Bashir Khan @ Shahrukh Khan @ Sarup vs State Of Chhattisgarh
2022 Latest Caselaw 5933 Chatt

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                                                                            NAFR

          HIGH COURT OF CHHATTISGARH, BILASPUR
                             WPCR No. 73 of 2022
        Bashir Khan @ Shahrukh Khan @ Sarup S/o Nurdeen
        Musalman Aged About 30 Years R/o Sadar Bazar, Bhatapara
        (City), District Raipur, Chhattisgarh ( Now District Baloda Bazar
        Bhatapara, Chhattisgarh, District : Balodabazar-Bhathapara, CG
                                                                     ---- Petitioner
                                      Versus
     1. State Of Chhattisgarh Through The Home Department,
        Mahanadi Bhawan, Atal Nagar, New Raipur, CG
     2. The Secretary, Law Department, Atal Nagar, New Mahanadi
        Bhawan, Nava Raipur, District- Raipur, CG
     3. Jail Superintendent Central Jail Raipur, District- Raipur, CG
     4. Director General Of Police, Jail, Raipur, District- Raipur, CG
                                                                 ---- Respondents
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For Petitioner : Shri Suresh Kumar Verma, Advocate For respondents/State : Shri Ashish Gupta, Panel Lawyer.

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Hon'ble Shri Justice N.K. Chandravanshi Order On Board 22-9-2022

1. The present petition under Article 226 of the Constitution of India has been filed by the petitioner, to direct the respondent- authorities to grant him remission.

2. Learned counsel for the petitioner while referring the petition would submit that the petitioner has been sentenced for life imprisonment for the offence under Section 302 of the Indian Penal Code and Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities ) Act (in brevity ' SCST Act') and he is serving jail sentence since 4-4-2006. After attaining all the eligibility criteria for grant of remission, the petitioner moved an application in this regard to the respondent- authorities, but the same has not been decided yet. It is further submitted that, it seems that since the concerned Presiding Judge has not given positive opinion in respect of grant of remission to the petitioner, the respondent-authorities have not

decided his application till date. It is therefore, prayed that the petition may be disposed of by directing the respondent- authorities to decide the remission application of the petitioner expeditiously.

3. Learned counsel for the State, referring to the reply filed by it, submits that considering the nature and gravity of offence, learned Presiding Judge has opined not to grant remission to the petitioner, therefore, the application of the petitioner is still under consideration before the competent authority i.e. State Government.

4. Considered the submission and perused the material available on record.

5. In the matter of Ram Chander -v- State of CG and anr. (AIR 2022 SC 2017), their Lordships of the Supreme Court, while considering the series of judicial pronouncement on the issue have observed as under :-

"20. In Union of India -v- Sriharan [(2016(7) SCC 1)], 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 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 [(2000) 2 SCC 595], 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). 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 [(2000) 7 SCC 626] 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."

6. On perusal of the record and as per submission of learned counsel for the petitioner, it appears that the petitioner has been convicted under Sections 302 of IPC and Section 3(2)(v) of SCST Act and serving life sentence in the jail. Perusal of documents enclosed with the petition would go to show that the petitioner is languishing in jail since 4-4-2006, despite that his remission application has not been decided by the respondent authorities. Therefore, the respondent authorities are directed to decide remission application filed by the petitioner as early as possible preferably within three months from the date of receipt of copy of this order.

7. It is made clear that if required, the respondent authorities may further seek opinion of the Presiding Judge of concerned Court under Section 432(2) of the Cr.P.C. in view of judgment passed by this Court in WPCR No.755/2021 (Madari @ Abrar Ahmad vs. State of Chhattisgarh & Ors.) and in turn, the Presiding Judge may reconsider his opinion without being influenced by his earlier opinion, considering the observation made by this Court in aforesaid writ petition.

8. In view of above, the present WPCR is disposed of with liberty that the petitioner may revive his prayer afresh, if his grievance still subsist.

Sd/-

(N.K. Chandravanshi) JUDGE pathak/-