RAM CHANDER versus THE STATE OF CHHATTISGARH & ANR. on 22 April 2022

[2022] 4 S.C.R. 1103

RAM CHANDER

v.

THE STATE OF CHHATTISGARH & ANR.

(Writ Petition (Crl.) No. 49 of 2022)

APRIL 22, 2022

[DR. DHANANJAYA Y CHANDRACHUD ANDANIRUDDHA BOSE, JJ.]

Code of Criminal Procedure, 1973: s. 432- Power to suspendor remit sentences – Application of a convict for premature release– On completion of 16 years of imprisonment without remission –Value of the Opinion of the Presiding Judge – There is nothing toindicate that the presiding judge took into account the factors forgrant of remission – In his opinion dated 21 July 2021 the SpecialJudge, Durg referred to the crime for which the petitioner wasconvicted and simply stated that in view of the facts andcircumstances of the case it would not be appropriate to grantremission – The opinion is in the teeth of the provisions of Section432 (2) of the CrPC which require that the presiding judge’s opinionmust be accompanied by reasons – Halsbury’s Laws of India(Administrative Law) notes that the requirement to give reasons issatisfied if the concerned authority has provided relevant reasons– Mechanical reasons are not considered adequate – Thus, anopinion accompanied by inadequate reasoning would not satisfythe requirements of Section 432 (2) of the CrPC – Further, it willnot serve the purpose for which the exercise under Section 432 (2)is to be undertaken, which is to enable the executive to make aninformed decision taking into consideration all the relevant factors– Petitioner’s application for remission should be re-considered –Special Judge, Durg to provide an opinion on the application afreshaccompanied by adequate reasoning that takes into considerationall the relevant factors that govern the grant of remission.

Constitution of India, 1950 – Art.32 – Penal Code, 1860 –ss.148,149,302 – Code of Criminal Procedure, 1973 – ss. 432,433A - Chhattishgarh Prisons Rule 1968 - Rule 358- Pre-maturerelease - Remission of sentence - On 7 December 2010, trial courtconvicted the petitioner and other accused for assaulting the

A

B

CD

EF

G

H

Acomplainant and killing his father and brother – Petitioner sentencedto life imprisonment – Sentence confirmed by High Court – Specialleave petition filed by petitioner also got dismissed – Thereafter, oncompletion of 16 years of imprisonment without remission, petitionerapplied for premature release to respondent under Rule 358 ofChhattishgarh Prisons Rule 1968 – As required to be taken u/s.B433 A CrPC, Jail Superintendent sought opinion of the Special Judgeon whether the petitioner can be released on remission - On 2 July2021, the Special Judge gave his opinion - That in view of all thefacts and circumstances of the case, it would not be appropriate toallow remission of the remaining sentence of the petitioner - OpinionCof Law Department also sought – Law Department stated that sincethe presiding judge of the sentencing court has not given a positiveopinion, he cannot be released – Feeling aggrieved, present appealfiled - Held : The purpose of the procedural safeguard u/s 432 (2)of the CrPC would stand defeated if the opinion of the presidingjudge becomes just another factor that may be taken intoDconsideration by the government while deciding the application forremission – It is possible then that the procedure u/s. 432 (2) wouldbecome a mere formality – However, this is not to say that theappropriate government should mechanically follow the opinion ofthe presiding judge – If the opinion of the presiding judge does notEcomply with the requirements of s. 432 (2) or if the judge does notconsider the relevant factors for grant of remission that have beenlaid down in Laxman Naskar v. Union of India the government mayrequest the presiding judge to consider the matter afresh – In thepresent case, there is nothing to indicate that the presiding judgetook into account the factors which have been laid down in LaxmanFNaskar – Thus, an opinion accompanied by inadequate reasoningwould not satisfy the requirements of s. 432 (2) of the CrPC –Further, it will not serve the purpose for which the exercise u/s. 432(2) is to be undertaken, which is to enable the executive to make aninformed decision taking into consideration all the relevant factorsG– Hence, the petitioner’s application for remission should be re-considered – Special Judge is directed to provide an opinion on theapplication afresh accompanied by adequate reasoning that takesinto consideration all the relevant factors that govern the grant ofremission as laid down in Laxman Naskar.

HPower of Remission - Judicial Review - Discussed.

Allowing the writ petition, the Court

HELD: 1. While a discretion vests with the government tosuspend or remit the sentence, the executive power cannot beexercised arbitrarily. The prerogative of the executive is subjectto the rule of law and fairness in state action embodied in Article14 of the Constitution. The power of remission cannot beexercised arbitrarily. The decision to grant remission should beinformed, fair and reasonable. [Para 12][1116-B-C]

2. While the court can review the decision of thegovernment to determine whether it was arbitrary, it cannot usurpthe power of the government and grant remission itself. Wherethe exercise of power by the executive is found to be arbitrary,the authorities may be directed to consider the case of the convictafresh. The Court has the power to review the decision of thegovernment regarding the acceptance or rejection of anapplication for remission under Section 432 of the CrPC todetermine whether the decision is arbitrary in nature. The Courtis empowered to direct the government to reconsider itsdecision. [Paras 13 and 14][1116-F-G; 1120-A-B]

3. Sub-section (2) of Section 432 of the CrPC provides thatthe appropriate government may take the opinion of the presidingjudge of the court before or by which the person making anapplication for remission has been convicted on whether theapplication should be allowed or rejected, together with thereasons for such opinion. [Para 15][1120-B-C]

4. There appears to be a difference of opinion between theHigh Courts on whether the opinion of the presiding judge isbinding on the government. The High Court of Judicature atBombay has held that the opinion of the presiding judge is binding.[Para 18][1123-F-G]

