Chattisgarh High Court
Rajendra Narang vs State Of Chhattisgarh on 6 September, 2022
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NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
WPCR No. 163 of 2022
Order reserved on 22.8.2022
Order delivered on 06.9.2022
• Rajendra Narang S/o Jhabbulal Narang presently Aged About
38 Years Prisoner No. 2553/103, Presently Serving Sentence In
Central Jail, Raipur, Chhattisgarh, Otherwise R/o Barouda, P.S.
Mana Camp, Raipur, District- Raipur, Chhattisgarh, District :
Raipur, Chhattisgarh
---- Petitioner
Versus
1. State Of Chhattisgarh Through The Secretary, Ministry Of
Home, Mahanadi Bhawan, Mantralaya, Naya Raipur, District-
Raipur, Chhattisgarh.
2. Inspector General Of Prison, District- Raipur, Chhattisgarh
3. The Superintendent Of Jail, Central Jail, District- Raipur,
Chhattisgarh
4. The District Magistrate, Raipur, District- Raipur, Chhattisgarh
---- Respondents
For Petitioner : Mr. Hari Agrawal, Advocate.
For Respondents/State : Ms. M. Asha, PL
Hon'ble Shri Justice N.K. Chandravanshi
ORDER [C.A.V.]
1. Present writ petition under Article 226 of the Constitution of India
has been instituted by the petitioner/ convict, who is undergoing
sentence of imprisonment for life upon being convicted for
commission of offence under Section 302 of the I.P.C., for following
reliefs:-
"10.a A writ and / or an order in the nature of
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appropriate writ do issue directing call for the
relevant records relating to the petitioner's case
for its kind perusal
10.b A writ and / or an order in the nature of
appropriate writ do issue directing the
respondent authorities to release the petitioner,
under the provisions of Section 432 of the
Cr.P.C., as he has admittedly completed more
than 20 years of jail sentence and a
recommendation in this regard has also been
made by the concerned Respondent authorities.
10.c In the alternate, a writ and / or an order in
the nature of appropriate writ do issue setting
aside the report dated 15.7.2020 and directing
the opinionating Authority to submit a fresh
report keeping in mind, applicable statutory
provision and rules in its true letter & spirit, and
further directing the respondent authorities to
decide the application filed by the petitioner for
his suspension/remission of the remaining jail
sentence, within a time frame fixed by this
Hon'ble Court, in the facts and circumstances of
the case.
10.d Any other relief which this Hon'ble Court
may deem fit in the facts and circumstances of
case."
2. Facts of the case, in brief, is that vide judgment dated 30.3.2006,
passed by 14th Upper Sessions Judge, FTC Raipur in Sessions trial
No.265/2005, petitioner has been convicted for the offence under
Section 302 of the I.P.C. and sentenced to undergo R.I. for life and
to pay fine of Rs.2000/- with default stipulation. Criminal Appeal
No.18/2007 preferred by the petitioner was dismissed by this Court
vide order dated 14.2.2013. In the year 2020, petitioner filed an
application (Annexure P1) under Section 432 of the Criminal
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Procedure Code (for brevity 'the Code') for grant of remission.
Pursuant to said application, opinion from the concerned Presiding
Judge of the Court was sought by the Jail Authority vide Annexure
P2. Vide letter dated 15.7.2020 (Annexure P3), learned Presiding
Judge gave negative opinion. Vide letter dated 21.11.2020
(Annexure P4) the Jail Authority requested the concerned Presiding
Judge to reconsider his opinion, which was negated by the learned
Presiding Judge, vide memo dated 18.1.2021. Thereafter, matter of
petitioner for grant of remission was referred by the Superintendent
Jail, Raipur to the Director General, Jail and Correctional Services,
Raipur (Annexure P5), who forwarded the same to Government,
but, since learned Presiding Judge has given negative opinion for
grant of remission to the petitioner, vide memo dated 04.10.2021 it
was informed by the Upper Secretary, Government of C.G. Home
(Jail) Department that since Presiding Officer has not given positive
opinion, remission application of detainee has not been allowed by
the Government. Hence, this revision.
3. Return has been filed by State Authority stating inter alia that
looking to the gravity of offence, which the petitioner has committed,
learned Presiding Judge has declined to give positive opinion for
premature release of the petitioner and due to such opinion, his
application was dismissed by the appropriate Government.
4. Learned counsel for the petitioner would submit that under
fulfillment of necessary implications, petitioner has applied for grant
of remission under Section 432 Cr.P.C. to the concerning Jail
Authority. Considering his conduct and behavior in jail and after
completion of more than 19 years of jail sentence, including
minimum 14 years of substantive jail sentence, the Jail Authority
has recommended for grant of remission to the petitioner, but,
learned Presiding Judge, only on the basis of nature and gravity of
the offence, declined to give positive opinion in favour of petitioner.
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
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detainee. It is next submitted that in large number of decisions
rendered by the Hon'ble Courts, it has been held that opinion of
Court given under Section 432 (2) of Code of Criminal Procedure is
not binding on the appropriate Government for giving remission,
despite that the Competent Authority has dismissed the petitioner's
application for grant of remission, hence, it is prayed that relief, as
sought, may be granted to the petitioner.
5. On the other hand, learned counsel for the State/respondents
referring to the return filed by them 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 the petitioner.
