Ram Chander vs The State of Chhattisgarh & Anr

Ram Chander vs The State of Chhattisgarh & Anr

Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले


Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL ORIGINAL JURISDICTION
Writ Petition (Crl) No 49 of 2022
Ram Chander .... Petitioner

Versus
The State of Chhattisgarh & Anr. .... Respondents
J U D G M E N T
Dr Dhananjaya Y Chandrachud, J
1. The petition under Article 32 of the Constitution has been instituted by a
convict, who is undergoing a sentence of imprisonment for life upon being
convicted for the commission of offences punishable, inter alia, under Section
302 read with Section 149 of the Indian Penal Code1
. He seeks the issuance of a
writ directing the first respondent to grant him pre-mature release. The factual
background has been set out below.
Factual Background
2. The petitioner and co-accused came in a tractor carrying deadly weapons
and assaulted the complainant and killed his father and brother, when they were
1 “IPC”
1
sitting near a village pond along with other villagers. The cause of the enmity
between the parties was the confiscation of shisham wood belonging to one of
the co-accused by the forest department and the damage caused to his
motorcycle and tractor, for which the accused persons suspected the complainant
and his family. The trial court2
 convicted the petitioner and the other accused on 7
December 2010. The petitioner was convicted of offences under Sections 147,
148, 302/149 and 324/149 of the IPC and sentenced to life imprisonment. While a
charge was also framed under Section 3(2) (5) of the Scheduled Castes and
Tribes Act 1989 since the complainant and his family belonged to a Scheduled
Caste, the trial court acquitted all the accused of the charge because no evidence
was found to show that the complainant or the deceased were humiliated or
intimidated on the basis of their caste. The sentence was confirmed by the High
Court of Chhattisgarh3
 on 10 May 2013. Aggrieved by the judgement of the High
Court, the petitioner preferred a special leave petition4
 before this Court which
was dismissed.
3. On 25 September 2021, the petitioner completed 16 years of imprisonment
without remission and submitted an application for premature release to the
respondent under Rule 358 of the Chhattisgarh Prisons Rule 19685
. Rule 358
provides thus:
“Rule 358 – Premature Release of Prisoners Sentenced to
Life Imprisonment
…….
2 ST No 16/2006
3 Criminal Appeal No. 933/2010
4 Special Leave Petition (Criminal) No. 1348-49 of 2015
5 “Prison Release Rules”
2
(3)(A). The matter of every male or female prisoner who is
serving a sentence of life imprisonment after 17th December,
1978 and who are convicted under the punishable offences
under Section 121, 132, 302, 307 and 396 of IPC or under
any other criminal laws, in which capital punishment is one of
the sentences, shall be taken into consideration for him/her
premature release from the jail with this condition where such
convict has completed the period of imprisonment of 14 years
necessary sentence of imprisonment without remission
subject to the consideration of such prisoners shall not be
prohibited under legal provisions.
(B) The matter to premature release of all other male
prisoners serving the sentence of life imprisonment shall only
be taken into consideration only in that condition if they have
spent the period of minimum 14 years imprisonment without
remission and if they have completed actual imprisonment of
10 years without remission.
…..
(D) The matter to premature release of all such prisoners
serving the sentence of life imprisonment shall only be taken
into consideration only in that condition if they have attained
the age of 65 years and if they have completed actual
imprisonment of 7 years without remission. “
4. The State Government is empowered under Section 432 of the Code of
Criminal Procedure6
 to suspend or remit sentences. Sub-section (2) of Section
432 provides that the appropriate government may take the opinion of the
presiding judge of the court before or by which the person making an application
for remission has been convicted on whether the application should be allowed or
rejected, together with the reasons for such opinion. Sub-section (2) of Section
432 reads thus:
“Section 432- Power to suspend or remit sentences.
….
(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
6 “CrPC”
3
opinion a certified copy of the record of the trial or of such
record thereof as exists.
….”
5. Section 433-A of the CrPC lays down the restriction on powers of
remission in the following terms:
“433A. 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.”
