In Writ Petition(Crl) No. 49 of 2022-SC- If opinion of presiding judge does not comply with Sec.432(2) CrPC or relevant factors for grant of remission are not considered, then Government may request Judge to consider matter afresh: SC Justices D.Y. Chandrachud & Aniruddha Bose [22-04-2022]

Read Order: RAM CHANDER Vs. STATE OF CHHATTISGARH  

Mansimran Kaur 

New Delhi, April 23, 2022: The Supreme Court has observed that if the opinion of the presiding judge does not comply with the requirements of Section 432 (2) of CrPC or if the judge does not consider the relevant factors for grant of remission laid down in the precedents, then the government may request the presiding judge to consider the matter afresh.

A Division Bench comprising of Justice D.Y. Chandrachud and Justice Aniruddha Bose made the abovesated observation while allowing an appeal instituted by a convict under Article 32 of the Constitution seeking premature release.

The present petition was instituted under Article 32 of the Constitution of India against the convict, who was undergoing a sentence of  imprisonment for life under Section 302 of IPC read with Section 149 of the Indian Penal Code. The petition was instituted with the objective of directing the first respondent to grant him pre- mature release. 

The facts of the case were that the petitioner and the co-accused assaulted the complainant and his father and brother. The dispute was concerning the confiscation of sheesham wood belonging to one of the co-accused and the damage caused to the motorbike and  tractor of the co-accused for which the accused persons suspected the family of the complainant. 

The Trial Court convicted the petitioner and the other accused on December 7, 2010. The petitioner was convicted of offences under Sections 147, 148, 302/149 and 324/149 of the IPC and  was sentenced to life imprisonment. In addition, 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 Schedule Cast, however the Trial Court acquitted all the accused under the said charge on lack of evidence. 

The sentence was confirmed by the High Court of Chhattisgarh. Aggrieved by the judgement of the High Court, the petitioner preferred a special leave petition before this Court, which was also dismissed. 

Thereafter , the petitioner after completing 16 years of imprisonment without remission instituted an application before the respondent under Rule 358 of the Chhattisgarh Prisons Rules 1986. 

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. Thereafter, the Jail Department in a note sheet dated October 6, 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 November 27, 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.

The Counsel for the petitioner cited a plethora of cases to strengthen  his case such as the rulings in Union of India v. Sriharan @ Murugan,  Sangeet v. State of Haryana,  State of Haryana v. Mohinder Singh, Laxman Naskar v. Union of India. In the first case it was ruled that 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. In the second case stated above  it was held that the opinion of the presiding judge of the sentencing court must be accompanied by reasons. In the third case cited above, it was held by this Court  that the power of remission cannot be exercised arbitrarily. The decision to grant remission should be informed, fair and reasonable. Lastly in Laxman Naskar’s case(Supra) certain factors were laid down for grant of remission. 

The respondents on the contrary submitted that the appropriate government has absolute discretion to whether the application for remission should be allowed. It was further submitted that the State possesses an inherent discretion to remit or to refuse the sentence and no writ can be issued to the State Government to release the petitioner. It was further submitted that the 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).

To support their contentions the respondents referred to the judgment in Union of India v. Sriharan, wherein this Court held that the ultimate order of suspension or remission should be guided by the opinion of 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.

The Bench was of the opinion 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.

The next aspect that was discussed was regarding the value of the opinion of the Presiding Judge. 

In pursuance of the same Sangeet’s Case (Supra) was referred to wherein 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. 

Further in the case of 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. It cannot  be construed that the appropriate government should mechanically follow the opinion of the presiding judge.  

It was further noted that in  the present case, there was nothing to indicate that the presiding judge took into account the factors which have been laid down in Laxman Naskar’s Case (Supra). These factors include assessing whether the offence affects the society at large; the probability of the crime being repeated; the potential of the convict to commit crimes in future; if any fruitful purpose is being served by keeping the convict in prison; and the socio-economic condition of the convicts family. In Laxman Naskar’s Case(Supra) and Jagdish’s Case(Supra) , this Court has reiterated that these factors will be considered while deciding the application of a convict for pre-mature release.

Therefore, in light of the above cited reasoning, the Top Court observed that the Special Judge, Durg simply referred to the crime of which the petitioner was alleged of and in view of the facts and circumstances of this case it pronounced that it would not be appropriate to grant 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, added the Bench.

Thus, it was observed that an opinion with no cogent reasoning will not satiate the requirements under Section 432 of  Cr.P.C. In view of the same, the application of the petitioner should be reconsidered, the Court remarked. It was further directed that the Special Judge, Durg shall pass a fresh  opinion after considering all the factors reiterated in Laxman Naskar’s case (Supra). In addition, to this, the State of Chattisgarh was directed to take a final decision on the application of the petitioner within one month from receiving the opinion of the Special Judge, Durg. Accordingly, the petition under Article 32 was allowed.