Chattisgarh High Court
Ghanshyam Satnami vs State Of Chhattisgarh on 1 November, 2022
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
WPCR No. 297 of 2022
• Ghanshyam Satnami S/o Makhan Lal Aged About 41 Years R/o
Village Birgudi, Police Station Sihava, District Dhamtari
(Chhattisgarh) At Present Convicted Prisoner No. 2704/103 Of
The Central Jail, Raipur Chhattisgarh.
---- Petitioner
Versus
1. State Of Chhattisgarh Through The Home Department,
Mahanadi Bhawan, New Raipur, District Raipur Chhattisgarh.
2. Secretary, Law Department, Atal Nagar, Mahanadi Bhawan,
New Raipur, District Raipur (Chhattisgarh)
3. Direcor General Of Police (Jail) Raipur, District Raipur
Chhattisgarh.
4. Jail Superintendent Central Jail, Raipur, District Raipur
Chhattisgarh.
---- Respondents
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For the Petitioner : Shri Hemant Kumar Agrawal, Advocate
For Respondents/State : Shri Vimlesh Bajpai, Govt. Advocate
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Hon'ble Shri Justice N.K. Chandravanshi
Order On Board
01.11.2022.
1. With the consent of the parties, the matter is heard finally.
2. By way of this writ petition, the petitioner has called in
question order impugned dated 04.10.2021 (Annexure-P/1) by
which, respondent No.1 has rejected the application filed by the
petitioner under Section 432 of the Code of Criminal Procedure,
1973 (for short 'the Code') for remission of his remaining jail
sentence.
3. Facts of the case, in brief, are that the petitioner has been
convicted for the offence under Sections 302 and 326 of the
Indian Penal Code and sentenced with life imprisonment,
rigorous imprisonment for 02 years and fine along with default
stipulations vide judgment dated 24.02.2020 in Session Trial
No.108/2005 by learned Additional Sessions Judge, Dhamtari
Session Division Raipur. Thereafter the petitioner preferred
Criminal Appeal No.30/2017 before this High Court and then
Special Leave to Appeal (Crl.)No. 8394/2014 before the Hon'ble
Apex Court, however, both were dismissed by the said Courts.
After fulfillment of requirement for grant of remission, the
petitioner has filed application for grant of remission under
Section 432 of the Code. On that application, opinion of the
concerned Presiding Judge was sought for by jail authorities and
on the basis of that opinion, which was against grant of remission
to the petitioner, his application was dismissed vide Annexure-P/1
by respondent No.1/State. Hence, this petition.
4. Learned counsel for the petitioner would submit that the
petitioner is in jail since 24.12.2004. After considering the
conduct and behaviour of the petitioner in the jail, the jail
authorities recommended the application of the petitioner for
grant of remission, but only due to negative opinion given by the
concerned Presiding Judge, his application was dismissed. It is
further submitted that the Presiding Judge has given his opinion
only considering the nature and gravity of the offence, but the
remission application cannot be considered only on the basis of
nature and gravity of offence and for giving such opinion, the
learned Presiding Judge ought to have followed the directions of
Hon'ble Supreme Court in the matter of Ram Chander vs. State
of Chhattisgarh (2022 SCC Online SC 500) and Laxman
Naskar vs. Union of India (2000) 2 SCC 597. But the same has
not been taken into consideration by the learned Presiding
Judge, therefore, respondent No.1 may be directed to reconsider
the application of the petitioner and to grant remission to him.
5. Learned counsel for the State would submit that the
petitioner's case has been considered strictly in accordance with
the provision contained in Section 432(1) of the Code after
obtaining the opinion of the Presiding Judge of convicting court
and thereafter it has been rejected, as such, the instant writ
petition deserves to be dismissed.
6. I have heard learned counsel for the parties, considered
their rival submissions made and perused the record with utmost
circumspection.
7. In order to consider the contentions raised at the Bar, it
would be appropriate to notice Section 432 of the Code 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) XXXX XXXX"
8. The power to consider remission under Section 432(1) of
the Code 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.
9. 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 & Ors. [(2019) 14 SCC 114]
which has 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 while 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.
10. In the instant cases, it is found that since Presiding Judge
has not given a positive opinion in favour of the petitioner under
Section 432(2) of the Code for grant of remission to him, hence,
the appropriate Government has declined to grant remission to
the petitioner.
11. The 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 vs.
Sriharan (2016) 7 SCC 1 as well as Laxman Naskar (supra) and
has held 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 CrPC
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 (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 presiding judge took into account the factors which
have been laid down in Laxman Naskar (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 (supra) and
State of Haryana v. Jagdish [(2010) 4 SCC 216], 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."
12. Reverting to the facts of the instant case in the light of the
aforesaid pronouncement by the Hon'ble Apex Court, in the instant
case, it appears that the Additional Sessions Judge in his
recommendation dated 02.01.2020 (Annexure-P/7) has simply
observed that since the petitioner has been convicted for heinous
offence of committing murder and his appeal has been dismissed by
the High Court, therefore, considering the nature and gravity of the
offence, his case for remission could not be recommended. It is
also evident that pursuant to the opinion given by the Presiding
Judge, appropriate authority/respondent No.1 has rejected the
application of the petitioner for grant of remission vide impugned
order (Annexure-P/1), which is in the teeth of the decision rendered
by the Supreme Court in the case of Ram Chander (supra).
13. Accordingly, impugned order dated 04.10.2021 (Annexure-
P/1) passed by respondent No.1is hereby set aside. The matter is
remitted to the State Government to consider and decide the
application of the petitioner for remission afresh. The State
Government will call for the opinion of learned Sessions Judge, who
will provide his opinion on the petitioner's application without being
influenced by his earlier opinion, within one month from the date of
requisition and thereafter, the State Government will decide
petitioner's application within one month from the date of receipt of
opinion from learned Presiding judge of the convicting court. As
such, the State government will decide petitioner's application in
accordance with law within two months from the date of receipt of a
copy of this order.
14. With the aforesaid directions, this writ petition stands
disposed of . No costs.
Sd/-
(N.K. Chandravanshi)
JUDGE
Bini
