#Gujarat High Court Archives

10 Jan

The State of Gujarat had no jurisdiction to entertain the prayers seeking remission of the convicts: Supreme court

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Case Title: Bilkis Yakub Rasool vs Union of India & Ors.

Case No: WP (CRL.) NO.491 OF 2022

Decided on: 08.01.2024

Coram: Hon’ble Mrs. Justice B.V. Nagarathna

Facts of the Case

In the wake of the 2002 Gujarat riots, Bilkis Yakub Rasool, a young pregnant woman, endured the unimaginable – a brutal gang rape fueled by communal hatred and the tragic loss of her entire family. The Central Bureau of Investigation took over the case, leading to charges against 20 individuals – including police personnel and doctors – for gang rape, murder, and rioting. The trial was eventually transferred to a neutral location due to safety concerns. Ultimately, 11 individuals were convicted and sentenced to life imprisonment. Now, she challenges the early release of 11 convicts, arguing for justice both for herself and all victims of the riots. Citing the gravity of the crimes, her own lasting trauma, and concerns for her safety, Ms. Rasool’s writ petition seeks to ensure continued imprisonment for the perpetrators and uphold the principles of accountability in the face of heinous communal violence.

After the petitioner- victim filed a transfer petition, the trial was transferred from Ahmedabad to the competent and neutral court in Mumbai. Even after the Special judge convicted the 11 accused and sentenced them to life imprisonment, the trial court thereafter acquitted the remaining 5 police personnel and 2 doctors. Against the trial court when the state filed criminal appeals before the Bombay High Court it upheld the conviction of 11 persons accused. The high court further claimed the improper investigation by the Gujrat Police.

Respondent no. 3 filed a criminal application before the Gujrat High Court challenging the non-consideration of his application for premature release under Sections 433 and 433A of CrPC. The Ministry of Home Affairs, Government of India conveyed its approval under Section 435 of the CrPC for the premature release of all 11 convicts.

This present writ has been filed to quash the orders of acquittal.

Legal Provision

Section 432 of CrPC –

Power to suspend or remit sentences.

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.

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.
In this section and in section 433, the expression” appropriate Government” means,-
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;
in other cases, the Government of the State within which the offender is sentenced or the said order is passed.

Section 433 in CrPC –

Power to commute sentence —

The appropriate Government may, without the consent of the person sentenced commute

(a) a sentence of death, for any other punishment provided by the Indian Penal Code (45 of 1860);

(b) a sentence of imprisonment for life, for imprisonment for a term not exceeding fourteen years or for a fine;

(c) a sentence of rigorous imprisonment, for simple imprisonment for any term to which that person might have been sentenced, or for a fine;

(d) a sentence of simple imprisonment, for a fine.

Section 435 of CrPC states the powers conferred by sections 432 and 433 upon the State Government to remit or commute a sentence, in any case where the sentence is for an offence

Issue

Whether the writ petition filed under Article 32 of the constitution, is maintainable?
Whether the State of Gujrat had jurisdiction to entertain the prayers seeking remission of respondents?

Court Decision and Analysis

The Apex court held that the writ petition filed under Article 32 of the constitution, is maintainable and that the petitioner therein didn’t need to have filed a writ petition under Article 226 of the Constitution before the Gujarat High Court.

In view of Section 432 (7) read with Section 432 (1) and (2) of the CrPC, the court held that the Government of the State of Gujarat had no jurisdiction to entertain the prayers seeking remission of respondent Nos.3 to 13 herein as it was not the appropriate Government within the meaning of the aforesaid provisions. Subsequently, the remission orders are illegal and therefore quashed.

The court further ruled that the May 13, 2022 judgment was null and void due to the party seeking it concealing and misrepresenting crucial information.

The Gujarat remission orders for the 11 convicts (10.08.2022) were unlawful due to:

Usurpation of power: Gujarat lacked authority, Maharashtra governed.
Inapplicable policy: Gujarat’s remission policy didn’t apply to convicts.
Ignored opinion: The Mumbai court’s opinion (required) was disregarded.
Unpaid fine: The fine imposed by the Mumbai court and confirmed by Bombay HC remained unpaid, invalidating remission.

