Krishna Rao vs State Of Chhattisgarh
2022 Latest Caselaw 1265 Chatt

                              1

                                                    NAFR
      HIGH COURT OF CHHATTISGARH, BILASPUR
           Judgment reserved on :    07/12/2021
           Judgment delivered on:    11/03/2022

                  WPCR No. 625 of 2021
1.   Krishna Rao S/o Shri G. Kandeshwar Rao, Aged
About 55 Years, R/o Adarsh Nagar, Ringh Road, Raipur,
Police Station Tikrapara, Raipur, Tahsil And District
Raipur Chhattisgarh.
2.   Shankar Rao S/o G. Kandeshwar Rao, Aged About 42
Years R/o Adarsh Nagar, Ringh Road, Raipur, Police
Station Tikrapara, Raipur, Tahsil And District Raipur
Chhattisgarh.
                                         ­­­­ Petitioners
                           Versus
1. State Of Chhattisgarh Through Home Department
Mahanadi   Bhawan, New  Raipur  District  Raipur
Chhattisgarh.
2. Secretary Law Department Atal Nagar, New Mahanadi
Bhawan, New Raipur, District Raipur Chhattisgarh.
3. Director General Of Police (Jail) Raipur, District
Raipur Chhattisgarh.
4. Jail Superintendent Central Jail Durg District Durg
Chhattisgarh.
                                         ­­­­ Respondents



For Petitioners            : Shri Ravindra Sharma, Adv.
For State                  : Shri Gurudev I Sharan, G.A.


      Hon'ble Smt. Justice Rajani Dubey, J.

CAV Order

Heard.

1. The present petition has been filed under article

226 of the Constitution of India challenging the order

dated 17.08.2020 passed by Respondent No.1/State of

Chhattisgarh Through Home Department Mahanadi Bhawan,

New Raipur, District Raipur (C.G.) whereby the

application for remission of sentence imposed on the

petitioner filed by the petitioner has been rejected.

2. Brief facts of the case are that the petitioners

along with other co­accused person have been convicted

for the offence punishable under Sections 147, 148 &

302 R/s Section 149 of the IPC for RI for 1 year, 2

years and Life imprisonment with fine of Rs. 500/­

respectively plus default stipulation vide judgment

dated 07.06.2003 in Sessions Case No. 45/2002. Against

that conviction petitioners and co­accused persons had

preferred criminal appeal registered as CRA No.

719/2003 before this Court wherein this Court has

partly allowed the appeal, acquitted the co­accused

Shiva Rao and Chitti Rao and maintained the sentence

imposed upon the present petitioners and co­accused

Mohan Rao. The petitioners are in jail since

16.11.2001 and they have completed about 20 years of

jail sentence except the remission period i.e. about 6

years. Hence, this petition for remission of jail

sentence of the petitioners.

3. Shri Ravindra Sharma, learned counsel appearing

for the petitioners would submit that the impugned

order dated 17.08.2020 is arbitrary, illegal and

against the law as the same has been rejected only on

the basis of the recommendation of the Presiding Judge

who had convicted the petitioners. The respondent

authorities while rejecting the application of the

petitioners did not call any report from the concerned

Welfare Officer of the Jail regrading the behavior of

the petitioners and impact of their release on the

society. As the application was rejected without

assigning any reason, therefore, the impugned order is

liable to be set­aside. In support of his argument,

learned counsel for the petitioners placed reliance in

the matters of Karan Singh Vs. State of MP passed in

2021 LawSuit (MP) 321 Rajan Vs. Home Secretary, Home

Department Tamilnadu AIR 2019 SC 2101, this Court's

order in Pardeshi Ram Vs. State of Chhattisgarh in

WPCR No. 88/2018 and Union of India vs. V. Shriharan

Alias Murugan & Others (2016) AIR 2016 SC (Supp.) 739.

