ORDER : 1. RULE returnable forthwith. Learned APP waives service of notice of Rule for and on behalf of respondent No.1 – State of Gujarat. With the consent of learned Counsel appearing for respective parties, present petition is taken up for final hearing today. 2. By way of present petition under Article 226 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, 1973 (for short “CrPC”), the petitioner has prayed to quash and set aside the impugned order dated 20.03.2023 bearing No.JLK/832022/3121/J, passed by the Department of Home, Government of Gujarat, whereby the petitioner has been denied remission under Section 432 of the CrPC. 3. Heard learned Senior Advocate Mr. I.H. Syed assisted by learned advocate Mr. Prithu Parimal for the petitioner and learned APP Mr. Manan Maheta for respondent – State of Gujarat. 4. It is the case of the petitioner that, the petitioner was convicted in connection with TADA Case No.176 of 1993 for the offence punishable under Sections 302, 34 read with Section 120(B) of the Indian Penal Code, 1860 and sentenced to undergo rigorous imprisonment for 20 years. Being aggrieved and dissatisfied with the conviction, the petitioner preferred Criminal Appeal No.705/2007 before the Hon’ble Supreme Court and Hon’ble Supreme Court has been pleased to dismiss the appeal and confirm the sentence imposed by the Special TADA Court. Thereafter, the petitioner preferred Special Criminal Application No.6975/2021 before this Court seeking release in connection with the TADA Case No.176 of 1993 to consider remission application of the present petitioner in accordance with policy prevailing at the time of the conviction of the petitioner. The coordinate Bench has been pleased to hold that the case of the petitioner was required to be considered in accordance with 1992 policy instead of new policy of 2014. 4.1 Further, it is the case of the petitioner that time and again the petitioner is enlarged on long parole leave and is already on parole. As the petitioner has approached the respondent authority for remission, the respondent authority without assigning any reason refused the remission application submitted by the petitioner vide order dated 20.03.2023 contrary to the opinion of the Committee as well as the Home Department. The Authority has not considered any reason or opinion which came to be opined in favor of the petitioner. The Authority has not considered any reason or opinion which came to be opined in favor of the petitioner. Merely based on the fact that the life imprisonment means 20 years or for life. The CBI Office has also on their own interpreted the order of the learned Sessions Judge. The jail conduct of the petitioner is good and though the petitioner was on parole leave, it is stated that the petitioner remained absconding and on flimsy ground the benefit of remission is not extended and mechanically his application for remission came to be dismissed. The petitioner has spent more than 18 years in jail and he is entitled for remission. Even, considering the calculation submitted by the Authority, 802 days are for pardon which reveals from the reply given by the Authority under the Right to Information Act. Even, considering the said reply itself, it reveals that the petitioner has undergone more than 15 years 3 months and 27 days of sentence and the petitioner is entitled for pardon of 802 days and learned Counsel for the petitioner has also relied on Rule 1420 of the Jail Manual which provides for entitlement of prisoners for remission. Certain days are required to be considered for remission as per the Jail Manual itself. In the case of death penalty when sentence was for life or for 20 years then there was a fixed term. Herein, petitioner has served more than 14 years and is therefore, entitled for remission. Even, the petitioner is suffering from various age related ailments and he has requested to allow the present petition. Further, he has submitted that opinion of Judge is not binding to the Authority. The authority has to decide independently the case on its own merits and with the objective of the policy. Learned Counsel for the petitioner has relied on the decision of the Hon’ble Supreme Court in the case of Rajo alias Rajwa alias Rajendra Mandal vs. State of Bihar and Others reported in 2023 SCC OnLine 1068 as well as the decision in the case of Joseph vs. State of Kerala reported in 2023 SCC OnLine SC 1211 (Paras 38 and 39) in support of his submissions. Hence, he has requested to allow the present petition. 5. Hence, he has requested to allow the present petition. 5. Learned APP has vehemently opposed the present petition and submitted that the petitioner has not served the sentence of 20 years, which is must and hence, remission cannot be granted to the present petitioner. Further, the jail conduct of the petitioner is not good and he remained absconding. Even, the Sessions Court has been pleased to punish the present petitioner – accused for the offence punishable under Section 120(B) of the IPC and ordered the petitioner to undergo life imprisonment for the offence punishable under Section 302 of the IPC which shall run for 20 years and it is obligatory on the part of the petitioner – convict to complete life imprisonment which shall run for 20 years, considering the nature of offence. Even, the petitioner – convict has only undergone 15 years 8 months and 25 days of sentence and still he has to undergo more than 4 years of sentence. Even, the petitioner’s conduct is not good as two jail offences are also registered against the petitioner and he remained absconding. Hence, he has requested to dismiss the present petition as the petitioner has no right to claim remission as a matter of right and Court cannot sit in appeal on the order passed by the Authority. 6. I have given thoughtful consideration to the arguments canvassed by the learned Counsel appearing for the respective parties. 