 305 (“Janata Dal”)
7
(2013) 10 SCC 465
8 AIR1993SC280

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1.6 Therefore, filing of the writ petition as Public Interest Litigation (in short, ‘PIL’) is an
abuse of PIL jurisdiction and is motivated by political intrigues and machinations. In
this regard, reliance has been placed on Tehseen Poonawalla vs. Union of India 9,
(“Tehseen”); and Ashok Kumar. Therefore dismissal of the petition at the threshold
is sought.
1.7 It is submitted in Jagdish and V. Sriharan 10to contend that if a policy which is
beneficial to the convict exists at the time of consideration of the application of
premature release then the convict cannot be deprived of such beneficial policy and
that judicial review of the order of remission is not permissible in law. The Petitioner
seeks reliance upon Mohammed Ishaq vs. S. Kazam Pasha[1] .It is submitted that a similar
issue of maintainability arose in Mohammed Ishaq, wherein this Court observed that the
mere existence of an alternative remedy in the form of Article 226 does not preclude an
aggrieved person from approaching this Court directly under Article 32. The rule requiring
the exhaustion of alternative remedies was described as being one of “convenience and
discretion” as opposed to being absolute or inflexible in nature
[1] (2009) 12 SCC 748 (“Mohammed Ishaq”).
1.8 Then it is submitted that by straightaway filing a petition under Article 32 of the
Constitution a right of approaching this Court by way of an appeal by an aggrieved
party has been lost. It is submitted that if victims file petitions under Article 32 of the
Constitution before this Court challenging orders of remission, floodgates would be
opened and persons such as the petitioner would straightaway file writ petitions before
this Court. That when an alternative remedy of filing a writ petition under Article 226
of the Constitution is available which is also a wider remedy than Article 32 of the
Constitution and therefore, must be dismissed reserving liberty to her to approach the
High Court, if so advised .

9
(2018) 6 SCC 72
10 AIRONLINE 2019 SC 96

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1.9 Hence in conclusion, the Respondent states that the petition is filled without a valid
locus standi. Moreover, the Petitioner has an alternative efficious remedy available
under Article 226 to approach the respective High Court.

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ISSUE 2- WHETHER THE DECISION OF THE GUJRANA GOVERNMENT IS

LEGAL AND CORRECT IN VIEW OF LAW ?
2.1 It is hereby submitted that the “appropriate Government” for considering the remission
application is the State in which the offence was committed and not the State in which
the trial was conducted and therefore, directed the State of Gujrana to consider the
application of the Mahesh vora and ors. Accordingly, the State of Gujrana considered
the application of the prisoners as per Section 432 read with Section 435 of the CrPC
along with the Premature Release of Convicts Policy of 1992. That, the State
Government vide its Circular dated 09.07.1992 had issued a policy for early release of
prisoners who have completed fourteen years of imprisonment and who were imposed
punishment of life imprisonment.

2.2 It is submitted that the State of Gujrana therein that since the trial had been concluded
in the State of Mahadesham, the 'appropriate Government' as referred to under Section
433 of the CrPC would be the State of Mahadesham, was rejected by this Court holding
that the crime in the instant case was admittedly committed in the State of Gujrana and
ordinarily, the trial would have been concluded in the same State and in terms of
Section 432(7) of the CrPC, the appropriate Government in the ordinary course would
have been the State of Gujrana but in the instant case, the case was transferred under
exceptional circumstances by this Court for the limited purpose of trial and disposal to
the State of Mahadesham. In the landmark case of Radheshyam Bhagwandas Shah
v. State of Gujarat11(a convict in Bilkis bano case, the apex court observed the crime
was commited in Gujarat & the case was transferred to Bombay under special
circumstances, just for disposal of the case & Hence the appropriate government under
Sec 432 Crpc shall be the Gujarat government). However, after the conclusion of trial
and on conviction, the case stood transferred to the State where the crime was
committed and the State of Gujrana remains the appropriate Government for the
purpose of Section 432(7) of the CrPC.

