Karnataka High Court
Smt Vijayalakshmi @ Viji vs State Of Karnataka on 17 October, 2022
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
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WP No. 7442 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17TH DAY OF OCTOBER, 2022
BEFORE
THE HON'BLE MR JUSTICE M.NAGAPRASANNA
WRIT PETITION NO. 7442 OF 2022 (GM-RES)
BETWEEN:
SMT. VIJAYALAKSHMI @ VIJI
W/O GIRISHA
AGED 42 YEARS
R/AT VIRUPASKAHPURA
NUGGENAHALLI HOBLI
CHANNARAYAPTANA TALUQA
HASAN DISTRICT - 573 116.
PRESENTLY SERVING LIFE SENTENCE IN
BENGALURU CETNRAL JAIL
PARAPPANA AGARAHARA (CTP 8721)
...PETITIONER
(BY SRI.K.B.MOUNESH KUMAR., ADVOCATE)
AND:
Digitally signed 1. STATE OF KARNATAKA
by PADMAVATHI BY THE PRINCIPAL SECRETARY
BK
Location: HIGH DEPARTMENT OF HOME
COURT OF VIDHANA SOUDHA
KARNATAKA
BENGLAURU - 560 001.
2. DIRECTOR GENERAL
PRISONS AND CORRECTIONAL SERVICES
SHESHADRI ROAD
BENGALRU -560 006.
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WP No. 7442 of 2022
3. THE CHIEF SUPERINTEDNET
CETNRAL PRISON
PARAPPANA AGRAHARA
ELECTRONIC CITY POST
BENGALURU - 560 100.
...RESPONDENTS
(BY SRI.B.V.KRISHNA, AGA)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH CLAUSE I (iii) OF THE PROCEEDINGS OF THE STATE OF
KARNATAKA DATED 21.04.2020 VIDE GOVERNMENT ORDER,
WHICH IS PART AND PARCEL OF THE DOCUMENT PRODUCED
AS ANNEXURE-A FOR THE PURPOSE OF ISSUANCE OF
GUIDELINES TO CONSIDER THE CASES FOR PREMATURE
RELEASE OF LIFE CONVICTS SERVING SENTENCE IN THE
PRISONS OF THE STATE IN SO FAR AS IT PERTAINS TO NON
CONSIDERATION OF CASES OF SUCH PROVISIONS OF THE
SC/ST ACT IS CONCERNED AND CONSEQUENTLY BE PLEASED
TO AND ETC.,
THIS WRIT PETITION, COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP, THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
The petitioner is before this Court calling in question an order dated 21.04.2020 by which the premature release of the petitioner is declined.
-3- WP No. 7442 of 20222. Heard Sri.K.B.Mounesh Kumar, learned counsel appearing for the petitioner and Sri.B.V.Krishna, learned Additional Government Advocate appearing for respondents.
3. Brief facts that leads the petitioner to this Court in the subject petition as borne out from the pleadings are as follows:
Petitioner gets convicted for life in terms of an order passed by the learned Sessions Judge on 18.02.2010 for offences punishable under Sections 302, 201 of the IPC and Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 ('Atrocities Act' for short) and since then the petitioner is serving sentence at the Central Prison. The criminal appeal filed by the petitioner in Crl.A.No.882/2010 is dismissed by this Court affirming the order of the learned Sessions Judge. The proceedings have thus become final, as it is not called in question thereafter.
While in prison, the State Government notifies guidelines for consideration of premature release of convicts serving sentence in the prisons of the State. As regards the conviction under the Atrocities Act premature release was impermissible.-4- WP No. 7442 of 2022
4. The petitioner, a life convict, is serving sentence and has not sought parole even for a single day till the date of filing an application before the concerned Committee for premature release. The petitioner has now completed 14 years, 9 months and 5 days imprisonment including the under trial period. The petitioner further avers that the period of remission earned by her is 2 years, 4 months, 29 days, as on 28-02-2022. The total period that the petitioner is now housed in prison amounts to 17 years and has appended a prison certificate to demonstrate this fact. The petitioner submits a representation seeking her premature release, which comes to be rejected by an endorsement dated 22.03.2022. It is this endorsement that is called in question in the subject petition.
5. Learned counsel for the petitioner would contend that the Apex Court dealing with matters pertaining to life convicts have issued directions across the country to the jail authorities concerning such premature release. The learned counsel submits that every State has issued notifications with regard to such premature release and would seek to place reliance upon -5- WP No. 7442 of 2022 the judgments of the Apex Court in the cases of (i) SHARAFAT ALI V. STATE OF UTTAR PRADESH - 2022 SCC OnLine SC 193 (ii) RAM CHANDER V. THE STATE OF CHHATTISGARH
- 2022 SCC OnLine SC 500 and also to an order passed by this Court in Writ Petition No.13593/2022 in the case of RAMA V. PRINCIPAL SECRETARY AND OTHERS disposed on 19.07.2022.
6. The learned Additional Government Advocate though would refute the submissions to contend that the release of petitioner is impermissible, as she is convicted for an offence under the Atrocities Act, but would admit that, the case has to be considered according to the guidelines prevailing at the time of commission of the offence.
7. I have given my anxious consideration to the submissions made by the learned counsel for both the parties and have perused the material on record.
