Santram Sinha vs State Of Chhattisgarh
2022 Latest Caselaw 6497 Chatt

                                   1

                                                                NAFR

          HIGH COURT OF CHHATTISGARH, BILASPUR

                     Cr.M.P. No. 1524 of 2021

     Santram Sinha, S/o Tejuram Sinha, aged about -50 years,
     R/o - Sheetlapara Charama, District Kanker, Presently lodged
     in Raipur Central Jail, Raipur (C.G.)

                                                        ---- Petitioner

                               Versus

     1.     State of Chhattisgarh through Additional Secretary, Home
     (Jail), Department, Government of Chhattisgarh, Mahanadi
     Bhawan, Atal Nagar, Nawa Raipur, District Raipur (C.G.)

     2.    Director General (Prisons and Rehabilitation Services),
     Jail Department, Jail Headquarters, Central Jail, Raipur (C.G.)

     3.     Jail Superintendent, Raipur Central Jail, Raipur (C.G.)

                                                     ----Respondents



For Petitioner         : Mr. Saurabh Dangi, Advocate.
For Respondents        : Mr. Vimlesh Bajpai, Govt. Advocate.


             Hon'ble Shri Justice N.K. Chandravanshi

                          Order On Board
01.11.2022

1.   By way of filing this petition under Section 482 of the Code of
Criminal Procedure, 1973 (henceforth "Cr.P.C."), the petitioner has
challenged the order dated 04.10.2021 (page No. 9), by which, the
respondent No. 1 has rejected the application filed by the petitioner
under Section 432 (1) of Cr.P.C. for remission of his remaining jail
sentence.

2.   Facts

of the case, in brief, is that vide judgment dated 20.7.2006 passed by Additional Sessions Judge (F.T.C.), Kanker in Sessions Case No. 12/2005, the petitioner has been convicted for the offence punishable under Section 302 of the IPC and sentenced for

life imprisonment. As per Annexure R-1, the petitioner is languishing in jail since 9.10.2004 and, thus, he has served jail sentence for more than 17 year excluding remission. After completion of all the requirements, the petitioner moved an application for grant of remission under Section 432 (1) of Cr.P.C. for remission of his remaining jail sentence. On his application, opinion of concerned Presiding Judge was sought for by the jail authority and on the basis of that negative opinion given by the Presiding Judge of convicting Court, appropriate authority / State Government declined to grant him remission vide order dated 4.10.2021 (page No. 9). Hence, this petition.

3. Learned counsel for the petitioner would submit that order impugned passed by the State Government (respondent No. 1) is in teeth of the provisions contained under Section 432 (1) of the Cr.P.C. in light of the decisions rendered by the Apex Court in the matters of Ram Chander v. State of Chhattisgarh 1 and Laxman Naskar v. Union of India 2, as such, impugned order be quashed and respondent No. 1 be directed to consider the petitioner's application afresh in accordance with law.

4. Learned counsel for the State while supporting the impugned order would submit that the petitioner's case has strictly been considered in accordance with the provision contained in Section 432 (1) of Cr.P.C., as after obtaining opinion of Presiding Judge of convicting Court, his application has been rejected and, therefore, order impugned does not suffer from any infirmity or illegality warranting interference by this Court in the instant petition, as such, the writ petition deserves to be dismissed.

5. I have heard learned counsel for the parties and considered their rival submissions made hereinabove and also gone through the material available on record with utmost circumspection.

1    AIR 2022 SC 2017
2    (2000) 2 SCC 595

6. The power under Section 432 (1) of the Cr.P.C. has been conferred to the appropriate Government to consider and suspend the execution of sentence or to remit the whole or any part of the punishment to which the accused person has been sentenced i.e. the petitioner.

7. The question as to whether the Court can act directly for grant of remission to convicted person has been considered by the Supreme Court in the matter of Rajan v. Home Secretary, Home Department of Tamil Nadu & others 3 which have been referred again by the Hon'ble Supreme Court in the matter of Ram Chander (supra) in which it has been observed by their Lordships that grant of remission is the exclusive prerogative of the executive and the court cannot supplant its view, however the Court can direct the authorities to re-consider the representation of the convict.

8. In the instant case, it is apparent from the impugned order that since Presiding Judge of convicting Court had not given positive opinion in favour of the petitioner, therefore, his remission application has been dismissed by respondent No. 1.

9. Hon'ble Supreme Court in the matter of Ram Chander (supra) has considered its earlier decisions including the Constitution Bench decision rendered in the matter of Union of India v. Sriharan 4 as well as Laxman Naskar (supra), wherein a identical like case in hand, reached before the Hon'ble Supreme Court. In the matter of Ram Chander (Supra), their Lordships of the Supreme Court, while considering the series of judicial pronouncements on the issue, has observed as under :-

"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

3 (2019) 14 SCC 114 4 (2016) 7 SCC 1

the judge does not consider the relevant factors for grant of remission that have been laid down in Laxman Naskar v. Union of India5 , 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 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 Bengal6 and State of Haryana v. Jagdish7, 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

5 (2000) 2 SCC 595 6 (2000) 7 SCC 626 7 (2010) 4 SCC 216

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 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."

10. 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.

11. Vide memo dated 16.06.2020, learned Presiding Judge of convicting Court has sent his opinion with regard to remission application filed by the petitioners. Perusal of aforesaid memo would go to show that considering the heinousness and brutality caused by petitioner while committing murder has reached to the conclusion that it is not a case of grant of remission, but learned Presiding Judge has given his opinion without considering necessary factors, which have been laid down by Hon'ble

Supreme Court in the case of Laxman Naskar (supra), which has further been reiterated by Hon'ble Supreme Court in the case of Ram Chander (supra) to be considered while giving opinion under Section 432 (2) of the CrPC. 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 (supra) while giving opinion under Section 432 (2) of the Cr.P.C.

12. Accordingly, it is directed that the State Government shall reconsider the application filed by the petitioner for his premature release after calling a fresh opinion of Presiding Judge of the convicting Court within a period of three months from the date of receipt / production of certified copy of this order.

13. It is pertinent to mention here that if competent authority/Jail Authorities seeks such fresh opinion from the concerned Presiding Judge of the Convicting Court, then Presiding Judge will give his opinion without being influenced by his earlier opinion, considering the mandate given by the Supreme Court in the matter of Laxman Naskar (supra), and further followed in the case of Ram Chander (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.

14. It is made clear that this Court has not expressed any opinion on the merits of the case and the authority concerned is free to decide the case of the petitioner on its own merit in accordance with law.

15. With the aforesaid observations, Cr.M.P. stands finally disposed of. No order as to cost(s).

Sd/-

(N.K. Chandravanshi) Judge D/-