Chattisgarh High Court
Nirmal Xalxo vs State Of Chhattisgarh on 21 March, 2025
Author: Ramesh Sinha
Bench: Ramesh Sinha
1
2025:CGHC:13569-DB
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
WPCR No. 108 of 2025
Nirmal Xalxo S/o- Methew @ Manil Xalxo Aged About 49 Years R/o-
Barhatuku, Police Station Farsabahar, District - Jashpur (C.G.)
... Petitioner
versus
1 - State Of Chhattisgarh Through Its Secretary, Department Of Home/police,
Mahanadi, Mantralaya, Police Station And Post - Rakhi, Atal Nagar, New
Raipur, District - Raipur (Cg)
2 - Director General Of Police Jail And Correctional Services Chhattisgarh
Jail Head Quarter Raipur, District - Raipur (C.G.)
3 - Superintendent Of Jail Central Jail Ambikapur, District Surguja (C.G.)
4 - District Magistrate Jashpur District - Jashpur (C.G.)
... Respondents
(Cause title taken from Case Information System)
For Petitioner : Mr. Ali Afzal Mirza, Advocate
For Respondents/State : Mr. Shashank Thakur, Deputy A.G. and
Mr. Shaleen Singh Baghel, Dy. G.A.
Hon'ble Shri Ramesh Sinha, Chief Justice
Hon'ble Shri Ravindra Kumar Agrawal, Judge
Order on Board
Digitally
signed by
VEDPRAKASH
VEDPRAKASH DEWANGAN
DEWANGAN Date:
2025.03.26
20:36:14
+0530
2
Per Ramesh Sinha, C.J.
21/03/2025
1. The petitioner has filed the present writ petition under Article 226 of the
Constitution of India claiming the benefit of remission and setting aside
the order dated 18.07.2024 and prayed the following reliefs in the writ
petition:-
"10.1 That, this Hon'ble Court may kindly be pleased to
call for the entire record concerning the case of the
petitioner from the possession of the respondent
authorities for its kind perusal.
10.2 That this Hon'ble Court may kindly be pleased to
quash and set-aside the order dated 18.07.2024 passed
by the Under Secretary, State Government, Jail
Department, Nawa Raipur, District Raipur (C.G.)
(Annexure-P/1) in the interest of justice.
10.3 That, this Hon'ble Court may kindly direct the
respondent authorities to release the petitioner in
compliance of the Section 432 of Cr.P.C. as the
petitioner has completed more than 23 years of jail
sentence including the remission and
recommendation and direction to be given to the
authorities to reconsider the application filed by the
petitioner for grant of remission of the remaining
sentence.
10.4 Any other relief or relief(s) which this Hon'ble
Court may deem fit or proper in the facts and
circumstances of the case."
2. The facts, in brief, as projected by the petitioner, that the petitioner has
been convicted in Sessions Case No. 34 of 1999 vide judgment dated
30.08.1999 by the learned Additional Sessions Judge, Jashpur Nagar
for the offence under Sections 148 and 302/149 of IPC and sentenced
for R.I. for 02 years with fine of Rs. 1000/- and life imprisonment with
fine of Rs. 5000/- with default stipulations. The petitioner has
challenged his conviction and sentence before this Court by filing the
Criminal Appeal No. 2430 of 1999, which was dismissed vide
judgment dated 20.08.2014. The SLP (Crl.) No. 565 of 2015 has also
been dismissed vide order dated 24.04.2015 by the Hon'ble Supreme
Court.
3. On 16.02.2023, the petitioner moved an application for grant of
remission before the jail authorities and when the jail authorities have
not decided the application of the petitioner, he approached this Court
by filing the WPCR No. 176 of 2023, in which the coordinate Bench of
this Court has passed the order on 05.04.2023 and directed the State
Government to consider the case of the petitioner, in accordance with
law and as per the decision rendered by the Hon'ble Supreme Court in
the matter of "Ram Chander v. State of Chhattisgarh" AIR 2022 SC
2017 and "Laxman Naskar v. Union of India" 2000(2) SCC 595,
within 03 months from the date of receipt of copy of the order.
Thereafter, vide order dated 12.07.2023, the claim of the petitioner for
grant of remission was rejected by the respondent No.1. The petitioner
again challenged the order dated 12.07.2023 by filing another WPCR
No. 481 of 2023 before this Court and the said writ petition was again
disposed of on 04.12.2023 with a direction to the State Government to
decide the petitioner's application for remission afresh after calling of
the opinion of the learned Sessions Judge afresh, as the case of the
petitioner was not considered on merits. The time limit of 03 months
has also been stipulated in the said order dated 04.12.2023.
4. When the report was again called from the learned trial Court, it was
submitted on 05.01.2024 considering the provisions of Section 358(3)
(g)(two) of the Chhattisgarh Prison Rules, 1968 and opined that the
petitioner is not entitled for remission as his conviction is under
Section 302 read with Section 149 of IPC and given negative opinion.
The said opinion obtained from learned trial Court was forwarded to
the competent authority for their decision afresh and again the claim of
the petitioner for grant of remission has been rejected by the
respondent No.1 vide order dated 18.07.2024, which is under
challenge in the present petition.