7. It is true that the petitioner has assailed the order passed by the Home Department, Government of Gujarat. At this stage, reference is required to be made to the decision of the Hon’ble Supreme Court in the case of Laxman Naskar vs. Union of India reported in (2000) 2 SCC 595 wherein the Hon’ble Supreme Court has prescribed all the criteria. Even, recently the Hon’ble Supreme Court in the case of Nawas @ Mulanavas vs. State of Kerala reported in 2024 INSC 215 keeping in mind various pronouncements of the Apex Court illustratively has given some parameters for invoking the powers of remission and relevant factors/criteria are required to be borne in mind while considering remission application. Even, recently the Hon’ble Supreme Court in the case of Nawas @ Mulanavas vs. State of Kerala reported in 2024 INSC 215 keeping in mind various pronouncements of the Apex Court illustratively has given some parameters for invoking the powers of remission and relevant factors/criteria are required to be borne in mind while considering remission application. “(a) the number of deceased who are victims of that crime and their age and gender; (b) the nature of injuries including sexual assault if any; (c) the motive for which the offence was committed; (d) whether the offence was committed when the convict was on bail in another case; (e) the premeditated nature of the offence; (f) the relationship between the offender and the victim; (g) the abuse of trust if any; (h) the criminal antecedents; and whether the convict, if released, would be a menace to the society. Some of the positive factors have been, (1) age of the convict; (2) the probability of reformation of convict; (3) the convict not being a professional killer; (4) the socio-economic condition of the accused; (5) the composition of the family of the accused and (6) conduct expressing remorse.” The aforesaid relevant factors are required to be kept in mind while deciding the application of remission. 7.1 The petitioner – convict has no right of remission but only right to claim the remission. It is settled proposition of law that, convict has no right to remission, etc. but ask for the remission etc. a convict undergoing life imprisonment can always apply to the authority concern for obtaining remission either under Articles 72 or 161 of the Constitution, or, under Section 432 CrPC and the authority concern would be obliged to consider the same reasonably subject to the principles laid down in Laxman Naskar (Supra) and Swamy Shraddananda @ Murali Manohar vs. State of Karnataka reported in (2008) 13 SCC 767 . Right to apply and invoke the powers under these provisions does not mean that he can claim such benefit as a matter of right based on any arithmetical calculation. All that he can claim is a right that his case be considered. Decision whether remissions be granted or not is entirely left to the discretion of authorities concerned, which discretion ought to be exercised in a manner known to law. All that he can claim is a right that his case be considered. Decision whether remissions be granted or not is entirely left to the discretion of authorities concerned, which discretion ought to be exercised in a manner known to law. Convict only has right to apply to competent authority and have his case considered in a fair and reasonable manner. In this regard reference is required to be made to the decision of the Hon’ble Supreme Court in the case of Union of India vs. Sriharan reported in (2016) 7 SCC 1 . 8. While deciding an application of remission, the Authority has to assign the reason in very objective manner considering the aforesaid criteria. Perusing the impugned order, nothing is revealed from which it appears that aforesaid criteria being considered by the authority. Even, the powers to grant the remission of sentence is vested exclusively in the appropriate government and Court cannot usurp the said power as the grant or non-grant of remission is a prerogative to be exercised and it is not for the Court to supplement its view. The premature release is not a matter of privilege but is a power coupled with the duty confirmed on the appropriate government in terms of sections 432 and 433 of the CrPC. In this regard, reference is required to be made to the decision of the Hon’ble Supreme Court in the case of Rajan vs. State of Tamil Nadu reported in (2019) 14 SCC 114 and Ram Chander vs. State of Chhatisgarh and Another reported in (2022) 12 SCC 52 wherein powers of remission of sentence and exercise of powers by the Government and scope of the judicial review by the Court is explained after referring to the decision of the Hon’ble Supreme Court in the case of Laxman Naskar vs. Union of India reported in (2000) 2 SCC 595 and held as follows: “...While a discretion vests with the Government to suspend or remit the sentence, the executive power cannot be exercised arbitrarily and hence, while the Court can review the decision of the Government to determine whether it was arbitrary, it cannot usurp the power of the Government and grant remission itself and where the exercise of power by the executive is found to be arbitrary, the authorities may be directed to consider the case of the convict afresh.” 9. Perusing the record, prima facie, it appears that the respondent authority has not considered the application filed by the present petitioner in a fair manner and not properly assessed the material and the opinion produced before the authority. Nonetheless, some contradictory opinion and the findings also emerged from the record but fact remains that perusing the affidavit in reply in calculation of days of set-off and remission is itself in dispute. As per the petitioner, he is entitled for remission of 802 days while learned APP has submitted that including the time of remission in the set-off, petitioner has undergone 15 years and 7 months and petitioner remained absconder as and when released on parole leave. The said fact become disputed fact and in absence of any material on record, this Court is unable to calculate any days and even all the criteria as discussed above are not fulfilled and no reasons are assigned and therefore, in absence of the material, this Court is unable to form any opinion. 