Nirmal Xalxo Vs State of Chhattisgarh

1 - State Of Chhattisgarh Through Its Secretary, Department Of Home/police, Mahanadi, Mantralaya, Police Station And Post - Rakhi, Atal Nagar, New Raipur, District - Raipur (Cg)

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2 - Director General Of Police Jail And Correctional Services Chhattisgarh Jail Head Quarter Raipur, District - Raipur (C.G.)

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3 - Superintendent Of Jail Central Jail Ambikapur, District Surguja (C.G.)

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4 - District Magistrate Jashpur District - Jashpur (C.G.)

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... Respondents

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(Cause title taken from Case Information System)

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For Petitioner	:	Mr. Ali Afzal Mirza, Advocate
For Respondents/State	:	Mr. Shashank Thakur, Deputy A.G. and
		Mr. Shaleen Singh Baghel, Dy. G.A.

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Hon'ble Shri Ramesh Sinha, Chief Justice Hon'ble Shri Ravindra Kumar Agrawal, Judge

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Order on Board

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Digitally
signed by
VEDPRAKASH
VEDPRAKASH DEWANGAN
DEWANGAN Date:
2025.03.26
20:36:14
+0530

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Per Ramesh Sinha, C.J.

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21/03/2025

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The petitioner has filed the present writ petition under Article 226 of the Constitution of India claiming the benefit of remission and setting aside the order dated 18.07.2024 and prayed the following reliefs in the writ petition:-

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“10.1 That, this Hon'ble Court may kindly be pleased to call for the entire record concerning the case of the petitioner from the possession of the respondent authorities for its kind perusal.

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10.2 That this Hon'ble Court may kindly be pleased to quash and set-aside the order dated 18.07.2024 passed by the Under Secretary, State Government, Jail Department, Nawa Raipur, District Raipur (C.G.) (Annexure-P/1) in the interest of justice.

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10.3 That, this Hon'ble Court may kindly direct the respondent authorities to release the petitioner in compliance of the Section 432 of Cr.P.C. as the petitioner has completed more than 23 years of jail sentence including the remission and recommendation and direction to be given to the authorities to reconsider the application filed by the petitioner for grant of remission of the remaining sentence.

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10.4 Any other relief or relief(s) which this Hon'ble Court may deem fit or proper in the facts and circumstances of the case.”

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The facts, in brief, as projected by the petitioner, that the petitioner has been convicted in Sessions Case No. 34 of 1999 vide judgment dated 30.08.1999 by the learned Additional Sessions Judge, Jashpur Nagar for the offence under Sections 148 and 302/149 of IPC and sentenced for R.I. for 02 years with fine of Rs. 1000/- and life imprisonment with fine of Rs. 5000/- with default stipulations. The petitioner has challenged his conviction and sentence before this Court by filing the Criminal Appeal No. 2430 of 1999, which was dismissed vide judgment dated 20.08.2014. The SLP (Crl.) No. 565 of 2015 has also been dismissed vide order dated 24.04.2015 by the Hon’ble Supreme Court.

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On 16.02.2023, the petitioner moved an application for grant of remission before the jail authorities and when the jail authorities have not decided the application of the petitioner, he approached this Court by filing the WPCR No. 176 of 2023, in which the coordinate Bench of this Court has passed the order on 05.04.2023 and directed the State Government to consider the case of the petitioner, in accordance with law and as per the decision rendered by the Hon’ble Supreme Court in the matter of “ Ram Chander v. State of Chhattisgarh ” AIR 2022 SC 2017 and “ Laxman Naskar v. Union of India ” 2000(2) SCC 595, within 03 months from the date of receipt of copy of the order. Thereafter, vide order dated 12.07.2023, the claim of the petitioner for grant of remission was rejected by the respondent No.1. The petitioner again challenged the order dated 12.07.2023 by filing another WPCR No. 481 of 2023 before this Court and the said writ petition was again disposed of on 04.12.2023 with a direction to the State Government to

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decide the petitioner’s application for remission afresh after calling of the opinion of the learned Sessions Judge afresh, as the case of the petitioner was not considered on merits. The time limit of 03 months has also been stipulated in the said order dated 04.12.2023.