The court held that the plea of ‘protection of liberty’ of the 11 respondents cannot be accepted and that the Rule of Law must prevail.

Hence, the present writ petition was allowed in the aforesaid terms, and all other pending applications were disposed off.

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Written by- Bhawana Bahety

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14 Nov

The Gujarat High Court rejects Anticipatory Bail to person charged with exam impersonation

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Title: Ajayraj @ Vijendrasinh Kirodilal Meena v. State of Gujarat
Decided on: 03 November, 2023

+ CRIMINAL MISC. APPLICATION (FOR ANTICIPATORY BAIL) NO. 18552 OF 2023

CORAM: HON’BLE Justice Hasmukh D. Suthar
Introduction

An accused cheater in a competitive exam and forger has been denied anticipatory bail by the Gujarat High Court in Ahmedabad. Concerns were raised in the 2014 case over the applicant’s purported involvement in forging documents and impersonation.

Facts of the Case

The FIR was filed in an undisclosed year (2016) based on a private FSL report, even though the claimed offense occurred in the year 2014. Additionally, the charge sheet lists the applicant as an absconder, despite the fact that the police have never been to the applicant’s residence. Additionally, the applicant is prepared and eager to assist with the investigation. Furthermore, he asked for permission to approve the current application because no information needs to be retrieved or found out from the applicant, and no custodial questioning is necessary at this time.

Courts analysis and decision

A man accused of cheating in a clerk test was denied anticipatory release by the Gujarat High Court, which emphasized the need to punish malpractices severely in order to safeguard honest candidates and preserve the integrity of competitive exams. The Criminal Procedure Code (CrPC), specifically Section 438, which addresses anticipatory bail, is the legal provision that is impliedly mentioned. The court emphasized how crucial it is to protect competitive exam integrity, pointing out the harm that dishonesty causes to earnest applicants. It rejected anticipatory bail and emphasized the accused’s active participation in a premeditated offense that affected larger social interests. This served to explain the need for custodial interrogation.

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Written by- Hargunn Kaur Makhija

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8 Nov

The High Court of Gujarat discarded the matter to grant anticipatory bail to the Accused of Impersonation in the exam – Candidates Burn Their Midnight Oil to Secure Government Jobs

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Blog #Anticipatorybail, #Gujarat High Court

CRIMINAL MISC.APPLICATION (FOR ANTICIPATORY BAIL) NO. 18552 of 2023

Case Title : AJAYRAJ @ VIJENDRASINH KIRODILAL MEENA Versus STATE OF GUJARAT

CORAM: Justice Hasmukh D. Suthar

Appearance

Applicant : Mr. HB CHAMPAVAT

Respondent: MS SHRUTI PATHAK

Introduction

In the current evolution, the High Court of Gujrat situated at Ahemadabad has declined the anticipatory bail to a petitioner accused of forgery and cheating in the competitive government examination for the post of clerk.

The above-mentioned case which dates back to 2014 has lifted questions about the applicant’s asserted involvement in creating forged documents and Impersonation.

Facts of the case

The Investigation papers reflect that the offence was committed in the year 2014 and the FIR and charge sheet were filed in the year 2016 however, the applicant is absconding to date i.e. since last more than 7 years.

the applicant is facing a serious charge of the offense of forgery according to which the applicant created forged documents and appeared in a competitive examination for the post of Clerk by adopting illegal means on behalf of some other person. So far the competitive examination is concerned, with misconduct, misbehavior, malpractices, and cheating.

The advocate for the applicant submitted that the present applicant is falsely enrolled in the offense and has nothing to do with the offense. Further, the applicant has not played any active role insofar as an offense of forgery in the FIR. The alleged offence took place in the year 2014 whereas the FIR was filed in the year 2016 based on a private FSL report. Further, the applicant is shown as an absconder in the charge sheet but the police have never visited the place of the present applicant. Further, the applicant is ready and willing to cooperate and join the investigation.