6. By a letter dated 1 May 2021, the Jail Superintendent of the Central Jail at
Durg sought the opinion of the Special Judge, Durg on whether the petitioner can
be released on remission. On 2 July 2021, the Special Judge gave his opinion
that in view of all the facts and circumstances of the case, it would not be
appropriate to allow remission of the remaining sentence of the petitioner. The
relevant portions of the letter containing the opinion of the Special Judge are
reproduced below:
“Perused the documents filed alongwith the present
application. Perused the judgement dated 07.12.2010 passed
in Special Case No. 16/2006 "State Vs. Anil & Ors." under
Section 147, 148, 302/ 149, 302/ 149, 307/149 and 3 (2) (5)
Scheduled Caste Schedule Tribe, (Prevention of Corruption)
Act. Accused Ramchander son of Khajaan Singh alongwith 8
other co-accused persons has assembled against the law and
by using deadly weapons sword, axe, wooden stick (Danda),
has killed Kartikram and Puneet, in relation to this case the
accused is undergoing imprisonment.
Then in this situation keeping in view all the facts and
circumstances, it does not seem appropriate to allow
remission of the remaining sentence of the above prisoner,
therefore not recommending for the same.”
4
7. The application for remission of the petitioner, along with the opinion of the
Special Judge, was forwarded to the Director General, Jail and Correctional
services. On 30 September 2021, the Director General presented the case of the
petitioner to the Home Department, Government of Chhattisgarh by a letter
addressed to the Additional Chief Secretary, Jail Department. Thereafter, the Jail
Department in a note sheet dated 6 October 2021 forwarded the case of the
petitioner to the Law Department of the State Government. The Under Secretary
of the Law Department shared his opinion through a note sheet dated 27
November 2021 stating that the petitioner cannot be given the benefit of the
provisions of Section 433-A CrPC because the presiding judge opined against
releasing the petitioner on remission.
8. On 2 March 2022. the Director General, Jail and Correctional Services
again forwarded the case of the petitioner to the Additional Chief Secretary, Jail
Department to be considered for remission since the petitioner had completed 20
years of imprisonment with remission. The Jail Department sought the opinion of
the Law Department, which stated that since the presiding judge of the
sentencing court has not given a positive opinion with regard to the release of the
petitioner, he cannot be released.
Submissions of Counsel
9. Mr MD Irshad Hanif, counsel appearing on behalf of the petitioner, made
the following submissions:
5
(i) A convict-prisoner can be considered for pre-mature release under
Section 433-A of the CrPC after the completion of 14 years even
without the consent of the presiding judge of the sentencing court;
(ii) Under Section 432 (2) of the CrPC, the appropriate Government has
the discretion to seek the opinion of the presiding judge of the
sentencing court;
(iii) There is absence of clarity in Section 432(2) of the CrPC to indicate
whether the presiding judge whose opinion is to be sought should
be the same as the judge who recorded the conviction since he
would not have observed the conduct of the accused-convict during
the trial;
(iv) The petitioner is entitled to be considered for pre-mature release
under Rule 358 (3) (A), (B) and (D) of the Prison Rules;
(v) While the government is bound to seek the opinion of the
sentencing court under Section 432 (2) of the CrPC, it is not bound
by the opinion itself. The decision of this Court in Union of India v.
Sriharan @ Murugan7
 is indicative in this regard;
(vi) In Sangeet v. State of Haryana8
, this Court has held that the
opinion of the presiding judge of the sentencing court must be
accompanied by reasons;
7 (2014) 4 SCC 242
8 (2013) 2 SCC 452
6
(vii) In State of Haryana v. Mohinder Singh9
, this Court has held that
the power of remission cannot be exercised arbitrarily. The decision
to grant remission should be informed, fair and reasonable;
(viii) The presiding judge has simply stated in his opinion that in view of
all the facts and circumstances, it is not appropriate to allow the
application of remission. There is nothing to indicate that the judge
took into consideration the following three factors to grant remission
– (i) antecedents of the petitioner; (ii) conduct of the petitioner in
prison; and (iii) the likelihood of the petitioner committing a crime if
released. In Bhagwat Saran v. State of UP10, this Court has held
that a “bald statement without any attempt to indicate how law and
order is likely to be adversely affected by their release cannot be
accepted”;
(ix) The policy applicable at the time of conviction must be considered
for deciding the application of pre-mature release in terms of the
decision of this Court in State of Haryana v. Jagdish11
. Thus, the
rules as applicable at the time of petitioner’s conviction in 2010
would be applicable for considering his application for remission;
and
9 (2000) 3 SCC 394
10 Writ Petition (Criminal) Nos. 1145-1149 of 1982 dated 6 December 1982
11 (2010) 4 SCC 216
7
(x) In Laxman Naskar v. Union of India12, this Court laid down that the
following factors must be reported by the police in respect of the
grant of pre-mature release:
(a) Whether the offence is an individual act of crime that does not
affect the society;
(b) Whether there is a chance of the crime being repeated in future;
(c) Whether the convict has lost the potentiality to commit crime;
(d) Whether any purpose is being served in keeping the convict in
prison; and
(e) Socio-economic conditions of the convict’s family.
