Chattisgarh High Court
Madari @ Abrar Ahmad vs State Of Chhattisgarh on 21 July, 2022
1
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Writ Petition (Cr.) No. 755 of 2021
Judgment reserved on 13.07.2022
Judgment delivered on 21.07.2022
Madari @ Abrar Ahmad, S/o Ishthar Ahmad, Aged about 61
years, R/o Village Kamhariya, P.S. Maudaha, Distt. -
Hamirpur (U.P.) Present Resident - Subhash Nagar P.S.
Maudahapara, Raipur, Dist - Raipur (C.G.)
---- Petitioner
Versus
1. State of Chhattisgarh, through its Chief Secretary,
Secretariat, Mahanadi Bhawan, New Raipur, P.S. and Post
Rahi, Disrict Raipur, Chhattisgarh.
2. The Secretary, Department of Home and Police Affairs,
Secretariat, Mahanadi Bhawan, New Raipur, P.S. and Post
Rakhi, District Raiur (Chhattisgarh)
3. Director General of Police, Police Head Quarter,
Mahanadi Bhawan, New Raipur, P.S and Post Rakhi, District
Raipur, Chhattisgarh.
4. Director General Prisons, The Jail & Correctional
Service Chhattisgarh, Jail Road, Raipur, District Raipur,
Chhattisgarh
5. Jail Superintendent, Central Jail Raipur, District -
Raipur (C.G.)
----Respondent
For Petitioner : Mr. Badruddin Khan, Advocate.
For Respondents : Mr. Vimlesh Bajpai, Govt. Advocate.
Hon'ble Shri Justice N.K. Chandravanshi
JUDGMENT [C.A.V.]
1. Present writ petition under Article 226 of the Constitution of India
has been instituted by the petitioner/convict, who is undergoing
sentence of imprisonment for life upon being convicted for commission
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of offence punishable, inter alia, under Sections 147, 148, 302/149,
120-B read with Section 302 of the IPC for following reliefs:-
"10.1 That the Hon'ble Court may kindly be pleased to call for
the entire records pertaining to the case of petitioner, if it is
available.
10.2 That, the Hon'ble Court may kindly be pleased to set aside
court's opinion dated 28/06/21 and 17/08/21.
10.3 That, the Hon'ble Court may kindly be pleased to direct
respondent authorities for releasing the petitioner under Section
432 of Cr.P.C. as well as, as per other existing law.
10.4 That, the Hon'ble Court may kindly be pleased to pass
any order in nature of the case."
2. Factual background of the instant case is that vide judgment
dated 08.03.2007 passed by 12th Upper Sessions Judge (FTC), Raipur
in Sessions Trial No. 44/2006, the petitioner has been convicted for
commission of offence punishable under Sections 147, 148, 302/149
and Section 120-B read with Section 302 of the IPC and sentenced to
undergo RI for two year, RI for two year, life imprisonment with fine of
Rs.500 and life imprisonment with fine of Rs.500/-, respectively and all
the sentenced were ordered to run concurrently. Criminal Appeal No.
275/2007 preferred by the petitioner has been dismissed by High Court
of C.G. vide order dated 26.07.2018 and Special Leave to Appeal (Cri.)
No. 10634/2018 preferred by the petitioner before the Hon'ble Supreme
Court against the order dated 26.7.2018 passed by the High Court has
also been dismissed. After completion of 15 years of imprisonment
without remission, the petitioner submitted an application for premature
release before the respondent authorities, hence, Superintendent,
Central Jail Raipur sent memo in compliance of Section 432 (2) of the
Cr.P.C. to the concerned Presiding Judge for his opinion. Order sheet
dated 28.6.2021 (Annexure P-2) reveals that since petitioner was
convicted for heinous offences and his appeal and SLP were also
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rejected by this Court and Hon'ble Supreme Court, hence, he opined
that, in view of above, grant of remission to the petitioner does not
seem to be appropriate. Vide memo dated 28.6.2021, learned
Presiding Judge informed his aforesaid opinion to Jail Superintendent,
Central Jail, Raipur, District Raipur. Order sheet dated 17.8.2021
(Annexure R-2) shows that petitioner approached to Secretary, District
Legal Services Authority, Raipur, hence, Secretary also sent letter of
request to concerned Presiding Judge to extend his opinion with regard
to grant of remission to the petitioner, but learned Presiding Judge has
stuck on his earlier negative opinion for grant of remission to the
petitioner. Vide Annexure R-3, Jail Superintendent, Central Jail, Raipur
forwarded the relevant documents to the Director General, Jail and
Correctional Services, Jail Headquarter, Raipur with regard to proposal
for grant of remission to the petitioner under Section 432 of the Cr.P.C..