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When the report was again called from the learned trial Court, it was submitted on 05.01.2024 considering the provisions of Section 358(3) (g)(two) of the Chhattisgarh Prison Rules, 1968 and opined that the petitioner is not entitled for remission as his conviction is under Section 302 read with Section 149 of IPC and given negative opinion. The said opinion obtained from learned trial Court was forwarded to the competent authority for their decision afresh and again the claim of the petitioner for grant of remission has been rejected by the respondent No.1 vide order dated 18.07.2024, which is under challenge in the present petition.

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Learned counsel for the petitioner would submit that the State/respondent has rejected the claim of the petitioner for grant of remission in a very casual manner without taking into consideration the various judgments and judicial pronouncements of this Court as well as the Hon’ble Apex Court. He would further submit that the claim of the petitioner for grant of remission has been rejected, whereas the other accused persons have been granted the benefit of remission for the same offence, which is unjust. He would further submit that subordinate legislation cannot override the provisions of the CRPC. He would further submit that the similarly situated prisoner has filed the WPCR No. 189 of 2024, in which the coordinate Bench of this Court had directed the State/respondents to reconsider his case. He would

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also submit that the Hon’ble Supreme Court in the matter of “ Rajo alias Rajwa alias Rajendra Mandal v. State of Bihar and Others ” 2023 SCC Online SC 1068 dealt with the issue involved in this petition. He also relied on the judgment passed by the Hon’ble Supreme Court in “ Joseph v. State of Kerela ” 2023 SCC Online SC 1211.

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On the other hand, learned counsel appearing for the State/ respondents while opposing the petition submits that the claim of the petitioner has rightly been rejected by the authority concerned. However, in view of the order passed in WPCR No. 189 of 2024, the State/respondents is ready to reconsider the claim of the petitioner for remission and will pass an appropriate order in accordance with law.

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We have heard learned counsel for the parties and perused the pleadings and documents annexed thereto.

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The claim of the petitioner for grant of benefit of remission has been rejected in view of the bar created under Rule 358 of the Rules of 1968. The said rule came into existence vide notification dated 14.12.2001 issued by the Department of Jail, Government of Chhattisgarh.

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The Hon’ble Supreme Court, in Rajo alias Rajwa alias Rajendra Mandal (supra) has observed as under:-

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“22. It has been repeatedly emphasized that the aim, and ultimate goal of imprisonment, even in the most serious crime, is reformative, after the offender undergoes a sufficiently long spell of punishment

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through imprisonment. Even while upholding Section 433A, in Maru Ram v. Union of India [1981] 1 SCR 1196, this court underlined the relevance of postconviction conduct, stating whether the convict,

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“Had his in-prison good behavior been rewarded by reasonable remissions linked to improved social responsibility, nurtured by familial contacts and liberal parole, cultured by predictable, premature release, the purpose of habilitation would have been served, If law—S. 433-A in this case--rudely refuses to consider the subsequent conduct of the prisoner and forces all convicts, good, bad and indifferent, to serve a fixed and arbitrary minimum it is an angry lat untouched by the proven criteria of reform.”

