Chattisgarh High Court
Kaleshwar Ram @ Kalesh vs State Of Chhattisgarh on 11 March, 2025
Author: Ramesh Sinha
Bench: Ramesh Sinha
1
2025:CGHC:11944-DB
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
WPCR No. 142 of 2025
Kaleshwar Ram @ Kalesh S/o Shri Ghuruwa Ram Aged About 45 Years
R/o Vill- Baherna, P.S. Aasta, Distt.- Jashpur (C.G.)
... Petitioner(s)
versus
1 - State Of Chhattisgarh Through- Home Department Mahanadi Bhawan,
New Raipur Distt.- Raipur (C.G.)
2 - Secretary Law Department, Atal Nagar, New Mahanadi Bhawan New
Raipur, Distt.- Raipur (C.G.)
3 - Director General Of Police (Jail) Raipur, Distt.- Raipur (C.G.)
4 - Jail Superintendent Central Jail Ambikapur, Distt.- Surguja (C.G.)
... Respondent(s)
(Cause Title taken from Case Information System)
For Petitioner : Mr. Ravindra Sharma, Advocate
For Respondents/State : Mr. Shashank Thakur, Deputy A.G.
Hon'ble Shri Ramesh Sinha, Chief Justice
Hon'ble Shri Ravindra Kumar Agrawal, Judge
Order on Board
Per Ramesh Sinha, Chief Justice
11/03/2025
Digitally
signed by
VEDPRAKASH
1. The petitioner has filed this petition seeking following relief(s):
DEWANGAN
"10.1. The Hon'ble Court may kindly be pleased to
issue a writ of MANDAMUS quashing the order
dated 31.01.2025 passed by the respondent No.1
and may kindly be pleased to direct the
respondent authority to reconsidered the
application of the petitioner for premature
release/remission of jail sentence, in the interest
of justice.
10.2. Any other relief, which this Hon'ble Court
may, deems fit and proper may also be awarded to
the petitioner including the cost of the petition."
2. The facts, in brief, as projected by the petitioner, is that the
deceased Meghnath was having illicit relationship with the wife of
the petitioner Kaleshwar therefore, he committed the murder of
Meghnath with the help of the other co-accused. The petitioner and
other accused person with the common intention committed the
offence and they have been charge-sheeted for the offence
punishable U/s 302/34, 307/34, 325/34 of I.P.C. and after full-
fledged trial they were convicted for the offence punishable U/s 302
R/w Section 34 of I.P.C. and sentenced for Life Imprisonment with
the fine of Rs. 5000/-, for the offence punishable U/s 307/34 of
I.P.C., R.I. for 07 years and fine of Rs. 1000/- and for the offence
punishable U/s 325/34 of I.P.C., R.I. for 03 years and fine of Rs.
1000/- vide judgment dated 03.03.2012 in Session Case No.
109/2009. Against the judgment dated 03.03.2012 passed by
learned Trial Court/ Session Judge, Jashpur, Dist- Jashpur (C.G.) in
Session Case No. 109/2009, the petitioner and co-accused had filed
the Criminal Appeal No. 321/2012 which has been dismissed by this
Hon'ble Court vide judgment dated 22.03.2018. After completion of
the mandatory substantive 14-year jail sentence, the petitioner
made an application before the Jail Authority for the remission of jail
sentence/his pre-release in the month of February 2024. On the said
application, the Jail Authority on 12.02.2024 called for the opinion
from the learned Presiding Judge regarding the remission of the
remaining jail sentence/pre-release of the petitioner/ accused. That
the learned Presiding Judge vide opinion letter dated 06.03.2024
opined that the petitioner was involved in the offence of serious
nature, therefore he is not entitled to get the benefit of Section 432
of the Criminal Procedure Code and given the negative opinion on
the application of the petitioner. After receiving the opinion from the
Presiding Judge, respondent No.4/Jail Superintendent sent the
report to respondent No.3/Director General Jail on 14.06.2024, and
the same was presented before respondent No.1/State vide letter
dated 05.07.2024. Respondent No.1 has rejected the application of
the petitioner, ignoring that the petitioner has completed more than
14 years 07 months of substantive jail sentence on the date of his
application made in the month of February 2024, and he has got the
benefit of remission of more than 05 years (as on 04.02.2024), and
now he has completed more than 20 years 06 months of jail
sentence including the remission period as on today. That
respondent authority has, without assigning any reason, rejected the
application of the petitioner only on the basis of opinion given by the
Presiding Judge without considering the facts and circumstances of
the case and the guideline framed by the Hon'ble Supreme Court for
deciding the application for remission. Hence, this petition.