2(A). Vide Annexure R-4, Director General, Jail & Correctional
Services sent proposal to Upper Chief Secretary, Home (Jail)
Department, Govt. of Chhattisgarh for grant of remission under Section
432 (1) of the Code to the petitioner in compliance of direction dated
07.07.2021 of Hon'ble Supreme Court in S.L.P. (Cr.) No. 529/2021 for
grant of remission to those jail inmates, who have completed 20 years
in between 30th August, 2021 to 31st January, 2022. Despite proposal
sent by Director General, Jail & Correctional Services, respondents
No. 1 & 2 have not decided the petitioner's application for grant of
remission under Section 432 (2) of the Cr.P.C. Hence, the instant writ
petition under Article 226 has been filed.
3. Return has been filed by the State authority stating inter alia that
looking to the gravity of the offence, which the petitioner has committed,
learned Presiding Judge has declined to give positive opinion for
premature release of the petitioner and due to such opinion, the matter
of the petitioner for grant of remission is pending consideration before
the Government.
4. Learned counsel appearing for the petitioner would submit that
4
application for grant of remission to the petitioner is pending before the
respondents authorities since more than one year, despite that
respondents authorities have not decided the same. It seems that since
the learned Presiding Judge has given the negative opinion under
section 432(2) of the Code with regard to petitioner's application for
grant of remission to him, therefore, respondent authorities have not
decided the said application. It is further submitted that learned
Presiding Judge has given no objection for grant of remission to two co-
accused persons namely Bachhu @ Izrial and Anwar @ Bafati, who
were also convicted in the same sessions trial and they have been
granted remission, but without considering provisions contained in Rule
358 of Chhattisgarh Prisons Rule, 1968, learned Presiding Judge
forwarded his negative opinion merely because heniousness of the
crime and appeal being dismissed by the High Court and Supreme
Court, whereas negative opinion of the court is not a sole factor to deny
remission to the petitioner. He would next submit that in large number
of decisions rendered by Hon'ble Courts, it has been held that opinion
of the Court given under Section 432(2) of the Code is not binding on
the appropriate Government for giving remission, despite that, till date
no order has been passed by the Competent Authority in respect of the
petitioner's application for grant of remission, hence, it is prayed that
relief, as sought, may be granted to the petitioner.
5. On the other hand, Mr. Vimlesh Bajpai, learned Govt. Advocate
for the State/respondents, would submit that looking to the gravity of the
offence, which the petitioner has committed and undergoing sentence,
though the Director General, Jail has forwarded proposal for remission
of jail sentence, but the Presiding Judge, who has convicted the
petitioner, has not recommended to grant remission, therefore,
application filed by the petitioner for remission is pending consideration
before the Government. He would further submit that petitioner has no
vested right to be granted remission and remission of balance sentence
cannot be claimed as a matter of right. It is well settled proposition of
law that grant or non-grant of remission is the prerogative to be
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exercised by the competent authority and it is not for the court to
supplant that procedure.
6. I have heard learned counsel for the parties and considered their
rival submissions made herein-above and also went through the record
with utmost circumspection.