8. Before embarking upon the consideration of the case of the petitioner, it is germane to notice the judgments of the Apex on the issue. The Apex Court in the case of SHARAFAT -6- WP No. 7442 of 2022 ALI v. STATE OF UTTAR PRADESH1 (supra) has held as follows:
"6. The first principle which must be noted, while adjudicating upon the petition is that the application for premature release has to be considered on the basis of the policy as it stood on the date when the petitioner was convicted of the offence. This principle finds reiteration in several judgments of this Court such as State of Haryana v. Jagdish2. The most recent of them is the decision in State of Haryana v. Raj Kumar @ Bitu3.
7. The order which has been passed by the State government in the present case is bereft of an application of mind to relevant circumstances bearing on whether the petitioner should be released prematurely. The order contains general observations to the effect that the release may result in resentment on the side of the victim, but this is a general consideration which would govern virtually all criminal offences where a person stands convicted of a serious offence, as in the present case under Section 302 read with Section 34 of the IPC. The order does not contain any reference whatsoever to whether the petitioner possesses any prior criminal history, save and except for the present case. Similarly, the order is completely silent on the conduct and behavior of the petitioner in jail and after he was convicted of the offence. The relevant considerations bearing upon whether the release of the petitioner would pose a danger to society have not been adverted to. There has to be a considered application of mind to the facts of each case.
8. In the circumstances, the order which has been passed rejecting the application of the petitioner for premature release suffers from a complete and patent non-application of mind.1
2022 SCC OnLine SC 193 -7- WP No. 7442 of 2022
9. For the above reasons, we allow the petition by setting aside the impugned order dated 30 July 2021 passed by the Government of Uttar Pradesh. We direct that the application of the petitioner for premature release shall be reconsidered on the basis of the policy as it stood on 17 January 2005, when the petitioner was convicted of an offence under Section 302 read with Section 34 of the IPC. The application shall be considered afresh without the petitioner being required to file any fresh application for premature release. An order shall be passed after taking into account all relevant facts and circumstances including those which have been adverted to above. This exercise shall be completed within a period of two months from the date of this order."
(Emphasis supplied) The Apex Court holds that the first principle which must be noted while adjudicating the petition is, that the application for premature release has to be considered on the basis of the policy as it stood on the date when the petitioner was convicted of the offence. The second consideration would be, whether the release of the petitioner would pose a danger to the society, and there has to be application of mind to the facts of each case by the concerned Authority while so considering such applications. In another judgment, in the case of RAM CHANDER V. THE STATE OF CHHATTISGARH2 the Apex Court has considered the entire spectrum of the provisions of 2 2022 SCC OnLine SC 500 -8- WP No. 7442 of 2022 the Code of Criminal Procedure qua the premature release and has held as follows:
"Analysis A. Judicial Review of the Power of Remission
11. The respondents submit that the appropriate government has the absolute discretion to decide whether the application for remission should be allowed. Indeed, in Ratan Singh (supra), this Court has observed that the State has an undoubted discretion to remit or refuse to remit the sentence and no writ can be issued to direct the State Government to release the petitioner. The Court was interpreting Section 401 of the Code of Criminal Procedure 1898, which corresponds to Section 432 of the CrPC. Section 401 empowered the appropriate government to remit the whole or any part of the punishment sentence. The Court while summarizing the propositions that govern the exercise of the power of the remission, observed:
"9. From a review of the authorities and the statutory provisions of the Code of Criminal Procedure the following propositions emerge:
"(1) that a sentence of imprisonment for life does not automatically expire at the end of 20 years including the remissions, because the administrative rules framed under the various Jail Manuals or under the Prisons Act cannot supersede the statutory provisions of the Penal Code, 1860. A sentence of imprisonment for life means a sentence for the entire life of the prisoner unless the appropriate Government chooses to exercise -9- WP No. 7442 of 2022 its discretion to remit either the whole or a part of the sentence under Section 401 of the Code of Criminal Procedure;
(2) that the appropriate Government has the undoubted discretion to remit or refuse to remit the sentence and where it refuses to remit the sentence no writ can be issued directing the State Government to release the prisoner;
(3) that the appropriate Government which is empowered to grant remission under Section 401 of the Code of Criminal Procedure is the Government of the State where the prisoner has been convicted and sentenced, that is to say, the transferor State and not the transferee State where the prisoner may have been transferred at his instance under the Transfer of Prisoners Act;
and (4) that where the transferee State feels that the accused has completed a period of 20 years it has merely to forward the request of the prisoner to the concerned State Government, that is to say, the Government of the State where the prisoner was convicted and sentenced and even if this request is rejected by the State Government the order of the Government cannot be interfered with by a High Court in its writ jurisdiction."
(emphasis supplied)
12. 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. In Mohinder Singh (supra), this Court has held that the power of remission cannot be exercised arbitrarily. The decision to grant remission should be informed, fair and reasonable. The Court held thus:
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"9. The circular granting remission is authorized under the law. It prescribes limitations both as regards the prisoners who are eligible and those who have been excluded. Conditions for remission of sentence to the prisoners who are eligible are also prescribed by the circular. Prisoners have no absolute right for remission of their sentence unless except what is prescribed by law and the circular issued thereunder. That special remission shall not apply to a prisoner convicted of a particular offence can certainly be a relevant consideration for the State Government not to exercise power of remission in that case. Power of remission, however, cannot be exercised arbitrarily. Decision to grant remission has to be well informed, reasonable and fair to all concerned."
