Court cannot usurp power of government to grant remission to convicts: Supreme Court

The Supreme Court on Friday held that court cannot usurp the power of the government and grant remission of sentence of convicts [Ram Chander v. State of Chattisgarh & ors.]..It can only review the decision taken by the government with regard to whether the remission granted under Section 432 of the Criminal Procedure Code (CrPC) was arbitrary, the bench of Justices DY Chandrachud and Aniruddha Bose held. "While the court can review the decision of the government to determine whether it was arbitrary, it cannot usurp the power of the government and grant remission itself. Where the exercise of power by the executive is found to be arbitrary, the authorities may be directed to consider the case of the convict afresh," the Bench ruled.The Court further held that in an application for remission under Section 432 CrPC, while the the opinion of the presiding judge of the court by which the person making an application for remission has been convicted, will 'enable' the government to make the 'right decision', it need not be followed mechanically by the concerned government. Section 432 lays down the power of the State government to suspend or remit sentences. Sub-section (2) of Section 432 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."If the opinion of the presiding judge does not comply with the requirements of Section 432 (2) or if the judge does not consider the relevant factors for grant of remission that have been laid down in Laxman Naskar v. Union of India, the government may request the presiding judge to consider the matter afresh," the Bench stated. In the instant case, the apex court said that the opinion of the presiding judge did not give reasons for rejecting the remission application and hence, directed the government to consider the plea afresh..The petitioner in the case, one Ram Chander was convicted for offences under Sections 147 (rioting), 148 (Rioting armed with deadly weapons), 302 (murder) read with 149 (unlawful assembly) and 324 (voluntarily causing hurt by dangerous weapons or means) read with 149 of the Indian Penal Code (IPC) and sentenced to life imprisonment. The sentence of the petitioner was confirmed by the Chhattisgarh High Court in 2013. In September 2021, the petitioner completed 16 years of imprisonment without remission and he, then, submitted an application for premature release to the respondent under Rule 358 of the Chhattisgarh Prisons Rule 1968. In May 2021, the jail superintendent sought the opinion of the special judge on whether the petitioner can be released on remission. The special judge gave an opinion rejecting the request. The request of the petitioner was then forwarded to the Law Department of the State government after receiving the opinion of the judge. The State government rejected the request of the petitioner stating that "the petitioner cannot be given the benefit of the provisions of Section 433-A CrPC because the presiding judge opined against releasing the petitioner on remission." The case of the petitioner for remission was again forwarded to the authorities in 2022, but it was again rejected. The petitioner then moved the Supreme Court under Article 32. .The Supreme Court held that the government has absolute discretion to decide whether the application for remission should be allowed or not. But the top court added that the power cannot be exercised arbitrarily. "The prerogative of the executive is subject to the rule of law and fairness in state action embodied in Article 14 of the Constitution," the Court said. .The top court further held that the government must not follow the opinion of the presiding mechanically. "If the opinion of the presiding judge does not comply with the requirements of Section 432 (2) or if the judge does not consider the relevant factors for grant of remission that have been laid down in Laxman Naskar v. Union of India, the government may request the presiding judge to consider the matter afresh," the judgment noted.As per the judgment of the top court in Laxman Naskar v. Union of India, the following are the factors which must be considered while remitting the sentence of a convict: "(i) whether the offence affects the society at large; (ii) the probability of the crime being repeated; (iii) the potential of the convict to commit crimes in future; (iv) if any fruitful purpose is being served by keeping the convict in prison; and, (v) the socio-economic condition of the convict’s family.".The purpose of Section 432(2) is to make sure that the executive takes an informed decision and the decision of the presiding judge must be well-reasoned, the Court emphasised. In the present, the Court noted that the special judge had simply stated that in view of the facts and circumstances of the case it would not be appropriate to grant remission. This the Court said, goes against Section 432(2) CrPC. "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 Court said. .The Supreme Court, therefore, allowed the writ petition and therefore, held that in this case the petitioner's application must be reconsidered. The special judge was directed to provide an opinion with adequate reasoning while taking into consideration the factors laid down in the case of Laxman Naskar. The special judge has to give his opinion within one month and the State of Chattisgarh should take its decision within one month from receiving the opinion of the judge. .Advocate MD Irshad Hanif appeared for the petitioner, while advocate Gaurav Arora appeared for the Respondent-State..[Read Judgment]

Court cannot usurp power of government to grant remission to convicts: Supreme Court

Chaitanya Singh

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