5. On the other hand, the High Court of Patna has held thatthe opinion of the presiding judge is not binding but is only aguiding factor. The High Court observed that the State Sentence A

B

C

D

E

F

G

H

ARemission Board consists of high-level officials who can exercisetheir independent wisdom and are not bound by the opinion ofthe presiding judge. [Para 19][1124-H; 1125-A]

6. In Sriharan, the Court observed that the opinion of thepresiding judge shines a light on the nature of the crime that hasBbeen committed, the record of the convict, their background andother relevant factors. Crucially, the Court observed that theopinion of the presiding judge would enable the government totake the ‘right’ decision as to whether or not the sentence shouldbe remitted. Hence, it cannot be said that the opinion of thepresiding judge is only a relevant factor, which does not have anyCdeterminative effect on the application for remission. The purposeof the procedural safeguard under Section 432 (2) of the CrPCwould stand defeated if the opinion of the presiding judge becomesjust another factor that may be taken into consideration by thegovernment while deciding the application for remission. It isDpossible then that the procedure under Section 432 (2) wouldbecome a mere formality. However, this is not to say that theappropriate government should mechanically follow the opinionof the presiding judge. If the opinion of the presiding judge doesnot comply with the requirements of Section 432 (2) or if thejudge does not consider the relevant factors for grant of remissionEthat have been laid down in Laxman Naskar v. Union of India’scase, the government may request the presiding judge to considerthe matter afresh. [Paras 20 and 21][1125-G-H; 1126-A-C]

7. In the instant case, there is nothing to indicate that thepresiding judge took into account the factors which have beenFlaid down in Laxman Naskar v. Union of India’s case. These factorsinclude assessing (i) whether the offence affects the society atlarge; (ii) the probability of the crime being repeated; (iii) thepotential of the convict to commit crimes in future; (iv) if anyfruitful purpose is being served bykeeping the convict in prison;Gand (v) the socio-economic condition of the convict’s family. Thesefactors would be considered while deciding the application of aconvict for premature release. [Para 22][1126-C-E]

State of Haryana v. Jagdish (2010) 4 SCC 216 : [2010]3 SCR 716; Laxman Naskar v. State of West Bengal(2000) 7 SCC 626 : [2000] 3 Suppl. SCR 62 – reliedon.

8. In his opinion dated 21 July 2021 the Special Judge,referred to the crime for which the petitioner was convicted andsimply stated that in view of the facts and circumstances of thecase it would not be appropriate to grant remission. The opinionis in the teeth of the provisions of Section 432 (2) CrPC whichrequire that the presiding judge’s opinion must be accompaniedby reasons. The requirement to give reasons is satisfied if theconcerned authority has provided relevant reasons. Mechanicalreasons are not considered adequate. Thus, an opinionaccompanied by inadequate reasoning would not satisfy therequirements of Section 432 (2) CrPC. Further, it would not servethe purpose for which the exercise under Section 432 (2) is to beundertaken, which is to enable the executive to make an informeddecision taking into consideration all the relevant factors.[Paras 23 and 24][1126-F-G; 1127-D]

Halsbury’s Laws of India (Administrative Law) (LexisNexis, Online Edition) – referred to.

9. The petitioner’s application for remission should be re-considered. The Special Judge is directed to provide an opinionon the application afresh accompanied by adequate reasoning thattakes into consideration all the relevant factors that govern thegrant of remission as laid down in Laxman Naskar v. Union ofIndia. [Para 25][1127-E-F]

Union of India v. Sriharan @ Murugan (2014) 4 SCC242 : [2014] 1 SCR 1093; Sangeet v. State of Haryana(2013) 2 SCC 452 : [2012] 13 SCR 85; State ofHaryana v. Mohinder Singh (2000) 3 SCC 394 : [2000]1SCR 698; Bhagwat Saran v. State of UP 1983 (1) SCC389; Yoshevel v. State of Bombay Crl. Writ Petition No273 of 2019; Union of India v. Sriharan (2016) 7 SCC1 : [2015] 14 SCR 613; State of Madhya Pradesh v.

A

B

C

D

E

F

G

H

ARatan Singh (1976) 3 SCC 470 : [1976] 0 Suppl. SCR552; Rajan v. Home Secretary, Home Department ofTamil Nadu (2019) 14 SCC 114 : [2019] 6 SCR 1035 –referred to.

Case Law Reference

CRIMINAL ORIGINAL JURISDICTION: Writ Petition (Crl)No. 49 of 2022.

E(UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA)

Mohd. Irshad Hanif, Rizwan Ahmad, Mujahid Ahmed, A. R.Siddiqui, Paras Nath Singh, Advs. for the Petitioner.

Sumeer Sodhi, Gaurav Arora, Advs. for the Respondents.FThe Judgment of the Court was delivered by DR. DHANANJAYA Y CHANDRACHUD, J.

1. The petition under Article 32 of the Constitution has beeninstituted by a convict, who is undergoing a sentence of imprisonmentGfor life upon being convicted for the commission of offences punishable,inter alia, under Section 302 read with Section 149 of the Indian PenalCode[1]. He seeks the issuance of a writ directing the first respondent togrant him pre-mature release. The factual background has been set outbelow.