In Sangeet (supra), this Court reiterated the principle that the power of remission cannot be exercised arbitrarily by relying on the decision in Mohinder (supra).
13. 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 v. State of West Bengal reported in (2000) 7 SCC 626, while the jail authorities were in favour of releasing the petitioner, the review committee constituted by the government recommended the rejection of the claim for premature release on the grounds that (i) the two witnesses who had deposed during the trial and people of the locality were apprehensive that the release of the petitioner will disrupt the peace in the locality; (ii) the petitioner was 43 years old and had the potential of committing a crime; and (iii) the crime had occurred in relation to a political feud which affected the society at large. The Court while placing reliance on Laxman Naskar v. Union of India (supra) stipulated the factors that govern the grant of remission, namely:
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"6...(i) Whether the offence is an individual act of crime without affecting the society at large.
(ii) Whether there is any chance of future recurrence of committing crime.
(iii) Whether the convict has lost his potentiality in committing crime.
(iv) Whether there is any fruitful purpose of confining this convict any more.
(v) Socio-economic condition of the convict's family."
Based on the above factors, the Court found that the government's decision to reject the claim of remission was based on reasons that were irrelevant or devoid of substance. The Court quashed the order of the government and directed it to decide the matter afresh. The Court held thus:
"8. If we look at the reasons given by the Government, we are afraid that the same are palpably irrelevant or devoid of substance. Firstly, the views of the witnesses who had been examined in the case or the persons in the locality cannot determine whether the petitioner would be a danger if prematurely released because the persons in the locality and the witnesses may still live in the past and their memories are being relied upon without reference to the present and the report of the jail authorities to the effect that the petitioner has reformed himself to a large extent. Secondly, by reason of one's age one cannot say whether the convict has still potentiality of committing the crime or not, but it depends on his attitude to matters, which is not being taken note of by the Government. Lastly, the suggestion that the incident is not an individual act of crime but a sequel of the political feud affecting society at large, whether his political views have been
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changed or still carries the same so as to commit crime has not been examined by the Government.
9. On the basis of the grounds stated above the Government could not have rejected the claim made by the petitioner. In the circumstances, we quash the order made by the Government and remit the matter to it again to examine the case of the petitioner in the light of what has been stated by this Court earlier and our comments made in this order as to the grounds upon which the Government refused to act on the report of the jail authorities and also to take note of the change in the law by enacting the West Bengal Correctional Services Act 32 of 1992 and to decide the matter afresh within a period of three months from today. The writ petition is allowed accordingly. After issuing rule the same is made absolute."
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
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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.
.....
20. 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. We say so because the opinion of the Advisory Board merely refers to the negative recommendation of the Probation Officer, Madurai and the District Collector, Madurai. The additional reason stated by the State Government seems to be as follows:
"(4) The proceedings of the Advisory Board held on 20-1-2010 is as follows:
(i) The case is heard and examined the relevant records. The accused is a Srilankan National and lodged at Special Camp at Chengalpet before the commission of this grave offence.
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WP No. 7442 of 2022(ii) The Probation Officer, Madurai and the District Collector, Madurai have not recommended the premature release.
(iii) Also this prisoner has not repented for his act.
(iv) The plea for premature release is 'Not- Recommended'.
(5) The Government after careful examination accept the recommendation of the Advisory Board, Vellore and the premature release of Life Convict No. 23736, Rajan, s/o Robin, confined in Central Prison, Vellore is hereby rejected." With the passage of time, however, the situation may have undergone a change and, particularly, because now the claim of the petitioner for premature release will have to be considered only in reference to the sentence of life imprisonment awarded to him for the offences under Section 302 (3 counts) and Section 307 (4 counts) of IPC, respectively."
(emphasis supplied) The above discussion makes it clear that 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.
B. The Value of the Opinion of the Presiding Judge
15. 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.
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WP No. 7442 of 202216. In Sangeet (supra), the Court held that sub-sections (2) to (5) of Section 432 lay down procedural safeguards to check arbitrary remissions. The Court observed that the government is required to approach the presiding judge of the court to opine on the application for remission. The Court observed thus:
"61. It appears to us that an exercise of power by the appropriate Government under sub-section (1) of Section 432 CrPC cannot be suo motu for the simple reason that this subsection is only an enabling provision. The appropriate Government is enabled to "override" a judicially pronounced sentence, subject to the fulfilment of certain conditions. Those conditions are found either in the Jail Manual or in statutory rules. Sub-section (1) of Section 432 CrPC cannot be read to enable the appropriate Government to "further override" the judicial pronouncement over and above what is permitted by the Jail Manual or the statutory rules.
The process of granting "additional" remission under this section is set into motion in a case only through an application for remission by the convict or on his behalf. On such an application being made, the appropriate Government is required to approach the Presiding Judge of the court before or by which the conviction was made or confirmed to opine (with reasons) whether the application should be granted or refused. Thereafter, the appropriate Government may take a decision on the remission application and pass orders granting remission subject to some conditions, or refusing remission. Apart from anything else, this statutory procedure seems quite reasonable inasmuch as there is an application of mind to the issue of grant of remission. It also eliminates "discretionary" or en masse release of convicts on "festive" occasions since each release requires a case-by-case basis scrutiny.
