# CASE DETAILS RAJO @ RAJWA @ RAJENDRA MANDAL v. THE STATE OF BIHAR & ORS

- **Citation:** 2023 INSC 771
- **Court:** Supreme Court of India
- **Decided:** 2023-08-25
- **Bench:** S. Ravindra Bhat, Prashant Kumar Mishra
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/case-details-rajo-rajwa-rajendra-mandal-v-the-state-of-bihar-ors-36268
- **Pages:** 23

## Headnote

Issue for consideration: Petitioner serving a sentence of life
imprisonment for commission of off ences punishable u/ss.302/34 of the
IPC, 1860 and s.27 of the Arms Act, 1959 sought direction for his premature
release on the ground that he has been in custody for 24 years without grant
of remission or parole.
Code of Criminal Procedure, 1973 - Remission - Grant of:
Held: Remission Board rejected the petitioner's application for
premature release twice - The reason for rejection of the petitioner's
application was the adverse report submitted by the presiding judge in
the fi rst round, which was perfunctorily relied upon and reiterated in the
report submitted by the then presiding judge in the second round as well -
Both the reports submitted by the presiding judges (at the relevant time),
demonstrate a casual opinion, based solely on the judicial record which
presumably consisted of the fi nding of guilt, by the trial court and High Court
- Overemphasis on the presiding judge's opinion and complete disregard
of comments of other authorities, while arriving at its conclusion, would
render the appropriate government's decision on a remission application,
unsustainable - The appropriate government, should take a holistic view
of all the opinions received (in terms of the relevant rules), including the
judicial view of the presiding judge of the concerned court, keeping in mind
the purpose and objective, of remission - Remission Board to reconsider the
petitioner's application for remission afresh - Concerned presiding judge
to provide an opinion on the petitioner's application for premature release,
by examining the judicial record, and provide adequate reasoning, taking
[2023] 11 S.C.R. 484 : 2023 INSC 771
484
485
into account the factors laid down in Laxman Naskar case - Given the long
period of incarceration already suff ered by the writ petitioner and his age,
the Remission Board should render its decision, preferably within three
months from the date of this judgment.[Paras 14-17, 25]
Sentencing - Judicial exercise vis-à-vis executive function -
Statutory and Constitutional powers- s.432 CrPC; Articles 72, 161,
Constitution of India:
Held: Sentencing is a judicial exercise of power - The act thereafter
of executing the sentence awarded, however, is a purely executive function
which includes the grant of remission, commutation, pardon, reprieves, or
suspension of sentence - This executive power is traceable to Article 72
and 161 of the Constitution of India - Whilst the statutory (u/s.432 CrPC)
and constitutional (under Articles 72 and 161 of the Constitution) powers
are distinct- the former limited power, is still an imprint of the latter (much
wider power), and must be understood as such and placed in this context -
This executive power which is inherently discretionary in nature, has to be
exercised fairly, reasonably, and not arbitrarily - Absence to do so, would
compel the court to exercise its judicial review and in appropriate cases
remit the matter for reconsideration - Procedure laid out in s.432(2), has
been held to be mandatory.[Paras 9 and 10]
Code of Criminal Procedure, 1973 - Remission - Parameters to
be considered - Discussed.[Para 11]
Code of Criminal Procedure, 1973 - Remission - Role of presiding
judge's view - Weightage to be attached:
Held: The discretion that the executive is empowered with in executing
a sentence, would be denuded of its content, if the presiding judge's view-
which is formed in all likelihood, largely (if not solely) on the basis of the
judicial record- is mechanically followed by the concerned authority - Such
an approach has the potential to strike at the heart, and subvert the concept
of remission- as a reward and incentive encouraging actions and behaviour
geared towards reformation- in a modern legal system - If the presiding
judge's report is only refl ective of the facts and circumstances that led to
the conclusion of the convict's guilt, and is merely a reiteration of those
cir

## Text

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CASE DETAILS
RAJO @ RAJWA @ RAJENDRA MANDAL
v.
THE STATE OF BIHAR & ORS.
(Writ Petition (Criminal) No(s). 252 of 2023)
AUGUST 25, 2023
[S. RAVINDRA BHAT AND PRASHANT KUMAR MISHRA, JJ.]