10. Mr Gaurav Arora, counsel appearing on behalf of the respondents, made
the following submissions:
(i) Petitioner’s case can be considered only under Rule 358 (3) (A) of
the Prison Rules and not under Rule 358 (3) (B) or 358 (3) (D);
(ii) A Full Bench of the High Court of Bombay13 has held that the opinion
given by the presiding judge in terms of Section 432(2) of the CrPC
is binding on the government;
(iii) In Union of India v. Sriharan14, this Court has held that the ultimate
order of suspension or remission should be guided by the opinion of
12 (2000) 2 SCC 595
13 Yoshevel v. State of Bombay, Crl. Writ Petition No 273 of 2019
14 (2016) 7 SCC 1; “Sriharan”
8
the presiding officer of the sentencing court and that a convict does
not have a right to remission, but only a right to claim remission; and
(iv) In State of Madhya Pradesh v. Ratan Singh15
, this Court has held
that the government has the sole discretion to remit or refuse to
remit the sentence of the convict. No writ can be issued to the
government to release the prisoner. The decisions of this Court in
Rajan v. Home Secretary, Home Department of Tamil Nadu16 and
Sriharan (supra) uphold the same principle.
Analysis
A. Judicial Review of the Power of Remission
11. The respondents submit that the appropriate government has the absolute
discretion to decide whether the application for remission should be allowed.
Indeed, in Ratan Singh (supra), this Court has observed that the State has an
undoubted discretion to remit or refuse to remit the sentence and no writ can be
issued to direct the State Government to release the petitioner. The Court was
interpreting Section 401 of the Code of Criminal Procedure 1898, which
corresponds to Section 432 of the CrPC. Section 401 empowered the appropriate
government to remit the whole or any part of the punishment sentence. The Court
while summarizing the propositions that govern the exercise of the power of the
remission, observed:
“9. From a review of the authorities and the statutory
provisions of the Code of Criminal Procedure the following
propositions emerge:
15 (1976) 3 SCC 470
16 (2019) 14 SCC 114
9
“(1) that a sentence of imprisonment for life does not
automatically expire at the end of 20 years including the
remissions, because the administrative rules framed under
the various Jail Manuals or under the Prisons Act cannot
supersede the statutory provisions of the Penal Code, 1860. A
sentence of imprisonment for life means a sentence for the
entire life of the prisoner unless the appropriate Government
chooses to exercise its discretion to remit either the whole or
a part of the sentence under Section 401 of the Code of
Criminal Procedure;
(2) that the appropriate Government has the undoubted
discretion to remit or refuse to remit the sentence and
where it refuses to remit the sentence no writ can be
issued directing the State Government to release the
prisoner;
(3) that the appropriate Government which is empowered to
grant remission under Section 401 of the Code of Criminal
Procedure is the Government of the State where the prisoner
has been convicted and sentenced, that is to say, the
transferor State and not the transferee State where the
prisoner may have been transferred at his instance under the
Transfer of Prisoners Act; and
(4) that where the transferee State feels that the accused has
completed a period of 20 years it has merely to forward the
request of the prisoner to the concerned State Government,
that is to say, the Government of the State where the prisoner
was convicted and sentenced and even if this request is
rejected by the State Government the order of the
Government cannot be interfered with by a High Court in its
writ jurisdiction.”
(emphasis supplied)
12. While a discretion vests with the government to suspend or remit the
sentence, the executive power cannot be exercised arbitrarily. The prerogative of
the executive is subject to the rule of law and fairness in state action embodied in
Article 14 of the Constitution. In Mohinder Singh (supra), this Court has held that
the power of remission cannot be exercised arbitrarily. The decision to grant
remission should be informed, fair and reasonable. The Court held thus:
“9. The circular granting remission is authorized under the
law. It prescribes limitations both as regards the prisoners
who are eligible and those who have been excluded.
