Rajendra Narang vs State Of Chhattisgarh

N.K. Chandravanshi, J

Present writ petition under Article 226 of the Constitution of India has been instituted by the petitioner/ convict, who is undergoing sentence of imprisonment for life upon being convicted for commission of offence under Section 302 of the I.P.C., for following reliefs:-

“10.a A writ and / or an order in the nature of appropriate writ do issue directing call for the relevant records relating to the petitioner's case for its kind perusal

10.b A writ and / or an order in the nature of appropriate writ do issue directing the respondent authorities to release the petitioner, under the provisions of Section 432 of the Cr.P.C., as he has admittedly completed more than 20 years of jail sentence and a recommendation in this regard has also been made by the concerned Respondent authorities.

10.c In the alternate, a writ and / or an order in the nature of appropriate writ do issue setting aside the report dated 15.7.2020 and directing the opinionating Authority to submit a fresh report keeping in mind, applicable statutory provision and rules in its true letter & spirit, and further directing the respondent authorities to decide the application filed by the petitioner for his suspension/remission of the remaining jail sentence, within a time frame fixed by this Hon'ble Court, in the facts and circumstances of the case.

10.d Any other relief which this Hon'ble Court may deem fit in the facts and circumstances of case.”

Facts of the case, in brief, is that vide judgment dated 30.3.2006, passed by 14th Upper Sessions Judge, FTC Raipur in Sessions trial No.265/2005, petitioner has been convicted for the offence under Section 302 of the I.P.C. and sentenced to undergo R.I. for life and to pay fine of Rs.2000/- with default stipulation. Criminal Appeal No.18/2007 preferred by the petitioner was dismissed by this Court vide order dated 14.2.2013. In the year 2020, petitioner filed an application (Annexure P1) under Section 432 of the Criminal Procedure Code (for brevity 'the Code') for grant of remission. Pursuant to said application, opinion from the concerned Presiding Judge of the Court was sought by the Jail Authority vide Annexure P2. Vide letter dated 15.7.2020 (Annexure P3), learned Presiding Judge gave negative opinion. Vide letter dated 21.11.2020 (Annexure P4) the Jail Authority requested the concerned Presiding Judge to reconsider his opinion, which was negated by the learned Presiding Judge, vide memo dated 18.1.2021. Thereafter, matter of petitioner for grant of remission was referred by the Superintendent Jail, Raipur to the Director General, Jail and Correctional Services, Raipur (Annexure P5), who forwarded the same to Government, but, since learned Presiding Judge has given negative opinion for grant of remission to the petitioner, vide memo dated 04.10.2021 it was informed by the Upper Secretary, Government of C.G. Home (Jail) Department that since Presiding Officer has not given positive opinion, remission application of detainee has not been allowed by the Government. Hence, this revision.

Return has been filed by State Authority stating inter alia that looking to the gravity of offence, which the petitioner has committed, learned Presiding Judge has declined to give positive opinion for premature release of the petitioner and due to such opinion, his application was dismissed by the appropriate Government.

Learned counsel for the petitioner would submit that under fulfillment of necessary implications, petitioner has applied for grant of remission under Section 432 Cr.P.C. to the concerning Jail Authority. Considering his conduct and behavior in jail and after completion of more than 19 years of jail sentence, including minimum 14 years of substantive jail sentence, the Jail Authority has recommended for grant of remission to the petitioner, but, learned Presiding Judge, only on the basis of nature and gravity of the offence, declined to give positive opinion in favour of petitioner. It is further submitted that despite having all the eligibility for grant of remission, the same has been denied without any lawful ground which defeats the very purpose and objective of applicable statutory provisions, rules and policies framed for grant of remission to detainee. It is next submitted that in large number of decisions rendered by the Hon'ble Courts, it has been held that opinion of Court given under Section 432 (2) of Code of Criminal Procedure is not binding on the appropriate Government for giving remission, despite that the Competent Authority has dismissed the petitioner's application for grant of remission, hence, it is prayed that relief, as sought, may be granted to the petitioner.

On the other hand, learned counsel for the State/respondents referring to the return filed by them would submit that since learned Presiding Judge, has not given positive opinion for grant of remission to the petitioner, appropriate Government is not inclined to grant remission to the petitioner.

I have heard learned counsel for the parties and considered their rival submissions made herein-above and also gone through the record with utmost circumspection.

In order to consider the plea raised at the Bar, it would be appropriate to reproduce Section 432 (1) & (2) of the 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 certified copy of the record of the trial or of such record thereof as exists.”

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.

It is well settled that Section 432 of the CrPC has application only in two situations, first, where a convict is to be given “additional’ remission or remission for a period over and above the period for which he is entitled to or he is awarded under a statutory rule framed by the appropriate Government or under the Jail Manual, and second, where a convict is sentenced to life imprisonment, which is for an indefinite period, subject to procedural and substantive checks. (See Sangeet and another v. State of Haryana AIR 2013 SC 447.)

