Third parties can’t have say in deciding sentence a convict has to undergo: Gujarat govt to SC

Stating that there was an SC judgment to this effect, Raju added that no third party can have a say in the reduction of sentence. “It is a matter exclusively between the court, the accused, and the prosecution.”

Intervening, Justice Nagarathna pointed out that the remission order is an administrative one and the consultation preceding the grant of remission is by a government, not any judicial authority. The ASG said that though it may be an administrative order, it still has the effect of reducing the sentence, and that this stands on a different footing.

Senior advocate Rishi Malhotra, who appeared for convict Radheshyam Shah, contended that allowing third parties to challenge remission orders would set a “dangerous precedent” and open floodgates of litigations. The counsel said he understands the victim, Bano, herself approaching the court and is not disputing her right. “But politicians, journalists jumping in… defies logic. Everynow and then someone will come up and challenge remission orders granted by any state,” he said, adding that allowing the PILs will therefore “be a dangerous precedent”.

Malhotra submitted that the PIL petitioners were seeking to get the remission order quashed without placing the orders on record. He said they had admitted not having a copy but moved the court on the basis of media reports. As he referred to a 1992 SC judgement junking a petition by Akali Dal leader Simraanjit Singh Mann, who had challenged the decision to confirm the death sentence awarded to two men convicted for killing former Army chief General A S Vaidhya, on the ground of lack of locus, the bench said the two are “vitally different”.

In the former, what was challenged was the conviction and sentence while what is under challenge in the present matter is the administrative order of remission, Justice Nagarathna said.

Agreeing, Justice Bhuyam said that the only question is whether the remission order is good or bad and whether it is in public interest. He added that in PILs, the fundamental right of the petitioner is not in question as it is filed in public interest.

Senior advocate Siddharth Luthra, too, opposed third party interference in deciding remission and said such interference can prejudice the rights of the accused. “The right of a victim to participate in a criminal proceeding – which is the basis of where we are today – is controlled by statute, and no more. This makes it very clear that third party interference is not permissible.”

Appearing for another convict, senior advocate S Guru Kirshna Kumar said Bano must have first approached HC as this would have given the convicts a chance to challenge it before the HC division bench as well as SC in case of an adverse order.