HEADNOTES
Issue for consideration: Petitioner serving a sentence of life
imprisonment for commission of off ences punishable u/ss.302/34 of the
IPC, 1860 and s.27 of the Arms Act, 1959 sought direction for his premature
release on the ground that he has been in custody for 24 years without grant
of remission or parole.
Code of Criminal Procedure, 1973 - Remission - Grant of:
Held: Remission Board rejected the petitioner's application for
premature release twice - The reason for rejection of the petitioner's
application was the adverse report submitted by the presiding judge in
the fi rst round, which was perfunctorily relied upon and reiterated in the
report submitted by the then presiding judge in the second round as well -
Both the reports submitted by the presiding judges (at the relevant time),
demonstrate a casual opinion, based solely on the judicial record which
presumably consisted of the fi nding of guilt, by the trial court and High Court
- Overemphasis on the presiding judge's opinion and complete disregard
of comments of other authorities, while arriving at its conclusion, would
render the appropriate government's decision on a remission application,
unsustainable - The appropriate government, should take a holistic view
of all the opinions received (in terms of the relevant rules), including the
judicial view of the presiding judge of the concerned court, keeping in mind
the purpose and objective, of remission - Remission Board to reconsider the
petitioner's application for remission afresh - Concerned presiding judge
to provide an opinion on the petitioner's application for premature release,
by examining the judicial record, and provide adequate reasoning, taking
[2023] 11 S.C.R. 484 : 2023 INSC 771
484
485
into account the factors laid down in Laxman Naskar case - Given the long
period of incarceration already suff ered by the writ petitioner and his age,
the Remission Board should render its decision, preferably within three
months from the date of this judgment.[Paras 14-17, 25]
Sentencing - Judicial exercise vis-à-vis executive function -
Statutory and Constitutional powers- s.432 CrPC; Articles 72, 161,
Constitution of India:
Held: Sentencing is a judicial exercise of power - The act thereafter
of executing the sentence awarded, however, is a purely executive function
which includes the grant of remission, commutation, pardon, reprieves, or
suspension of sentence - This executive power is traceable to Article 72
and 161 of the Constitution of India - Whilst the statutory (u/s.432 CrPC)
and constitutional (under Articles 72 and 161 of the Constitution) powers
are distinct- the former limited power, is still an imprint of the latter (much
wider power), and must be understood as such and placed in this context -
This executive power which is inherently discretionary in nature, has to be
exercised fairly, reasonably, and not arbitrarily - Absence to do so, would
compel the court to exercise its judicial review and in appropriate cases
remit the matter for reconsideration - Procedure laid out in s.432(2), has
been held to be mandatory.[Paras 9 and 10]
Code of Criminal Procedure, 1973 - Remission - Parameters to
be considered - Discussed.[Para 11]
Code of Criminal Procedure, 1973 - Remission - Role of presiding
judge's view - Weightage to be attached:
Held: The discretion that the executive is empowered with in executing
a sentence, would be denuded of its content, if the presiding judge's view-
which is formed in all likelihood, largely (if not solely) on the basis of the
judicial record- is mechanically followed by the concerned authority - Such
an approach has the potential to strike at the heart, and subvert the concept
of remission- as a reward and incentive encouraging actions and behaviour
geared towards reformation- in a modern legal system - If the presiding
judge's report is only refl ective of the facts and circumstances that led to
the conclusion of the convict's guilt, and is merely a reiteration of those
circumstances available to the judge at the time of sentencing (some 14 or
more years earlier, as the case may be), then the appropriate government
should attach weight to this fi nding, accordingly - Such a report, cannot be
RAJO @ RAJWA @ RAJENDRA MANDAL v. THE STATE
OF BIHAR & ORS.
486
SUPREME COURT REPORTS
[2023] 11 S.C.R.
relied on as carrying predominance, if it focusses on the crime, with little
or no attention to the criminal.[Paras 16 and 17]
Sentencing - Heinous crimes:
Held: Even at the stage of sentencing, the judge ideally is to exercise
discretion after looking at a wide range of factors relating to the criminal
and not just the crime; but as noticed in numerous precedents that have dealt
with sentencing in the commission of heinous crimes, this is unfortunately,
often not the reality - Guidance has been off ered by this court on how to
mitigate this in recent years, but it is pragmatic to acknowledge that it will
require time for our criminal justice system to incorporate, and uniformly
reach such standards.