"62. It must be remembered in this context that it was held in State of Haryana v. Mohinder Singh [(2000) 3 SCC 394 : 2000 SCC (Cri) 645] that the power of remission cannot be exercised arbitrarily.
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The decision to grant remission has to be well informed, reasonable and fair to all concerned. The statutory procedure laid down in Section 432 CrPC does provide this check on the possible misuse of power by the appropriate Government."
17. In Sriharan (supra) a Constitution Bench of this Court held that the procedure stipulated in Section 432(2) is mandatory. The Court 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. The Court had framed the following question:
"143. Whether suo motu exercise of power of remission under Section 432(1) is permissible in the scheme of the section, if yes, whether the procedure prescribed in sub-section (2) of the same section is mandatory or not?"
Answering the above question, the Court held as follows:
"148. Keeping the above principles in mind, when we analyse Section 432(1) CrPC, it must be held that the power to suspend or remit any sentence will have to be considered and ordered with much more care and caution, in particular the interest of the public at large. In this background, when we analyse Section 432(1) CrPC, we find that it only refers to the nature of power available to the appropriate Government as regards the suspension of sentence or remission to be granted at any length. Extent of power is one thing and the procedure to be followed for the exercise of the power is different thing. There is no indication in Section 432(1) that such power can be exercised based on any application. What is not prescribed in the statute cannot be imagined or inferred. Therefore, when there is no reference to any application being made by the offender, that cannot be taken to mean that such power can be exercised by the authority concerned on its own. More so, when a detailed procedure to be followed
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is clearly set out in Section 432(2). It is not as if by exercising such power under Section 432(1), the appropriate Government will be involving itself in any great welfare measures to the public or the society at large. It can never be held that such power being exercised suo motu any great development act would be the result. After all, such exercise of power of suspension or remission is only going to grant some relief to the offender who has been found to have committed either a heinous crime or at least a crime affecting the society at large. Therefore, when in the course of exercise of larger constitutional powers of similar kind under Articles 72 and 161 of the Constitution it has been opined by this Court to be exercised with great care and caution, the one exercisable under a statute, namely, under Section 432(1) CrPC which is lesser in degree should necessarily be held to be exercisable in tune with the adjunct provision contained in the same section. Viewed in that respect, we find that the procedure to be followed whenever any application for remission is moved, the safeguard provided under Section 432(2) CrPC should be the sine qua non for the ultimate power to be exercised under Section 432(1) CrPC.
149. By following the said procedure prescribed under Section 432(2), the action of the appropriate Government is bound to survive and stand the scrutiny of all concerned, including the judicial forum. It must be remembered, barring minor offences, in cases involving heinous crimes like, murder, kidnapping, rape, robbery, dacoity, etc., and such other offences of such magnitude, the verdict of the trial court is invariably dealt with and considered by the High Court and in many cases by the Supreme Court. Thus, having regard to the nature of opinion to be rendered by the Presiding Officer of the court concerned will throw much light on the nature of crime committed, the record of the convict himself,
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his background and other relevant factors which will enable the appropriate Government to take the right decision as to whether or not suspension or remission of sentence should be granted. It must also be borne in mind that while for the exercise of the constitutional power under Articles 72 and 161, the Executive Head will have the benefit of act and advice of the Council of Ministers, for the exercise of power under Section 432(1) CrPC, the appropriate Government will get the valuable opinion of the judicial forum, which will definitely throw much light on the issue relating to grant of suspension or remission.
150. Therefore, it can safely be held that the exercise of power under Section 432(1) should always be based on an application of the person concerned as provided under Section 432(2) and after duly following the procedure prescribed under Section 432(2). We, therefore, fully approve the declaration of law made by this Court in Sangeet [Sangeet v. State of Haryana, (2013) 2 SCC 452 :
(2013) 2 SCC (Cri) 611] in para 61 that the power of appropriate Government under Section 432(1) of the Criminal Procedure Code cannot be suo motu for the simple reason that this section is only an enabling provision. We also hold that such a procedure to be followed under Section 432(2) is mandatory. The manner in which the opinion is to be rendered by the Presiding Officer can always be regulated and settled by the High Court concerned and the Supreme Court by stipulating the required procedure to be followed as and when any such application is forwarded by the appropriate Government. We, therefore, answer the said question to the effect that the suo motu power of remission cannot be exercised under Section 432(1), that it can only be initiated based on an application of the persons convicted as provided under Section 432(2) and that ultimate order of suspension or remission should be guided by
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the opinion to be rendered by the Presiding Officer of the court concerned."
