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

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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

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