Sentencing - Imprisonment - Aim and goal of - Discussed.[Para
19]
Code of Criminal Procedure, 1973 - Remission - Report submitted
by the SP in the second round was adverse - Duty of the appropriate
government:
Held: Report submitted by the Superintendent of Police in the second
round (was diametrically diff erent from that which was submitted in the
fi rst round), was adverse - In each case, the appropriate government has
to be cognizant of the latent (not always) prejudices of the crime, that the
police as well as the investigating agency, may be citing- especially in a
case such as the present one, where the slain victims were police personnel
themselves, i.e., members of the police force - These biases may inform
the report, and cannot be given determinative value - Apart from the other
considerations (on the nature of the crime, whether it aff ected 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 qualifi cation
whilst in custody, volunteer services off ered, job/work done, jail conduct,
whether they were engaged in any socially aimed or productive activity, and
the overall development as a human being - The Board should not entirely
rely either on the presiding judge, or the report prepared by the police - It
487
would also serve the ends of justice if the appropriate government had the
benefi t of a report contemporaneously prepared by a qualifi ed psychologist
after interacting/interviewing the convict that has applied for premature
release. [Paras 20 and 21]
Adminstration of Criminal Justice - Sentencing - Balancing
societal interests with the rights of the convict:
Held: The majority view and the minority view in Sriharan 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, stemming from appropriate rules.[Para 22]
Code of Criminal Procedure, 1973 - Remission - Diff erent policies
on the date of conviction and on the date of consideration for premature
release:
Held: This court had grappled with the situation of diff erent remission
policies/rules prevailing at diff erent points of the convict's sentence- i.e.,
when the policy on the date of conviction, and on the date of consideration for
premature release, are diff erent - It has been held that the policy prevailing
on the date of the conviction20 , would be applicable - However, in Jagdish
it was also recognised that if a more liberal policy exists on the date of
consideration, the benefi t should be provided - In the present case, on the date
of conviction (24.05.2001), it is the pre-2002 policy that was applicable - In
the old pre-2002 policy, there is no mention of any ineligibility criteria, much
less one that is analogous to Rule 529(iv)(b) of the 2002 policy, which was
cited by the Remission Board in its rejection of the petitioner's application
on 20.04.2023. [Paras 23 and 24]
LIST OF CITATIONS AND OTHER REFERENCES
Union of India v. V. Sriharan [2015] 14 SCR 613 - followed.
State of Haryana v. Jagdish [2010] 3 SCR 716; Laxman Naskar v. State
of W.B (2000) 2 SCC 595 : [2000] 1 SCR 796 - relied on.
Sangeet v. State of Haryana [2012] 13 SCR 85; Gopal Vinayak Godse
v. State of Maharashtra [1961] 3 SCR 440; Maru Ram v. Union of India
[1981] 1 SCR 1196; Sarat Chandra Rabha v. Khagendranath Nath [1961] 2
RAJO @ RAJWA @ RAJENDRA MANDAL v. THE STATE
OF BIHAR & ORS.
488
SUPREME COURT REPORTS
[2023] 11 S.C.R.
SCR 133; Kehar Singh v. Union of India [1988] Supp. 3 SCR 1102; State of
Haryana v. Mohinder Singh [2000] 1 SCR 698; Sangeet v. State of Haryana
[2012] 13 SCR 85; Rajan v. The Home Secretary, Home Department of Tamil
Nadu [2019] 6 SCR 1035; Ram Chander v. State of Chhattisgarh [2022] 4
SCR 1103; Union of India v. V. Sriharan [2015] 14 SCR 613; Laxman Naskar
v. State of W.B. (2000) 7 SCC 626 : [2000] 3 Suppl. SCR 62; Jaswant Singh
v. State of Chhattisgarh, 2023 SCC OnLine SC 35; Swamy Shraddananda
(2) @ Mural Manohar Mishra v. State of Karnataka [2008] 11 SCR 93;
Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra [2009] 9
SCR 90; Chhannu Lal Verma v. State of Chattisgarh [2018] 14 SCR 355;
Rajendra Pralhadrao Wasnik v. State of Maharashtra [2018] 14 SCR 585;
and Manoj v. State of Madhya Pradesh [2022] 9 SCR 452; Maru Ram v.