It is observed that as the accused remained absconder for 7 years, this is not a fit case to exercise the jurisdiction in favor of the applicant. – Justice Hasmukh D. Suthar

Analysis by the court

Seriousness of the Offense: The court highlighted the seriousness of the charges, especially in the context of malpractices in competitive examinations. Quoting a previous Supreme Court decision, it emphasized the need to curb malpractices and maintain high educational standards.

The court considers the seriousness of the charge prima facie involvement of the accused and the possibility of tempering with pieces of evidence, The court finds that it will not be proper to use discretion in favor of the applicant accordingly.

the application for anticipatory bail is dismissed.

The rule is hereby discharged.

Written By

Kaulav Roychowdhury

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7 Nov

The Gujarat High Court to decide on matter relating to whether the fantasy gaming fall within actionable claim amounting to betting and gambling or based on skills

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Blog #gst judgement, #Gujarat High Court, #legalnews, #legalupdates

Title: NXGN Sports Interactive Private Limited v. Union of India

Date: 03 November, 2023

+ R/ Special Civil Application No. 19183 of 2023

CORAM: Hon’ble Justice Biren Vaishnav and Justice Mauna M. Bhatt

Introduction

The Gujarat High Court will make a decision regarding the question of whether fantasy gaming is based on abilities or constitutes an actionable claim akin to betting and gambling.

Facts of the Case

The petitioner contested the GST department’s show-cause notice. The petitioner brought up the question of whether their gaming platform would be subject to an actionable claim that amounted to gambling and betting. Activities or transactions shall be classified as neither a supply of goods nor a supply of services, in accordance with Section 2(52) of the GST Act read with Section 7, specifically Schedule (III). Actionable claims that don’t include gaming, betting, or lotteries.

Courts analysis and decision

The court issued a notice returnable on 17^th January, 2024.

Ad-interim relief will be granted until the petition, preventing the respondents from acting further in relation to the show cause notice’s resolution. The petitioner may, nevertheless, choose to submit a response to the show cause notice.

Written by- Hargunn Kaur Makhija

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4 Nov

Postponement takes upshot from the date of such order in flow, non-full filled to review it in 90 days: Gauhati High Court

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Blog #Gujarat High Court

Case No. : WP(C)/1074/2023

Case Title: Sri Vinay Kumar Singh v. The Union of India & 5 Ors.

Introduction

The High Court in command a short time ago laid aside the suspension of an engineer posted with the National Highways and Infrastructure Development Corporation Ltd. (NHIDCL). Accordingly, the flow of the said suspension order was not enclosed by the period of 90 days, as needed under the law.

The single judge bench of Justice Sanjay Kumar Medhi observed that there is no dispute that no disciplinary proceeding was initiated by the issuance of any show cause notice before the expiry of the period of 90 days from the date of the suspension order.

Facts of the Case

the petitioner has submitted that there is no manner of doubt that the order of suspension is dated. Though the same was received by the petitioner. the date for the mandatory review within 90 days has to be reckoned.

It is submitted that the suspension takes effect from the date of the order itself and not from the date of receipt of such order. The review was done beyond the period of 90 days. It is submitted that the period of 90 days has expired before which date, no exercise of review was conducted.

petitioner places reliance on the following case laws:

State of Punjab Vs. Khemi Ram, (1969) 3 SCC 28;

Ajay Kumar Choudhary Vs. Union of India, (2015) 7 SCC 291;

Union of India and Other Vs. Dipak Mali, (2010) 2 SCC 222;

The respondents contended that though the date of the order of suspension was November 01, 2022, it was communicated only on November 07, 2022. It was submitted by the respondents that if the aforesaid date is reckoned, the review done on February 03, 2023, would be within time and therefore, there would be no violation of the law laid down.

Finding of the Court

The court has pointed out that the court has no other alternative but to hold that the impugned order of review is unsustainable in law and therefore, would not have the effect of continuation of the suspension order Consequently, the suspension order dated 01.11.2022 stands set aside and quashed.

Considering the submission of the respondents that the allegations against the petitioner are serious while setting aside the order of suspension, it is provided that the respondents would be at liberty to post the petitioner in any non-sensitive post.

Written by

Kaulav Roy Chowdhury

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