Shankar Rao vs State Of Chhattisgarh

This petition has been filed by the petitioners challenging the report/memo dated 16.3.2017 sent by the Special Judge (Atrocities), Special Court, District Raipur (CG) to concerned Jail Superintendent, whereby, the concerned Judge, in a mechanical manner, without assigning sufficient reasons, drew a negative opinion on the application filed by the petitioners for remission of their jail sentence.

The petitioners have been convicted vide judgment dated 7.6.2003 passed in Special Sessions Case No.45/2002 by the Special Judge (SC/ST Act, 1989), Raipur. The proceedings of the case emanated from Crime No.395/2001 registered at Police Station Tikrapara, Raipur. The petitioners moved an application under Section 432 of Cr.P.C. for remission of their remaining jail sentence, however, the Presiding Officer recommended/opined that the petitioners be not given remission in their sentence.

Brief facts of the case are that the petitioners were convicted vide judgment dated 7.6.2003 passed in Special Sessions Case No.45/2002 by the Special Judge (Atrocities), Raipur under Sections 147, 148 & 302 read with Section 149 of IPC and sentenced to undergo RI for one year, RI for two years and imprisonment for life and pay a fine of Rs.500/-, in default of payment of fine to undergo further RI for two months respectively. However, vide Criminal Appeal No.719/2003, which was partly allowed by this Court on 8.4.2008, the petitioners along with other co-accused were convicted only under Section 302 read with Section 34 of IPC and sentence of life imprisonment and fine imposed upon them were maintained.

Learned counsel for the petitioners submit that the petitioners have been languishing in jail since 17.11.2001 and now, they have actually completed more than 21 years of jail sentence in the Central Jail, Durg. The petitioners have preferred an application before the concerned Jail Superintendent for remission of their jail sentence under Section 432 of Cr.P.C. and the jail authorities forwarded the same for obtaining the view of the concerned Presiding Officer. However, the Court below forwarded its recommendation vide memo dated 16.3.2017, whereby, the learned Special Judge (Atrocities) has opined that the petitioners’ case for remission cannot be considered. He submits that in the matter of Laxman Naskar Vs. Union of India, (2000) 2 SCC 595, the parameters to be examined by the concerned Presiding Judge have been laid down for deciding any application of a convict for his premature release, but in the instant case, no such reason has been assigned. The said principle has been reiterated in the matter of Ram Chander vs. State of Chhattisgarh, AIR 2022 SC 2017 and the same was also dealt by this Court in WP(Criminal) No.843/2021  decided on 28.9.2022 (Arunsharan Singh Vs. State of Chhatisgarh). Hence, learned counsel prays to allow the petition.

On the other hand, learned counsel for the State submits that the State Authorities have duly forwarded the application of the petitioners for seeking opinion regarding remission. However, the learned Special Judge (Atrocities) did not find the case of the petitioners to be fit for remission and thereafter, their application has been rejected. She further submits that the allegations levelled by the petitioners are not tenable and as such, the instant petition deserves to be dismissed. However, she fairly submits that while forwarding the opinion/recommendation, the learned Special Judge (Atrocities) has not given reasons as stipulated in the matter of Laxman Naskar (supra).

The law laid down by Hon’ble the Supreme Court relating to remission and the parameters which ought to be taken into account by the concerned Presiding Officer while deciding such application have been dealt with by the Apex Court and the same has been discussed in the matter of Arunsharan Singh (supra), wherein, the following has been held vide para 10, which reads as under :

“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 :-

“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.

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.

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. Jagdish6, this Court has reiterated that these factors will be considered while deciding the application of a convict for pre mature release.”

Reverting back to the facts of the present case, in view of the aforesaid principles, it appears that the Special Judge (Atrocities), Raipur, while considering the application, had only taken note of the fact that the criminal appeal of the petitioners was partly allowed by this Court and that the petitioners had inflicted 11 injuries upon the victim and without taking into consideration the factors which are required to be considered while deciding such application, forwarded negative opinion for remission with regard to the petitioners vide the impugned memo, which is in teeth of the decision rendered by Hon’ble the Supreme Court in the matter of Laxman Naskar (supra).

For the foregoing, the impugned memo dated 16.3.2017, through which an opinion has been forwarded by the learned Special Judge (Atrocities), Raipur to the State Authorities, is set-aside. Matter is remitted to the State Government to decide the petitioners’ application for remission afresh. The State Government will call for the fresh opinion of the learned Special Judge (Atrocities), who will provide his opinion on the petitioners’ application within one month from the date of requisition and thereafter, the State Government will decide the petitioners’ application in accordance with law within one month from the date of receipt of opinion from the learned Special Judge (Atrocities), Raipur.

With the aforesaid directions/observations, the petition is disposed of.