H1 “IPC“

Factual Background

2. The petitioner and co-accused came in a tractor carrying deadlyweapons and assaulted the complainant and killed his father and brother,when they were sitting near a village pond along with other villagers.The cause of the enmity between the parties was the confiscation ofshisham wood belonging to one of the co-accused by the forestdepartment and the damage caused to his motorcycle and tractor, forwhich the accused persons suspected the complainant and his family.The trial court[2] convicted the petitioner and the other accused on 7December 2010. The petitioner was convicted of offences under Sections147, 148, 302/149 and 324/149 of the IPC and sentenced to lifeimprisonment. While a charge was also framed under Section 3(2) (5)of the Scheduled Castes and Tribes Act 1989 since the complainant andhis family belonged to a Scheduled Caste, the trial court acquitted all theaccused of the charge because no evidence was found to show that thecomplainant or the deceased were humiliated or intimidated on the basisof their caste. The sentence was confirmed by the High Court ofChhattisgarh[3] on 10 May 2013. Aggrieved by the judgement of the HighCourt, the petitioner preferred a special leave petition[4] before this Courtwhich was dismissed.

3. On 25 September 2021, the petitioner completed 16 years ofimprisonment without remission and submitted an application forpremature release to the respondent under Rule 358 of the ChhattisgarhPrisons Rule 1968[5]. Rule 358 provides thus:

“Rule 358 – Premature Release of Prisoners Sentenced toLife Imprisonment

…….

(3) (A). The matter of every male or female prisoner who is servinga sentence of life imprisonment after 17[th] December, 1978 andwho are convicted under the punishable offences under Section121, 132, 302, 307 and 396 of IPC or under any other criminallaws, in which capital punishment is one of the sentences, shall be 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”

A

B

C

D

E

F

G

H

SUPREME COURT REPORTS

taken into consideration for him/her premature release from thejail with this condition where such convict has completed the periodof imprisonment of 14 years necessary sentence of imprisonmentwithout remission subject to the consideration of such prisonersshall not be prohibited under legal provisions.

A

(B) The matter to premature release of all other male prisonersserving the sentence of life imprisonment shall only be taken intoconsideration only in that condition if they have spent the periodof minimum 14 years imprisonment without remission and if theyhave completed actual imprisonment of 10 years without remission.

B

C…..

(D) The matter to premature release of all such prisoners servingthe sentence of life imprisonment shall only be taken intoconsideration only in that condition if they have attained the ageof 65 years and if they have completed actual imprisonment of 7Dyears without remission. “

4. The State Government is empowered under Section 432 of theCode of Criminal Procedure[6] to suspend or remit sentences. Sub-section(2) of Section 432 provides that the appropriate government may takethe opinion of the presiding judge of the court before or by which theEperson making an application for remission has been convicted on whetherthe application should be allowed or rejected, together with the reasonsfor such opinion. Sub-section (2) of Section 432 reads thus:

“Section 432- Power to suspend or remit sentences.

….F

(2) Whenever an application is made to the appropriateGovernment for the suspension or remission of a sentence, theappropriate Government may require the presiding Judge of theCourt before or by which the conviction was had or confirmed, tostate his opinion as to whether the application should be grantedGor refused, together with his reasons for such opinion and also toforward with the statement of such opinion a certified copy of therecord of the trial or of such record thereof as exists.

….”

5. Section 433-A of the CrPC lays down the restriction on powersof remission in the following terms:

“433A. Restriction on powers of remission or commutationin certain cases.-Notwithstanding anything contained in section432, where a sentence of imprisonment for life is imposed onconviction of a person for an offence for which death is one ofthe punishments provided by law, or where a sentence of deathimposed on a person has been commuted under section 433 intoone of imprisonment for life, such person shall not be releasedfrom prison unless he had served at least fourteen years ofimprisonment.”

6. By a letter dated 1 May 2021, the Jail Superintendent of theCentral Jail at Durg sought the opinion of the Special Judge, Durg onwhether the petitioner can be released on remission. On 2 July 2021, theSpecial Judge gave his opinion that in view of all the facts andcircumstances of the case, it would not be appropriate to allow remissionof the remaining sentence of the petitioner. The relevant portions of theletter 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 CaseNo. 16/2006 “State Vs. Anil & Ors.” under Section 147, 148,302/ 149, 302/ 149, 307/149 and 3 (2) (5) Scheduled CasteSchedule Tribe, (Prevention of Corruption) Act. AccusedRamchander son of Khajaan Singh alongwith 8 other co-accusedpersons has assembled against the law and by using deadlyweapons sword, axe, wooden stick (Danda), has killed Kartikramand Puneet, in relation to this case the accused is undergoingimprisonment.

Then in this situation keeping in view all the facts andcircumstances, it does not seem appropriate to allow remission ofthe remaining sentence of the above prisoner, therefore notrecommending for the same.”

7. The application for remission of the petitioner, along with theopinion of the Special Judge, was forwarded to the Director General,Jail and Correctional services. On 30 September 2021, the DirectorGeneral presented the case of the petitioner to the Home Department,Government of Chhattisgarh by a letter addressed to the Additional Chief AB

C

D

E

F

G

H

ASecretary, Jail Department. Thereafter, the Jail Department in a notesheet dated 6 October 2021 forwarded the case of the petitioner to theLaw Department of the State Government. The Under Secretary of theLaw Department shared his opinion through a note sheet dated 27November 2021 stating that the petitioner cannot be given the benefit ofthe provisions of Section 433-A CrPC because the presiding judge opinedBagainst releasing the petitioner on remission.

8. On 2 March 2022. the Director General, Jail and CorrectionalServices again forwarded the case of the petitioner to the AdditionalChief Secretary, Jail Department to be considered for remission sincethe petitioner had completed 20 years of imprisonment with remission.CThe Jail Department sought the opinion of the Law Department, whichstated that since the presiding judge of the sentencing court has notgiven a positive opinion with regard to the release of the petitioner, hecannot be released.

