JASWANT SINGH & ORS versus THE STATE OF CHHATTISGARH & ANR. on 13 January 2023

1. The petitioners, who are the convicts and undergoing thesentence of life imprisonment in view of the order dated 13.02.2015passed by this Court in SLP (Crl.) No. 1348-49 of 2015, confirming thejudgement and order dated 10.05.2013 passed by the High Court of

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AChhattisgarh at Bilaspur, in Criminal Appeal No. 933/2010 (arising outof Sessions Case No. 16/2006), have invoked Article 32 of theConstitution of India seeking issuance of appropriate writ, order ordirection commanding the respondents for presenting the case of thepetitioners to the sentencing Court for fresh consideration.

B2. The present petitioners along with other co-accused havingbeen charged for the offences under Section 147, 148, 302/149, 307/149of IPC and Section 3(2)(5) of the Scheduled Caste and Scheduled Tribes(Prevention of Corruption Act) were tried and found guilty for the saidoffences by the Special Judge (SC, ST), Durg, in Special Case No. 16/2006, were sentenced to life imprisonment. It was alleged against themCthat all the accused, 8 in number, had constituted an unlawful assemblyand had killed Kartikram and Puneet using deadly weapons like sword,axe, wooden stick etc.

3. The petitioner no.1 Jaswant Singh, aged about 63 years;petitioner no.2 Ajay, aged about 43 years and petitioner no.3 Naresh,Daged about 57 years on their undergoing the sentence of imprisonmentfor about 16 years without remission (with remission about 21 years ofimprisonment) had submitted their respective applications under Section432(2) of Cr.PC to the Jail Superintendent, Central Jail, Durg seekingtheir premature release. The Jail Superintendent sought an opinion ofEthe concerned Sessions Court which had convicted the petitioners. TheSpecial Judge, Durg, Chhattisgarh vide the letters dated 2.7.2021,10.8.2021 and 1.10.2021 respectively gave his opinion stating inter aliathat in view of the facts and circumstances of the case, it was notappropriate to allow remission of the remaining sentence of the saidpetitioners.F

4. The Law Department, Government of Chhattisgarh, also videthe note dated 27.11.2021 gave an opinion that in view of the opiniongiven by the presiding Judge of the Sentencing Court, the petitioner no.1 and 3 ought not to be given the benefit of the provisions of Section433-A Cr.PC. Thereafter, the Director General, Jail and CorrectionalGServices Chhattisgarh on 21.02.2022 referred the case of the petitionerno.2 to the Home Department, Government of Chhattisgarh and on02.03.2022, addressed a letter to the Addl. Chief Secretary, JailDepartment, Government of Chhattisgarh, for again moving the file ofthe petitioner no.1 and 3 for remission along with other convicts. On22.3.2022, the Law Department, Government of Chhattisgarh once againH

gave its opinion that since the presiding Judge of the Sentencing Courthad not given positive opinion, the petitioner no.1 and 3 should not bereleased on remission. The Director General, Jail and CorrectionalServices, therefore, rejected the applications of the petitioner no. 1 and3 for their release on remission. It appears that the application of therespondent no.2 remained pending for consideration before the HomeDepartment, Government of Chhattisgarh.

5. In the meantime, one of the co-accused Ram Chander, whowas also convicted along with the present petitioners in the said case,had preferred a writ petition being Writ Petition (Criminal) No.49/2022,in which this Court vide order dated 22.4.2022 directed the respondentsto reconsider the case of the said petitioner and directed the SpecialJudge to provide an opinion afresh accompanied by adequate reasoningafter taking into consideration the relevant factors laid down in LaxmanNaskar vs. Union of India[1]. The Special Judge (Atrocities Act Durg),therefore, considering the guidelines given by this Court in LaxmanNaskar vs. Union of India (supra) opined inter alia that the sentenceof the prisoner Ram Chander (co-accused) could be set-aside andaccordingly recommended to remit his sentence.