Conditions for remission of sentence to the prisoners who are
10
eligible are also prescribed by the circular. Prisoners have no
absolute right for remission of their sentence unless except
what is prescribed by law and the circular issued thereunder.
That special remission shall not apply to a prisoner convicted
of a particular offence can certainly be a relevant
consideration for the State Government not to exercise power
of remission in that case. Power of remission, however,
cannot be exercised arbitrarily. Decision to grant remission
has to be well informed, reasonable and fair to all concerned.”
In Sangeet (supra), this Court reiterated the principle that the power of remission
cannot be exercised arbitrarily by relying on the decision in Mohinder (supra).
13. 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. 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.
In Laxman Naskar v. State of West Bengal17, while the jail authorities were in
favour of releasing the petitioner, the review committee constituted by the
government recommended the rejection of the claim for premature release on the
grounds that (i) the two witnesses who had deposed during the trial and people of
the locality were apprehensive that the release of the petitioner will disrupt the
peace in the locality; (ii) the petitioner was 43 years old and had the potential of
committing a crime; and (iii) the crime had occurred in relation to a political feud
which affected the society at large. The Court while placing reliance on Laxman
Naskar v. Union of India (supra) stipulated the factors that govern the grant of
remission, namely:
“6…(i) Whether the offence is an individual act of crime
without affecting the society at large.
17 (2000) 7 SCC 626
11
(ii) Whether there is any chance of future recurrence of
committing crime.
(iii) Whether the convict has lost his potentiality in committing
crime.
(iv) Whether there is any fruitful purpose of confining this
convict any more.
(v) Socio-economic condition of the convict's family.”
Based on the above factors, the Court found that the government’s decision to
reject the claim of remission was based on reasons that were irrelevant or devoid
of substance. The Court quashed the order of the government and directed it to
decide the matter afresh. The Court held thus:
“8. If we look at the reasons given by the Government, we are
afraid that the same are palpably irrelevant or devoid of
substance. Firstly, the views of the witnesses who had been
examined in the case or the persons in the locality cannot
determine whether the petitioner would be a danger if
prematurely released because the persons in the locality and
the witnesses may still live in the past and their memories are
being relied upon without reference to the present and the
report of the jail authorities to the effect that the petitioner has
reformed himself to a large extent. Secondly, by reason of
one's age one cannot say whether the convict has still
potentiality of committing the crime or not, but it depends on
his attitude to matters, which is not being taken note of by the
Government. Lastly, the suggestion that the incident is not an
individual act of crime but a sequel of the political feud
affecting society at large, whether his political views have
been changed or still carries the same so as to commit crime
has not been examined by the Government.
9. On the basis of the grounds stated above the Government
could not have rejected the claim made by the petitioner. In
the circumstances, we quash the order made by the
Government and remit the matter to it again to examine the
case of the petitioner in the light of what has been stated by
this Court earlier and our comments made in this order as to
the grounds upon which the Government refused to act on
the report of the jail authorities and also to take note of the
change in the law by enacting the West Bengal Correctional
Services Act 32 of 1992 and to decide the matter afresh
within a period of three months from today. The writ petition is
allowed accordingly. After issuing rule the same is made
absolute.”
12
14. In Rajan (supra), the court observed that while the grant of remission is the
exclusive prerogative of the executive and the court cannot supplant its view, the
Court can direct the authorities to re-consider the representation of the convict.
The Court made the following observations:
“18. The petitioner would, however, rely on the unreported
decision of this Court in Ram Sewak [Ram Sewak v. State of
U.P., 2018 SCC OnLine SC 2012] , to contend that this Court
may direct the authorities to release the petitioner forthwith
and that there is no point in directing further consideration by
the State as the petitioner had already undergone over 30
years of sentence and with remission, over 36 years. The
order passed by this Court in Ram Sewak [Ram Sewak v.
State of U.P., 2018 SCC OnLine SC 2012] , is obviously in the
facts of that case. As a matter of fact, it is well settled by
now that grant or non-grant of remission is the
prerogative to be exercised by the competent authority
and it is not for the court to supplant that procedure.
Indeed, grant of premature release is not a matter of
privilege but is the power coupled with duty conferred on
the appropriate Government in terms of Sections 432 and
433 CrPC, to be exercised by the competent authority
after taking into account all the relevant factors, such as
it would not undermine the nature of crime committed
and the impact of the remission that may be the concern
of the society as well as the concern of the State
Government.
…..