Submissions of CounselD

9. Mr MD Irshad Hanif, counsel appearing on behalf of thepetitioner, made the following submissions:

(i) A convict-prisoner can be considered for pre-mature releaseunder Section 433-A of the CrPC after the completion ofE14 years even without the consent of the presiding judge ofthe sentencing court;

(ii) Under Section 432 (2) of the CrPC, the appropriateGovernment has the discretion to seek the opinion of thepresiding judge of the sentencing court; F(iii)There is absence of clarity in Section 432(2) of the CrPCto indicate whether the presiding judge whose opinion is tobe sought should be the same as the judge who recordedthe conviction since he would not have observed the conductof the accused-convict during the trial; G(iv)The petitioner is entitled to be considered for pre-maturerelease under Rule 358 (3) (A), (B) and (D) of the PrisonRules;

(v) While the government is bound to seek the opinion of thesentencing court under Section 432 (2) of the CrPC, it isHnot bound by the opinion itself. The decision of this Court in Union of India v. Sriharan @ Murugan[7] is indicative inthis regard; A

(vi) In Sangeet v. State of Haryana[8], this Court has held thatthe opinion of the presiding judge of the sentencing courtmust be accompanied by reasons; B

(vii) In State of Haryana v. Mohinder Singh[9], this Court hasheld that the power of remission cannot be exercisedarbitrarily. The decision to grant remission should beinformed, fair and reasonable;

(viii) The presiding judge has simply stated in his opinion that inCview of all the facts and circumstances, it is not appropriateto allow the application of remission. There is nothing toindicate that the judge took into consideration the followingthree factors to grant remission – (i) antecedents of thepetitioner; (ii) conduct of the petitioner in prison; and (iii)the likelihood of the petitioner committing a crime if released.DIn Bhagwat Saran v. State of UP[10], this Court has heldthat a “bald statement without any attempt to indicate howlaw and order is likely to be adversely affected by theirrelease cannot be accepted”; D

(ix) The policy applicable at the time of conviction must beconsidered for deciding the application of pre-mature releasein terms of the decision of this Court in State of Haryanav. Jagdish[11]. Thus, the rules as applicable at the time ofpetitioner’s conviction in 2010 would be applicable forconsidering his application for remission; and E

F

(x) In Laxman Naskar v. Union of India[12], this Court laiddown that the following factors must be reported by thepolice in respect of the grant of pre-mature release:

(a) Whether the offence is an individual act of crimethat does not affect the society; G

7 (2014) 4 SCC 2428 (2013) 2 SCC 4529 (2000) 3 SCC 39410 Writ Petition (Criminal) Nos. 1145-1149 of 1982 dated 6 December 198211 (2010) 4 SCC 21612 (2000) 2 SCC 595

H

A(b)Whether there is a chance of the crime being repeatedin future;

(c) Whether the convict has lost the potentiality to commitcrime; (d)Whether any purpose is being served in keeping theBconvict in prison; and (e)Socio-economic conditions of the convict’s family.

10. Mr Sumeer Sodhi, counsel appearing on behalf of therespondents, made the following submissions:

C(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 Bombay[13] has held thatthe opinion given by the presiding judge in terms of SectionD432(2) of the CrPC is binding on the government;

(iii) In Union of India v. Sriharan[14], this Court has held thatthe ultimate order of suspension or remission should beguided by the opinion of the presiding officer of the sentencingcourt and that a convict does not have a right to remission,but only a right to claim remission; andE

(iv) In State of Madhya Pradesh v. Ratan Singh[15], this Courthas held that the government has the sole discretion to remitor refuse to remit the sentence of the convict. No writ canbe issued to the government to release the prisoner. Thedecisions of this Court in Rajan v. Home Secretary, HomeFDepartment of Tamil Nadu[16] and Sriharan (supra) upholdthe same principle.

Analysis

A. Judicial Review of the Power of RemissionG11. The respondents submit that the appropriate government hasthe absolute discretion to decide whether the application for remission 13 Yoshevel v. State of Bombay, Crl. Writ Petition No 273 of 201914 (2016) 7 SCC 1; “Sriharan“15 (1976) 3 SCC 470H16 (2019) 14 SCC 114

should be allowed. Indeed, in Ratan Singh (supra), this Court hasobserved that the State has an undoubted discretion to remit or refuse toremit the sentence and no writ can be issued to direct the StateGovernment to release the petitioner. The Court was interpreting Section401 of the Code of Criminal Procedure 1898, which corresponds toSection 432 of the CrPC. Section 401 empowered the appropriategovernment to remit the whole or any part of the punishment sentence.The Court while summarizing the propositions that govern the exerciseof the power of the remission, observed:

“9. From a review of the authorities and the statutory provisionsof the Code of Criminal Procedure the following propositionsemerge:

“(1) that a sentence of imprisonment for life does not automaticallyexpire at the end of 20 years including the remissions, becausethe administrative rules framed under the various Jail Manuals orunder the Prisons Act cannot supersede the statutory provisionsof the Penal Code, 1860. A sentence of imprisonment for lifemeans a sentence for the entire life of the prisoner unless theappropriate Government chooses to exercise its discretion to remiteither the whole or a part of the sentence under Section 401 ofthe Code of Criminal Procedure;

(2) that the appropriate Government has the undoubteddiscretion to remit or refuse to remit the sentence andwhere it refuses to remit the sentence no writ can be issueddirecting the State Government to release the prisoner;

(3) that the appropriate Government which is empowered to grantremission under Section 401 of the Code of Criminal Procedure isthe Government of the State where the prisoner has been convictedand sentenced, that is to say, the transferor State and not thetransferee State where the prisoner may have been transferredat his instance under the Transfer of Prisoners Act; and

(4) that where the transferee State feels that the accused hascompleted a period of 20 years it has merely to forward the requestof the prisoner to the concerned State Government, that is to say,the Government of the State where the prisoner was convictedand sentenced and even if this request is rejected by the State A

B

C

D

E

F

G

H

1116SUPREME COURT REPORTS

AGovernment the order of the Government cannot be interferedwith by a High Court in its writ jurisdiction.”