11
(2022) 8 SCC 552

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2.3 It is submitted that the orders granting remission to respondent is not illegal. This is
based on a previous judgment by the Court in Writ Petition No. 135 of 2022, where it
was stated that the policy applicable for deciding remission applications should be the
one in place at the time of conviction, which was the premature release policy of 1992.
Additionally, it was clarified that for the purposes of Section 432 of the Criminal
Procedure Code (CrPC), the authority to consider remission applications lies with the
state where the offense was committed, not where the trial took place. Therefore, the
State of Gujrana, where the offense occurred, considered the application of Mahesh
vora and others , in accordance with the procedures outlined in Section 432 and Section
435 of the CrPC, along with the Premature Release of Convicts Policy of 1992.
2.4 It is most humbly submitted that a remission of sentence does not mean acquittal and
an aggrieved party has every right to vindicate himself or herself. In this context,
reliance was placed on Sarat Chandra Rabha vs. Khagendranath Nath, 12wherein a
Constitution Bench of this Court while distinguishing between a pardon and a
remission observed that an order of remission does not wipe out the offence; it also
does not wipe out the conviction. All that it does is to have an effect on the execution
of the sentence; though ordinarily a convicted person would have to serve out the full
sentence imposed by a court, he need not do so with respect to that part of the sentence
which has been ordered to be remitted. An order of remission thus, does not in any
way interfere with the order of the court; it affects only the execution of the sentence
passed by the court and frees the convicted person from his liability to undergo the full
term of imprisonment inflicted by the court even though the order of conviction and
sentence passed by the court still stands as it is.
2.5 The power to grant remission is an executive power and cannot have the effect which
the order of an appellate or revisional court would have of reducing the sentence passed
by the trial court and substituting in its place the reduced sentence adjudged by the
appellate or revisional court. According to Weater's Constitutional Law, to cut short a
sentence by an act of clemency is an exercise of executive power which abridges the
enforcement of the judgment but does not alter it qua the judgment.

12
AIR 1961 SC 334 (“Sarat Chandra Rabha”),
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2.6 It is submitted that “The Laws, underscores that punishment is to be inflicted, not for
the sake of vengeance, for what is done cannot be undone, but for the sake of
prevention and reformation”.
2.7 In light of the philosophical and legal principles discussed, it becomes evident that
the decision of the State of Gujrana to implement remission policies is commendable.
By embracing the ideals of prevention, reformation, and compassion, Gujrana's
government demonstrates a commitment to fostering a more humane and effective
approach to criminal justice.
2.8 Through the policy of remission, Gujrana acknowledges the potential for
individuals to reform and contribute positively to society after serving their sentences.
This approach not only aligns with the progressive values of modern jurisprudence
but also reflects a deep understanding of the complexities involved in addressing crime
and its underlying causes.
2.9 Furthermore, by recognizing the rights of both victims and offenders, Gujrana’s
remission policies strive to strike a delicate balance between accountability and
rehabilitation. This balanced approach ensures that justice is served while also offering
offenders the opportunity for redemption and a second chance.
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2.10 The argument relies on the case Mahender Singh v state of Haryana to
assert that convicts have a legal right to be considered for early release from prison,
known as remission. This right is based on constitutional protections for convicts under
Articles 20 and 21 of the Indian Constitution. Even though there's no specific
constitutional guarantee for obtaining remission, the argument holds that policy
decisions effectively grant convicts the right to be considered for it. This right stems
not only from laws like the Prisons Act but also from the rules formulated under it.
2.11 Regarding the Mahender Singh case itself, it dealt with a situation where the
Punjab and Haryana High Court had declared a circular from the State of Haryana,
outlining criteria for releasing prisoners early, as unconstitutional. The focus of the
Mahender Singh case was on affirming the right of convicts to be considered for

13
CRIMINAL APPEAL NO. 30 OF 2005
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remission, rather than determining the specific criteria for granting it.

2.12 In conclusion, the judgment of the State of Gujrana to implement remission

policies embodies a forward-thinking and compassionate approach to criminal justice.
By prioritizing the principles of prevention, reformation, and compassion, Gujrana sets
a positive example for other jurisdictions to follow in their pursuit of a more just and
equitable society.

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ISSUE 3. WHETHER THE DECISION GIVEN BY GUJRANA GOVERNMENT

VIOLATES THE SPIRIT AND CONTEXT OF THE PROVISION OF SECT.432
OF THE CODE OF CRIMINAL PROCEDURE, 1973?

