Bharat Ram vs State Of Chhattisgarh
2022 Latest Caselaw 6594 Chatt

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                                                WPCR No. 102 of 2022


                                                            NAFR

      HIGH COURT OF CHHATTISGARH, BILASPUR

                      WPCR No. 102 of 2022

    Bharat Ram S/o Ghanshyam Aged About 60 Years R/o
     Pipercheedi Post Bhothli, Tahsil And District Dhamtari,
     Chhattisgarh                            ---- Petitioner

                            Versus

  1. State Of Chhattisgarh Through The Secretary, Home
     (Police) Department, Mahanadi Bhawan, Mantralaya Nawa
     Raipur, Atal Natar, District Raipur, Chhattisgarh

  2. The Secretary Law Department, Nawa Raipur, Atal Natar,
     District Raipur, Chhattisgarh

  3. The Superintendent Of Jail Central Jail Raipur, District
     Raipur, Chhattisgarh

  4. The Superintendent Of Police Raipur, District Raipur,
     Chhattisgarh                      ---- Respondents



For Petitioner         :-     Mr. Santosh Bharat, Advocate
For Respondents/State :-      Ms. M. Asha, PL


          Hon'ble Shri Justice N.K. Chandravanshi
                      Order On Board

04/11/2022

  1. This petition has been preferred under Article 226 of the
     Constitution of India challenging the order dated 19.7.2021
     (Annexure R7) passed by respondent No.1 whereby
     application filed by petitioner under Section 432(1) of the
     Cr.P.C. for grant of remission of remaining sentence has
     been rejected.

  2. Facts

of the case, in brief, are that vide judgment dated 31.10.2006, passed by Additional Sessions Judge, Dhamtari

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in Sessions trial No.10/2006, petitioner has been convicted under Section 302 of the I.P.C. and sentenced to life imprisonment. Appeal preferred by the petitioner bearing CRA No.880/2006 has also been dismissed by this Court vide judgment dated 07.02.2012. Petitioner is in jail since 10.4.2005. Thereafter, petitioner filed an application for grant of remission under Section 432 of the Cr.P.C., on which opinion of the concerned Presiding Judge was sought for by the Jail Authorities, who did not give positive opinion for grant of remission to the petitioner vide Annexure R2 and P1 and on the basis of that opinion, respondent No.1 declined to give remission to the petitioner and rejected his application vide Annexure R7. Hence, this petition.

3. Learned counsel for the petitioner submits that petitioner is in jail since 2005 and after completing the necessary requirements he moved an application for grant of remission, which has been rejected by the appropriate authority only because learned Presiding Judge has not given positive opinion to grant remission to the petitioner. It is further submitted that Presiding Judge has given his opinion by only considering the nature and gravity of the offence, but, only on such ground, remission application could not be rejected. It is further submitted that petitioner's application has been rejected without considering the object and reason for enacting the provisions for grant of remission and law laid by the Hon'ble Apex Court in various cases. He would next submit that impugned order is in the teeth of recent judgment of Hon'ble Supreme Court rendered in the case of Ram Chander v. State of Chhattisgarh [AIR 2022 SC 2017], hence, it is prayed that petition may be allowed and remission may be granted to the petitioner.

4. On the other hand, referring to the reply filed by the State, learned State counsel would submit that impugned order

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has been passed strictly following the provisions contained under Section 432(1) of the Cr.P.C., therefore, as such, the instant 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 records with utmost circumspection.

6. In order to consider the plea raised at the Bar, it would be appropriate to notice Section 432 of 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"

7. The power u/S. 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

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sentenced i.e. the petitioner.

8. 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 have been referred again by the Hon'ble Supreme Court in the matter of Ram Chander v. State of Chhattisgarh and another [AIR 2022 SC 2017] in which it has been observed by their Lordships that while the 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.

9. 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 v. Sriharan [(2016) 7 SCC 1] as well as in Laxman Naskar v. Union of India [(2000) 2 SCC 595] 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

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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 India (supra), the government may request the presiding judge to consider the 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 Bengal (supra) and State of Haryana v. Jagdish6, 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

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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. The following extract is useful for our consideration :

"[005.066] Adequacy of reasons Sufficiency of reasons, in a particular case, depends on the facts of each case. It is not necessary for the authority to write out a judgement as a court of law does. However, at least, an outline of process of reasoning must be given. It may satisy the requirement of giving reasons if relevant reasons have been given for the order, though the authority has not set out all the reasons or some of the reasons which had been argued before the court have not been expressly considered by the authority. A mere repetition of the statutory language in the order will not make the order a reasoned one.

Mechanical and stereotype reasons are not regarded as adequate. A speaking order is one that speaks of the mind of the adjudicatory body which passed the order. A reason such as 'the entire examination of the year 1982 is cancelled', cannot be regarded as adequate because the statement does explain as to why the

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examination has been cancelled; it only lays down the punishment without stating the causes therefor."

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 reconsidered. 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. Reverting to the facts of the present case in the light of aforesaid pronouncements by their Lordships of the Supreme Court, in the instant case, it appears that the Additional Sessions Judge, Dhamtari has given his opinion vide Annexure R2 and P1 dated 02.1.2020 and 07.8.2020 respectively by only considering the nature and gravity of the offence and also the fact that his appeal has been dismissed by the High Court and on the basis of that negative opinion given by the Additional Sessions Judge, Dhamtari, the State Government has rejected petitioner's application for

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remission vide impugned order dated 19.7.2021 (Annexure R7) which is not in accordance with law laid down by the Hon'ble Apex Court in the case of Laxman Naskar (Supra) which has further been reiterated by the Hon'ble Apex Court in the matter of Ram Chander (Supra).

11.Consequently, the impugned order dated 19.7.2021 (Annexure R7) passed by the respondent No.1 is hereby set-aside. The matter is remitted to the State Government to decide the petitioner's application for remission afresh. The State Government will call for the opinion of learned Presiding Judge, who will provide his opinion on the petitioner's application 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. 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.

12. With the aforesaid directions, this writ petition stands disposed of. No cost(s).

Certified copy, as per rules.

SD/-

(N.K. Chandravanshi) Judge Ayushi