Lakarra Dewar vs State Of Chhattisgarh
2022 Latest Caselaw 6474 Chatt

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                                                               WPCR No. 49 of 2022


                                                                         NAFR

            HIGH COURT OF CHHATTISGARH, BILASPUR

                           WPCR No. 49 of 2022

    Lakarra Dewar S/o Radheshyam Dewar Aged About 47 Years Caste
     Dewar, R/o. Village Patpar, Bhatapara, District Balodabazar Bhatapara
     Chahttisgarh.                                          ---- Petitioner

                                   Versus

   1. State Of Chhattisgarh Through Secretary, Home Department,
      Mantalaya, Mahanadi Bhawan, Atal Nagar Nawa Raipur, District
      Raipur Chhattisgarh.

   2. Secretary, Law Department, Mantaralaya, Mahanadi Bhawan, Atal
      Nagar Nawa Raipur, District Raipur Chhattisgarh.

   3. Director General Of Police (Jail) Raipur, District Raipur Chhattisgarh.

   4. Jail Superintendent, Central Jail Raipur, District Raipur Chhattisgarh.

                                                           ---- Respondents



For Petitioner        :- Mr. Govind Ram Miri, Senior Advocate with
                        Mr.Basant Kaiwartya & Mr. Abhishek Banjara, Adv.
For State/Respondents:- Mr. Ashish Gupta, PL



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

31/10/2022

   1. With the consent of learned counsel for both the parties, the matter is
      heard finally at the motion stage.

   2. By way of this writ petition under Article 226 of Constitution of India,
      petitioner has called in question order impugned dated 04.10.2021
      (Annexure R5) by which respondent No.1 has rejected the application
      filed by petitioner under Section 432 of the Criminal Procedure Code
      (for brevity 'the Code') for remission of his remaining jail sentence.
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                                                              WPCR No. 49 of 2022


3. Facts

of the case, in brief, are that petitioner has been convicted for offence under Section 302 of the I.P.C. vide judgment dated 25.7.2006 passed in Sessions Trial No.217/2006 and serving life imprisonment. He is in jail since 06.3.2006. After fulfillment of all the requirements for grant of remission, petitioner has filed an application for remission under Section 432 (1) of the Code. On his application, opinion of concerned Presiding Judge was sought for under Section 432 (2) of the Code, wherein learned Presiding Judge of convicting Court while considering the nature and gravity of offence, declined to give positive opinion in favour of petitioner. Pursuant to negative opinion given by the Presiding Judge, the appropriate Government / Competent Authority rejected his application for grant of remission, which was informed vide Annexure R5 to DGP (Jail) and Correctional Services, Chhattisgarh, Raipur. Hence, this petition.

4. Learned counsel for the petitioner would submit that the order impugned passed by the State Government is not in accordance with law and teeth of the provisions contained under Section 432 (1) Code, particularly, in light of decision rendered by the Hon'ble Apex Court in the case of Ram Chander v. State of Chhattisgarh and another [AIR 2022 SC 2017] and Laxman Naskar Vs. Union Of India and others [(2000) 2 SCC 595] and therefore, it is prayed that impugned order be quashed and respondent No.1 may be directed to consider petitioner's application afresh.

5. On the other hand, referring to reply filed by the State, learned State counsel / respondent would submit that petitioner's case has been considered strictly in accordance with provisions contained under Section 432 (1) of the Code, after obtaining the opinion of learned trial Judge and, thereafter, it has been rejected.

6. I have heard learned counsel for the parties and considered their rival submissions made hereinabove and also gone through the records with utmost circumspection.

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

WPCR No. 49 of 2022

sentence or to remit the whole or any part of the punishment to which the accused person has been 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. In the instant case, 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, therefore, the appropriate Government has declined to grant remission to the petitioner.

10.The Hon'ble Supreme Court in the matter of Ram Chander (Supra) has considered its earlier decisions including the Constitutional Bench decision rendered in the matter of Union of India Vs. Sriharan [(2016) 7 SCC 1], as well as in Laxman Naskar Vs. Union Of India and others (Supra) wherein an identical case like case in hand reached before the Hon'ble Supreme Court and their Lordships while considering 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.

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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

WPCR No. 49 of 2022

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."

11.In the light of foregoing discussions, observations and law laid down by 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.

12.As has been stated above, in the instant case, since the concerned Presiding Judge has not given positive opinion for grant of remission while considering the nature and gravity of the offence, 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 only on the basis of nature and gravity of offence, 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

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Code.

13. 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 from the date of receipt / production of a copy of this order.

14. 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.

15. 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.

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

SD/-

(N.K. Chandravanshi) Judge

Ayushi