Union of India [1981] 1 SCR 1196; State of Haryana v. Raj Kumar, (2021)
9 SCC 292 - referred to.
OTHER CASE DETAILS INCLUDING IMPUGNED
ORDER AND APPEARANCES
CRIMINAL ORIGINAL JURISDICTION: Writ Petition (Criminal)
No. 252 of 2023.
(UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA)
Appearances:
Randhir Kumar Ojha, Adv. for the Petitioner.
Azmat Hayat Amanullah, T. G. Shahi, Advs. for the Respondents.
JUDGMENT / ORDER OF THE SUPREME COURT
JUDGMENT
S. RAVINDRA BHAT, J.
1. The petitioner, currently serving a sentence of life imprisonment
for commission of off ences punishable under Section 302/34 of the Indian
Penal Code, 1860 and Section 27 of the Arms Act, 1959 approaches this
court under its Article 32 jurisdiction, seeking appropriate direction to the
fi rst respondent to prematurely release him, on the ground that he has been
in custody for 24 years without grant of remission or parole.
489
2. The petitioner (aged 40, at the time), with three other co-accused
persons, was convicted1 on 24.05.2001 for the murder of three persons - two
of which were police personnel (dafadars) and the third being a chowkidar,
who were all on duty during a village mela - by indiscriminate fi ring, while
they were waiting to be served food. The petitioner was accused to be one
among those who had shot at the deceased victims, in a premediated and
planned manner. The trial court sentenced the petitioner and three other
co-accused persons to undergo rigorous imprisonment for life; while three
other accused were acquitted on all charges. A co-accused (Baudha Mandal),
who was the fi rst to fi re at the victims, was killed during the pendency of
investigation/trial in a police encounter. The petitioner's conviction and
sentence (along with that of three other co-accused convicts), was affi rmed
by the High Court on 01.09.2005.2 Owing to a lack of means and awareness,
the petitioner could not approach this court to challenge the same, and his
conviction by the High Court, attained fi nality.
3. Pursuant to an order of this court, after notice was issued, the
respondent-state has fi led an affi davit indicating the computation of his
period of sentence undergone, the status of his plea for remission to be
granted, as well as the remission policies (as amended from time to time)
of the state government. This affi davit confi rms that the petitioner long
completed 14 years of actual imprisonment (on 19.07.2013), and in fact
has, as on 26.07.2023, completed over 24 years of actual imprisonment.
Accounting for the remission earned (of over 4 years and 8 months of
remission, i.e., a total 1694 days), he has served 28 years, 8 months and
21 days. It is pertinent to mention that he completed 20 years of actual
imprisonment on 19.07.2019, and if computed with remission earned as
per prevailing rules, then on 05.11.2014 itself.
4. After the completion of the mandatory 14 years actual imprisonment,
and 20 years of custody with remission, the petitioner's case (application
dated 14.04.2021) was considered by the Remission Board on 19.05.2021.
In accordance with the prescribed rules, prior to this meeting, the opinion
of the Presiding Offi cer of the convicting court, probation offi cer and
1
By the Sessions Court, Madhepura in Sessions Case No. 123/2000 and Sessions Case
No. 194/2000.
2
By the Patna High Court in Criminal Appeal No. 327/2001 (which was disposed
along with Criminal Appeal No 309/2001, fi led by three co-accused persons).
RAJO @ RAJWA @ RAJENDRA MANDAL v. THE STATE
OF BIHAR & ORS. [S. RAVINDRA BHAT, J.]
490
SUPREME COURT REPORTS
[2023] 11 S.C.R.
Superintendent of Police, was also sought. The Board rejected the petitioner's
application for premature release - despite a favourable report by the
Probation Offi cer and Superintendent of Police - noting the adverse report
by the Presiding Judge.
5. After this rejection, a writ petition was fi led before the High Court,
seeking relief similar to what is sought in the present petition. It was
however dismissed for non-prosecution. Later, in terms of prevailing rules3,
the petitioner's proposal was again put up before the Remission Board in
its meeting dated 20.04.2023. This time, the proposal was rejected in light
of adverse/negative opinions received from the Superintendent of Police,
Purnea and the Presiding Offi cer of the convicting court, and noting Rule
529(iv)(b) of the remission policy contained in the Bihar Jail Manual (as
amended by Notifi cation dated 10.12.2002 and notifi ed on 28.12.2002). The
relevant rule is extracted below:
"(iv)Ineligibility for premature release
The following category of convicted prisoners undergoing life sentence
may not be considered eligible for premature release. -
a)
Prisoners convicted of the heinous off ences such as rape, dacoity,
terrorist crimes, etc.
