Gulberg case:Court recommends non-use of remission powers by state, but not legally binding

Ahmedabad

The Special court which today pronounced punishment for the 24 convicts of the Gulberg Society Massacre case, has recommended that the state government should not use its legal powers for remission (suspension) of punishment of those who have already spent a considerable time in prison during trial, however it is like a suggestion which is not legally binding, Counsel of the Special Investigation Team (SIT), Mr R C Kodekar said.

Mr. Kodekar said that the court has recommended the state government to not to use its power under section 433 A or 432 of the Code Of Criminal Procedure, 1973 (CRPC) to consider remission or suspension of the punishment awarded by it to the convicts.

‘However, the court can’t forbid the government from exercising its powers if it wishes so. It is just a recommendation which is legally not binding,’ the SIT counsel added.

The Section 433A of the CRPC says, ‘Restriction on powers of remission or Commutation in certain cases. Notwithstanding anything contained in section 432, where a sentence of imprisonment for life is imposed on conviction of a person for an offence for which death is one of the punishments provided by law, or where a sentence of death imposed on a person has been commuted under section 433 into one of imprisonment for life, such person shall not be released from prison unless he had served at least fourteen years of imprisonment.’
While Section 432 which defines Power to suspend or remit sentences says –

(1) 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-

(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.

Declining to treat the Gulberg Society case pertaining to 2002 Gujarat riots as a ‘rarest of rare’ incident, the special court of designated SIT judge P B Desai here today did not pronounce capital punishment for its convicts and awarded life sentence to the 11 convicts held guilty for murder during the massacre which had seen the killing of 69 people including former Congress MP Ehsan Jafri on February 28, 2002 a day after burning of a coach of Sabarmati express in Godhra.

The court sentenced 10 years of jail term to the sole convict held guilty of attempt to murder and seven years each to the remaining 12.

The SIT counsel termed the punishment inadequate and said that he would file an appeal against it in the High Court.

– DeshGujarat