3. Learned counsel for the petitioner submits that the State/
respondent has rejected the application of the petitioner for grant of
remission in a very casual manner without taking into consideration
the various judgments and judicial pronouncements of this Court as
well as the Apex Court. He further submits that subordinate
legislation cannot override the provisions of the Cr.P.C. The Hon'ble
Supreme Court, in the matter of Rajo alias Rajwa alias Rajendra
Mandal Vs. State of Bihar & Others, 2023 SCC Online SC 1068
has dealt with the issue involved in this petition. He further places
reliance on the decision of the Supreme Court in Joseph Vs. State
of Kerala, 2023 SCC Online 1211. The petitioner has remained in
jail for a period of 15 years 07 months, and as such, he has
undergone a sufficient period of incarceration, and he is entitled to
be granted the benefit of remission.
4. On the other hand, learned counsel appearing for the State/
respondents while opposing the petition submits that the application
of the petitioner has been rejected on the opinion received from the
Presiding Judge, who opined that the offence committed by the
petitioner is of a serious nature and granting remission in such a
serious crime may create various perceptions in society regarding
the judicial system, which could ultimately reduce people's trust in
the judiciary.
5. We have heard learned counsel for the parties and perused the
pleadings and documents appended thereto.
6. In this petition, the application for grant of the benefit of remission of
the petitioner has been rejected by the respondent authority in view
of the opinion received from the Presiding Judge. While rejecting the
application of the petitioner, the respondent authority has not called
any report from the concerned Welfare Officer of the Jail regarding
the behaviour of the petitioner.
7. The Hon'ble Supreme Court, in Rajo alias Rajwa alias Rajendra
Mandal (supra), has observed as under:
"22. It has been repeatedly emphasized that the aim,
and ultimate goal of imprisonment, even in the most
serious crime, is reformative, after the offender
undergoes a sufficiently long spell of punishment
through imprisonment. Even while upholding Section
433A, in Maru Ram v. Union of India [1981] 1 SCR
1196, this court underlined the relevance of post-
conviction conduct, stating whether the convict,
"Had his in-prison good behavior been
rewarded by reasonable remissions linked to
improved social responsibility, nurtured by
familial contacts and liberal parole, cultured by
predictable, premature release, the purpose of
habilitation would have been served, If law--S.
433-A in this case--rudely refuses to consider
the subsequent conduct of the prisoner and
forces all convicts, good, bad and indifferent,
to serve a fixed and arbitrary minimum it is an
angry flat untouched by the proven criteria of
reform."
24. Apart from the other considerations (on the
nature of the crime, whether it affected the society at
large, the chance of its recurrence, etc.), the
appropriate government should while considering
the potential of the convict to commit crimes in the
future, whether there remains any fruitful purpose of
continued incarceration, and the socio-economic
conditions, review: the convict's age, state of heath,
familial relationships and possibility of reintegration,
extent of earned remission, and the post-conviction
conduct including, but not limited to - whether the
convict has attained any educational qualification
whilst in custody, volunteer services offered,
job/work done, jail conduct, whether they were
engaged in any socially aimed or productive activity,
and the overall development as a human being. The
Board thus should not entirely rely either on the
presiding judge, or the report prepared by the police.
In this court's considered view, it would also serve
the ends of justice if the appropriate government had
the benefit of a report contemporaneously prepared
by a qualified psychologist after interacting /
interviewing the convict that has applied for
premature release. The Bihar Prison Manual, 2012
enables a convict to earn remissions, which are
limited to one third of the total sentence imposed.
