Abdul Rehman Chopan vs State Of J&K And Others
2021 Latest Caselaw 211 j&K/2

                                      h475




     HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR



                                                OWP No.1104/2017

                                              Reserved on : 08.02.2021
                                               Pronounced on : 24.02.2021



Abdul Rehman Chopan                                          ...Petitioner(s)

                          Through:- Mr. S. T. Hussain, Sr. Advocate with
                                    Mr. Adil Pandit, Advocate.
                  V/s

State of J&K and others                                    ...Respondent(s)
                          Through:- Mr. B. A. Dar, Sr. AAG with
                                    Ms. Saba Gulzar, Advocate.



Coram: HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE

                                  JUDGMENT

1. The learned Additional District & Sessions Judge, Handwara

[„the trial Court‟] vide its judgment dated 15.04.2017 has convicted the

petitioner for commission of offences punishable under Section 376 and

Section 506 of the RPC and vide order dated 26.04.2017 sentenced him to

rigorous imprisonment for a term of ten years and fine of ₹ 20,000/- for

offence of rape punishable under Section 376 RPC and sentence of simple

imprisonment for a term of four years and fine of ₹ 5000/- for the commission

of offence punishable under Section 506 RPC. It is provided that the

petitioner, in default of payment of fine, shall undergo simple imprisonment

for a term of six months with respect to offence of rape and will undergo

simple imprisonment for a term of two months in default of payment of fine

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with respect to offence under Section 506 RPC. The trial Court has

specifically directed that the two sentences imposed on the petitioner would

run consecutively i.e. one after the expiration of the other. In compliance to

the judgment of conviction by the trial Court, the petitioner is undergoing his

sentence.

2. As is contended by the learned counsel for the petitioner, the

petitioner has already undergone more than seven years of his sentence. The

petitioner therefore, claims that he, having undergone substantial portion of

his sentence, is entitled to remission under Section 432 of the Code of

Criminal procedure.

3. Learned senior counsel appearing for the petitioner submits that

the petitioner has made several requests to the Jail authorities to forward his

case to the government but the Jail authorities have refused to do so on the

ground that his case is not covered by the relevant provisions of the Jail

Manual.

4. On being put on notice, respondents have filed their objections.

In the objections it is submitted that two fold claim made by the petitioner in

the writ petition is not tenable in law. The petitioner is not entitled to any

short term probation as the same is not permissible under the Probation of

Offenders Act, 1966. Relying upon the provisions of para 54.1 of the Jail

Manual, it is submitted that the case of the petitioner does not fall within the

ambit of aforesaid paragraph and, therefore, cannot be placed before the

Review Board.

5. Having heard learned counsel for the parties and perused the

record, it is necessary to first set out Section 432 of the Code of Criminal

Procedure:-

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

(3) If any condition on which a sentence has been suspended or remitted is, In the opinion of the appropriate Government, not fulfilled, the appropriate Government may cancel the suspension or remission, and thereupon the person in whose favour the sentence has been suspended or remitted may, if at large, be arrested by any police officer, without warrant and remanded to undergo the unexpired portion of the sentence.

(4) The condition on which a sentence is suspended or remitted under this section may be one to be fulfilled by the person in whose favour the sentence is suspended or remitted, or one independent of his will. (5) The appropriate Government may, by general rules or special orders give directions as to the suspension of sentences and the conditions on which petitions should be presented and dealt with: Provided that in the case of any sentence (other than a sentence of fine) passed on a male person above the age of eighteen years, no such petition by the person sentenced or by any other person on his behalf shall be entertained, unless the person sentenced is in jail, and-

(a) where such petition is made by the person sentenced, it is presented through the officer in charge of the jail; or

(b) where such petition is made by any other person, it contains a declaration that the person sentenced is in jail. (6) The provisions of the above sub- sections shall also apply to any order passed by a Criminal Court under any section of this Code or of any other law which restricts the liberty of any person or imposes any liability upon him or his property.