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 Punjab 2013 Cri. L.J. 1559. )

The question as to whether the Court can act directly for grant of remission to convicted persons has been considered by the Supreme Court in the matter of Rajan v. Home Secretary, Home Department of Tamil Nadu & Ors. (2019) 14 SCC 114, which have been referred again by the Hon'ble Supreme Court in the matter of Ram Chander v. State of Chhattisgarh and another AIR 2022 Supreme Court 2017 in paragraph 14, which reads thus:-

“14. In Rajan (supra), the court observed that while the grant of remission is the exclusive prerogative of the executive and the court cannot supplant its view, the Court can direct the authorities to re-consider the representation of the convict. The Court made the following observations:

“18. The petitioner would, however, rely on the unreported decision of this Court in Ram Sewak [Ram Sewak v. State of U.P., 2018 SCC OnLine SC 2012], to contend that this Court may direct the authorities to release the petitioner forthwith and that there is no point in directing further consideration by the State as the petitioner had already undergone over 30 years of sentence and with remission, over 36 years. The order passed by this Court in Ram Sewak [Ram Sewak v. State of U.P., 2018 SCC OnLine SC 2012] , is obviously in the facts of that case. As a matter of fact, it is well settled by now that grant or non-grant of remission is the prerogative to be exercised by the competent authority and it is not for the court to supplant that procedure. Indeed, grant of premature release is not a matter of privilege but is the power coupled with duty conferred on the appropriate Government in terms of Sections 432 and 433 CrPC, to be exercised by the competent authority after taking into account all the relevant factors, such as it would not undermine the nature of crime committed and the impact of the remission that may be the concern of the society as well as the concern of the State Government.

…..

Thus understood, we cannot countenance the relief claimed by the petitioner to direct the respondents to release the petitioner forthwith or to direct the respondents to remit the remaining sentence and release the petitioner. The petitioner, at best, is entitled to the relief of having directions issued to the respondents to consider his representation dated 5-2-2018, expeditiously, on its own merits and in accordance with law. We may not be understood to have expressed any opinion either way on the merits of the claim of the petitioner. The fact that the petitioner's request for premature release was already considered once and rejected by the Advisory Board of the State Government, in our opinion, ought not to come in the way of the petitioner for consideration of his fresh representation made on 5-2-2018................................”

In the instant case, it is clear that since Presiding Judge has given a negative opinion under Section 432(2) of the Code with regard to the petitioner's application for grant of remission to him, hence, the appropriate Government have declined to grant remission to the petitioner. Whether opinion of the Presiding Judge would be binding on the Competent Authority to grant remisson or not has been considered by Hon'ble Supreme Court in the case of Union of India v. Sriharan (2016) 7 SCC 1, which has also been considered by Hon'ble Supreme Court in the matter of Ram Chander v. State of Chhattisgarh and another (supra) wherein in an identical case like case in hand was reached before the Hon'ble Supreme Court. In the matter of Ram Chander (Supra), their Lordships of the Supreme Court, while considering the series of judicial pronouncement, has observed 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 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.

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.

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.

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.......

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.

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.”

In the light of foregoing discussions, observations and judgments of the Hon'ble Supreme Court in above-referred cases, it is quite vivid that grant or non-grant of remission is the prerogative to be exercised by the competent authority and the Court cannot supplant its view, although the Court has power to review the decision of the Government with regard to the fact that whether acceptance or rejection of an application for remission under Section 432 of the Cr.P.C. is arbitrary in nature and in appropriate cases, the Court is empowered to direct the Government to reconsider its decision.

As has been stated above, in the instant case since the concerned Presiding Judge has not given positive opinion for grant of remission, therefore, the Competent Authority has rejected the application of the petitioner. So far as opinion given by by the Presiding Judge is concerned, it seems that learned Presiding Judge of the convicting Court has given his opinion without considering the necessary factors, which have been laid down by the Hon'ble Supreme Court in the case of Laxman Naskar v. Union of India (supra), which has further been reiterated by Hon'ble Supreme Court in the case of Ram Chander v. State of Chhattisgarh and another (supra) to be considered while giving opinion under Section 432 (2) of the Code. In other words, Presiding Judge of the convicting Court is required to consider all the factors, which have been laid down by Hon'ble Supreme Court in the matter of Laxman Naskar v. Union of India (supra) while giving opinion under Section 432 (2) of the Code.

Accordingly, it is directed that the State Government shall reconsider the application filed by the petitioner for his premature release after calling a fresh opinion of the Presiding Judge of the convicting Court within a period of two months from the releasing of this order.

It is pertinent to mention here that if competent authority/Jail Authority sought such fresh opinion from the concerned Presiding Judge of the Convicting Court, then Presiding Judge will give his opinion without being influenced by his earlier opinion, considering the mandate given by the Supreme Court in the matter of Laxman Naskar v. Union of India (supra), and further followed in the case of Ram Chander v. State of Chhattisgarh and another (supra), under Section 432(2) of the Code within a period of fifteen days after receiving of memo with regard to fresh opinion sought by the aforesaid authority.

It is made clear that this Court has not expressed any opinion on the merits of the matter and the authority concerned is free to decided the case of the petitioner on its own merit in accordance with law.

With the aforesaid observations, the writ petition stands finally disposed of. No order as to cost(s).