Allowed

Kawasi Budru v. State of Chhattisgarh

Chhattisgarh HC10 Mar 2023WPCR/852/2021

Case brief

AI extract

What is this about?

This High Court held that the rejection of the petitioner's remission application under Section 432 CrPC was violation of law. The court quashed the rejection order for lacking reasoned opinion by the presiding judge as per Supreme Court precedents and remitted the matter for fresh consideration.

What did the court decide?

Impugned order dated 12.08.2021 set aside; matter remitted to State Government for afresh consideration of remission application with a reasoned opinion from the Special Judge within one month.

Kawasi Budru Vs State of Chhattisgarh — Pension and Retirement Benefits | Chhattisgarh HC (2023)

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[Writ Petition (Criminal) No. 852 of 2021]

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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Writ Petition (Criminal) No. 852 of 2021

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Kawasi Budru S/o Massu Madiya Aged About 47 Years R/o Vill- Bhejripadar, P.S. Parpa, Distt.- Jagdalpur Bastar (Chhattisgarh), District: Bastar (Jagdalpur), Chhattisgarh

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---- Petitioner

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Versus

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State of Chhattisgarh Through Home Department, Mahanadi Bhawan, New Raipur, Distt.- Raipur (Chhattisgarh), District : Raipur, Chhattisgarh

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Secretary Law Department, Atal Nagar, New Mahanadi Bhawan, New Raipur, Distt.- Raipur (Chhattisgarh)

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Director General Of Police (Jail) Raipur, Distt.- Raipur (Chhattisgarh)

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Jail Superintendent Central Jail, Jagdalpur, Distt.- Jagdalpur (Chhattisgarh)

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---- Respondents

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For Petitioner For State/Respondents

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: Mr. Ravindra Sharma, Advocate : Mr. Wasim Miya, Panel Lawyer

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Division Bench

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Hon'ble Shri Justice Sanjay K. Agrawal & Hon'ble Shri Justice Sachin Singh Rajput

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Order On Board (10.03.2023)

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Sanjay K. Agrawal, J

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1. This writ petition has been filed by the petitioner under Article 226 of

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the Constitution of India feeling aggrieved by the impugned order

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[Writ Petition (Criminal) No. 852 of 2021]

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dated 12.08.2021, passed by the respondent No.01 herein, whereby his application for remission under Section 432(2) of CrPC has been rejected.

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2. Mr. Ravindra Sharma, learned counsel for the petitioner submits that petitioner's application has been rejected without applying judicial mind and without considering the decision rendered by the Supreme Court in the matters of Ram Chander v. State of Chhattisgarh1 and Laxman Naskar v. Union of India2 and only on the basis of opinion given by the learned Sessions Judge, petitioner's application has been rejected, as such, the order passed by respondent No.1 be quashed and respondent No.1 may be directed to consider the petitioner's application afresh.

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3. Learned State counsel submits that the petitioner's application for remission has rightly been rejected by the State Government strictly in accordance with law.

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4. We have heard learned counsel for the parties, considered their rival submissions made herein-above and perused the records with utmost circumspection.

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5. The State Government has rejected the petitioner's application for remission by recording as under:-

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1 AIR 2022 SC 2017

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2 (2000) 2 SCC 595

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[Writ Petition (Criminal) No. 852 of 2021]

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“d`i;k lanfHkZr i= dk voyksdu djsA fo”k;kUrxZr vkthou dkjkokl ls nafMr dqy 06 cafn;ksa ds izdj.k izkIr gqvk FkkA fof/k foHkkx us n.M ds ifjgkj gsrq izLrkfor 06 cafn;ksa esa dze’k% ¼1½ iks;keh xqMMh firk fgM+ek] ¼2½ eM+dkeh vk;rk mQZ [kqVk firk eM+dkeh dksank mQZ dkasMk] ¼3½ doklh cqn# firk eLlw] ¼4½ doklh xqfM+;k firk eLlw ,oa ¼5½ lksiflag firk lqukjke dks ‘ks”k n.M ds ifjgkj dk ykHk fn;k tkuk mfpr ugha gksxkA tcfd canh dzekad ¼6½ v#.k ‘kj.k flag firk jk/ks’oj ‘kj.k flag ds laca/k esa eku0 U;k;ky; }kjk Li”V vfHker ugha fn;k x;k gSA

