Mansharam Yadav vs State Of Chhattisgarh
2022 Latest Caselaw 6162 Chatt

                                         1

                                                                      NAFR

            HIGH COURT OF CHHATTISGARH, BILASPUR

                               WPCR No. 275 of 2022
        Mansharam Yadav S/o Rambagas Yadav Aged About 58 Years
        Caste- Yadav, R/o Village Pokhra, Post Parsada, Police Station
        Rajim, District Gariyaband, CG

                                                              ---- Petitioner
                                   Versus
     1. State Of Chhattisgarh Through Secretary, Government Of
        Chhattisgarh, Department Of Home (Jail), Mantralaya, Mahanadi
        Bhawan, Atal Nagar, Nava Raipur, CG
     2. Secretary Department Of Law And Legislative Affairs, Mantralaya,
        Mahanadi Bhawan, Nava Raipur, Atal Nagar, Raipur, District Raipur,
        CG
     3. Senior Law Officer Jail And Reforms Services, Raipur, District
        Raipur, CG
     4. Director Jail Reforms Jail And Reforms Services, Raipur, District
        Raipur, CG
     5. Superintendent Central Jail Raipur, District Raipur,CG
     6. Special Judge (Atrocities) Raipur, District Raipur, CG
                                                       ---- Respondents


For Petitioner        :        Ms. Anubhuti Marhas, Adv.
For Respondents/State :        Mr. Chitendra Singh, PL

               Hon'ble Shri Justice N.K. Chandravanshi
                         Oorder on Board
10-10-2022
1.    The present petition under Article 226 of the Constitution of
India has been filed by the petitioner against rejection of his
application for grant of remission by the government vide memo No.
F-4-31/three-Jail/2021 dated 19-7-2021 (Annexure P-1).

2.      Facts

of the case, in brief, are that the petitioner has been convicted for commission of offence punishable under Section 302 and 201 of the IPC vide judgment dated 26-9-2005 passed by Special Sessions Judge (SCST Act), Raipur in Session Trial No. 21/2000. After conviction, the petitioner is undergoing the sentence of life imprisonment awarded to him. After completion of all the requirements for grant of remission, the petitioner has filed application for grant of remission under Section 432 of the Criminal Procedure Code (for brevity 'the Code'). On his application, opinion of concerned Presiding Judge was sought for by the jail authorities, wherein learned Presiding Judge of convicting Court gave the opinion vide Annexure R-1 Page 14 that it is not a fit case for grant of

remission. Pursuant to opinion given by the concerned Presiding Judge, the appropriate Government / competent authority rejected his application for grant of remission which was informed vide memo No. F 4-31 / Three-Jail/2021 dated 19-7-2021 (Annexure R-1). Hence, this petition.

3. Learned counsel for the petitioner submits that after completing the necessary requirements, petitioner has applied for grant of remission under Section 432(1) Cr.P.C. to the concerning Jail Authorities. Considering conduct and behavior of the petitioner in jail and considering other relevant factors including detention period, the Jail Authorities have recommended the case of the petitioner for grant of remission to him, but, learned Presiding Judge declined to give positive opinion in favour of petitioner, without considering the purpose and reasons for enacting concerned provisions of law, rules and various pronouncements of Hon'ble Apex Court and this Court. It is further submitted that despite having all the eligibility for grant of remission, the same has been denied without any lawful ground which defeats the very purpose and objective of applicable statutory provisions, rules and policies framed for grant of remission to detainee. It is next submitted that the Competent Authority has dismissed the petitioner's application for grant of remission which is contrary to law, hence, it is prayed that remission may be granted to the petitioner.

4. On the other hand, referring to the reply filed by the State, learned counsel for the State/respondents would submit that since learned Presiding Judge has not given positive opinion for grant of remission to the petitioner, appropriate Government is not inclined to grant remission to him.

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. 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 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 & 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.

8. In the instant cases, it is clear that since Presiding Judge has given a negative opinion under Section 432(2) of the Code with regard to the petitioner's application for grant of remission to him, hence, the appropriate Government has declined to grant remission to the petitioner. Whether the opinion of the Presiding Judge would be 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 [(2016) 7 SCC 1], which has also been considered by Hon'ble Supreme Court in the matter of Ram Chander v. State of Chhattisgarh and another (supra) wherein, an identical case 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 pronouncement 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 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.

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."

9. In the light of foregoing 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.

10. As has been stated above, in the instant case, since the concerned Presiding Judge has not given positive opinion for grant of remission, therefore, the Competent Authority has rejected the application of the petitioner. So far as opinion given 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 (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 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 (supra) while giving opinion under Section 432 (2) of the Code.

11. 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 the Presiding Judge of the convicting Court within a period of 3 months months from the date of receipt / production of a copy of this order.

12. 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.

13. 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 decide the case of the petitioner on its own merit in accordance with law.

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

Sd/-

(N.K. Chandravanshi) Judge

Pathak