(emphasis supplied)
18. 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 in the case of Yovehel v. State of Bombay, Crl. Writ Petition No 273 of 2019 has held that the opinion of the presiding judge is binding. The High Court has placed reliance on Sriharan (supra) to arrive at the following conclusion:
29. The Constitution Bench of the Supreme Court in the case of Union of India v. V. Sriharan @ Murugan (supra) has answered referral questions pertaining to the provisions of Section 432(2) of Cr.P.C. and held that ultimate order of suspension or remission should be guided by the opinion to be rendered by the Presiding Judge of the court concerned and exercise of the powers under Section 432 (1) of Cr.P.C. must be in accordance with the procedure as enumerated under Section 432 (2) of Cr.P.C. In view of the same, to our mind, seeking opinion of the Presiding Judge of the court or by which conviction was had or confirmed as to whether the application filed under Section 432(1) of Cr.P.C. should be granted or refused, as not an empty formality. It is true that if we read Section 432 (2) of Cr.P.C. the word "may" is used.
If we consider the said exercise of calling opinion of the Presiding Judge of the court as merely relevant circumstance, the object of the said provision will be defeated. It is well settled that in construing the provisions of the statute, the court should be slow to adopt the construction which tends to make any part of the statute meaningless or ineffective. If we read sub-section (2) of Section 432 of Cr.P.C. as a whole, it appears that the requirement of seeking opinion of the Presiding Judge of the Court as to whether the application filed in terms of Section 432(1) of Cr.P.C. should
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WP No. 7442 of 2022be granted or refused. In the language of sub- section (2) of section 432 of Cr.P.C. it is also incumbent upon such Presiding Judge of the Court to state his opinion together with his reasons for such opinion.
....
30. .....For this reason, in our considered opinion, the Presiding Judge of the court is best equipped and likely to be more correct in his view for achieving the purpose and performing the task satisfactorily. He is an expert in the field and as such a greater weight to his opinion is required to be attached. It would be a fallacy to grant remission to the hardened criminal, who has committed the offence with extreme brutality etc., by treating the opinion of the Presiding Judge of the Court as a relevant circumstance without having any binding effect. We afraid that if the answer to the referral question No. (iii) is recorded as "relevant circumstances" that would open floodgates to the authorities to treat it as "irrelevant circumstances" and grant benefit of remission to the unscrupulous prisoners."
19. On the other hand, the High Court of Patna in the case of Ravi Pratap Mishra v. State of Bihar, Crl. Writ Jurisdiction Case No 272 of 2017 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. The High Court held thus:
"7. Now we may come to the function of the Board. From what has been noted above, it appears that the Board felt bound by the opinion of the Judicial Officer, however irrelevant it may be. Is this stand of the Board correct? In our view, it is not. Board consists of very high level officials. It consists of the Law Secretary, the Home Secretary, the Inspector General of Prison, the
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District and Sessions Judge, Patna amongst other officials. It is an independent statutory body which has to exercise its independent wisdom in accordance with law. It is not bound by the opinion of any other person. The opinions of the Jail Superintendent, the Superintendent of Police, the Probationary Officer, the trial Judge are guiding factors to enable the Board to come to an independent opinion. It is not bound by what is said in any one or all of the opinions. We will not try and illustrate this inasmuch as the Board having been constituted by senior responsible officers, they would exercise the power keeping in view the legislative policy as enacted in Section 432 of Cr P C in respect of a convict of a heinous offence and who has served the sentence substantially. It is only such person who are to be considered for release. The object of the Section is not to condemn such persons but to ensure that having spent a substantial period of their sentence, they be permitted to come back into society. It is only when there is serious apprehension about their future conduct, serious and inevitable apprehension about their future conduct upon their release which is bona fide born out from the records that the Board would be legitimately justified in refusing to release the convict otherwise it is not bound by the opinion of the authorities though, as noted above, they are guiding factors to be taken into account."
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 CrPC would stand defeated if
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WP No. 7442 of 2022the 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.
21. 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 (supra), the government may request the presiding judge to consider the matter afresh.
22. 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 (supra) and State of Haryana v. Jagdish reported in (2010) 4 SCC 216, this Court has reiterated that these factors will be considered while deciding the application of a convict for premature release.
23. 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. The following extract is useful for our consideration:
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"[005.066] Adequacy of reasons Sufficiency of reasons, in a particular case, depends on the facts of each case. It is not necessary for the authority to write out a judgement as a court of law does. However, at least, an outline of process of reasoning must be given. It may satisfy the requirement of giving reasons if relevant reasons have been given for the order, though the authority has not set out all the reasons or some of the reasons which had been argued before the court have not been expressly considered by the authority. A mere repetition of the statutory language in the order will not make the order a reasoned one.
Mechanical and stereotype reasons are not regarded as adequate. A speaking order is one that speaks of the mind of the adjudicatory body which passed the order. A reason such as 'the entire examination of the year 1982 is cancelled', cannot be regarded as adequate because the statement does explain as to why the examination has been cancelled; it only lays down the punishment without stating the causes therefor."
Note: In Halsbury's Laws of India (Administrative Law) (Lexis Nexis, Online Edition).
24. 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.
25. 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
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WP No. 7442 of 2022Special 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."
This Court, in the case of RAMA v. PRINCIPAL SECRETARY, in W.P.No.13593/2022 disposed on 19-07-2022 has held as follows:
"8. The afore-narrated facts are not in dispute. The petitioner is in custody for the last 17 years and 9 months is also not in dispute. Section 433(b) of the Cr.P.C. reads as follows:
"433. Power to commute sentence.-The appropriate Government may, without the consent of the person sentenced, commute-
(a) ... ... ...
