ORAL ORDER

Heard learned Advocate Mr. Shailesh C. Sharma on behalf of the petitioner and learned APP Ms. Maithili Mehta for the respondent No.1 State.

2. By way of this petition, the petitioner interalia prays for being granted the benefit of remission as available to the petitioner as per the policy of the State Government vide Government Resolution dated 25.1.2017.

3. Learned Advocate Mr. Sharma would submit that the said prayer is made in the backdrop of the fact that the petitioner, who had been sentenced for an offence punishable under Section 302 of the Indian Penal Code amongst others and had been sentenced to life imprisonment, had been granted remission by the State Government vide an order dated 26.1.2017 relying upon the provisions of GR dated 25.1.2017. Learned Advocate Mr. Sharma would submit that the remission had been granted considering the age of the petitioner as 65 years, which was one of the criteria as set out in the policy of the State Government. Learned Advocate Mr. Sharma would submit that subsequently, vide an order dated 4.8.2017, since it appeared that the petitioner had not crossed the required age of 65 years, the petitioner had been rearrested and sent back to custody for undergoing the remainder of term of imprisonment.

4. Learned Advocate Mr. Sharma would submit that such a decision had been taken by the respondents, even without affording the petitioner an opportunity of being heard. Learned Advocate would submit that since the petitioner, who had been sentenced had been granted benefit of remission of remainder of his sentence, therefore, before setting aside the order of remission and before rearresting the petitioner, minimum required was that the petitioner should have been afforded an opportunity of hearing. Learned Advocate Mr. Sharma would rely upon two decisions of this Court in case of Vinugiri Motigiri Goswami Vs State of Gujarat in Special Criminal Application No. 7038 of 2017 dated 23.11.2017 and in case of Dolatbhai Naranbhai Tandel Vs State of Gujarat in Special Criminal Application No. 9656 of 2017 dated 19.11.2018. Learned Advocate would submit that in similar scenario, to be precise in case of order dated 4.8.2017 itself, impugned in this petition, which listed around 21 persons who were granted benefit of remission and in whose case remission had been canceled, more particularly since the age could not be verified, in two such cases where the persons of the said list had approached this Court, this Court had been pleased to set aside the decision passed by the respondents more particularly coming to a conclusion that the rearrest was violative of Article 21 of the Constitution of India. Learned Advocate would submit that since the learned co-ordinate Benches of this Court have declared the decision of the respondents as illegal the same view may be taken by this Court and this Court may set aside the order dated 4.8.2017 and direct the respondents to forthwith release the present petitioner.

5. This petition is strongly opposed by learned APP Ms. Mehta. Learned APP would submit that while it is true that the petitioner had been granted the benefit of remission of remainder of his sentence and the petitioner had been released vide order dated 26.1.2017, later on, it was found that the date of birth as claimed by the petitioner ie. 1.1.1951 could not be verified. That the authorities concerned had inquired with the Heranj Gram Panchayat, Taluka Mahudha, Dist Kheda for verification of the date of birth and since the record was in a completely dilapidated condition the date of birth could not be verified. It appears that after some inquiry according to learned APP, the respondents had decided to carry out age verification of the petitioner through scientific means and since there was no consensus as regards to the exact age, a high level committee had considered the report of the doctors as regards the age of the petitioner and they had fixed the age of the petitioner as 64 years. L