Code of Criminal Procedure, 1973: s. 432- Power to suspend or remit sentences – Application of a convict for premature release – On completion of 16 years of imprisonment without remission – Value of the Opinion of the Presiding Judge – There is nothing to indicate that the presiding judge took into account the factors for grant of remission – 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 – Petitioner’s application for remission should be re-considered – 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. Constitution of India, 1950 – Art.32 – Penal Code, 1860 – ss.148,149,302 – Code of Criminal Procedure, 1973 – ss. 432, 433A - Chhattishgarh Prisons Rule 1968 - Rule 358- Pre-mature release - Remission of sentence - On 7 December 2010, trial court convicted the petitioner and other accused for assaulting the complainant and killing his father and brother – Petitioner sentenced to life imprisonment – Sentence confirmed by High Court – Special leave petition filed by petitioner also got dismissed – Thereafter, on completion of 16 years of imprisonment without remission, petitioner applied for premature release to respondent under Rule 358 of Chhattishgarh Prisons Rule 1968 – As required to be taken u/s.
433 A CrPC, Jail Superintendent sought opinion of the Special Judge on whether the petitioner can be released on remission - On 2 July 2021, the Special Judge gave his opinion - That in view of all the facts and circumstances of the case, it would not be appropriate to allow remission of the remaining sentence of the petitioner - Opinion of Law Department also sought – Law Department stated that since the presiding judge of the sentencing court has not given a positive opinion, he cannot be released – Feeling aggrieved, present appeal filed - Held : The purpose of the procedural safeguard u/s 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 u/s. 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 s. 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 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 – Thus, an opinion accompanied by inadequate reasoning would not satisfy the requirements of s. 432 (2) of the CrPC – Further, it will not serve the purpose for which the exercise u/s. 432
(2) is to be undertaken, which is to enable the executive to make an informed decision taking into consideration all the relevant factors – Hence, the petitioner’s application for remission should be reconsidered – Special Judge is directed 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.
Power of Remission - Judicial Review - Discussed. Allowing the writ petition, the Court
HELD: 1. While a discretion vests with the government to suspend or remit the sentence, the executive power cannot be exercised arbitrarily. The prerogative of the executive is subject to the rule of law and fairness in state action embodied in Article
14 of the Constitution. The power of remission cannot be exercised arbitrarily. The decision to grant remission should be informed, fair and reasonable. [Para 12][1116-B-C]
2. While the court can review the decision of the government to determine whether it was arbitrary, it cannot usurp the power of the government and grant remission itself. Where the exercise of power by the executive is found to be arbitrary, the authorities may be directed to consider the case of the convict afresh. The Court has the power to review the decision of the government regarding the acceptance or rejection of an application for remission under Section 432 of the CrPC to determine whether the decision is arbitrary in nature. The Court is empowered to direct the government to reconsider its decision. [Paras 13 and 14][1116-F-G; 1120-A-B]
3. Sub-section (2) of Section 432 of the CrPC provides that the appropriate government may take the opinion of the presiding judge of the court before or by which the person making an application for remission has been convicted on whether the application should be allowed or rejected, together with the reasons for such opinion. [Para 15][1120-B-C]
4. There appears to be a difference of opinion between the High Courts on whether the opinion of the presiding judge is binding on the government. The High Court of Judicature at Bombay has held that the opinion of the presiding judge is binding. [Para 18][1123-F-G]
5. On the other hand, the High Court of Patna has held that the opinion of the presiding judge is not binding but is only a guiding factor. The High Court observed that the State Sentence Remission Board consists of high-level officials who can exercise their independent wisdom and are not bound by the opinion of the presiding judge. [Para 19][1124-H; 1125-A]
6. In Sriharan, 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. 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’s case, the government may request the presiding judge to consider the matter afresh. [Paras 20 and 21][1125-G-H; 1126-A-C]
7. In the instant 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’s case. 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 bykeeping the convict in prison; and (v) the socio-economic condition of the convict’s family. These factors would be considered while deciding the application of a convict for premature release. [Para 22][1126-C-E] State of Haryana v. Jagdish (2010) 4 SCC 216 : [2010]
3 SCR 716; Laxman Naskar v. State of West Bengal (2000) 7 SCC 626 : [2000] 3 Suppl. SCR 62 – relied on.
8. In his opinion dated 21 July 2021 the Special Judge, 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) CrPC which require that the presiding judge’s opinion must be accompanied by reasons. 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) CrPC. Further, it would 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. [Paras 23 and 24][1126-F-G; 1127-D]
Halsbury’s Laws of India (Administrative Law) (Lexis Nexis, Online Edition) – referred to.
9.The petitioner’s application for remission should be reconsidered. The Special Judge is directed 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. [Para 25][1127-E-F]
Union of India v. Sriharan @ Murugan (2014) 4 SCC
242 : [2014] 1 SCR 1093; Sangeet v. State of Haryana (2013) 2 SCC 452 : [2012] 13 SCR 85; State of
Haryana v. Mohinder Singh (2000) 3 SCC 394 : [2000] 1SCR 698; Bhagwat Saran v. State of UP 1983 (1) SCC 389; Yoshevel v. State of Bombay Crl. Writ Petition No
273 of 2019; Union of India v. Sriharan (2016) 7 SCC
1 : [2015] 14 SCR 613; State of Madhya Pradesh v. Ratan Singh (1976) 3 SCC 470 : [1976] 0 Suppl. SCR 552; Rajan v. Home Secretary, Home Department of Tamil Nadu (2019) 14 SCC 114 : [2019] 6 SCR 1035 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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