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2@ mijksDr of.kZr fLFkfr esa lHkh 06 nf.Mr cafn;ksa dks n.Mkns’k ikfjr djus okys U;k;ky; ds ihBklhu vf/kdkfj;ksa ds }kjk ldkjkRed jk; ugha fn;k gSA vr % funsZ’kuqlkj ‘ks”k Hkkx dk y?kqdj.k@ifjgkj dk ykHk fn;k tkuk mfpr izrhr ugha gksrk gSA**

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6. In order to consider the plea raised at the Bar, it would be appropriate

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to notice Section 432 of CrPC which states as under :-

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“ 432. Power to suspend or remit sentences. - (1) When any person has been sentenced to punishment for an offence, the appropriate Government may, at any time, without conditions or upon any conditions which the person sentenced accepts, suspend the execution of his sentence or remit the whole or any part of the punishment to which he has been sentenced.

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(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.”

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7. The power to consider remission under Section 432(1) of CrPC has been conferred to the appropriate Government to consider and suspend the execution of his sentence or to remit the whole or any

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[Writ Petition (Criminal) No. 852 of 2021]

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part of the punishment to which the accused person has been sentenced i.e. the petitioner in this case.

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8. It is well settled that Section 432 of the CrPC has application only in two situations firstly, where a convict is to be given “additional” remission or remission for a period over and above the period that he is entitled to or he is awarded under the Jail Manual, and secondly, where a convict is sentenced to life imprisonment, which is for an indefinite period, subject to procedural and substantive checks. (See: Sangeet v. State of Haryana3 )

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9. 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 Punjab4 )

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10. The Supreme Court in the matter of Ram Chander (supra) has considered its earlier decisions including the Constitution Bench decision rendered in the matter of Union of India v. Sriharan5 as well as in Laxman Naskar (supra) and has held as under :-

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3 AIR 2013 SC 447

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4 2013 Cri.LJ 1559

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5 (2016) 7 SCC 1

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“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 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.

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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 the matter afresh.

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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

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[Writ Petition (Criminal) No. 852 of 2021]

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Bengal (supra) and State of Haryana v. Jagdish6 , this Court has reiterated that these factors will be considered while deciding the application of a convict for pre mature release.

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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 satisy 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.

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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.”

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6 (2010) 4 SCC 216

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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.

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In view of the above discussion, we hold that the petitioner's application for remission should be reconsidered. 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.”

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11. Reverting to the facts of the present case in the light of the principle of law rendered by their Lordship of the Supreme Court in aforesaid decision, it appears that only relying upon the recommendation/opinion given by the trial Court petitioner's application has been rejected and it has not been considered on merits, which is in the teeth of the decision rendered by the Supreme Court in the matter of Ram Chander (supra). Accordingly, the order passed by respondent No.1 dated 12.08.2021 is hereby set aside and matter is remitted back to the State Government to decide the petitioner's application for remission afresh. The State Government will call for the opinion of

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learned Sessions Judge afresh, who will provide his opinion on the petitioner's application within one month from the date of requisition as per Laxman Naskar (supra) and, thereafter, the State Government will decide petitioner's application within one month from the date of receipt of opinion from learned Sessions Judge. As such, the State Government will decide petitioner's application in accordance with law within two months from the date of receipt of a copy of this order.

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12. With the aforesaid directions and without expressing any opinion on the merits of the case, the instant writ petition stands disposed off . No order as to cost(s).

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Sd/Sd/- (Sanjay K. Agrawal) (Sachin Singh Rajput) Judge Judge

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s@if

Kawasi Budru v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Kawasi Budru v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

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