20. Thus understood, we cannot countenance the relief
claimed by the petitioner to direct the respondents to
release the petitioner forthwith or to direct the
respondents to remit the remaining sentence and release
the petitioner. The petitioner, at best, is entitled to the
relief of having directions issued to the respondents to
consider his representation dated 5-2-2018,
expeditiously, on its own merits and in accordance with
law. We may not be understood to have expressed any
opinion either way on the merits of the claim of the petitioner.
The fact that the petitioner's request for premature release
was already considered once and rejected by the Advisory
Board of the State Government, in our opinion, ought not to
come in the way of the petitioner for consideration of his fresh
representation made on 5-2-2018. We say so because the
opinion of the Advisory Board merely refers to the negative
recommendation of the Probation Officer, Madurai and the
District Collector, Madurai. The additional reason stated by
the State Government seems to be as follows:
“(4) The proceedings of the Advisory Board held on 20-1-
2010 is as follows:
(i) The case is heard and examined the relevant records.
The accused is a Srilankan National and lodged at Special
13
Camp at Chengalpet before the commission of this grave
offence.
(ii) The Probation Officer, Madurai and the District
Collector, Madurai have not recommended the premature
release.
(iii) Also this prisoner has not repented for his act.
(iv) The plea for premature release is ‘NotRecommended’.
(5) The Government after careful examination accept the
recommendation of the Advisory Board, Vellore and the
premature release of Life Convict No. 23736, Rajan, s/o
Robin, confined in Central Prison, Vellore is hereby rejected.”
With the passage of time, however, the situation may have
undergone a change and, particularly, because now the claim
of the petitioner for premature release will have to be
considered only in reference to the sentence of life
imprisonment awarded to him for the offences under Section
302 (3 counts) and Section 307 (4 counts) of IPC,
respectively.”
(emphasis supplied)
The above discussion makes it clear that the Court has the power to review the
decision of the government regarding the acceptance or rejection of an
application for remission under Section 432 of the CrPC to determine whether the
decision is arbitrary in nature. The Court is empowered to direct the government
to reconsider its decision.
B. The Value of the Opinion of the Presiding Judge
15. Sub-section (2) of Section 432 of the CrPC provides that the appropriate
government may take the opinion of the presiding judge of the court before or by
which the person making an application for remission has been convicted on
whether the application should be allowed or rejected, together with the reasons
for such opinion.
14
16. In Sangeet (supra), the Court held that sub-sections (2) to (5) of Section
432 lay down procedural safeguards to check arbitrary remissions. The Court
observed that the government is required to approach the presiding judge of the
court to opine on the application for remission. The Court observed thus:
“61. It appears to us that an exercise of power by the
appropriate Government under sub-section (1) of Section 432
CrPC cannot be suo motu for the simple reason that this subsection is only an enabling provision. The appropriate
Government is enabled to “override” a judicially pronounced
sentence, subject to the fulfilment of certain conditions. Those
conditions are found either in the Jail Manual or in statutory
rules. Sub-section (1) of Section 432 CrPC cannot be read to
enable the appropriate Government to “further override” the
judicial pronouncement over and above what is permitted by
the Jail Manual or the statutory rules. The process of granting
“additional” remission under this section is set into motion in a
case only through an application for remission by the convict
or on his behalf. On such an application being made, the
appropriate Government is required to approach the
Presiding Judge of the court before or by which the conviction
was made or confirmed to opine (with reasons) whether the
application should be granted or refused. Thereafter, the
appropriate Government may take a decision on the
remission application and pass orders granting remission
subject to some conditions, or refusing remission. Apart from
anything else, this statutory procedure seems quite
reasonable inasmuch as there is an application of mind to the
issue of grant of remission. It also eliminates “discretionary”
or en masse release of convicts on “festive” occasions since
each release requires a case-by-case basis scrutiny.
“62. It must be remembered in this context that it was held in
State of Haryana v. Mohinder Singh [(2000) 3 SCC 394 :
2000 SCC (Cri) 645] that the power of remission cannot be
exercised arbitrarily. The decision to grant remission has to be
well informed, reasonable and fair to all concerned. The
statutory procedure laid down in Section 432 CrPC does
provide this check on the possible misuse of power by the
appropriate Government.”