b)
Prisoners who have been convicted for organized murder in a
premeditated manner and in an organized manner.
c)
Professional murders who have been found guilty of murder by
hiring.
d)
Convicted prisoners, who commit murder while involving in
smuggling operations or who are guilty of murder of public
servants on duty"
(emphasis supplied)
6. These are the facts, leading to the present writ petition.
Analysis and conclusion
7. Section 432(1) of the Code of Criminal Procedure, 1973 (hereafter
'CrPC') empowers the appropriate government to suspend or remit sentences
and applies only in the case of additional remission, over and above what is
earned as per the jail manual or statutory rules.4 Section 432(2) prescribes
3
Rule 6(d) of the Notifi cation No. 3106 dated 10.12.2002 which stipulates that rejection
of proposal for pre-mature release shall not be a bar for reconsideration.
4
Sangeet v. State of Haryana[2012] 13 SCR 85.
491
the procedure whereby the appropriate government may seek the opinion of
the Presiding Judge of the court before, or by which the applicant had been
convicted, on whether the applications should be allowed or rejected, along
with reasoning. Section 432(2) of the CrPC is extracted for ready reference:
"432. Power to suspend or remit sentences.-(1)***
(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 confi rmed, 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 certifi ed copy of the record of the trial or of such
record thereof as exists."
8. This statutory power to grant remission is limited by Section 433A
(which was incorporated in the CrPC subsequently5) when it comes to those
convicted for an off ence where death is one of the punishments:
"433-A. Restriction on powers of remission or commutation in
certain cases.-Notwithstanding anything contained in Section 432,
where a sentence of imprisonment for life is imposed on conviction
of a person for an off ence for which death is one of the punishments
provided by law, or where a sentence of death imposed on a person has
been commuted under Section 433 into one of imprisonment for life,
such person shall not be released from prison unless he had served at
least fourteen years of imprisonment."
9. Sentencing is a judicial exercise of power. The act thereafter of
executing the sentence awarded, however, is a purely executive function
- which includes the grant of remission, commutation, pardon, reprieves,
or suspension of sentence.6 This executive power is traceable to Article 72
and 161 of the Constitution of India, by which the President of India, and
Governor of the State, respectively, are empowered to grant pardons and to
suspend, remit or commute sentences in certain cases. Whilst the statutory
5
By Act 45 of 1978, sec. 32 (w.e.f. 18.12.1978).
6
See Gopal Vinayak Godse v. State of Maharashtra [1961] 3 SCR 440; Maru Ram v.
Union of India[1981] 1 SCR 1196; Sarat Chandra Rabha v. Khagendranath Nath [1961] 2
SCR 133; Kehar Singh v. Union of India [1988] Supp. 3 SCR 1102.
RAJO @ RAJWA @ RAJENDRA MANDAL v. THE STATE
OF BIHAR & ORS. [S. RAVINDRA BHAT, J.]
492
SUPREME COURT REPORTS
[2023] 11 S.C.R.
(under Section 432 CrPC) and constitutional (under Articles 72 and 161 of
the Constitution) powers are distinct- the former limited power, is still an
imprint of the latter (much wider power), and must be understood as such
and placed in this context. This framework of executive power and how it
is to be exercised, is lucidly explained, in the judgment of State of Haryana
v. Jagdish7:
"27. Neverthelesswe may point out that the power of the sovereign to
grant remission is within its exclusive domain and it is for this reason
that our Constitution makers went on to incorporate the provisions
of Article 72 and Article 161 of the Constitution of India. This
responsibility was cast upon the executive through a constitutional
mandate to ensure that some public purpose may require fulfi lment
by grant of remission in appropriate cases. This power was never
intended to be used or utilised by the executive as an unbridled power
of reprieve. Power of clemency is to be exercised cautiously and in
appropriate cases, which in eff ect, mitigates the sentence of punishment
awarded and which does not, in any way, wipe out the conviction.
It is a power which the sovereign exercises against its own judicial
mandate. The act of remission of the State does not undo what has
been done judicially. The punishment awarded through a judgment
is not overruled but the convict gets benefi t of a liberalised policy of
State pardon. However, the exercise of such power under Article 161
of the Constitution or under Section 433-A CrPC may have a diff erent
fl avour in the statutory provisions, as short-sentencing policy brings
about a mere reduction in the period of imprisonment whereas an
act of clemency under Article 161 of the Constitution commutes the
sentence itself."