(b) a sentence of imprisonment for life, for imprisonment for a term not exceeding fourteen years or for fine;
Premature release of convicts depending on their behavior is also accepted preposition which is considered by the Co-ordinate Benches of this Court. The Co- ordinate Bench of this Court in W.P.201567/2021 disposed on 12.11.2021 has held as follows:
"2. This petition is filed under Articles 226 and 227 of the Constitution of India read with Section 482 of Cr.P.C., praying this Court to issue a writ of mandamus directing the respondents to consider the case of
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premature release of life convict as per G.O.No.HD.119 PRA 2018 dated 21.04.2020 vide Annexure-C and release the petitioner, who is currently in Belagavi Prison as CTP No.3929.
3. The petitioner is the convict. The learned counsel for the petitioner brought to the notice of this Court that an application was given on 12.01.2021 and the same is acknowledged by the Jailer on 12.01.2021, but till date, they have not taken any decision on the application considering his request in terms of proceedings of the Government of Karnataka, which is produced as Annexure-C to the writ petition.
4. The learned High Court Government Pleader appearing for the respondent-State has filed objections contending that the file of the said prisoner is not eligible to be placed before the Standing Advisory Board Committee for premature release as per the direction of the Government of Karnataka vide Annexure-C.
5. Heard the learned counsel appearing for the petitioner and the learned High Court Government Pleader appearing for the respondent-State and perused the contents of the petition and the statement of objections filed by the respondents. When an application was filed on 12.01.2021, the respondents ought to have taken a decision on the said application. Till date, admittedly, no decision is taken. No doubt, the statement of objections is filed before this Court, but when the application is filed, the respondents have to take a decision on the application. Hence, the respondents are directed to consider the application, which is produced as Annexure-B to the petition within two months from the date of receipt of copy of this order.
6. With the above observation, the petition is disposed of."
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WP No. 7442 of 2022Yet another Co-ordinate Bench in W.P.No.205715/2019 disposed on 06.11.2020 has held as follows:
"5. Learned counsel for the petitioner submitted that the petitioner who is arrayed as accused No.2 is in prison serving sentence since 16 years and he is entitled for remission as provided under Section 432 of Cr.P.C. He further submitted that accused Nos.1, 3 and 4 who are also convicted with life sentence are already released from the prison, by granting remission by the State Government. Annexure - K was issued by the Chief Superintendent of Central Prison, Kalaburagi to the petitioner informing that he is not entitled for remission in view of the letter dated 07.06.2017, issued by the under Secretary to the Government of Karnataka, Bengaluru, which is produced at Annexure -M and the letter dated 24.06.2019 issued by the Additional Director General of Police and Inspector General of Prisons, Bengaluru to the Chief Superintendent Central Prison, Kalaburagi which is produced at Annexure -L, informing that the petitioner is not entitled for remission.
6. Learned counsel for the petitioner submitted that the other accused who are similarly placed were considered for remission, but the prayer of the present petitioner was rejected only on the ground that he had once escaped from the custody during 2010, while he was being shifted from the central prison, Kalaburagi to the Central Prison at Ballary. It is stated that on 06.07.2010, the petitioner had escaped from the lawful custody, but he was apprehended on 09.07.2010. In this regard, FIR was registered and the petitioner was tried for the same and he was convicted and sentenced to undergo simple imprisonment for six months. Learned counsel further submitted that the petitioner has already underwent such period, but in spite of that, the respondents are not considering the prayer of the petitioner for remission.
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7. It is submitted that the petitioner is entitled for remission when he is convicted to undergo life imprisonment. It is ridiculous to say that the petitioner even though entitled for remission as a life convict, his prayer is rejected only on the ground that he has committed the offence, for which he has served sentence for six months and for the said reason, he has to be in prison till the end of his life. He submits that it is not the intention of the legislature while enacting Section 432 of Cr.P.C.
8. Learned counsel drew my attention to Annexure - C, proceedings of the Government of Karnataka, wherein specific guidelines are issued for extending the remission and premature release of life convicts which is dated 21.07.2016. Specific guidelines are issued for extending remission and it contains exceptions, where such remission should not be extended. Learned counsel also drew my attention to the recommendation issued by the State and Central Government, where the conduct of the petitioner in prison is certified as satisfactory. Therefore, it is his contention that detention of the petitioner in prison, without granting remission amounts to illegal detention and it is in violation of Articles 14 and 21 of the Constitution of India. The petitioner has already undergone 16 years of sentence and now he is aged 50 years. All other accused who were similarly placed are released from prison on remission. Therefore, he prays for allowing the petition by issuing necessary direction in the interest of justice. Learned counsel for the petitioner contended that there must be fair play in administration of all citizens placed alike or to be treated alike. Hence, he prays for allowing the petition.
9. Per contra, learned High Court Government Pleader opposing the petition submitted that the proposed guidelines as per Annexure - M is issued by the Secretary
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to the Government and in view of the same, the petitioner is not entitled for remission. He submits that the conduct of the petitioner in escaping from the lawful custody and serving sentence once again, disentitles him from seeking remission. Hence, he prays for dismissal of the petition.