Power to suspend or remit sentences.—

(1) It is submitted that under Section 432 of CrPC “When any person has been sentenced to
punishment for an offence, the appropriate Government may, at any time, without conditions
or upon any conditions which the person sentenced accepts, suspend the execution of his
sentence or remit the whole or any part of the punishment to which he has been sentenced”.

(2) Whenever an application is made to the appropriate Government for the suspension or
remission of a sentence, the appropriate Government may require the presiding Judge of the
Court before or by which the conviction was had or confirmed, to state his opinion as to
whether the application should be granted or refused, together with his reasons for such
opinion and also to forward with the statement of such opinion a certified copy of the record
of the trial or of such record thereof as exists.

(3) If any condition on which a sentence has been suspended or remitted is, in the opinion of
the appropriate Government, not fulfilled, the appropriate Government may cancel the
suspension or remission, and thereupon the person in whose favour the sentence has been
suspended or remitted may, if at large, be arrested by any police officer, without warrant
and remanded to undergo the unexpired portion of the sentence.

(4) The condition on which a sentence is suspended or remitted under this section may be
one to be fulfilled by the person in whose favour the sentence is suspended or remitted, or
one independent of his will.
(5) The appropriate Government may, by general rules or special orders, give directions as
to the suspension of sentences and the conditions on which petitions should be presented
and dealt with:
Provided that in the case of any sentence (other than a sentence of fine) passed on a male
person above the age of eighteen years, no such petition by the person sentenced or by any
other person on his behalf shall be entertained, unless the person sentenced is in jail, and—

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(a) where such petition is made by the person sentenced, it is presented through the
officer in charge of the jail; or
(b) where such petition is made by any other person, it contains a declaration that
the person sentenced is in jail.
(6) The provisions of the above sub-sections shall also
apply to any order passed by a Criminal Court under any section of this Code or of any
other law which restricts the liberty of any person or imposes any liability upon him or his
property.
(7) In this section and in Section 433, the expression “appropriate Government” means,—
(a) in cases where the sentence is for an offence against, or the order referred to in
sub-section (6) is passed under, any law relating to a matter to which the executive
power of the Union extends, the Central Government;
(b) in other cases, the Government of the State within which the offender is
sentenced or the said order is passed

3.1 It is submitted that, the power to grant remission is vested with the state government
under Section 432 of the criminal code of procedure and the Supereme court of India
in the landmark case of Kehar Singh v Union of India 14 held that every prisoner
cannot be denied the opportunity to be considered for remission as this provides a ray
of hope even to the life convicts that may see the light of day.

3.2 It is submitted that, the reason that the crime in the instant case was admittedly
committed in the State of Gujrana and ordinarily, the trial was to be concluded in the
same State and in terms of Section 432(7) CrPC, the appropriate Govt in the ordinary
course would be the State of Gujrana but the instant case was transferred in exceptional
circumstances by this Court for limited purpose for trial and disposal to the state of
Mahadesham 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.

3.3 Indisputedly, in the instant case, the crime was committed in the State of Gujrana
which is the appropriate Government competent to examine the application filed for
pre-mature release and in the case of Bilkis bano (the High Court of Bombay in
Criminal Writ Petition No.305 of 2013 filed at the instance of co-accused Ramesh

14 1989 AIR 653

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Rupabhai under its Order dated 5th August, 2013 declined his request 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).
3.4 Here it is submitted that the hon’ble court must examine the application submitted by
Mahesh vora and ors. as per the policy applicable in the state of Gujrana and the policy
hereby states, Sec.432(A) has come into implementation with effect from 18/12/1978,
according to its provisions punishment upto 14 years, taking that provision into
consideration, the authority that the State Government has got under the provisions of
Sec.432 of the Cr.P.C. gets controlled to that extent. Hence, for those prisoners who
have been imposed with the life
3.5 imprisonment on or after 18/12/1978 after their completion of 14 years of
imprisonment only the State Government can give them early release from the jail.
Under the powers and authorities vested to the State Government, with regard to the
early release of such convict prisoners.