12. While a discretion vests with the government to suspend orremit the sentence, the executive power cannot be exercised arbitrarily.BThe prerogative of the executive is subject to the rule of law and fairnessin state action embodied in Article 14 of the Constitution. In MohinderSingh(supra), this Court has held that the power of remission cannot beexercised arbitrarily. The decision to grant remission should be informed,fair and reasonable. The Court held thus:C“9. The circular granting remission is authorized under the law. Itprescribes limitations both as regards the prisoners who are eligibleand those who have been excluded. Conditions for remission ofsentence to the prisoners who are eligible are also prescribed bythe circular. Prisoners have no absolute right for remission of theirDsentence unless except what is prescribed by law and the circularissued thereunder. That special remission shall not apply to aprisoner convicted of a particular offence can certainly be arelevant consideration for the State Government not to exercisepower of remission in that case. Power of remission, however,cannot be exercised arbitrarily. Decision to grant remission has toEbe well informed, reasonable and fair to all concerned.”In Sangeet (supra), this Court reiterated the principle that thepower of remission cannot be exercised arbitrarily by relying on thedecision in Mohinder (supra).

F13. While the court can review the decision of the government todetermine whether it was arbitrary, it cannot usurp the power of thegovernment and grant remission itself. Where the exercise of power bythe executive is found to be arbitrary, the authorities may be directed toconsider the case of the convict afresh.

GIn Laxman Naskar v. State of West Bengal[17], while the jailauthorities were in favour of releasing the petitioner, the review committeeconstituted by the government recommended the rejection of the claimfor premature release on the grounds that (i) the two witnesses who haddeposed during the trial and people of the locality were apprehensive H17 (2000) 7 SCC 626

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 acrime; and (iii) the crime had occurred in relation to a political feudwhich affected the society at large. The Court while placing reliance onLaxman Naskar v. Union of India (supra) stipulated the factors thatgovern the grant of remission, namely:

“6…(i) Whether the offence is an individual act of crime withoutaffecting the society at large.

(ii) Whether there is any chance of future recurrence of committingcrime.

(iii) Whether the convict has lost his potentiality in committingcrime.

(iv) Whether there is any fruitful purpose of confining this convictany more.

(v) Socio-economic condition of the convict’s family.”

Based on the above factors, the Court found that the government’sdecision to reject the claim of remission was based on reasons that wereirrelevant or devoid of substance. The Court quashed the order of thegovernment and directed it to decide the matter afresh. The Court heldthus:

“8. If we look at the reasons given by the Government, we areafraid that the same are palpably irrelevant or devoid of substance.Firstly, the views of the witnesses who had been examined in thecase or the persons in the locality cannot determine whether thepetitioner would be a danger if prematurely released because thepersons in the locality and the witnesses may still live in the pastand their memories are being relied upon without reference to thepresent and the report of the jail authorities to the effect that thepetitioner has reformed himself to a large extent. Secondly, byreason of one’s age one cannot say whether the convict has stillpotentiality of committing the crime or not, but it depends on hisattitude to matters, which is not being taken note of by theGovernment. Lastly, the suggestion that the incident is not anindividual act of crime but a sequel of the political feud affectingsociety at large, whether his political views have been changed orstill carries the same so as to commit crime has not been examinedby the Government.

A

B

C

D

E

F

G

H

A9. On the basis of the grounds stated above the Government couldnot have rejected the claim made by the petitioner. In thecircumstances, we quash the order made by the Government andremit the matter to it again to examine the case of the petitioner inthe light of what has been stated by this Court earlier and ourcomments made in this order as to the grounds upon which theBGovernment refused to act on the report of the jail authorities andalso to take note of the change in the law by enacting the WestBengal Correctional Services Act 32 of 1992 and to decide thematter afresh within a period of three months from today. Thewrit petition is allowed accordingly. After issuing rule the same isCmade absolute.”

A

14. In Rajan (supra), the court observed that while the grant ofremission is the exclusive prerogative of the executive and the courtcannot supplant its view, the Court can direct the authorities to re-considerthe representation of the convict. The Court made the followingDobservations:

“18. The petitioner would, however, rely on the unreported decisionof this Court in Ram Sewak [Ram Sewak v. State of U.P., 2018SCC OnLine SC 2012] , to contend that this Court may direct theauthorities to release the petitioner forthwith and that there is noEpoint in directing further consideration by the State as the petitionerhad already undergone over 30 years of sentence and withremission, over 36 years. The order passed by this Court in RamSewak [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 iswell settled by now that grant or non-grant of remission isFthe prerogative to be exercised by the competent authorityand it is not for the court to supplant that procedure. Indeed,grant of premature release is not a matter of privilege butis the power coupled with duty conferred on the appropriateGovernment in terms of Sections 432 and 433 CrPC, to beGexercised by the competent authority after taking intoaccount all the relevant factors, such as it would notundermine the nature of crime committed and the impactof the remission that may be the concern of the society aswell as the concern of the State Government.

H…..

H…..