Special remission for good conduct, in addition, is
granted by the rules. {See Rules 405 and 413 of the
Bihar Prison Manual, 2012.} If a stereotypical
approach in denying the benefit of remission, which
ultimately results in premature release, is repeatedly
adopted, the entire idea of limiting incarceration for
long periods (sometimes spanning a third or more of
a convict's lifetime and in others, result in an
indefinite sentence), would be defeated. This could
result in a sense of despair and frustration among
inmates, who might consider themselves reformed-
but continue to be condemned in prison.
25. The majority view in Sriharan (supra) and the
minority view, had underlined the need to balance
societal interests with the rights of the convict (that
in a given case, the sentence should not be unduly
harsh, or excessive). The court acknowledged that it
lies within the executive's domain to grant, or refuse
premature release; however, such power would be
guided, and the discretion informed by reason,
stemming from appropriate rules. The minority view
(of Lalit and Sapre JJ) had cautioned the court from
making sentencing rigid:
"73. [...] Any order putting the punishment
beyond remission will prohibit exercise of
statutory power designed to achieve same
purpose Under Section 432/433 Code of
Criminal Procedure In our view Courts cannot
and ought not deny to a prisoner the benefit to
be considered for remission of sentence. By
doing so, the prisoner would be condemned to
live in the prison till the last breath without
there being even a ray of hope to come out.
This stark reality will not be conducive to
reformation of the person and will in fact push
him into a dark hole without there being
semblance of the light at the end of the tunnel."
8. In Joseph (supra), the Hon'ble Apex Court, while dealing with a
similar issue and directing the release of the accused therein with
immediate effect, had observed as under:
"32. To issue a policy directive, or guidelines, over
and above the Act and Rules framed (where the
latter forms part and parcel of the former), and
undermine what they encapsulate, cannot be
countenanced. Blanket exclusion of certain
offences, from the scope of grant of remission,
especially by way of an executive policy, is not
only arbitrary, but turns the ideals of reformation
that run through our criminal justice system, on its
head. Numerous judgments of this court, have
elaborated on the penological goal of reformation
and rehabilitation, being the cornerstone of our
criminal justice system, rather than retribution. The
impact of applying such an executive
instruction/guideline to guide the executive's
discretion would be that routinely, any progress
made by a long-term convict would be rendered
naught, leaving them feeling hopeless, and
condemned to an indefinite period of incarceration.
While the sentencing courts may, in light of this
court's majority judgment in Sriharan (supra), now
impose term sentences (in excess of 14 or 20
years) for crimes that are specially heinous, but
not reaching the level of 'rarest of rare' (warranting
the death penalty), the state government cannot -
especially by way of executive instruction, take on
such a role, for crimes as it deems fit.
33. It is a well-recognized proposition of
administrative law that discretion, conferred widely
by plenary statute or statutory rules, cannot be
lightly fettered. This principle has been articulated
by this court many a time. In U.P. State Road
Transport Corporation & Anr v. Mohd. Ismail & Ors.
{[1991] 2 SCR 274}, this court observed:
"It may be stated that the statutory discretion
cannot be fettered by self-created rules or
policy. Although it is open to an authority to
which discretion has been entrusted to lay
down the norms or rules to regulate exercise
of discretion it cannot, however, deny itself
the discretion which the statute requires it to
exercise in individual cases."
34. Likewise, in Chairman, All India Railway Rec.
Board & Ors. v. K. Shyam Kumar & Ors. { [2010] 6
SCR 291} this court explained the issue, in the
following manner:
"Illegality as a ground of judicial review
means that the decision maker must
understand correctly the law that regulates
his decision making powers and must give
effect to it. Grounds such as acting ultra
vires, errors of law and/or fact, onerous
conditions, improper purpose, relevant and
irrelevant factors, acting in bad faith, fettering
discretion, unauthorized delegation, failure to
act etc., fall under the heading "illegality".
Procedural impropriety may be due to the
failure to comply with the mandatory
procedures such as breach of natural justice,
such as audi alteram partem, absence of bias,
the duty to act fairly, legitimate expectations,
failure to give reasons etc."
35. The latitude the Constitution gives to the
executive, under Articles 72 and 162, in regard to
matters such as remission, commutation, etc,
therefore, cannot be caged or boxed in the form of
guidelines, which are inflexible.