4. Shri Gurudev I Sharan, learned Government

Advocate appearing for the State/Respondents has

supported the impugned order and submits that looking

to the gravity of the offence which the petitioners

have committed and undergoing sentence, the Presiding

Judge who has convicted the petitioners, did not

recommend for the remission of jail sentence,

therefore, his application has rightly been rejected

by the competent authority. Petitioners have no vested

right to be granted remission and remission of balance

sentence cannot be claimed as a matter of right.

5. Heard counsel for the parties and perused the

material available on record.

6. Section 432 of Cr.P.C. 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 lime, 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.

7. It is clear from Section 432(1) of the Cr.P.C that the appropriate Government has power to consider and suspend the execution of their sentence or to remit the whole or any part of the punishment to which the accused persons have been sentenced.

8. 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 Cr.P.C. which in turn is subject to the procedural checks mentioned in the said provision and further substantive check in Section 433A of the Cr.P.C.

9. Hon'ble Supreme Court (Full Bench) in the matter of Union of India (supra) at paras 241 & 242 held that:­

"241. As stated in Prem Chand Garg (AIR 1963 SC

996) (supra) an order in exercise of power under Article 142 of the Constitution of India must not only be consistent with the fundamental rights guaranteed by the Constitution, but it cannot even be inconsistent with the substantive provisions of the relevant statutory law. In A.R.

Antulay v. R.S. Naik (1988) 2 SCC 602 a direction by which the petitioner was denied a statutory right of appeal was recalled. A fortiorari, a statutory right of approaching the authority under Section 432/433 Cr.P.C. which authority can, as laid down in Kehar Singh (AIR 1989 SC

653) (supra) and Epuru Sudhakar (AIR 2006 SC 3385) (supra) eliminate the effect of conviction, cannot be denied under the orders of the Court.

242. The law on the point of life imprisonment as laid down in Godse's case (AIR 1961 SC 600) (supra) is clear that life imprisonment means till the end of one's life and that by very nature the sentence is indeterminable. Any fixed term sentence characterized as minimum which must be undergone before any remission could be considered, cannot affect the character of life imprisonment but such direction goes and restricts the exercise of power of remission before the expiry of such stipulated period. In essence, any such direction would increase or expand the statutory period prescribed under Section 433A of Cr.P.C. Any such stipulation of mandatory minimum period inconsistent with the one in Section 433A, in our view, would not be within the powers of the Court.

10. In the matter of Hanumant Dass Vs. Vinay Kumar & Others passed in (1982) 2 SCC 177 Hon'ble Supreme Court held in para 14 as under:­

"14. According to this section the appropriate Government is the Government of the State of conviction and not the Government of the State where the offence was committed. A somewhat similar question came up for consideration in the State of MP v. Ratan Singh, where the respondent was convicted and sentenced to imprisonment for life by a court in the State of Madhya Pradesh. At his request he was transferred to a Jail in the State of Punjab, to which State he belonged. He applied to the Government of Punjab that under the Punjab Jail Manual he is entitled to be released since he had completed more than 20 years of imprisonment. The application was sent to the Government of Madhya Pradesh, which rejected it. In a Writ petition filed by him the High Court of Punjab and Haryana held that the State of Punjab was the appropriate authority to release him and directed the State of Punjab to consider the matter. This Court in appeal observed "a perusal of this provision clearly reveals that the test to determine the appropriate Government is to locate the State where the accused was convicted and sentenced and the Government of that State would be the appropriate Government within the meaning of

Section 401 of the Code of Criminal Procedure. Thus since the prisoner in the instant case was tried, convicted and sentenced in the State of Madhya Pradesh, the State of Madhya Pradesh would be the appropriate Government to exercise the discretion for remission of the sentence under Section 401(1)of the Code of Criminal Procedure..." That was a case based on Section 401 of the old Criminal Procedure Code, but the Code of Criminal Procedure, 1973 has put the matter completely beyond any controversy and reiterated the provisions of Section 402(3) in sub­section (7) of Section 432."