10. That this executive power which is inherently discretionary in
nature, has to be exercised fairly, reasonably, and not arbitrarily, has been
held by this court in numerous cases.8 Absence to do so, would - like is the
7
[2010] 3 SCR 716 [hereafter referred to as 'Jagdish']
8
State of Haryana v. Mohinder Singh [2000] 1 SCR 698; Sangeet v. State of Haryana[2012] 13 SCR 85; Union of India v. V. Sriharan[2015] 14 SCR 613; Rajan v. The Home
Secretary, Home Department of Tamil Nadu [2019] 6 SCR 1035; Ram Chander v. State of
Chhattisgarh [2022] 4 SCR 1103.
493
case for other executive action- compel the court to exercise its judicial
review, and in appropriate cases remit the matter for reconsideration.9 The
procedure laid out in Section 432(2), has been held to be mandatory by a
fi ve-judge bench of this court, in Union of India v. V. Sriharan10. The court
also observed how the said procedure operated as a safeguard, much like
the ones provided under Article 72 and 161 of the Constitution:
"141. [...] 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 fi nd 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.
142. 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 off ences, in cases involving
heinous crimes like, murder, kidnapping, rape, robbery, dacoity, etc.
and such other off ences 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 Offi cer of the court
concerned will throw much light on the nature of crime committed,
the record of the convict himself, 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
9
See Rajan and Ram Chander (ibid).
10 [2015] 14 SCR 613 [hereafter referred to as 'Sriharan'].
RAJO @ RAJWA @ RAJENDRA MANDAL v. THE STATE
OF BIHAR & ORS. [S. RAVINDRA BHAT, J.]
494
SUPREME COURT REPORTS
[2023] 11 S.C.R.
Executive Head will have the benefi t 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 defi nitely throw much light on the issue relating to
grant of suspension or remission."
The court then proceeded to approve the following reasoning in Sangeet
v. State of Haryana11 on this point (Sangeet SCR pp. 119-120):
"63. It appears to us that an exercise of power by the appropriate
Government under sub-section (1) of Section 432CrPC cannot be suo
motu for the simple reason that this sub-section is only an enabling
provision. The appropriate Government is enabled to "override" a
judicially pronounced sentence, subject to the fulfi lment of certain
conditions. Those conditions are found either in the Jail Manual or
in statutory rules. Sub-section (1) of Section 432CrPC 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 confi rmed 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."
(emphasis supplied)
11 [2012] 13 SCR 85[hereafter referred to as 'Sangeet']
495
11. This court, in various judgments, has outlined the parameters to
be considered, when considering grant of remission. In Jagdish (supra) this
court held:
"38. At the time of considering the case of premature release of a life
convict, the authorities may require to consider his case mainly taking
into consideration whether the off ence was an individual act of crime
without aff ecting the society at large; whether there was any chance
of future recurrence of committing a crime; whether the convict had
lost his potentiality in committing the crime; whether there was any
fruitful purpose of confi ning the convict any more; the socio-economic
condition of the convict's family and other similar circumstances."
(emphasis supplied)
This was based on an earlier judgment (though not expressly cited in
Jagdish) - Laxman Naskar v. State of W.B12 which prescribed fi ve guiding
factors.
12. In Sriharan (supra), the court went on to discuss specifi cally,
the role of the report submitted by the presiding offi cer, and held that the
"ultimate order of suspension or remission should be guided by the opinion
to be rendered by the Presiding Offi cer of the court concerned."13 This in
turn, was relied upon, and explained recently, in Ram Chander v. State of
Chhattisgarh14 as follows:
"20. In Sriharan [Union of India v. V. Sriharan, (2016) 7 SCC
1 : (2016) 2 SCC (Cri) 695] , 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
12 (2000) 2 SCC 595[para 6] [hereafter referred to as 'Laxman Naskar']. These factors
were reiterated in Laxman Naskar v. State of W.B. (2000) 7 SCC 626 [para 6] as well.
13 Para 143.
14 [2022] 4 SCR 1103[hereafter referred to as 'Ram Chander']
RAJO @ RAJWA @ RAJENDRA MANDAL v. THE STATE
OF BIHAR & ORS. [S. RAVINDRA BHAT, J.]