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24. Apart from the other considerations (on the nature of the crime, whether it affected the society at large, the chance of its recurrence, etc.), the appropriate government should while considering the potential of the convict to commit crimes in the future, whether there remains any fruitful purpose of continued incarceration, and the socio-economic conditions, review: the convict’s age, state of heath, familial relationships and possibility of reintegration, extent of earned remission, and the post-conviction conduct including, but not limited to – whether the convict has attained any educational qualification whilst in custody, volunteer services offered, job/work done, jail conduct, whether they were engaged in any socially aimed or productive activity, and the overall

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development as a human being. The Board thus should not entirely rely either on the presiding judge, or the report prepared by the police. In this court’s considered view, it would also serve the ends of justice if the appropriate government had the benefit of a report contemporaneously prepared by a qualified psychologist after interacting/interviewing the convict that has applied for premature release. The Bihar Prison Manual, 2012 enables a convict to earn remissions, which are limited to one third of the total sentence imposed. Special remission for good conduct, in addition, is granted by the rules. {See Rules 405 and 413 of the Bihar Prison Manual, 2012.} If a stereotypical approach in denying the benefit of remission, which ultimately results in premature release, is repeatedly adopted, the entire idea of limiting incarceration for long periods (sometimes spanning a third or more of a convict’s lifetime and in others, result in an indefinite sentence), would be defeated. This could result in a sense of despair and frustration among inmates, who might consider themselves reformed– but continue to be condemned in prison.

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25. The majority view in Sriharan (supra) and the minority view, had underlined the need to balance societal interests with the rights of the convict (that in a given case, the sentence should not be unduly harsh, or excessive). The court acknowledged that it lies within the executive’s domain to grant, or refuse premature release; however, such power would be guided, and the discretion informed by reason,

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stemming from appropriate rules. The minority view (of Lalit and Sapre JJ) had cautioned the court from making sentencing rigid:

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“73. […] Any order putting the punishment beyond remission will prohibit exercise of statutory power designed to achieve same purpose Under Section 432/433 Code of Criminal Procedure In our view Courts cannot and ought not deny to a prisoner the benefit to be considered for remission of sentence. By doing so, the prisoner would be condemned to live in the prison till the last breath without there being even a ray of hope to come out. This stark reality will not be conducive to reformation of the person and will in fact push him into a dark hole without there being semblance of the light at the end of the tunnel.”

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In Joseph (supra), the Apex Court, while dealing with a similar issue, and directing release of the accused therein with immediate effect, had observed as under:

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“32. To issue a policy directive, or guidelines, over and above the Act and Rules framed (where the latter forms part and parcel of the former), and undermine what they encapsulate, cannot be countenanced. Blanket exclusion of certain offences, from the scope of grant of remission, especially by way of an executive policy, is not only arbitrary, but turns the ideals of reformation that run through our criminal justice system, on its head. Numerous judgments of

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this court, have elaborated on the penological goal of reformation and rehabilitation, being the cornerstone of our criminal justice system, rather than retribution. The impact of applying such an executive instruction/guideline to guide the executive’s discretion would be that routinely, any progress made by a long-term convict would be rendered naught, leaving them feeling hopeless, and condemned to an indefinite period of incarceration. While the sentencing courts may, in light of this court’s majority judgment in Sriharan (supra), now impose term sentences (in excess of 14 or 20 years) for crimes that are specially heinous, but not reaching the level of ‘rarest of rare’ (warranting the death penalty), the state government cannot – especially by way of executive instruction, take on such a role, for crimes as it deems it.

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33. It is a well-recognized proposition of administrative law that discretion, conferred widely by plenary statute or statutory rules, cannot be lightly fettered. This principle has been articulated by this court many a time. In U.P. State Road Transport Corporation & Anr v. Mohd. Ismail & Ors. {[1991] 2 SCR 274}, this court observed:

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“It may be stated that the statutory discretion cannot be fettered by self-created rules or policy. Although it is open to an authority to which discretion has been entrusted to lay down the norms or rules to regulate exercise of discretion it cannot, however, deny itself the discretion

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which the statute requires it to exercise in individual cases.”