17. In Sriharan (supra) a Constitution Bench of this Court held that the
procedure stipulated in Section 432(2) is mandatory. The Court did not
specifically hold that the opinion of the presiding judge would be binding, but it
held that the decision of the government on remission should be guided by the
15
opinion of the presiding officer of the concerned court. The Court had framed the
following question:
“143..Whether suo motu exercise of power of remission under
Section 432(1) is permissible in the scheme of the section, if
yes, whether the procedure prescribed in sub-section (2) of
the same section is mandatory or not?”
Answering the above question, the Court held as follows:
“148. Keeping the above principles in mind, when we analyse
Section 432(1) CrPC, it must be held that the power to
suspend or remit any sentence will have to be considered and
ordered with much more care and caution, in particular the
interest of the public at large. In this background, when we
analyse Section 432(1) CrPC, we find that it only refers to the
nature of power available to the appropriate Government as
regards the suspension of sentence or remission to be
granted at any length. Extent of power is one thing and the
procedure to be followed for the exercise of the power is
different thing. There is no indication in Section 432(1) that
such power can be exercised based on any application. What
is not prescribed in the statute cannot be imagined or
inferred. Therefore, when there is no reference to any
application being made by the offender, that cannot be taken
to mean that such power can be exercised by the authority
concerned on its own. More so, when a detailed procedure to
be followed is clearly set out in Section 432(2). It is not as if
by exercising such power under Section 432(1), the
appropriate Government will be involving itself in any great
welfare measures to the public or the society at large. It can
never be held that such power being exercised suo motu any
great development act would be the result. After all, such
exercise of power of suspension or remission is only going to
grant some relief to the offender who has been found to have
committed either a heinous crime or at least a crime affecting
the society at large. Therefore, when in the course of exercise
of larger constitutional powers of similar kind under Articles 72
and 161 of the Constitution it has been opined by this Court to
be exercised with great care and caution, the one exercisable
under a statute, namely, under Section 432(1) CrPC which is
lesser in degree should necessarily be held to be exercisable
in tune with the adjunct provision contained in the same
section. Viewed in that respect, we find that the procedure to
be followed whenever any application for remission is moved,
the safeguard provided under Section 432(2) CrPC should be
the sine qua non for the ultimate power to be exercised under
Section 432(1) CrPC.
149. By following the said procedure prescribed under
Section 432(2), the action of the appropriate Government
is bound to survive and stand the scrutiny of all
concerned, including the judicial forum. It must be
remembered, barring minor offences, in cases involving
heinous crimes like, murder, kidnapping, rape, robbery,
dacoity, etc., and such other offences of such magnitude,
16
the verdict of the trial court is invariably dealt with and
considered by the High Court and in many cases by the
Supreme Court. Thus, having regard to the nature of
opinion to be rendered by the Presiding Officer of the
court concerned will throw much light on the nature of
crime committed, the record of the convict himself, his
background and other relevant factors which will enable
the appropriate Government to take the right decision as
to whether or not suspension or remission of sentence
should be granted. It must also be borne in mind that while
for the exercise of the constitutional power under Articles 72
and 161, the Executive Head will have the benefit of act and
advice of the Council of Ministers, for the exercise of power
under Section 432(1) CrPC, the appropriate Government will
get the valuable opinion of the judicial forum, which will
definitely throw much light on the issue relating to grant of
suspension or remission.
150. Therefore, it can safely be held that the exercise of
power under Section 432(1) should always be based on an
application of the person concerned as provided under
Section 432(2) and after duly following the procedure
prescribed under Section 432(2). We, therefore, fully approve
the declaration of law made by this Court
in Sangeet [Sangeet v. State of Haryana, (2013) 2 SCC 452 :
(2013) 2 SCC (Cri) 611] in para 61 that the power of
appropriate Government under Section 432(1) of the Criminal
Procedure Code cannot be suo motu for the simple reason
that this section is only an enabling provision. We also hold
that such a procedure to be followed under Section
432(2) is mandatory. The manner in which the opinion is
to be rendered by the Presiding Officer can always be
regulated and settled by the High Court concerned and
the Supreme Court by stipulating the required procedure
to be followed as and when any such application is
forwarded by the appropriate Government. We, therefore,
answer the said question to the effect that the suo
motu power of remission cannot be exercised under
Section 432(1), that it can only be initiated based on an
application of the persons convicted as provided under
Section 432(2) and that ultimate order of suspension or
remission should be guided by the opinion to be
rendered by the Presiding Officer of the court
concerned.”