6. I have heard learned counsel for the parties and considered their
rival submissions made herein-above and also gone through the
record with utmost circumspection.
7. In order to consider the plea raised at the Bar, it would be
appropriate to reproduce Section 432 (1) & (2) of the 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
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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."
8. The power to consider remission under Section 432(1) of the CrPC
has been conferred to the appropriate Government to consider and
suspend the execution of his sentence or to remit the whole or any
part of the punishment to which the accused person has been
sentenced i.e. the petitioner in this case.
9. It is well settled that Section 432 of the CrPC has application only in
two situations, first, where a convict is to be given "additional'
remission or remission for a period over and above the period for
which he is entitled to or he is awarded under a statutory rule
framed by the appropriate Government or under the Jail Manual,
and second, where a convict is sentenced to life imprisonment,
which is for an indefinite period, subject to procedural and
substantive checks. (See Sangeet and another v. State of
Haryana 1.)
10. It is also settled that a convict undergoing life imprisonment is
expected to remain in custody till the end of his life, subject to any
remission granted by the appropriate Government under Section
432 of the CrPC which, in turn, is subject to the procedural checks
mentioned in the said provision and further substantive check in
Section 433A of the CrPC. (See Mohinder Singh v. State of
Punjab 2 . )
11.The question as to whether the Court can act directly for grant of
remission to convicted persons has been considered by the
Supreme Court in the matter of Rajan v. Home Secretary, Home
Department of Tamil Nadu & Ors. 3, which have been referred
again by the Hon'ble Supreme Court in the matter of Ram Chander
1 AIR 2013 SC 447
2 2013 Cri. L.J. 1559
3 (2019) 14 SCC 114
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v. State of Chhattisgarh and another 4 in paragraph 14, which
reads thus:-
"14. In Rajan (supra), the court observed that while the grant of
remission is the exclusive prerogative of the executive and the
court cannot supplant its view, the Court can direct the
authorities to re-consider the representation of the convict. The
Court made the following observations:
"18. The petitioner would, however, rely on the
unreported decision of this Court in Ram Sewak
[Ram Sewak v. State of U.P., 2018 SCC
OnLine SC 2012], to contend that this Court may
direct the authorities to release the petitioner
forthwith and that there is no point in directing
further consideration by the State as the
petitioner had already undergone over 30 years
of sentence and with remission, over 36 years.
The order passed by this Court in Ram Sewak
[Ram Sewak v. State of U.P., 2018 SCC OnLine
SC 2012] , is obviously in the facts of that case.
As a matter of fact, it is well settled by now that
grant or non-grant of remission is the prerogative
to be exercised by the competent authority and it
is not for the court to supplant that procedure.
Indeed, grant of premature release is not a
matter of privilege but is the power coupled with
duty conferred on the appropriate Government in
terms of Sections 432 and 433 CrPC, to be
exercised by the competent authority after taking
into account all the relevant factors, such as it
would not undermine the nature of crime
committed and the impact of the remission that
may be the concern of the society as well as the
concern of the State Government.
.....
4 AIR 2022 Supreme Court 2017
20. Thus understood, we cannot countenance
the relief claimed by the petitioner to direct the
respondents to release the petitioner forthwith or
to direct the respondents to remit the remaining
sentence and release the petitioner. The
petitioner, at best, is entitled to the relief of
having directions issued to the respondents to
consider his representation dated 5-2-2018,
expeditiously, on its own merits and in
accordance with law. We may not be understood
to have expressed any opinion either way on the
merits of the claim of the petitioner. The fact that
the petitioner's request for premature release
was already considered once and rejected by the
Advisory Board of the State Government, in our
opinion, ought not to come in the way of the
petitioner for consideration of his fresh
representation made on 5-2-
2018................................"
12.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, hence, the
appropriate Government have declined to grant remission to the
petitioner. Whether opinion of the Presiding Judge would be
binding on the Competent Authority to grant remisson or not has
been considered by Hon'ble Supreme Court in the case of Union of
India v. Sriharan 5, which has also been considered by Hon'ble
Supreme Court in the matter of Ram Chander v. State of
Chhattisgarh and another (supra) wherein in an identical case
like case in hand was 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, has observed as under :-
"20. In Sriharan (supra), the Court observed that
5 (2016) 7 SCC 1
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 Cr.P.C.
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 v. Union of India 6 , 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).
6 (2000) 2 SCC 595
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 7 and
State of Haryana v. Jagdish 8, 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.
7 (2000) 7 SCC 626
8 (2010) 4 SCC 216
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."
13. 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.
14. 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 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 v. Union
of India (supra), which has further been reiterated by Hon'ble
Supreme Court in the case of Ram Chander v. State of
Chhattisgarh and another (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 v. Union of India (supra) while
giving opinion under Section 432 (2) of the Code.
15. 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 two months from the releasing of
this order.
16. It is pertinent to mention here that if competent authority/Jail
Authority sought 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 v. Union of India (supra), and further followed in the case
of Ram Chander v. State of Chhattisgarh and another (supra),
under Section 432(2) of the Code within a period of fifteen days
after receiving of memo with regard to fresh opinion sought by the
aforesaid authority.
17. 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
decided the case of the petitioner on its own merit in accordance
with law.
18. With the aforesaid observations, the writ petition stands finally
disposed of. No order as to cost(s).
SD/-
(N.K. Chandravanshi)
Judge
Ayushi