20. Thus understood, we cannot countenance the reliefclaimed by the petitioner to direct the respondents torelease the petitioner forthwith or to direct the respondentsto remit the remaining sentence and release the petitioner.The petitioner, at best, is entitled to the relief of havingdirections issued to the respondents to consider hisrepresentation dated 5-2-2018, expeditiously, on its ownmerits and in accordance with law. We may not be understoodto have expressed any opinion either way on the merits of theclaim of the petitioner. The fact that the petitioner’s request forpremature release was already considered once and rejected bythe Advisory Board of the State Government, in our opinion, oughtnot to come in the way of the petitioner for consideration of hisfresh representation made on 5-2-2018. We say so because theopinion of the Advisory Board merely refers to the negativerecommendation of the Probation Officer, Madurai and the DistrictCollector, Madurai. The additional reason stated by the StateGovernment seems to be as follows:

“(4) The proceedings of the Advisory Board held on 20-1-2010is as follows:

(i) The case is heard and examined the relevant records. Theaccused is a Srilankan National and lodged at Special Camp atChengalpet 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 ‘Not-Recommended’.

(5) The Government after careful examination accept therecommendation of the Advisory Board, Vellore and the prematurerelease of Life Convict No. 23736, Rajan, s/o Robin, confined inCentral Prison, Vellore is hereby rejected.”

With the passage of time, however, the situation may haveundergone a change and, particularly, because now the claim ofthe petitioner for premature release will have to be consideredonly in reference to the sentence of life imprisonment awarded tohim for the offences under Section 302 (3 counts) and Section307 (4 counts) of IPC, respectively.”

A

B

C

D

E

F

G

H

The above discussion makes it clear that the Court has the powerto review the decision of the government regarding the acceptance orrejection of an application for remission under Section 432 of the CrPCto determine whether the decision is arbitrary in nature. The Court isempowered to direct the government to reconsider its decision.

A

BB. The Value of the Opinion of the Presiding Judge

15. Sub-section (2) of Section 432 of the CrPC provides that theappropriate government may take the opinion of the presiding judge ofthe court before or by which the person making an application forremission has been convicted on whether the application should be allowedCor rejected, together with the reasons for such opinion.

16. In Sangeet (supra), the Court held that sub-sections (2) to (5)of Section 432 lay down procedural safeguards to check arbitraryremissions. The Court observed that the government is required toapproach the presiding judge of the court to opine on the application forremission. The Court observed thus:D

“61. It appears to us that an exercise of power by the appropriateGovernment under sub-section (1) of Section 432 CrPC cannotbe suo motu for the simple reason that this sub-section is only anenabling provision. The appropriate Government is enabled to“override” a judicially pronounced sentence, subject to thefulfilment of certain conditions. Those conditions are found eitherin the Jail Manual or in statutory rules. Sub-section (1) of Section432 CrPC cannot be read to enable the appropriate Governmentto “further override” the judicial pronouncement over and abovewhat is permitted by the Jail Manual or the statutory rules. Theprocess of granting “additional” remission under this section is setinto motion in a case only through an application for remission bythe convict or on his behalf. On such an application being made,the appropriate Government is required to approach the PresidingJudge of the court before or by which the conviction was made orconfirmed to opine (with reasons) whether the application shouldbe granted or refused. Thereafter, the appropriate Governmentmay take a decision on the remission application and pass ordersgranting remission subject to some conditions, or refusing remission.Apart from anything else, this statutory procedure seems quitereasonable inasmuch as there is an application of mind to theissue of grant of remission. It also eliminates “discretionary” or E

F

G

H

en masse release of convicts on “festive” occasions since eachrelease requires a case-by-case basis scrutiny.

“62. It must be remembered in this context that it was held inState of Haryana v. Mohinder Singh [(2000) 3 SCC 394 : 2000SCC (Cri) 645] that the power of remission cannot be exercisedarbitrarily. The decision to grant remission has to be well informed,reasonable and fair to all concerned. The statutory procedure laiddown in Section 432 CrPC does provide this check on the possiblemisuse of power by the appropriate Government.”

17. In Sriharan (supra) a Constitution Bench of this Court heldthat the procedure stipulated in Section 432(2) is mandatory. The Courtdid not specifically hold that the opinion of the presiding judge would bebinding, but it held that the decision of the government on remissionshould be guided by the opinion of the presiding officer of the concernedcourt. The Court had framed the following question:

“143..Whether suo motu exercise of power of remission underSection 432(1) is permissible in the scheme of the section, if yes,whether the procedure prescribed in sub-section (2) of the samesection is mandatory or not?”

Answering the above question, the Court held as follows:

“148. Keeping the above principles in mind, when we analyseSection 432(1) CrPC, it must be held that the power to suspend orremit any sentence will have to be considered and ordered withmuch more care and caution, in particular the interest of the publicat large. In this background, when we analyse Section 432(1)CrPC, we find that it only refers to the nature of power availableto the appropriate Government as regards the suspension ofsentence or remission to be granted at any length. Extent of poweris one thing and the procedure to be followed for the exercise ofthe power is different thing. There is no indication in Section 432(1)that such power can be exercised based on any application. Whatis not prescribed in the statute cannot be imagined or inferred.Therefore, when there is no reference to any application beingmade by the offender, that cannot be taken to mean that suchpower can be exercised by the authority concerned on its own.More so, when a detailed procedure to be followed is clearly setout in Section 432(2). It is not as if by exercising such power A

B

C

D

E

F

G

H

A

B

C

D

E

F

G

H

A

B

C

D

E

F

G

H

under Section 432(1), the appropriate Government will be involvingitself in any great welfare measures to the public or the society atlarge. It can never be held that such power being exercised suomotu any great development act would be the result. After all,such exercise of power of suspension or remission is only goingto grant some relief to the offender who has been found to havecommitted either a heinous crime or at least a crime affecting thesociety at large. Therefore, when in the course of exercise oflarger constitutional powers of similar kind under Articles 72 and161 of the Constitution it has been opined by this Court to beexercised with great care and caution, the one exercisable undera statute, namely, under Section 432(1) CrPC which is lesser indegree should necessarily be held to be exercisable in tune withthe adjunct provision contained in the same section. Viewed inthat respect, we find that the procedure to be followed wheneverany application for remission is moved, the safeguard providedunder Section 432(2) CrPC should be the sine qua non for theultimate power to be exercised under Section 432(1) CrPC.