7. In order to consider the plea raised at the Bar, it would be
appropriate to notice Station 432 of the CrPC which states as under: -
"432. Power to suspend or remit sentences.--(1) When any
person has been sentenced to punishment for an offence, the
appropriate Government may, at any time, without conditions or
upon any conditions which the person sentenced accepts,
suspend the execution of his sentence or remit the whole or any
part of the punishment to which he has been sentenced.
(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 opinion a certified copy of the
record of the trial or of such record thereof as exists.
(3) to (7) xxx xxx xxx"
8. The power to consider remission under Section 432(1) of the
CrPC has been conferred to the appropriate Government to consider
and suspend the execution of his sentence or to remit the whole or any
part of the punishment to which the accused person has been
sentenced i.e. the petitioner in this case.
9. It is well settled that Section 432 of the CrPC has application only
in two situations firstly, where a convict is to be given "additional'
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remission or remission for a period over and above the period that he is
entitled to or he is awarded under a statutory rule framed by the
appropriate Government or under the Jail Manual, and secondly, where
a convict is sentenced to life imprisonment, which is for an indefinite
period, subject to procedural and substantive checks. (See Sangeet
and another v. State of Haryana 1.)
10. It is also settled that a convict undergoing life imprisonment is
expected to remain in custody till the end of his life, subject to any
remission granted by the appropriate Government under Section 432 of
the CrPC which in turn is subject to the procedural checks mentioned in
the said provision and further substantive check in Section 433A of the
CrPC. (See Mohinder Singh v. State of Punjab 2 . )
11. The question as to whether the Court can act directly for grant of
remission to convicted persons has been considered by the Supreme
Court in the matter of Rajan v. Home Secretary, Home Department
of Tamil Nadu 3, which have been referred again by the Hon'ble
Supreme Court in the matter of Ram Chander v. State of
Chhattisgarh and another 4 in paragraph 14, which reads thus:-
"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
1 AIR 2013 SC 447
2 2013 Cri. L.J. 1559
3 (2019) 14 SCC 114
4 AIR 2022 Supreme Court 2017
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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................................"
12. In the instant case, it seems that since Presiding Judge has given the
negative opinion under section 432(2) of the Code with regard to petitioner's
application for grant of remission to him, hence, the respondents authorities
have not decided the case of the petitioner. Whether opinion of the Presiding
Judge is binding on the competent authority to grant remission or not has
been considered by Hon'ble Supreme Court in the case of Union of India v.
Sriharan 5, which has also been considered by Hon'ble Supreme Court in the
matter of Ram Chander v. State of Chhattisgarh and another (supra) in
paragraph 17, which reads thus :-
"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 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
5 (2016) 7 SCC 1
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
analysis 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 underSection 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, 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)
13. In an Identical case like case at hand, have also reached before Hon'ble
Supreme Court in case Ram Chander v. State of Chhattisgarh and
another (supra) wherein the petitioner of that case was convicted for the
offence under Sections 147, 148, 302/149 and 324/149 of the IPC and
sentenced to life imprisonment. The sentence was confirmed by the High
Court of Chhattisgarh on 10th May, 2013 [2013 Cri LJ 4902 (Chh)]. Aggrieved
by the judgment of the High Court, the petitioner preferred a special leave
before the Hon'ble Supreme Court, which was also dismissed. After
completion of 16 years of imprisonment without remission, the petitioner filed
an application for premature release before the respondents authorities under
Rule 358 of the Chhattisgarh Prisons Rule, 1968. The Jail Superintendent of
the Central Jail, Durg sought the opinion of the Special Judge, Durg that
whether the petitioner can be released on remission. Special Judge has given
negative opinion, which is reproduced below:-
"...Perused the document filed alongwith the present
application. Perused the judgment dated 07.12.2010
passed in Special Case No. 16/2006 "State v. Anil and
Ors." under Section 147, 148, 302/149, 302/149, 307/149
and 3(2)(5) of the Scheduled Caste and the Scheduled
Tribe (Prevention of Atrocities) Act, 1989. Accused
Ramchander son of Khajaan Singh alongwith 8 other
co-accused persons has assembled against the law and
by using deady weapons swrod, 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."
