The exercise of remission powers under Article 161 of the Constitution must strictly follow procedural guidelines, failing which the actions are deemed null and without authority.

JUDGMENT :

HASMUKH D. SUTHAR, J.

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.

-- Brihadaranyakopanishad (1-4.14)

[1.0] RULE. Learned APP Ms. Shruti Pathak waives service of notice of Rule on behalf of the respondent No.1 – State of Gujarat. Learned advocate Ms. Kruti Shah waives service of notice of Rule on behalf of respondent No.3 and learned advocate Mr. Ashish Dagli waives service of notice of Rule on behalf of respondent No.4. Heard learned Counsel Mr. Bhargav Bhatt assisted by learned advocate Mr. S.B. Sikarwar for the petitioner, learned Public Prosecutor Mr. Hardik Dave assisted by learned APP Ms. Shruti Pathak appearing for respondent No.1 – State of Gujarat, learned advocate Ms. Kruti Shah appearing for respondent No.3 and learned Senior Advocate Mr. I.H. Syed assisted by learned advocate Mr. Ashish Dagli for respondent No.4.

PROLOGUE:

[2.0] By way of present petition under Article 226 of the Constitution of India read with section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (for short “ BNSS ”), the petitioner, who is grandson of Popatbhai Sorathiya, the then sitting MLA (now deceased) has sought for the following reliefs:

“(a) Pass appropriate writ / order declaring that the direction issued by Shri T.S. Bishth, the then Additional Director General of Police, Jail and Administrative Reforms, State of Gujarat, Ahmedabad (Now Retired) to the Superintendent, Junagadh District Jail, Junagadh by letter dated 29.01.2018, being without authority, does not have any force of law and is a nullity;

(b) Pass appropriate writ / order or Direction, delcaring the premature release of Aniruddhsinh Mahipatsinh Jadeja, to be illegal and without any authority of law and to immediately arrest Aniruddhsinh Mahipatsinh Jadeja and confine him in the prison, to serve remaining period of sentence; AND/OR

(c) Pass appropriate writ / order or Direction to the State to initiate appropriate proceedings against Shri T.S. Bishth and other officer, who has been instrumental in illegal release of Aniruddhsinh Mahipatsinh Jadeja – Respondent No.4;”

FACTUAL BACKGROUND:

[3.0] The brief facts of the present petition are as follows:

[3.1] During a flag unfurling ceremony at Sangramsinhji High School in Gondal, Popatbhai Sorathiya, the then sitting MLA and grandfather of the present petitioner was shot dead by respondent No.4 herein at around 9.30 a.m. on Independence Day during the Flag Hoisting Ceremony and was apprehended on the spot pursuant to which an FIR was registered, which culminated into Sessions Case No.23 of 1989 before the learned Special Judge, Rajkot appointed under TADA Act. In view of the fact that 45 witnesses including government servant turned hostile, the learned Special Court held that, there is no direct evidence adduced inculpating respondent No.4 in the crime and he was given the benefit of doubt and acquitted.

[3.2] Against said acquittal of respondent No.4, the State had preferred appeal under Section 19 of the TADA Act before the Hon’ble Supreme Court, which was partly allowed by the judgment dated 10.07.1997 and respondent No.4 was convicted for the offence punishable under Section 302 of the INDIAN PENAL CODE , 1860 (for short “IPC”) and awarded sentence of life imprisonment and also convicted for offence under Section 5 of TADA and sentenced to undergo RI for 3 years. However, respondent No.4 was absconding even after conviction by the Hon’ble Supreme Court and only on 28.04.2000 i.e. after almost about 3 years, respondent No.4 was taken in custody.

[3.3] The State Government soon thereafter on 25.10.2000 passed an order in exercise of powers under Section 268 (1) of the CrPC directing that, respondent No.4 should not be removed from Sabarmati Central Jail. The request of respondent No.4 seeking parole was rejected by the State which was challenged by respondent No.4 before this Co