149. By following the said procedure prescribed underSection 432(2), the action of the appropriate Governmentis 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 crimeslike, murder, kidnapping, rape, robbery, dacoity, etc., andsuch other offences of such magnitude, the verdict of thetrial court is invariably dealt with and considered by theHigh Court and in many cases by the Supreme Court.Thus,having regard to the nature of opinion to be rendered bythe Presiding Officer of the court concerned will throw muchlight on the nature of crime committed, the record of theconvict himself, his background and other relevant factorswhich will enable the appropriate Government to take theright decision as to whether or not suspension or remissionof sentence should be granted. It must also be borne in mindthat while for the exercise of the constitutional power under Articles72 and 161, the Executive Head will have the benefit of act andadvice of the Council of Ministers, for the exercise of power underSection 432(1) CrPC, the appropriate Government will get the valuable opinion of the judicial forum, which will definitely throwmuch light on the issue relating to grant of suspension or remission.

150. Therefore, it can safely be held that the exercise of powerunder Section 432(1) should always be based on an application ofthe person concerned as provided under Section 432(2) and afterduly following the procedure prescribed under Section 432(2).We, therefore, fully approve the declaration of law made by thisCourt in Sangeet [Sangeet v. State of Haryana, (2013) 2 SCC452 : (2013) 2 SCC (Cri) 611] in para 61 that the power ofappropriate Government under Section 432(1) of the CriminalProcedure Code cannot be suo motu for the simple reason thatthis section is only an enabling provision. We also hold that sucha procedure to be followed under Section 432(2) ismandatory. The manner in which the opinion is to berendered by the Presiding Officer can always be regulatedand settled by the High Court concerned and the SupremeCourt by stipulating the required procedure to be followedas and when any such application is forwarded by theappropriate Government. We, therefore, answer the saidquestion to the effect that the suo motu power of remissioncannot be exercised under Section 432(1), that it can onlybe initiated based on an application of the persons convictedas provided under Section 432(2) and that ultimate orderof suspension or remission should be guided by the opinionto be rendered by the Presiding Officer of the courtconcerned.”

18. There appears to be a difference of opinion between the HighCourts on whether the opinion of the presiding judge is binding on thegovernment. The High Court of Judicature at Bombay[18] has held thatthe opinion of the presiding judge is binding. The High Court has placedreliance on Sriharan (supra) to arrive at the following conclusion:

29. The Constitution Bench of the Supreme Court in the case ofUnion of India vs. V. Sriharan @ Murugan & Others (supra) hasanswered referral questions pertaining to the provisions of Section432(2) of Cr.P.C. and held that ultimate order of suspension orremission should be guided by the opinion to be rendered by the 18 Yovehel v. State of Bombay, Crl. Writ Petition No 273 of 2019

AB

C

DE

F

G

H

SUPREME COURT REPORTS

A

APresiding Judge of the court concerned and exercise of the powersunder Section 432 (1) of Cr.P.C. must be in accordance with theprocedure as enumerated under Section 432 (2) of Cr.P.C. Inview of the same, to our mind, seeking opinion of the PresidingJudge of the court or by which conviction was had or confirmedas to whether the application filed under Section 432(1) of Cr.P.C.Bshould be granted or refused, as not an empty formality. It is truethat if we read Section 432 (2) of Cr.P.C. the word “may” isused. If we consider the said exercise of calling opinion of thePresiding Judge of the court as merely relevant circumstance, theobject of the said provision will be defeated. It is well settled thatCin construing the provisions of the statute, the court should beslow to adopt the construction which tends to make any part ofthe statute meaningless or ineffective. If we read sub-section (2)of Section 432 of Cr.P.C. as a whole, it appears that therequirement of seeking opinion of the Presiding Judge of the CourtDas to whether the application filed in terms of Section 432(1) ofCr.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 uponsuch Presiding Judge of the Court to state his opinion togetherwith his reasons for such opinion.

E…

30. …..For this reason, in our considered opinion, the Presiding Judge of the court is best equipped and likely to be more correctin his view for achieving the purpose and performing the tasksatisfactorily. He is an expert in the field and as such a greaterFweight to his opinion is required to be attached. It would be afallacy to grant remission to the hardened criminal, who hascommitted the offence with extreme brutality etc., by treating theopinion of the Presiding Judge of the Court as a relevantcircumstance without having any binding effect. We afraid that ifthe answer to the referral question No.(iii) is recorded as “relevantGcircumstances” that would open floodgates to the authorities totreat it as “irrelevant circumstances” and grant benefit of remissionto the unscrupulous prisoners.”