36. This court's observations in State of Haryana v.
Mahender Singh {(2007) 13 SCC 606} are also
relevant here:
"38. A right to be considered for remission
keeping in view the constitutional safeguards
under Articles 20 and 21 of the Constitution
of India, must be held to be a legal one. Such
a legal right emanates from not only the
Prisons Act but also from the Rules framed
thereunder.
39. It is now well-settled that any guidelines
which do not have any statutory flavour are
merely advisory in nature. They cannot have
the force of a statute. They are subservient to
the legislative act and the statutory rules."
37. Classifying - to use a better word, typecasting
convicts, through guidelines which are inflexible,
based on their crime committed in the distant past
can result in the real danger of overlooking the
reformative potential of each individual convict.
Grouping types of convicts, based on the offences
they were found to have committed, as a starting
point, may be justified. However, the prison laws in
India - read with Articles 72 and 161 - encapsulate
a strong underlying reformative purpose. The
practical impact of a guideline, which bars
consideration of a premature release request by a
convict who has served over 20 or 25 years, based
entirely on the nature of crime committed in the
distant past, would be to crush the life force out of
such individual, altogether. Thus, for instance, a 19
or 20 year old individual convicted for a crime,
which finds place in the list which bars premature
release, altogether, would mean that such person
would never see freedom, and would die within the
prison walls. There is a peculiarity of continuing to
imprison one who committed a crime years earlier
who might well have changed totally since that
time. This is the condition of many people serving
very long sentences. They may have killed
someone (or done something much less serious,
such as commit a narcotic drug related offences or
be serving a life sentence for other nonviolent
crimes) as young individuals and remain
incarcerated 20 or more years later. Regardless of
the morality of continued punishment, one may
question its rationality. The question is, what is
achieved by continuing to punish a person who
recognises the wrongness of what they have done,
who no longer identifies with it, and who bears
little resemblance to the person they were years
earlier? It is tempting to say that they are no longer
the same person. Yet, the insistence of guidelines,
obdurately, to not look beyond the red lines drawn
by it and continue in denial to consider the real
impact of prison good behavior, and other relevant
factors (to ensure that such individual has been rid
of the likelihood of causing harm to society)
results in violation of Article 14 of the Constitution.
Excluding the relief of premature release to
prisoners who have served extremely long periods
of incarceration, not only crushes their spirit, and
instils despair, but signifies society's resolve to be
harsh and unforgiving. The idea of rewarding, a
prisoner for good conduct is entirely negated."
9. Even this Court, in a number of cases, relying on the decision of the
Supreme Court in Sangeet Vs. State of Haryana, AIR 2013 SC
447, Mohinder Singh v. State of Punjab, 2013 Cri.L.J. 1559,
Laxman Naskar v. Union of India, (2000) 2 SCC 595, Union of
India v. Sriharan, (2016) 7 SCC 1 and Ram Chander v. State of
Chhattisgarh, AIR 2022 SC 2017 had directed remitted the matter
back to the State to decide the case of the petitioners therein and to
consider the matter in light of the judgments rendered by the
Supreme Court in the cases (supra).
10. The orders passed by the respondent authorities rejecting the
application of the petitioner for grant of remission are non-speaking
and have been passed without application of mind and without
taking into consideration the ratio laid down by this Court as well as
the Apex Court in the cases (supra), and as such, they are set
aside.
11. Consequently, the matter is remitted to the State Government to
decide the application of the petitioner for remission afresh. The
State Government will call for the opinion of the concerned learned
Additional Sessions Judge/Sessions Judge afresh, who will provide
his opinion on the petitioners' application within one month from the
date of requisition as per Laxman Naskar (supra) and thereafter,
the State Government will decide petitioner's application within two
months from the date of receipt of opinion from learned Additional
Sessions Judge/Sessions Judge in light of the decisions rendered
by the Hon'ble Supreme Court in the aforementioned cases and
also the observations made herein.
12. The petition accordingly stands allowed.
Sd/- Sd/-
(Ravindra Kumar Agrawal) (Ramesh Sinha)
Judge Chief Justice
ved