14. On being opinion sought from Law Department, it also given
negative opinion twice in light of negative opinion given by the Presiding
Judge, for grant of remission to the petitioner. On the basis of above
factual background, the petitioner filed writ petition [Ram Chander v.
State of Chhattisgarh and another] under Article 32 of the Constitution
of India before Hon'ble Supreme Court, in which, their Lordships of the
Supreme Court, while considering series of judicial pronouncement, has
observed as under :-
"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 432 (2) of the Cr.P.C. 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
India6 , 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
6 (2000) 2 SCC 595
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 7 and State of
Haryana v. Jagdish8, this Court has reiterated that these
factors will be considered while deciding the application of a
convict for pre- mature 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 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.......
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
7 (2000) 7 SCC 626
8 (2010) 4 SCC 216
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."
15. In view of above discussions, observations and judgments of the Hon'ble
Supreme Court in above-referred cases, it is quite vivid that grant or non-
grant of remission is the prerogative to be exercised by the competent
authority and the Court cannot supplant its view, although the Court has
power to review the decision of the Government with regard to the fact that
whether acceptance or rejection of an application for remission under Section
432 of the Cr.P.C. is arbitrary in nature and in appropriate cases, the Court is
empowered to direct the Government to reconsider its decision. It is also well
settled that seeking of opinion of concerned Presiding Judge under Section
432(2) of the Code for grant of remission is also mandatory because opinion
of the Court concerned tell about the nature of crime committed, record of
convicted person, his background and other relevant factors, which would be
helpful for the competent authority to take the right decision for accepting or
rejection of application for suspension or remission of sentence.
16. As has been stated above, in the instant case, it seems that since
concerned Court has given negative opinion under Section 432 of the Code,
therefore, competent authority has not decided the case of the petitioner. So
far as opinion given by by the Presiding Judge is concerned, it seems that
learned Presiding Judge of the convicting Court has given his opinion without
considering the necessary factors, which have been laid down by the Hon'ble
Supreme Court in the case of Laxman Naskar v. Union of India (supra), which
has further been reiterated by Hon'ble Supreme Court in the case of Ram
Chander v. State of Chhattisgarh and another (supra) to be considered
while giving opinion under Section 432 (2) of the Code. In other words,
Presiding Judge of the convicting Court is required to consider all the factors,
which have been laid down by Hon'ble Supreme Court in the matter of
Laxman Naskar v. Union of India (supra) while giving opinion under Section
432 (2) of the Code.
17. Accordingly, it is directed that the State Government shall consider and
dispose of the application filed by the petitioner for his premature release
after calling fresh opinion of the Presiding Judge of the convicting Court within
a period of two months from the releasing of this order. It shall be open to the
State Government to reach to its own conclusion as to whether the benefit of
premature release should be extended to the petitioner or not having regard
to all the facts & circumstances of the case. The State Government may
also take into consideration the decision rendered by this Court in the matter
of Amarnath Pandey v. State of Chhattisgarh & others passed in W.P.
(PIL) No. 78/2017, decided on 2.5.2019.
18. It is pertinent to mention here that if competent authority/Jail Authority
sought such fresh opinion from the concerned Presiding Judge of the
Convicting Court, then Presiding Judge will give his opinion, considering the
mandate given by the Supreme Court in the matter of Laxman Naskar v.
Union of India (supra), and further followed in the case of Ram Chander v.
State of Chhattisgarh and another (supra), under Section 432(2) of the
Code within a period of one month after receiving of memo with regard to
fresh opinion sought by the aforesaid authority.
19. It is made clear that this Court has not expressed any opinion on the
merits of the matter and the authority concerned is free to decided the case of
the petitioner on its own merit in accordance with law.
20. With the aforesaid observations, the writ petition stands finally disposed
of. No order as to cost(s).
Sd/-
(N.K. Chandravanshi)
Judge
D/-