5. Learned counsel for the petitioner would submit that the
State/respondent has rejected the claim 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 Hon'ble Apex Court. He would further submit that the claim
of the petitioner for grant of remission has been rejected, whereas the
other accused persons have been granted the benefit of remission for
the same offence, which is unjust. He would further submit that
subordinate legislation cannot override the provisions of the CRPC. He
would further submit that the similarly situated prisoner has filed the
WPCR No. 189 of 2024, in which the coordinate Bench of this Court
had directed the State/respondents to reconsider his case. He would
also submit that the Hon'ble Supreme Court in the matter of "Rajo
alias Rajwa alias Rajendra Mandal v. State of Bihar and Others"
2023 SCC Online SC 1068 dealt with the issue involved in this
petition. He also relied on the judgment passed by the Hon'ble
Supreme Court in "Joseph v. State of Kerela" 2023 SCC Online SC
1211.
6. On the other hand, learned counsel appearing for the State/
respondents while opposing the petition submits that the claim of the
petitioner has rightly been rejected by the authority concerned.
However, in view of the order passed in WPCR No. 189 of 2024, the
State/respondents is ready to reconsider the claim of the petitioner for
remission and will pass an appropriate order in accordance with law.
7. We have heard learned counsel for the parties and perused the
pleadings and documents annexed thereto.
8. The claim of the petitioner for grant of benefit of remission has been
rejected in view of the bar created under Rule 358 of the Rules of
1968. The said rule came into existence vide notification dated
14.12.2001 issued by the Department of Jail, Government of
Chhattisgarh.
9. 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 lat
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."
10. In Joseph (supra), the Apex Court, while dealing with a similar issue,
and directing 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
it.
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."
11. Even this Court, in a number of cases, relying on the decision of the
Supreme Court in "Sangeet v. 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 petitioner therein and to
consider the matter in light of the judgments rendered by the Supreme
Court in the cases (supra).
12. Further, in the matter of "In RE: Policy Strategy for Grant of Bail"
Suo Moto Writ Petition (Crl.) No. 4 of 2021 with Special Leave Petition
(Criminal) No. 529 of 2021, vide order dated 18.02.2025, the Hon'ble
Supreme Court has laid down the duty of the Presiding Officers while
considering the claim of remission under Section 432(2) of CRPC
(Section 473 of the BNSS, 2023) and held in Para 20 and 21 of its
judgment that:-
"PRESIDING OFFICER'S DUTY
20) When the Presiding officer's opinion is sought as
per Sub-Sections (2) of Section 432 of the CrPC and
Section 473 of the BNNS, the Presiding Officer must
submit his opinion at the earliest considering the fact
that the issue of liberty of the convict is involved.
21) We, therefore, record the following conclusions:
a) Where there is a policy of the appropriate
Government laying down guidelines for
consideration of the grant of premature release
under Section 432 of the CrPC or Section 473 of
the BNSS, it is the obligation of the appropriate
Government to consider cases of all convicts
for grant of premature release as and when they
become eligible for consideration in terms of the
policy. In such a case, it is not necessary for the
convict or his relatives to make a specific
application for grant of permanent remission.
When the jail manual or any other departmental
instruction issued by the appropriate
Government contains such policy guidelines,
the aforesaid direction will apply;
b) We direct those States and Union Territories
that do not have a policy dealing with the grant
of remission in terms of Section 432 of the CrPC
or Section 473 of the BNSS to formulate a policy
within two months from today;
c) Appropriate Government has the power to
incorporate suitable conditions in an order
granting permanent remission. Consideration of
various factors, which are mentioned in the
paragraph 13 above by way of illustration, is
necessary before finalizing the conditions. The
conditions must aim at ensuring that the
criminal tendencies, if any, of the convict remain
in check and that the convict rehabilitates
himself in the society. The conditions should
not be so oppressive or stringent that the
convict is not able to take advantage of the
order granting permanent remission. The
conditions cannot be vague and should be
capable of being performed;
d) Order granting or refusing the relief of
permanent remission must contain brief
reasons. The order containing reasons should
be immediately communicated to the convict
through the office of the concerned prison. The
copies thereof should be forwarded to the
Secretaries of the concerned District Legal
Services Authorities. It is the duty of the prison
authorities to inform the convict that he has the
right to challenge the order of rejection of the
prayer for the grant of remission.
e) As held in the case of Mafabhai Motibhai
Sagar, an order granting permanent remission
cannot be withdrawn or cancelled without giving
an opportunity of being heard to the convict. An
order of cancellation of permanent remission
must contain brief reasons;
f) The District Legal Services Authorities shall
endeavour to implement NALSA SOP in its true
letter and spirit.
g) Further, the District Legal Services
Authorities shall also monitor implementation of
conclusion (a) as recorded above. For this
purpose, the District Legal Services Authorities
shall maintain the relevant date of the convicts
and as and when they become eligible to a
consideration for grant of premature release,
they shall do the needful in terms of conclusion
(a). The State Legal Services Authorities shall
endeavour to create a portal on which the data
as aforesaid can be uploaded on real time
basis."
13. The order passed by the respondent authorities rejecting the claim of
the petitioner for grant of remission vide order dated 18.07.2024
(Annexure P/1) are non-speaking order and has been passed without
application of mind and without taking into consideration the ratio laid
down by this Court in WPCR 189 of 2024 as well as the Hon'ble
Supreme Court in the cases (supra) and as such the impugned order
dated 18.07.2024 (Annexure P/1) is hereby set aside.
14. Consequently, the matters are 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 petitioner's 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 Judge in light
of the decisions rendered by the Supreme Court in the cases (supra)
and also the observations made herein.
15. The present petition accordingly stands allowed.
Sd/- Sd/-
(Ravindra Kumar Agrawal) (Ramesh Sinha)
Judge Chief Justice
ved