10. Perused the materials on record in the light of the rival submissions. Admittedly, the petitioner was convicted in SC Nos.213/2004 and 49/2006 by the learned Principal Sessions Judge, Kalaburagi vide judgment of conviction and order of sentence dated 07.2.2006, and sentenced him to undergo life imprisonment. Similar conviction and sentence is also imposed on accused Nos.1, 3 and 4 who were already released from prison on remission. The guidelines issued by the Government of Karnataka for remission and premature release of life convicts is as per Annexure - C, which also contains exceptions to the guidelines. There are as many as 8 categories of prisoners to whom the said guidelines is not applicable. The respondents are relying on Annexure - M which is the letter addressed by the under Secretary to the Government of Karnataka to the Inspector General of Prisons, informing that a proposal is forwarded to the Government to exclude the prisoners who escaped from the custody should not be released on parole bail during preceding five years. As rightly contended by the learned counsel for the petitioner, Annexure - M discloses that it is only a proposal to include these two exceptions in the general guidelines issued which is as per Annexure - C. Admittedly, these two additional grounds are not yet been part of the guidelines approved and issued by the Government of Karnataka.
11. It is not in dispute that the present petitioner had escaped from custody while he was being shifted from Central Prison, Kalaburagi to Ballary. It is also not in dispute that the petitioner was convicted and sentenced
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to undergo six months imprisonment for the said offence. Admittedly, the petitioner is in prison, since 16 years and he is serving sentence and is aged about 50 years. When the co-accused have been released on remission, there is absolutely, no reason to refuse such benefit to the petitioner. Therefore, I am of the opinion that it is a fit case to allow the petition by directing the State Government to consider the request made by the petitioner sympathetically in the light of the direction for extending remission which is as per Annexure- C. With this observation."
9. The learned counsel for the petitioner has further placed reliance upon the judgment in the case of SATPAL VS. STATE OF HARYANA3 wherein the Apex Court considering the case of identically placed convict who had been convicted for life and considering the purport of Section 433(b) of Cr.P.C. has held as follows:
"2. The petitioner was arrested on March 27, 1978 in a case registered under Section 302 Penal Code, 1860. He was convicted on August 16, 1978 and was sentenced to undergo imprisonment for life. According to the petitioner he has undergone about 13 years and six months' actual imprisonment and total period of imprisonment including remissions comes to more than 17 years. Admittedly his sentence has not been remitted fully nor commuted for imprisonment for a term not exceeding 14 years either under Section 55 Penal Code, 1860 or under Section 433(b) Code of Criminal Procedure, 1973 by the appropriate government. However, the petitioner's case is that he has undergone more than 14 years' sentence including remissions and since the said sentence was got executed in jail custody in the form of rigorous imprisonment, the government must be deemed to have commuted his sentence to 14 years either under Section 55 Penal Code, 1860 or Section 433(b) Code of 3 (1992)4 SCC 172
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Criminal Procedure, 1973 notwithstanding that no formal order in that behalf was made by the State Government and as such his continued detention in jail is illegal and he is entitled to be released forthwith. The argument has been advanced by Mr Balwant Singh Malik, the learned counsel for the petitioner on the following grounds:
(I) 'Imprisonment for life' as one of the punishments was substituted for 'transportation for life' in Section 53 of the Penal Code, 1860 by Amending Act 26 of 1955. No corresponding amendment has been made in the Code of Criminal Procedure, 1973 and there is no provision under the Code for the execution of the sentence of 'imprisonment for life'. In the absence of any provision for executing the sentence of 'imprisonment for life' in the Code of Civil Procedure the detention of life convicts in prison is unlawful and illegal and as such the government, in order to legalise detention, has necessarily to commute life sentence under Section 55 Penal Code, 1860 or Section 433(b) Code of Criminal Procedure, 1973 to one of rigorous imprisonment, which under the said provisions cannot legally exceed a term of 14 years. The petitioner having completed 14 years, he is entitled to be released.
(II) The sentence of 'life imprisonment' has not been defined either under the Penal Code, 1860 or under any other law. It is no where provided that a life convict has to undergo rigorous imprisonment. The Government by causing the life convicts to be dealt with as a prisoner sentenced to rigorous imprisonment must be deemed to have commuted sentence of imprisonment for life to a sentence of rigorous imprisonment under Section 55 Penal Code, 1860 or Section 433(b) Code of Criminal Procedure, 1973 for a term not exceeding 14 years.
3. The arguments advanced by the learned counsel stand concluded against him by the judgment of this
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WP No. 7442 of 2022Court in Naib Singh v. State of Punjab [(1983) 2 SCC 454 : 1983 SCC (Cri) 536] . In the said case Naib Singh challenged his continued detention in jail on the following grounds: (SCC Headnote) "(1) In regard to the sentence of life imprisonment the place where it has to be executed or carried out has to be appointed under Section 32 of the Prisoners Act, 1900, and since the sentence of 'imprisonment for life' like the sentence of 'transportation of (sic for) life' could be executed only by way of banishment or exile by the convict being 'removed to the place or places' required to be appointed by the State Government under Section 32 of the Prisoners Act, the executing authorities were obliged to 'execute' or 'carry out' the said sentence in jail indirectly by way of commuting it for imprisonment of either description for a term not exceeding 14 years under Section 55, IPC or Section 433(b), CrPC, 1973. In other words in the absence of any proper authority of law warranting the detention and execution of the sentence of such life convict in jail, his detention in such jail custody will have to be regarded as illegal and unlawful.