(emphasis supplied)
18. There appears to be a difference of opinion between the High Courts on
whether the opinion of the presiding judge is binding on the government. The
High Court of Judicature at Bombay18 has held that the opinion of the presiding judge
18 Yovehel v. State of Bombay, Crl. Writ Petition No 273 of 2019
17
is binding. The High Court has placed reliance on Sriharan (supra) to arrive at the
following conclusion:
29. The Constitution Bench of the Supreme Court in the case
of Union of India vs. V. Sriharan @ Murugan & Others (supra)
has answered referral questions pertaining to the provisions
of Section 432(2) of Cr.P.C. and held that ultimate order of
suspension or remission should be guided by the opinion to
be rendered by the Presiding Judge of the court concerned
and exercise of the powers under Section 432 (1) of Cr.P.C.
must be in accordance with the procedure as enumerated
under Section 432 (2) of Cr.P.C. In view of the same, to our
mind, seeking opinion of the Presiding Judge of the court or
by which conviction was had or confirmed as to whether the
application filed under Section 432(1) of Cr.P.C. should be
granted or refused, as not an empty formality. It is true that if
we read Section 432 (2) of Cr.P.C. the word “may” is used. If
we consider the said exercise of calling opinion of the
Presiding Judge of the court as merely relevant circumstance,
the object of the said provision will be defeated. It is well
settled that in construing the provisions of the statute, the
court should be slow to adopt the construction which tends to
make any part of the statute meaningless or ineffective. If we
read sub-section (2) of Section 432 of Cr.P.C. as a whole, it
appears that the requirement of seeking opinion of the
Presiding Judge of the Court as to whether the application
filed in terms of Section 432(1) of Cr.P.C. should be granted
or refused. In the language of sub-section (2) of section 432
of Cr.P.C. it is also incumbent upon such Presiding Judge of
the Court to state his opinion together with his reasons for
such opinion.
30. …..For this reason, in our considered opinion, the
Presiding
Judge of the court is best equipped and likely to be more
correct in his view for achieving the purpose and performing
the task satisfactorily. He is an expert in the field and as such
a greater weight to his opinion is required to be attached. It
would be a fallacy to grant remission to the hardened
criminal, who has committed the offence with extreme
brutality etc., by treating the opinion of the Presiding Judge of
the Court as a relevant circumstance without having any
binding effect. We afraid that if the answer to the referral
question No.(iii) is recorded as “relevant circumstances” that
would open floodgates to the authorities to treat it as
“irrelevant circumstances” and grant benefit of remission to
the unscrupulous prisoners.”
19. On the other hand, the High Court of Patna19 has held that the opinion of the
presiding judge is not binding but is only a guiding factor. The High Court observed
19 Ravi Pratap Mishra v. State of Bihar, Crl. Writ Jurisdiction Case No 272 of 2017
18
that the State Sentence Remission Board consists of high-level officials who can
exercise their independent wisdom and are not bound by the opinion of the presiding
judge. The High Court held thus:
“7. Now we may come to the function of the Board. From
what has been noted above, it appears that the Board felt
bound by the opinion of the Judicial Officer, however
irrelevant it may be. Is this stand of the Board correct? In our
view, it is not. Board consists of very high level officials. It
consists of the Law Secretary, the Home Secretary, the
Inspector General of Prison, the District and Sessions Judge,
Patna amongst other officials. It is an independent statutory
body which has to exercise its independent wisdom in
accordance with law. It is not bound by the opinion of any
other person. The opinions of the Jail Superintendent, the
Superintendent of Police, the Probationary Officer, the trial
Judge are guiding factors to enable the Board to come to an
independent opinion. It is not bound by what is said in any
one or all of the opinions. We will not try and illustrate this
inasmuch as the Board having been constituted by senior
responsible officers, they would exercise the power keeping
in view the legislative policy as enacted in Section 432 of Cr P
C in respect of a convict of a heinous offence and who has
served the sentence substantially. It is only such person who
are to be considered for release. The object of the Section is
not to condemn such persons but to ensure that having spent
a substantial period of their sentence, they be permitted to
come back into society. It is only when there is serious
apprehension about their future conduct, serious and
inevitable apprehension about their future conduct upon their
release which is bona fide born out from the records that the
Board would be legitimately justified in refusing to release the
convict otherwise it is not bound by the opinion of the
authorities though, as noted above, they are guiding factors to
be taken into account.”