19. On the other hand, the High Court of Patna[19] has held that theopinion of the presiding judge is not binding but is only a guiding factor.HThe High Court observed that the State Sentence Remission Board consists of high-level officials who can exercise their independent wisdomand are not bound by the opinion of the presiding judge. The High Courtheld thus:

“7. Now we may come to the function of the Board. From whathas been noted above, it appears that the Board felt bound by theopinion of the Judicial Officer, however irrelevant it may be. Isthis stand of the Board correct? In our view, it is not. Board consistsof very high level officials. It consists of the Law Secretary, theHome Secretary, the Inspector General of Prison, the Districtand Sessions Judge, Patna amongst other officials. It is anindependent statutory body which has to exercise its independentwisdom in accordance with law. It is not bound by the opinion ofany other person. The opinions of the Jail Superintendent, theSuperintendent of Police, the Probationary Officer, the trial Judgeare guiding factors to enable the Board to come to an independentopinion. It is not bound by what is said in any one or all of theopinions. We will not try and illustrate this inasmuch as the Boardhaving been constituted by senior responsible officers, they wouldexercise the power keeping in view the legislative policy as enactedin Section 432 of Cr P C in respect of a convict of a heinousoffence and who has served the sentence substantially. It is onlysuch person who are to be considered for release. The object ofthe Section is not to condemn such persons but to ensure thathaving spent a substantial period of their sentence, they bepermitted to come back into society. It is only when there is seriousapprehension about their future conduct, serious and inevitableapprehension about their future conduct upon their release whichis bona fide born out from the records that the Board would belegitimately justified in refusing to release the convict otherwise itis not bound by the opinion of the authorities though, as notedabove, they are guiding factors to be taken into account.”

20. In Sriharan (supra), the Court observed that the opinion ofthe presiding judge shines a light on the nature of the crime that has beencommitted, the record of the convict, their background and other relevantfactors. Crucially, the Court observed that the opinion of the presidingjudge would enable the government to take the ‘right’ decision as towhether or not the sentence should be remitted. Hence, it cannot be saidthat the opinion of the presiding judge is only a relevant factor, which 19 Ravi Pratap Mishra v. State of Bihar, Crl. Writ Jurisdiction Case No 272 of 2017

ABC

D

EF

G

H

Adoes not have any determinative effect on the application for remission.The purpose of the procedural safeguard under Section 432 (2) of theCrPC would stand defeated if the opinion of the presiding judge becomesjust another factor that may be taken into consideration by the governmentwhile deciding the application for remission. It is possible then that theprocedure under Section 432 (2) would become a mere formality.B

21. However, this is not to say that the appropriate governmentshould mechanically follow the opinion of the presiding judge. If theopinion of the presiding judge does not comply with the requirements ofSection 432 (2) or if the judge does not consider the relevant factors forgrant of remission that have been laid down in Laxman Naskar v. UnionCof India (supra), the government may request the presiding judge toconsider the matter afresh.

22. In the present case, there is nothing to indicate that the presidingjudge took into account the factors which have been laid down in LaxmanNaskar v. Union of India (supra). These factors include assessing (i)Dwhether the offence affects the society at large; (ii) the probability ofthe crime being repeated; (iii) the potential of the convict to commitcrimes in future; (iv) if any fruitful purpose is being served by keepingthe convict in prison; and (v) the socio-economic condition of the convict’sfamily. In Laxman Naskar v. State of West Bengal (supra) and StateEof Haryana v. Jagdish[20], this Court has reiterated that these factorswill be considered while deciding the application of a convict for pre-mature release.

23. In his opinion dated 21 July 2021 the Special Judge, Durgreferred to the crime for which the petitioner was convicted and simplystated that in view of the facts and circumstances of the case it wouldFnot be appropriate to grant remission. The opinion is in the teeth of theprovisions of Section 432 (2) of the CrPC which require that the presidingjudge’s opinion must be accompanied by reasons. Halsbury’s Laws ofIndia (Administrative Law) notes that the requirement to give reasons issatisfied if the concerned authority has provided relevant reasons.GMechanical reasons are not considered adequate. The following extractis useful for our consideration:

“[005.066] Adequacy of reasons Sufficiency of reasons, in aparticular case, depends on the facts of each case. It is not necessary for the authority to write out a judgement as a court oflaw does. However, at least, an outline of process of reasoningmust be given. It may satisfy the requirement of giving reasons ifrelevant reasons have been given for the order, though the authorityhas not set out all the reasons or some of the reasons which hadbeen argued before the court have not been expressly consideredby the authority. A mere repetition of the statutory language in theorder 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 adjudicatorybody which passed the order. A reason such as ’the entireexamination of the year 1982 is cancelled’, cannot be regarded asadequate because the statement does explain as to why theexamination has been cancelled; it only lays down the punishmentwithout stating the causes therefor.”[21]

24. Thus, an opinion accompanied by inadequate reasoning wouldnot satisfy the requirements of Section 432 (2) of the CrPC. Further, itwill 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 informeddecision taking into consideration all the relevant factors.

25. In view of the above discussion, we hold that the petitioner’sapplication for remission should be re-considered. We direct the SpecialJudge, Durg to provide an opinion on the application afresh accompaniedby adequate reasoning that takes into consideration all the relevant factorsthat govern the grant of remission as laid down in Laxman Naskar v.Union of India (supra). The Special Judge, Durg must provide his opinionwithin a month of the date of the receipt of this order. We further directthe State of Chhattisgarh to take a final decision on the petitioner’sapplication for remission afresh within a month of receiving the opinionof the Special Judge, Durg.

26. The petition under Article 32 of the Constitution is allowed inthe above terms.

27. Pending application(s), if any, stand disposed of.

Nidhi Jain(Assisted by : Tamana, LCRA)

Writ Petition allowed.