3.6 In the instant case, once the crime was committed in the State of Gujrana, after the trial
been concluded and judgment of conviction came to be passed, all further proceedings
have to be considered including remission or pre-mature release, as the case may be,
in terms of the policy which is applicable in the State of Gujrana 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.
3.7 A very important principle of legal jurisprudence is that the judgement delivered by
the court cannot be overturned by the executive. Although, the executive i.e the state
govt can grant remission to convict under section 432 of the CrPC. Such a provision
is permitted in law because remission of a convict only seeks to change the execution
of the sentence granted by the court. It does not overturn the court’s decision of
conviction per se.
3.8 Sub-section (1) of Section 432 is an enabling provision which states that when any
person has been sentenced to punishment for an offence, the appropriate Government
may, at any time, without conditions or upon any condition which the person sentenced
accepts, suspend the execution of his sentence or remit the whole or any part of the
punishment to which he has been sentenced. The pertinent provision involved in this
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case is sub-section (2) which deals with an application made to the appropriate
Government for the suspension or remission of a sentence and the appropriate
Government may require the Presiding Judge of the Court before or by which the
conviction was had or confirmed, to state his opinion as to, whether, the application
should be granted or refused, together with his reasons for such opinion and also to
forward with the statement of such opinion a certified copy of the record of the trial or
of such record thereof as exists.
3.9 The petitioner relies on the ration laid down in Manu Ram Vs Union of India 15 for
buttressing the claim that the executive power under Section 432 of the CrPC is
unfettered, the ration reads as –
Sentencing is a judicial function but the execution of the sentence, after
the courts pronouncement, is ordinarily a matter for the Executive under
the Procedure Code, going by Entry 2 in List III of the Seventh Schedule.
Keeping aside the constitutional powers under Arts. 72 and 161 which
are 'untouchable' and 'unapproachable' for any legislature, let us
examine the law of sentencing, remission and release. Once a sentence
has been imposed, the only way to terminate it before the stipulated term
is by action under ss. 432/433 or Arts. 72/161. And if the
latter power under the Constitution is not invoked, the only source of
salvation is the play of power under ss. 432 and 433(a) so far as a 'lifer'
is concerned. No release by reduction or remission of sentence is
possible under the corpus juris as it stands, in any other way. The
legislative power of the State under Entry 4 of List II, even if it be
stretched to snapping point, can deal only with Prisons and Prisoners,
never with truncation of judicial sentences. Remissions by way of
reward or otherwise cannot cut down the sentence as such and cannot,
let it be unmistakably under-stood, grant final exit passport for the
prisoner except by Government action under s. 432(1). The topic of
Prisons and Prisoners does not cover release by way of reduction of the

15 1980 AIR 2147

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sentence itself. That belongs to Criminal Procedure in Entry 2 of List III
although when the sentence is for a fixed term and remission plus the
period undergone equal that term the prisoner may win his freedom. Any
amount of remission to result in manumission requires action under s.
432(1), read with the Remission Rules.

a. Sub-section (1) of Section 432 of the CrPC deals with a power vested with the
appropriate Government which is an enabling power. The discretion vested with
the appropriate Government has to be exercised judiciously in an appropriate
case and not to abuse the same. However, when an application is made to the
appropriate. Government for the suspension or remission of a sentence such as
in the instant case by a convict, the appropriate Government may seek the
opinion of the Presiding Judge of the Court before or by which the conviction
was had or confirmed and on considering the reasons for such opinion, may
consider the application for remission vide sub-section (2) of Section 432 of the
CrPC
3.10 Hence the State has committed no arbitrariness in granting the remission to the
convict, whereas the question of a particular time span to be served of the
sentence, the accused has already served and the remission was well within the
rights of the convict to apply and seek remission.

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PRAYER

PRAYER

Wherefore, in the light of the facts presented, arguments advanced and authorities cited, the
Respondent humbly submit that the Supreme Court be pleased to adjudge and declare that

1.The Writ Petition filed under Article 32 ought to be non- maintainable.

2. The Petitioners lack the sufficient locus standi ;

3.In view of the above, dismiss the present Writ Petition.

4. Any other relief deemed fit by this Hon'ble Court in the interest of justice.

For the act of kindness ,the Respondent shall duty bound forever pray.

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