20. In Sriharan (supra), the Court observed that the opinion of the presiding
judge shines a light on the nature of the crime that has been committed, the
record of the convict, their background and other relevant factors. Crucially, the
Court observed that the opinion of the presiding judge would enable the
government to take the ‘right’ decision as to whether or not the sentence should
be remitted. Hence, it cannot be said that the opinion of the presiding judge is
only a relevant factor, which does not have any determinative effect on the
application for remission. The purpose of the procedural safeguard under Section
19
432 (2) of the CrPC would stand defeated if the opinion of the presiding judge
becomes just another factor that may be taken into consideration by the
government while deciding the application for remission. It is possible then that
the procedure under Section 432 (2) would become a mere formality.
21. However, this is not to say that the appropriate government should
mechanically follow the opinion of the presiding judge. If the opinion of the
presiding judge does not comply with the requirements of Section 432 (2) or if the
judge does not consider the relevant factors for grant of remission that have been
laid down in Laxman Naskar v. Union of India (supra), the government may
request the presiding judge to consider the matter afresh.
22. In the present case, there is nothing to indicate that the presiding judge
took into account the factors which have been laid down in Laxman Naskar v.
Union of India (supra). These factors include assessing (i) whether the offence
affects the society at large; (ii) the probability of the crime being repeated; (iii) the
potential of the convict to commit crimes in future; (iv) if any fruitful purpose is
being served by keeping the convict in prison; and (v) the socio-economic
condition of the convict’s family. In Laxman Naskar v. State of West Bengal
(supra) and State of Haryana v. Jagdish20, this Court has reiterated that these
factors will be considered while deciding the application of a convict for premature release.
23. In his opinion dated 21 July 2021 the Special Judge, Durg referred to the
crime for which the petitioner was convicted and simply stated that in view of the
facts and circumstances of the case it would not be appropriate to grant
20 (2010) 4 SCC 216
20
remission. The opinion is in the teeth of the provisions of Section 432 (2) of the
CrPC which require that the presiding judge’s opinion must be accompanied by
reasons. Halsbury’s Laws of India (Administrative Law) notes that the
requirement to give reasons is satisfied if the concerned authority has provided
relevant reasons. Mechanical reasons are not considered adequate. The
following extract is useful for our consideration:
“[005.066] Adequacy of reasons Sufficiency of reasons, in a
particular case, depends on the facts of each case. It is not
necessary for the authority to write out a judgement as a court
of law does. However, at least, an outline of process of
reasoning must be given. It may satisfy the requirement of
giving reasons if relevant reasons have been given for the
order, though the authority has not set out all the reasons or
some of the reasons which had been argued before the court
have not been expressly considered by the authority. A mere
repetition of the statutory language in the order will not make
the order a reasoned one.
Mechanical and stereotype reasons are not regarded as
adequate. A speaking order is one that speaks of the mind of
the adjudicatory body which passed the order. A reason such
as ’the entire examination of the year 1982 is cancelled’,
cannot be regarded as adequate because the statement does
explain as to why the examination has been cancelled; it only
lays down the punishment without stating the causes
therefor.”21
24. Thus, an opinion accompanied by inadequate reasoning would not satisfy
the requirements of Section 432 (2) of the CrPC. Further, it will not serve the
purpose for which the exercise under Section 432 (2) is to be undertaken, which
is to enable the executive to make an informed decision taking into consideration
all the relevant factors.
25. In view of the above discussion, we hold that the petitioner’s application for
remission should be re-considered. We direct the Special Judge, Durg to provide
an opinion on the application afresh accompanied by adequate reasoning that
21 Halsbury's Laws of India (Administrative Law) (Lexis Nexis, Online Edition).
21
takes into consideration all the relevant factors that govern the grant of remission
as laid down in Laxman Naskar v. Union of India (supra). The Special Judge,
Durg must provide his opinion within a month of the date of the receipt of this
order. We further direct the State of Chhattisgarh to take a final decision on the
petitioner’s application for remission afresh within a month of receiving the
opinion of the Special Judge, Durg.
26. The petition under Article 32 of the Constitution is allowed in the above
terms.
27. Pending application(s), if any, stand disposed of.
……………….…………………………….J
 [Dr Dhananjaya Y Chandrachud]
……….…………………………………….J
 [Aniruddha Bose]
New Delhi
April 22, 2022
22

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