11. In the present case, the appropriate Government to consider the application for remission under Section 432(1) of the Cr.P.C. would be the State of Chhattisgarh as the petitioners were convicted by the Court of Sessions, Raipur within the territory of the State of Chhattisgarh.

12. Impugned order dated 17.08.2020 which is annexed here as Annexure P/1 states as under:­

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13. The impugned order simply states that since the Presiding Judge has not recommended for grant of remission to the petitioner, therefore, remission cannot be granted. There is no independent consideration and no reason has been assigned for not considering the petitioners' application for remission.

14. Hon'ble Supreme Court in the matter of Damji V. State of Gujarat & Others 1990 (Supp) SCC 143 held in para 1 as under:­

"1. By an order dated January 3, 1985, the State Government of Maharashtra, in exercise of the powers conferred by sub­section (1) of Section

432 of the Code of Criminal Procedure, 1973, purported to remit that portion of the sentence of imprisonment, which is in excess of 20 years of total imprisonment, including all remissions, is the case of the petitioner undergoing imprisonment for life on his conviction under Section 302 of the Indian Penal Code, 1860, subject to his good behaviour and conduct in prison. The impugned order declining to give to the petitioner the benefit of premature release does not disclose any reasons. Presumably, the government by Section 433­A of the Code. According to the decision of this Court in Maru Ram V. Union of India (1981) 1 SCC 107, the provision contained in Section 433­A of the Code is not applicable in those cases where the conviction was recorded prior to December 18, 1978 i.e. the date on which Section 433­A was introduced by the Code of Criminal Procedure (Amendment) Act, 1976.

2. We must accordingly allow the petition, and issue a direction to the State Government to reconsider and dispose of the application made by the petitioner for premature release within a period of four weeks from today. It shall be open to the government to come to its own decision as to whether the benefit of premature release should be extended to the petitioner or not, having regard to all the attendant facts and circumstances of the case."

15. In the matter of State of MP V. Ratan Singh & Others passed in AIR 1976 SC 1552 Hon'ble Supreme Court held in para 9 as under:­

"9. From a review of the authorities and the statutory provisions of the Code of Criminal Procedure the following propositions emerge: (1) that a sentence of imprisonment for life does not automatically expire at the end of 20 years including the remissions, because the administrative rules framed under the various Jail Manuals or under the Prisons Act cannot supersede the statutory provisions of the Indian Penal Code. A sentence of imprisonment for life means a sentence for the entire life of the prisoner unless the appropriate Government chooses to exercise its discretion to remit either the whole or a part of the sentence under Section 401 of the Code of Criminal Procedure."

16. Having regard to the aforesaid position in law, this Court is of the opinion that the life sentence which is awarded to the petitioners is for a period of their entire remaining life till their last breath and

the power to grant remission lies with the State Government. In view of the fact that the petitioners have completed about 20 years of sentence, this Court is of the opinion that the issue relating to release of the petitioners after granting the benefit of remission now needs to be considered by the competent authority of the State Government in accordance with law.

17. In view of the aforesaid discussion, it is quite vivid that the State Government was obliged to give a brief reason in order to demonstrate that the case of the petitioners has been considered. In this case also Presiding Officer has not recommended the remission of the petitioner vide memo dated 06.03.2003 (Annexure P/5) and the State Government has agreed with the recommendation of the learned Presiding Judge which has convicted the petitioners and rejected the application filed under Section 432(1) of the Cr.P.C. Unreasonably, it is contrary to the well settled law noticed herein­above in this regard.

18. Accordingly, the order impugned is set­aside and the matter is remitted to the State Government to reconsider and dispose of the application made by the petitioners for their premature release after calling the opinion of the Presiding Officer of the convicting Court, within a period of four weeks 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 petitioners or not having regard to all the facts and circumstances of the case. 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, vide its order dated

02.05.2019.

19. It is made clear that this Court has not expressed any opinion on the merits of the matter.

20. With the aforesaid observation, the writ petition stands finally disposed of. No order as to cost(s).

Sd/­ (Rajani Dubey) Judge V/­