496
SUPREME COURT REPORTS
[2023] 11 S.C.R.
relevant factor, which does not have any determinative eff ect on the
application for remission. The purpose of the procedural safeguard
under Section 432(2)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.
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 [Laxman Naskar v. Union of India, (2000) 2 SCC 595
: 2000 SCC (Cri) 509], 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 [Laxman Naskar v. Union
of India, (2000) 2 SCC 595 : 2000 SCC (Cri) 509] . These factors
include assessing:
(i) whether the off ence aff ects 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 W.B. [Laxman Naskar v. State of
W.B., (2000)7 SCC 626: 2000 SCC (Cri) 1431] and State of Haryana
v. Jagdish [State of Haryana v. Jagdish, (2010) 4 SCC 216 : (2010)
2 SCC (Cri) 806], this Court has reiterated that these factors will be
considered while deciding the application of a convict for premature
release.
497
23. In his opinion dated 21-7-2021 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)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 satisfi ed if the authority concerned has provided relevant reasons.
Mechanical reasons are not considered adequate. The following extract
is useful for our consideration:
"[005.066] Adequacy of reasons Suffi ciency of reasons, in a
particular case, depends on the facts of each case. It is not
necessary for the authority to write out a judgment 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." [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)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."
RAJO @ RAJWA @ RAJENDRA MANDAL v. THE STATE
OF BIHAR & ORS. [S. RAVINDRA BHAT, J.]
498
SUPREME COURT REPORTS
[2023] 11 S.C.R.
13. Noting that the presiding judge's opinion did not consider the fi ve
parameters laid out in Laxman Naskar (supra), a coordinate bench of this
court in Ram Chander (supra) directed the presiding offi cer of the concerned
court, to consider the matter afresh and in light of these factors, so that the
appropriate government could in turn reconsider the petitioner's application
for premature release. A similar fate awaited the writ petitioner in Jaswant
Singh v. State of Chhattisgarh15 (wherein both writ petitions arose from the
same facts and commission of off ence).
14. In the present case, the Remission Board rejected the petitioner's
application for premature release twice. A brief glance at all the reports
submitted by the authorities to the Remission Board before each of its two
meetings where it considered the petitioner's case, is telling:
Considered in Remission Board
meeting dated 19.05.2021
Considered in Remission Board meeting
dated 20.04.2023
Jail Superintendent report dated
27.04.2021:
"conduct of prisoner is satisfactory.
Recommended for premature release from
jail."
Jail Superintendent report dated
15.09.2022:
"Recommended for premature release."
Probation Officer's report dated
05.04.2021:
"can be considered to release the prisoner
prematurely in accordance with Rules"
Probation Officer's report dated
08.06.2022:
"Keeping in view at the residential resources
and means for livelihood for the convicts, the
social and economic status of the household,
the no- objection and acceptance of the
people of the family and the society , the need
for rehabilitation and the possibility of living
as a normal citizen a clear recommendation
is made regarding the timely release of the
above convicted prisoner."
Police Superintendent's report dated
11.01.2021:
"...DPO has reported that on release of
prisoner, there does not seem to be any
Police Superintendent's report dated
22.07.2022:
Noting the input received from the concerned
DPO - "...The local people have got the
15 Jaswant Singh v. State of Chhattisgarh, 2023 SCC OnLine SC 35
499
possibility of any law-and-order problem
will arise"
information regarding his premature release.
The local people speak in the crossroads
about the adverse eff ect of his release due
to his premature release, an atmosphere of
unrest and fear will arise in the society and
criminal incidents may also increase NCR
(Sanha) No. 211 dated 10.07.2022 is marked
in this regard. In this context, the premature
release of the said prisoner does not seem
appropriate"
Remarks of the Presiding Judge dated
15.12.2018:
"...I perused the judgment and
supplementary case record of above noted
sessions case, from which it appears that
it is a triple murder case in which two
dafadars were killed under a calculated
move and in plan manner and both Dafadar
and Chaukidar were sincere in duty and
dedicated to their work and they used
to jointly move from duty, as a result of
which the criminals were under constant
fear psychosis and the criminals including
the convicts murdered these two offi cials.
Considering the manner of occurrence and
seriousness of the case, in my opinion the
application remission and commutation
of sentence fi led on behalf of the convict
petitioner should be refused."
