EARLIER today, a Supreme Court bench comprising Justices D.Y. Chandrachud and Aniruddha Bose held, in Ram Chander vs. The State of Chhattisgarh & Anr., that the opinion of the presiding judge under Section 432(2) of the Code of Criminal Procedure [CrPC] has a determinative effect on an application for remission of the sentence. The bench further held that the purpose of the procedural safeguard under section 432(2) 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. The purpose of safeguard under section 432(2) is to check the arbitrary exercise of remission power by governments.
The bench, however, clarified that it should not be understood 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, the government may request the presiding judge to consider the matter afresh”, the bench held.
In a nutshell, the bench held that the opinion of the presiding judge under section 432(2) must be accompanied with adequate reasoning, and if it lacks the reasoning, the appropriate government can seek a fresh opinion from the presiding judge. It said, “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”.
In Laxman Naskar vs. Union of India (2000), the Supreme Court laid down certain factors for assessing whether a convict should be granted remission, namely: (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. The same was reiterated in Laxman Naskar vs. State of West Bengal (2000).
Section 432(2) 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. In Union of India vs. V. Sriharan (2015), a Constitution Bench held that the procedure stipulated in section 432(2) is mandatory. It did not specifically hold that the opinion of the presiding judge would be binding, but it held that the decision of the government on remission should be guided by the opinion of the presiding officer of the concerned court.
On the facts of the present case, the court found that there was nothing to indicate that the presiding judge took into account the factors which have been laid down in Laxman Naskar vs. Union of India. It declared that an opinion accompanied by inadequate reasoning would not satisfy the requirements of section 432(2). It added that an opinion with inadequate reasoning 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.
The court thus allowed the writ petition filed by convict Ram Chander under Article 32 of the Constitution. It ordered that the petitioner’s application for remission should be re-considered. It thus directed 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 vs. Union of India.
“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”, the court ordered.
Chander was before the Supreme Court seeking direction from it to grant him pre-mature release. He is undergoing a sentence of imprisonment for life upon being convicted for the commission of offences punishable inter alia under Section 302 (punishment for murder) read with Section 149 (every member of unlawful assembly guilty of offence committed in prosecution of common object) of the Indian Penal Code. The trial court convicted him on December 7, 2010. The sentence was confirmed by the High Court of Chhattisgarh on May 10, 2013. His appeal against the High Court order was dismissed by the Supreme Court in 2015.
On September 15, 2021, Chander completed 16 years of imprisonment without remission and submitted an application for premature release to the respondent under Rule 358 of the Chhattisgarh Prisons Rules, 1968. By a letter dated May 1, 2021, the Jail Superintendent of the Central Jail at Durg sought the opinion of the Special Judge, Durg on whether the petitioner could be released on remission. On July 2, 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.
The application for remission of the petitioner, along with the opinion of the Special Judge, was forwarded to the Director-General, Jail and Correctional services.
On September 30, 2021, the Director-General presented the case of the petitioner to the Home Department, Government of Chhattisgarh by a letter addressed to the Additional Chief Secretary, Jail Department. The Jail Department, in a note sheet dated October 6, 2021, forwarded the case of the petitioner to the Law Department of the state government. The Under Secretary of the Law Department shared his opinion through a note sheet dated November 27, 2021, stating that the petitioner could not be given the benefit of the provisions of Section 433A of CrPC because the presiding judge opined against releasing the petitioner on remission.
On March 2, 2022, the Director-General, Jail and Correctional Services again forwarded the case of the petitioner to the Additional Chief Secretary, Jail Department to be considered for remission since the petitioner had completed 20 years of imprisonment with remission. The Jail Department sought the opinion of the Law Department, which stated that since the presiding judge did not give a positive report about the petitioner, he could not be released.
Advocate-on-Record Irshad Hanif assisted by advocate Rizwan Ahmed appeared for the petitioner.
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