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34. Likewise, in Chairman, All India Railway Rec. Board & Ors. v. K. Shyam Kumar & Ors. { [2010] 6 SCR 291} this court explained the issue, in the following manner:

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“Illegality as a ground of judicial review means that the decision maker must understand correctly the law that regulates his decision making powers and must give effect to it. Grounds such as acting ultra vires, errors of law and/or fact, onerous conditions, improper purpose, relevant and irrelevant factors, acting in bad faith, fettering discretion, unauthorized delegation, failure to act etc., fall under the heading "illegality". Procedural impropriety may be due to the failure to comply with the mandatory procedures such as breach of natural justice, such as audi alteram partem, absence of bias, the duty to act fairly, legitimate expectations, failure to give reasons etc.”

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35. The latitude the Constitution gives to the executive, under Articles 72 and 162, in regard to matters such as remission, commutation, etc, therefore, cannot be caged or boxed in the form of guidelines, which are inflexible.

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36. This court’s observations in State of Haryana v. Mahender Singh {(2007) 13 SCC 606} are also relevant

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here:

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“38. A right to be considered for remission keeping in view the constitutional safeguards under Articles 20 and 21 of the Constitution of India, must be held to be a legal one. Such a legal right emanates from not only the Prisons Act but also from the Rules framed thereunder.

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39. It is now well-settled that any guidelines which do not have any statutory flavour are merely advisory in nature. They cannot have the force of a statute. They are subservient to the legislative act and the statutory rules.”

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37. Classifying - to use a better word, typecasting convicts, through guidelines which are inflexible, based on their crime committed in the distant past can result in the real danger of overlooking the reformative potential of each individual convict. Grouping types of convicts, based on the offences they were found to have committed, as a starting point, may be justified. However, the prison laws in India – read with Articles 72 and 161 - encapsulate a strong underlying reformative purpose. The practical impact of a guideline, which bars consideration of a premature release request by a convict who has served over 20 or 25 years, based entirely on the nature of crime committed in the distant past, would be to crush the life force out of such individual, altogether. Thus, for instance, a 19 or 20 year old individual convicted for a crime, which finds place in the list which bars premature release, altogether, would mean that such person would never see

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freedom, and would die within the prison walls. There is a peculiarity of continuing to imprison one who committed a crime years earlier who might well have changed totally since that time. This is the condition of many people serving very long sentences. They may have killed someone (or done something much less serious, such as commit a narcotic drug related offences or be serving a life sentence for other nonviolent crimes) as young individuals and remain incarcerated 20 or more years later. Regardless of the morality of continued punishment, one may question its rationality. The question is, what is achieved by continuing to punish a person who recognises the wrongness of what they have done, who no longer identifies with it, and who bears little resemblance to the person they were years earlier? It is tempting to say that they are no longer the same person. Yet, the insistence of guidelines, obdurately, to not look beyond the red lines drawn by it and continue in denial to consider the real impact of prison good behavior, and other relevant factors (to ensure that such individual has been rid of the likelihood of causing harm to society) results in violation of Article 14 of the Constitution. Excluding the relief of premature release to prisoners who have served extremely long periods of incarceration, not only crushes their spirit, and instils despair, but signifies society’s resolve to be harsh and unforgiving. The idea of rewarding, a prisoner for good conduct is entirely negated.”

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Even this Court, in a number of cases, relying on the decision of the

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Supreme Court in “ Sangeet v. State of Haryana” AIR 2013 SC 447, “ Mohinder Singh v. State of Punjab ” 2013 Cri.L.J. 1559, “ Laxman Naskar v. Union of India” (2000) 2 SCC 595, “ Union of India v. Sriharan” (2016) 7 SCC 1 and “ Ram Chander v. State of Chhattisgarh” AIR 2022 SC 2017 had directed remitted the matter back to the State to decide the case of the petitioner therein and to consider the matter in light of the judgments rendered by the Supreme Court in the cases (supra).