Remarks of the Presiding Judge dated
02.07.2022:
Noting the report submitted earlier by the
then presiding offi cer on 15.12.2018, stated
"....Further having gone through the case
record, I also fi nd that the manner of the
occurrence in alleged off ence done by the
Rajo@Rajua@Rajendra mandal along
with other co-accused person was so harsh
and professional under such facts and
circumstances, I also agreed with the opinion
of the then P.O of this court. Therefore prayer
for remission and commutation of sentence
in favor of Rajo@Rajua@Rajendra Mandal
may be refused."
Screening Committee/ Inspector General:
Took note of the adverse reports of Police
Superintendent and Presiding Judge and
noted that
"2. In the Notification No. 3106 dated
10.012.2002 of the Home (Special)
Department Bihar, it is provided in clause (iv)
(b) that the prisoners who are convicted for
organizing murders in a systematic manner
shall not be eligible for premature release.
3. In that light, the proposal for untimely
release from prison can be rejected."
RAJO @ RAJWA @ RAJENDRA MANDAL v. THE STATE
OF BIHAR & ORS. [S. RAVINDRA BHAT, J.]
500
SUPREME COURT REPORTS
[2023] 11 S.C.R.
Taking note of the reports before it at the time, the Remission Board
concluded as follows:
Remission Board meeting dated
19.05.2021
Remission Board meeting dated 20.04.2023
"Favourable report by Probation
Offi cer/ Superintendent of Police, but
adverse report by Presiding Judge"
Taking note of the adverse reports by the
Police Superintendent, Presiding Judge, and
conclusion of the Screening Committee/
Inspector General regarding clause (iv)(b) -
"3. After due consideration, the proposal for
premature release from prison is rejected."
15. The record clearly indicates that the reason for rejection of the
petitioner's application, is the adverse report submitted by the presiding
judge in the fi rst round, which was perfunctorily relied upon and reiterated
in the report submitted by the then presiding judge in the second round as
well. Both the reports submitted by the presiding judges (at the relevant
time), demonstrate a casual opinion, based solely on the judicial record
which presumably consisted of the fi nding of guilt, by the trial court and
High Court. This off ers only a dated insight on the petitioner, one that has
limited opportunity to consider the progress the convict has made in the
course of serving his sentence. Yet, the Remission Board has privileged
the presiding judge's opinion over the other authorities - like the Probation
Offi cer, and Jail authorities, who are in a far better position to comment on
his post-conviction reformation - off ering a cautionary tale.
16. In this court's considered view, overemphasis on the presiding
judge's opinion and complete disregard of comments of other authorities,
while arriving at its conclusion, would render the appropriate government's
decision on a remission application, unsustainable. The discretion that the
executive is empowered with in executing a sentence, would be denuded of
its content, if the presiding judge's view- which is formed in all likelihood,
largely (if not solely) on the basis of the judicial record- is mechanically
followed by the concerned authority. Such an approach has the potential to
strikes at the heart, and subvert the concept of remission - as a reward and
incentive encouraging actions and behaviour geared towards reformation
- in a modern legal system.
501
17. All this is not to say that the presiding judge's view is only one
of the factors that has no real weight; but instead that if the presiding
judge's report is only refl ective of the facts and circumstances that led to
the conclusion of the convict's guilt, and is merely a reiteration of those
circumstances available to the judge at the time of sentencing (some 14 or
more years earlier, as the case may be), then the appropriate government
should attach weight to this fi nding, accordingly. Such a report, cannot be
relied on as carrying predominance, if it focusses on the crime, with little
or no attention to the criminal. The appropriate government, should take
a holistic view of all the opinions received (in terms of the relevant rules),
including the judicial view of the presiding judge of the concerned court,
keeping in mind the purpose and objective, of remission.
18. The views of the presiding judge, are based on the record, which
exists, containing all facts resulting in conviction, including the nature of
the crime, its seriousness, the accused's role, and the material available at
that stage regarding their antecedents. However, post-conviction conduct,
particularly, resulting in the prisoner's earned remissions, their age and
health, work done, length of actual incarceration, etc., rarely fall within the
said judge's domain. Another factor to bear in mind, is that the presiding
judge would not be the same presiding judge who had occasion to observe
the convict (at a much earlier point in time) and thus form an opinion.
The presiding judge, at this stage, would only look into the record leading
to conviction.