(7) In this section and in section 433, the expression" appropriate Government" means,-

(a) in cases where the sentence is for an offence against, or the order referred to in sub- section (6) is passed under, any law relating to a matter to which the executive power of the Union extends, the Central Government;

(b) in other cases, the Government of the State within which the offender is sentenced or the said order is passed."

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6. From a reading of Section 432, it is clear that the appropriate

Government has been given discretion to suspend the execution of the

sentence or remit the whole or any part of the punishment to which the

convict has been sentenced. Is so provided under sub Section (1). Sub Section

(2) provides the procedure for processing the application, if any, made to the

appropriate Government for suspension of sentence. The exercise of power

under Section 432, however, is subject to the provisions of Section 433A,

which lays down that, where a sentence for imprisonment for life is imposed

on conviction of a person for an offence for which death is one of the

punishments provided by law, or where a sentence of death imposed on a

person has been commuted under section 433 into one of imprisonment for

life, such person shall not be released from prison unless he had served at

least fourteen years of imprisonment.

7. Indisputably, the case of the petitioner is not covered by Section

433A of the Code of Criminal Procedure and, therefore, the petitioner is

entitled to claim that the appropriate Government must consider his request

for remission of his sentence and let him go on the basis of sentence already

undergone. It is, however, not the case of the petitioner that he has moved any

application in this regard before the appropriate Government. However, the

plea of the petitioner that he is entitled to remission under Jail Manual also

has substance. The relevant provision of the Jail Manual i.e. para 54.1 reads

as under:-

" 54.1. Prisoners convicted of any offences of rape, forgery, dacioty, terrorist crimes, corruption and black marketing, which are also excluded from the scope of Probation under the Probation of Offenders Act, 1966, shall not be eligible for being reviewed by the Review

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Board. Accordingly, offenders sentenced under Sections 376 ( except first part), 396, 400, 402, 467, 471, 472, 474 ( latter part), 489-A, 489-B and 489-D of the Ranbir penal Code shall be excluded from such review."

8. From the judgment of conviction recorded by the trial Court it is

abundantly clear that the petitioner has been convicted under Section 376

(first part) as it then stood at the time of commission of offence. I am,

therefore, in agreement with the learned counsel for the petitioner that

petitioner is also entitled to be considered for remission under the Jail

Manual.

9. Be that as it may, it is beyond any scope of discussion that the

provisions of the Jail Manual do not override the substantive provision of

Section 432, which empowers the Government to suspend or remit the

sentence imposed, provided the same is not covered by the provisions of

Section 433A of the Code of Criminal Procedure. That apart, there are

Constitutional provisions like Article 72 and 161 which also provide for the

power of the President and the Governor of the State with regard to grant of

pardons and reprieves, respites and remission of the sentence of any person

convicted for any offence.

10. It is not, however, the case of the petitioner that he has moved

any application before the Governor or the President under the aforesaid

provisions of the Constitution. His short grievance is that neither the Jail

authorities in terms of the Jail manual nor the appropriate Government under

Section 432 of the Code of Criminal Procedure are considering his case for

remission.

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11. In the facts and circumstances of this case, where the petitioner

has not claimed to have approached any authority for seeking remission of his

sentence, I am of the view that this petition can be disposed of by giving

liberty to the petitioner to move an appropriate application before the

appropriate authority in terms of Section 432(2) of the Code of Criminal

Procedure. Should the petitioner make such application, the same shall be

considered by the appropriate Government strictly within the ambit of Section

432 Cr.P.C, within a period of two months from the date such application

through Superintendent of Jail is forwarded to the Government.

12. The writ petition is, accordingly, disposed of.

(Sanjeev Kumar) Judge

Srinagar.

24.02.2021 Anil Raina, Addl. Registrar/Secy

Whether the order is speaking : Yes Whether the order is reportable: Yes