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Further, in the matter of “ In RE: Policy Strategy for Grant of Bail ” Suo Moto Writ Petition (Crl.) No. 4 of 2021 with Special Leave Petition (Criminal) No. 529 of 2021, vide order dated 18.02.2025, the Hon’ble Supreme Court has laid down the duty of the Presiding Officers while considering the claim of remission under Section 432(2) of CRPC (Section 473 of the BNSS, 2023) and held in Para 20 and 21 of its judgment that:-

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“PRESIDING OFFICER'S DUTY

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20) When the Presiding officer's opinion is sought as per Sub-Sections (2) of Section 432 of the CrPC and Section 473 of the BNNS, the Presiding Officer must submit his opinion at the earliest considering the fact that the issue of liberty of the convict is involved.

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21) We, therefore, record the following conclusions:

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a) Where there is a policy of the appropriate Government laying down guidelines for consideration of the grant of premature release under Section 432 of the CrPC or Section 473 of

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the BNSS, it is the obligation of the appropriate Government to consider cases of all convicts for grant of premature release as and when they become eligible for consideration in terms of the policy. In such a case, it is not necessary for the convict or his relatives to make a specific application for grant of permanent remission. When the jail manual or any other departmental instruction issued by the appropriate Government contains such policy guidelines, the aforesaid direction will apply;

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b) We direct those States and Union Territories that do not have a policy dealing with the grant of remission in terms of Section 432 of the CrPC or Section 473 of the BNSS to formulate a policy within two months from today;

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c) Appropriate Government has the power to incorporate suitable conditions in an order granting permanent remission. Consideration of various factors, which are mentioned in the paragraph 13 above by way of illustration, is necessary before finalizing the conditions. The conditions must aim at ensuring that the criminal tendencies, if any, of the convict remain in check and that the convict rehabilitates himself in the society. The conditions should not be so oppressive or stringent that the convict is not able to take advantage of the order granting permanent remission. The conditions cannot be vague and should be

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capable of being performed;

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d) Order granting or refusing the relief of permanent remission must contain brief reasons. The order containing reasons should be immediately communicated to the convict through the office of the concerned prison. The copies thereof should be forwarded to the Secretaries of the concerned District Legal Services Authorities. It is the duty of the prison authorities to inform the convict that he has the right to challenge the order of rejection of the prayer for the grant of remission.

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e) As held in the case of Mafabhai Motibhai Sagar, an order granting permanent remission cannot be withdrawn or cancelled without giving an opportunity of being heard to the convict. An order of cancellation of permanent remission must contain brief reasons;

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f) The District Legal Services Authorities shall endeavour to implement NALSA SOP in its true letter and spirit.

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g) Further, the District Legal Services Authorities shall also monitor implementation of conclusion (a) as recorded above. For this purpose, the District Legal Services Authorities shall maintain the relevant date of the convicts and as and when they become eligible to a consideration for grant of premature release, they shall do the needful in terms of conclusion

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(a). The State Legal Services Authorities shall endeavour to create a portal on which the data as aforesaid can be uploaded on real time basis.”

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The order passed by the respondent authorities rejecting the claim of the petitioner for grant of remission vide order dated 18.07.2024 (Annexure P/1) are non-speaking order and has been passed without application of mind and without taking into consideration the ratio laid down by this Court in WPCR 189 of 2024 as well as the Hon’ble Supreme Court in the cases (supra) and as such the impugned order dated 18.07.2024 (Annexure P/1) is hereby set aside.

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Consequently, the matters are remitted to the State Government to decide the application of the petitioner for remission afresh. The State Government will call for the opinion of the concerned learned Additional Sessions Judge / 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 two months from the date of receipt of opinion from learned Judge in light of the decisions rendered by the Supreme Court in the cases (supra) and also the observations made herein.

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The present petition accordingly stands allowed .

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Sd/- Sd/- (Ravindra Kumar Agrawal) (Ramesh Sinha) Judge Chief Justice

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ved

Nirmal Xalxo v. State of Chhattisgarh

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Nirmal Xalxo v. State of Chhattisgarh

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