6. We have heard learned counsels for the parties and carefullyconsidered the judgment and order passed by this Court in Writ Petition(Criminal) No.49/2022 filed by the co-accused Ram Chander. In thesaid judgment, the Coordinate Bench has considered in detail therequirement of the factors laid down in case of Laxman Naskar vs.Union of India (supra), to be considered by the Presiding Judge whilegiving opinion under Section 432(2) Cr.P.C., and the powers of theappropriate Government to suspend or remit sentences under Sections432 and 433-A of Cr.PC. The Court in the said judgement, afterconsidering the earlier judgements of this Court, more particularly of theConstitution Bench in case of Union of India vs. Sriharan @ Murugan[2]and in case of Laxman Naskar vs. Union of India (supra) observedas under: - “20. In Sriharan (supra), the Court observed that the opinion ofthe presiding judge shines a light on the nature of the crime thathas been committed, the record of the convict, their backgroundand other relevant factors. Crucially, the Court observed that the 1 (2002) 2 SCC 595

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opinion 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 anydeterminative 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 ispossible then that the procedure under Section 432 (2) wouldbecome a mere formality.

21. However, this is not to say that the appropriate governmentshould mechanically follow the opinion of the presiding judge. Ifthe opinion of the presiding judge does not comply with therequirements of Section 432 (2) or if the judge does not considerthe relevant factors for grant of remission that have been laiddown 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 presidingjudge took into account the factors which have been laid down inLaxman Naskar v. Union of India (supra). These factors includeassessing (i) whether the offence affects the society at large; (ii)the probability of the crime being repeated; (iii) the potential ofthe convict to commit crimes in future; (iv) if any fruitful purposeis 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. Jagdish(2010) 4 SCC 216, this Court has reiterated that these factorswill be considered while deciding the application of a convict forpremature release.

23. In his opinion dated 21 July 2021 the Special Judge, Durgreferred 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 opinion isin the teeth of the provisions of Section 432 (2) of the CrPC whichrequire that the presiding judge’s opinion must be accompaniedby reasons. Halsbury’s Laws of India (Administrative Law) notesthat the requirement to give reasons is satisfied if the concerned JASWANT SINGH & ORS. v. THE STATE OF CHHATTISGARH& ANR [BELA M. TRIVEDI, J.]

authority has provided relevant reasons. Mechanical reasons arenot considered adequate. The following extract is useful for ourconsideration: “[005.066] Adequacy of reasons Sufficiency ofreasons, in a particular case, depends on the facts of each case.It is not necessary for the authority to write out a judgement as acourt of law does. However, at least, an outline of process ofreasoning must be given. It may satisfy the requirement of givingreasons if relevant reasons have been given for the order, thoughthe authority has not set out all the reasons or some of the reasonswhich had been argued before the court have not been expresslyconsidered by the authority. A mere repetition of the statutorylanguage 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 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.”(Halsbury’s Laws of India(Administrative Law) (Lexis Nexis, Online Edition).

24. Thus, an opinion accompanied by inadequate reasoning wouldnot satisfy the requirements of Section 432 (2) of the CrPC. Further,it will not serve the purpose for which the exercise under Section432 (2) is to be undertaken, which is to enable the executive tomake an informed decision taking into consideration all the relevantfactors.

25. In view of the above discussion, we hold that the petitioner’sapplication for remission should be re-considered. We direct theSpecial 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 as laiddown in Laxman Naskar v. Union of India (supra). The SpecialJudge, Durg must provide his opinion within a month of the dateof the receipt of this order. We further direct the State ofChhattisgarh to take a final decision on the petitioner’s applicationfor remission afresh within a month of receiving the opinion of theSpecial Judge, Durg.”

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A7. Since the case of the present petitioners is also similar to thecase of the co-accused Ram Chander, in as much as the PresidingOfficer’s opinions contained in the letters dated 02.07.2021, 10.08.2021and 01.10.2021 do not contain reasons with regard to the factors to betaken into consideration as laid down in case of Laxman Naskar vs.Union of India (supra), we propose to pass similar order as passed inBthe case of co-accused Ram Chander.

8. In that view of the matter, it is held that the petitioners’applications for remission are required to be reconsidered by therespondent authorities afresh. Accordingly, we direct the Special Judge,Durg to provide an opinion on the applications of the petitioners afreshCaccompanied by adequate reasoning after taking into consideration therelevant factors that govern the grant of remission as laid down inLaxman Naskar vs. Union of India (supra). After receiving the opinionof the Special Judge Durg, the State of Chhattisgarh shall take a finaldecision on the petitioners’ applications for remission afresh asDexpeditiously as possible and not later than one month of receiving theopinion of the Special Judge. The present writ petition stands allowed inthe above terms.

All pending applications, if any shall stand disposed of.

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Nidhi Jain(Assisted by : Bhavyata Kapoor, LCRA)

Writ Petition allowed.

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