Ramchandra vs State Of Chhattisgarh
2022 Latest Caselaw 6049 Chatt

                                        1

                                                                         NAFR
             HIGH COURT OF CHHATTISGARH AT BILASPUR
                     Writ Petition (Criminal) No. 153 of 2022
         Ramchandra, Aged about 42 years, S/o Shri Katkaram
         Cherwa, Occupation Labour, R/o Village Nag, Police Station
         Charcha, Distt. Korea, Chhattisgarh.

                                                                ---Petitioner

                                      Versus

      1. State of Chhattisgarh through the Secretary, Department of
         Home Affairs, Mahanadi Bhawan, New Mantralaya, Atal
         Nagar, Nawa Raipur, Chhattisgarh.

      2. The   Secretary,    Department        of   Law   and     Legislature,
         Mahanadi Bhawan, New Mantralaya, Atal Nagar, Nawa
         Raipur, Chhattisgarh.

      3. The Director General of Police, Department of Home Affairs,
         Police Head Quarter - Raipur, Chhattisgarh.

      4. The Superintendent of Police, Ambikapur, Distt. Surguja,
         Chhattisgarh.

      5. The Jail Superintendent, Central Jail, Ambikapur, Distt.
         Surguja, Chhattisgarh.

                                                          ---Respondents

For Petitioner :- Mr. Vivek Bhakta, Advocate For Respondents/State :- Mr. Arjit Tiwari, P.L.

Hon'ble Shri Justice Sanjay K. Agrawal Order on Board

28/09/2022

1. By way of this writ petition, the petitioner has called in

question order impugned dated 24/12/2021 (Annexure P/1)

by which respondent No. 1 has rejected the application filed

by the petitioner under Section 432(1) of CrPC for remission

of his remaining jail sentence on the basis of the

recommendation given by learned Session Judge,

Baikunthpur, Koriya vide letter dated 24/12/2021

(Annexure P/2).

2. Petitioner herein has been convicted for offence punishable

under Section 302 of IPC by the Sessions Judge, Korea,

Baikunthpur vide impugned judgment dated 10/04/2007

(Annexure P/3) passed in Sessions Trial No. 33/2006 and

he has been undergoing imprisonment for life. Thereafter,

respondent No. 5, looking to the good behavior and

completion of detention period of more than 21 years,

moved an application under Section 432 of CrPC for

remission of his jail sentence but it has been dismissed by

the State Government vide impugned order dated

24/12/2021 (Annexure P/1) only on the basis of

recommendation of the Presiding Judge who had convicted

the petitioner, without assigning sufficient reason, which

has been assailed in the instant appeal.

3. Mr. Vivek Bhakta, learned counsel for the petitioner, would

submit that the order impugned passed by the State

Government (respondent No. 1) is in teeth of the provisions

contained under Section 432(1) of CrPC in light of the

decisions rendered by the Supreme Court in the matters of

Ram Chander v. State of Chhattisgarh 1 and Laxman 1 AIR 2022 SC 2017

Naskar v. Union of India2, as such, the impugned order be

quashed and respondent No. 1 may be directed to consider

petitioner's application afresh.

4. Mr. Arjit Tiwari, learned State counsel, would support the

impugned order and submit that petitioner's case has

strictly been considered in accordance with the provision

contained in Section 432(1) of CrPC after obtaining the

recommendation/opinion of learned trial Judge and

thereafter, it has been rejected, as such, the instant writ

petition deserves to be dismissed.

5. I have heard learned counsel for the parties, considered

their rival submissions made herein-above and perused the

record 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

2 (2000) 2 SCC 595

certified copy of the record of the trial or of such record thereof as exists.

(3) to (7) XXX XXX"

7. 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.

8. It is well settled that Section 432 of the CrPC has

application only in two situations firstly, where a convict is

to be given "additional" remission or remission for a period

over and above the period that he is entitled to or he is

awarded under the Jail Manual, and secondly, where a

convict is sentenced to life imprisonment, which is for an

indefinite period, subject to procedural and substantive

checks. (See: Sangeet v. State of Haryana3)

9. 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 Punjab4)

10. The Supreme Court in the matter of Ram Chander (supra)

has considered its earlier decisions including the

3 AIR 2013 SC 447 4 2013 Cri.LJ 1559

Constitution Bench decision rendered in the matter of

Union of India v. Sriharan 5 as well as in Laxman Naskar

(supra) 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 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.

5 (2016) 7 SCC 1 6 (2010) 4 SCC 216

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. 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 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 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."

11. Reverting to the facts of the present case in light of the

aforesaid pronouncements by their Lordships of the

Supreme Court, in the instant case, it appears that the

Sessions Judge, Korea, Baikunthpur in his

recommendation dated 07/07/2020 (Annexure P/2) has

simply observed that he has perused the case and as per

the offence committed by the petitioner, his case for

remission cannot be considered and on the basis of the said

recommendation of the Session Judge, the State

Government has rejected petitioner's application for

remission vide impugned order dated 24/12/2021

(Annexure P/1), which is in teeth of the decision rendered

by the Supreme Court in Ram Chander (supra).

Accordingly, the impugned order dated 24/12/2021

(Annexure P/1) passed by respondent No. 1 is hereby set

aside. Matter is remitted to the State Government to decide

petitioner's application for remission afresh. The State

Government will call for the opinion of learned Session

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 Session 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/-                                   Sd/-
     (Sanjay K. Agrawal)                     (Sanjay K. Agrawal)
          Judge                                         Judge

Harneet