(2) Nature of sentence of life imprisonment is undefined and it is not necessarily rigorous; but because the petitioner was made to undergo his sentence of life imprisonment in jail and that too in rigorous manner for more than 14 years (inclusive of remissions) his sentence should be deemed to have been commuted by the State Government either under Section 55, IPC or under Section 433(b), CrPC, 1973 without a formal order in that behalf and he be released forthwith."
This Court rejected both the contentions and dismissed the petition. V.D. Tulzapurkar, J. speaking for the Court held as under: (SCC Headnote)
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WP No. 7442 of 2022"Under Section 32 of the Prisoners Act a sentence of transportation either for a term or for life could be and a sentence of life imprisonment can be made executable in local jails by constituting such jails as the 'places' within the meaning of Section 32 under orders of the State Governments. Apart from Section 32 of the Prisoners Act, Section 383 of CrPC, 1898 and Section 418 of CrPC, 1973 also contain the necessary legal authority and power under which a criminal court can by issuing a warrant direct the execution or carrying out of a sentence of life imprisonment in local jails. Ever since the sentence of transportation either for a term or for life became executable in jails within the country and the same position must obtain in regard to persons sentenced to imprisonment for life on and after January 1, 1956 in view of Section 53-A, IPC inserted by the Amending Act 26 of 1955.
The nature of punishment required to be suffered under a sentence of 'imprisonment for life' awardable on and after January 1, 1956 is rigorous imprisonment. Earlier the sentence of transportation either for life or for a term meant rigorous imprisonment in the sense of exaction of hard labour from the convict. Since under Section 53-A(2) transportation for a term has been equated to rigorous imprisonment for the same term, by necessary implication the sentence of 'transportation for life', now substituted by 'imprisonment for life' by Section 53-A(1), which is awardable for more serious, or more grave or more heinous crimes must mean rigorous imprisonment for life, that is to say it cannot be anything but rigorous.
It is not necessary that while passing the sentence of imprisonment for life a criminal court should keep in view the provisions of Section 60, IPC and choose one or the other form so as to clarify the exact nature of punishment intended to be inflicted on the accused. A
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distinction between 'imprisonment for life' and 'imprisonment for a term' has been maintained in the Penal Code in several of its provisions. Moreover, whenever an offender is punishable with 'imprisonment for life' he is not punishable with 'imprisonment which may be of either description' within the meaning of Section 60 and therefore, that section would be inapplicable."
4. It is not disputed by the learned counsel for the petitioner that the judgment in Naib Singh case [(1983) 2 SCC 454 : 1983 SCC (Cri) 536] is a complete answer to his arguments but he has vehemently argued that the said judgment needs reconsideration by a larger Bench. The learned counsel also made an attempt to challenge the correctness of the Privy Council judgment in Kishori Lal v. Emperor [AIR 1945 PC 64 : 46 Cri LJ 626 : 72 IA 1] and of this Court in Gopal Vinayak Godse v. State of Maharashtra [(1961) 3 SCR 440 : AIR 1961 SC 600 :
(1961) 1 Cri LJ 736] . Both these judgments have been relied upon by this Court in Naib Singh case.
5. We have carefully read the judgment of this Court in Naib Singh case and have given our thoughtful consideration to the points dealt with and decided therein. We respectfully agree with the reasoning and the conclusions reached by this Court in the said judgment. We see no justification whatsoever to refer the points decided in Naib Singh Case to a larger Bench. We, therefore, dismiss the writ petition"
In the light of the orders passed by the Apex Court and that of Co-ordinate Benches of this Court, the respondents-authorities will have to take into consideration the conduct, behavior and performance of the petitioner while in prison for the last 17 years and 9 months. The endorsement dated 28-01-2022 impugned herein relies on a circular dated 21-04-2020 which depicts
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certain offenders would not become entitled to premature release."
This Court in the afore-quoted order considered an identical issue and has directed reconsideration of the case of the petitioner therein for premature release. The offence against the petitioner therein was also identical to the one that is in the case at hand. In the light of the judgments of the Apex Court in the cases of SHARAFAT ALI, RAM CHANDER, and that of this Court (supra), the case of the petitioner will have to be reconsidered, as a consequence whereof, the endorsement dated 22.03.2022 will have to be obliterated.
9. For the aforesaid reasons, the following:
ORDER
(i) Writ Petition is allowed in part.
(ii) The impugned endorsement bearing No.CPB/CTP-Sec/2598/2022 dated 22-03-2022 issued by respondent No.3 is hereby quashed.
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WP No. 7442 of 2022(iii) Respondent No.1 is directed to consider afresh the request made by the petitioner to extend remission and to release her from prison, bearing in mind the guidelines issued by the Government bearing No.HD 119 PRA 2018 dated 21-04-2020 and the judgments of the Apex Court, the order passed by this Court and the observations made therein, within a reasonable time, in any event within three months from the date of receipt of a copy of this order.
Sd/-
JUDGE BKP List No.: 1 Sl No.: 93