9.1 Herein, as discussed above, the Hon’ble Supreme Court in the case of Ram Chander (Supra) and State of Haryana and Ors. vs. Daya Nand reported in 2022 LiveLaw (SC) 948 has clearly laid down the principle that the judicial review of executive decision is not permissible and from the facts produced by the prosecution as emerging on the record there is no sufficient material to consider the request of the petitioner. It is true that in the case on hand the impugned order produced at page 10 of the petition is not having any sufficient reason. The executive powers are required to be fairly exercised and not arbitrarily. Herein, disputed fact is that as per the submission of the learned Counsel for the petitioner, the period of 802 days is required to be included to consider the remission application while learned APP has opposed the said fact by submitting that the said part of 802 days is required to be excluded. The report and affidavit in reply on behalf of the respondent and reply given to the petition under the Right to Information Act indicates that alongwith the set-off petitioner has completed more than 15 years 7 months and therefore, whether under the criteria of set-off, the said 802 days remission period is included or not, has remained unlearned on the record. Considering the aforesaid fact and going through the record it appears that, the respondent authority has not fairly exercised the powers under Section 432A of the CrPC. Though the petitioner cannot claim remission as a matter of right, the authority ought to have fairly considered the request of the petitioner for remission in light of the policy of 09.07.1992 as he has completed 14 years of sentence. But the authority without giving any adequate reason and without considering the circumstances as per the criteria laid down by the Hon’ble Supreme Court in the case of Laxman Naskar (Supra) and Nawas @ Mulanavas (Supra) has rejected the request of the petitioner. 10. In view of the above, this Court is unable to sit in appeal or review the decision of the respondent Authority including the calculation of days and hence, the order passed by the Authority deserves to be quashed and set aside and the matter is required to be remitted back to the respondent Authority to decide afresh in light of the following criteria laid down by the Hon’ble Supreme Court in the case of Navas @ Mulanavas (Supra). (a) the number of deceased who are victims of that crime and their age and gender; (b) the nature of injuries including sexual assault if any; (c) the motive for which the offence was committed; (d) whether the offence was committed when the convict was on bail in another case; (e) the premeditated nature of the offence; (f) the relationship between the offender and the victim; (g) the abuse of trust if any; (h) the criminal antecedents; and whether the convict, if released, would be a menace to the society. Some of the positive factors have been, (1) age of the convict; (2) the probability of reformation of convict; (3) the convict not being a professional killer; (4) the socio-economic condition of the accused; (5) the composition of the family of the accused and (6) conduct expressing remorse.” 11. Learned Senior Counsel for the petitioner has relied on the decision of the Hon’ble Supreme Court in the case of Joseph (Supra) but the said case was decided considering the peculiar facts of that case in light of the Kerala Prison Rules, 1958 and keeping in mind the report of the Jail Advisory Board. Learned Senior Counsel for the petitioner has relied on the decision of the Hon’ble Supreme Court in the case of Joseph (Supra) but the said case was decided considering the peculiar facts of that case in light of the Kerala Prison Rules, 1958 and keeping in mind the report of the Jail Advisory Board. Even otherwise, considering the decision of the Hon’ble Apex Court in the case of Parasa Raja Manikyala Rao And Anr vs State Of A.P reported in AIR 2004 SC 132 , each case, more particularly a criminal case depends on its own facts and a close similarity between one case and another is not enough to warrant like treatment because a significant detail may alter the entire aspect. In deciding such cases, one should avoid the temptation to decide cases (as said by Cordozo) by matching the colour of one case against the colour of another. To decide therefore on which side of the line a case falls, the broad resemblance to another case is not at all decisive. 12. Herein, as discussed in earlier part, the report of Jail Advisory Board is ambiguous and there is nothing in the said report which clearly indicate about the conduct and relevant criteria to consider the application for remission. Further, in the case of Joseph (Supra), the convict had completed 25 years of imprisonment and hence, his case for remission was considered. 13. In wake of aforesaid discussion, impugned order dated 20.03.2023 bearing No.JLK/832022/3121/J passed by the Department of Home, Government of Gujarat is hereby quashed and set aside and the matter is remitted back to the authority for fresh consideration within a period of six weeks from the date of receipt of the present order without being influenced by any of the observations made in this order. The authority shall decide the case of the petitioner afresh after calling fresh report from all the authorities accordingly. Present petition stands disposed of accordingly. Rule is made absolute to the aforesaid extent.