| Headnote |
Issue for consideration: Petitioner serving a sentence of lifeimprisonment for commission of off ences punishable u/ss.302/34 of theIPC, 1860 and s.27 of the Arms Act, 1959 sought direction for his prematurerelease on the ground that he has been in custody for 24 years without grantof remission or parole.Code of Criminal Procedure, 1973 – Remission – Grant of:Held: Remission Board rejected the petitioner’s application forpremature release twice – The reason for rejection of the petitioner’sapplication was the adverse report submitted by the presiding judge inthe fi rst round, which was perfunctorily relied upon and reiterated in thereport 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 whichpresumably consisted of the fi nding of guilt, by the trial court and High Court– Overemphasis on the presiding judge’s opinion and complete disregardof comments of other authorities, while arriving at its conclusion, wouldrender the appropriate government’s decision on a remission application,unsustainable – The appropriate government, should take a holistic viewof all the opinions received (in terms of the relevant rules), including thejudicial view of the presiding judge of the concerned court, keeping in mindthe purpose and objective, of remission – Remission Board to reconsider thepetitioner’s application for remission afresh – Concerned presiding judgeto provide an opinion on the petitioner’s application for premature release,by examining the judicial record, and provide adequate reasoning, taking into account the factors laid down in Laxman Naskar case – Given the longperiod of incarceration already suff ered by the writ petitioner and his age,the Remission Board should render its decision, preferably within threemonths 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 thereafterof executing the sentence awarded, however, is a purely executive functionwhich includes the grant of remission, commutation, pardon, reprieves, orsuspension of sentence – This executive power is traceable to Article 72and 161 of the Constitution of India – Whilst the statutory (u/s.432 CrPC)and constitutional (under Articles 72 and 161 of the Constitution) powersare distinct- the former limited power, is still an imprint of the latter (muchwider power), and must be understood as such and placed in this context –This executive power which is inherently discretionary in nature, has to beexercised fairly, reasonably, and not arbitrarily – Absence to do so, wouldcompel the court to exercise its judicial review and in appropriate casesremit the matter for reconsideration – Procedure laid out in s.432(2), hasbeen held to be mandatory.[Paras 9 and 10]Code of Criminal Procedure, 1973 – Remission – Parameters tobe considered – Discussed.[Para 11]Code of Criminal Procedure, 1973 – Remission – Role of presidingjudge’s view – Weightage to be attached:Held: The discretion that the executive is empowered with in executinga sentence, would be denuded of its content, if the presiding judge’s viewwhichis formed in all likelihood, largely (if not solely) on the basis of thejudicial record- is mechanically followed by the concerned authority – Suchan approach has the potential to strike at the heart, and subvert the conceptof remission- as a reward and incentive encouraging actions and behaviourgeared towards reformation- in a modern legal system – If the presidingjudge’s report is only refl ective of the facts and circumstances that led tothe conclusion of the convict’s guilt, and is merely a reiteration of thosecircumstances available to the judge at the time of sentencing (some 14 ormore years earlier, as the case may be), then the appropriate governmentshould attach weight to this fi nding, accordingly – Such a report, cannot be relied on as carrying predominance, if it focusses on the crime, with littleor no attention to the criminal.[Paras 16 and 17]Sentencing – Heinous crimes:Held: Even at the stage of sentencing, the judge ideally is to exercisediscretion after looking at a wide range of factors relating to the criminaland not just the crime; but as noticed in numerous precedents that have dealtwith sentencing in the commission of heinous crimes, this is unfortunately,often not the reality – Guidance has been off ered by this court on how tomitigate this in recent years, but it is pragmatic to acknowledge that it willrequire time for our criminal justice system to incorporate, and uniformlyreach such standards.Sentencing – Imprisonment – Aim and goal of – Discussed.[Para19]Code of Criminal Procedure, 1973 – Remission – Report submittedby the SP in the second round was adverse – Duty of the appropriategovernment:Held: Report submitted by the Superintendent of Police in the secondround (was diametrically diff erent from that which was submitted in thefi rst round), was adverse – In each case, the appropriate government hasto be cognizant of the latent (not always) prejudices of the crime, that thepolice as well as the investigating agency, may be citing- especially in acase such as the present one, where the slain victims were police personnelthemselves, i.e., members of the police force – These biases may informthe report, and cannot be given determinative value – Apart from the otherconsiderations (on the nature of the crime, whether it aff ected the societyat large, the chance of its recurrence, etc.), the appropriate governmentshould while considering the potential of the convict to commit crimesin the future, whether there remains any fruitful purpose of continuedincarceration, and the socio-economic conditions, review: the convict’s age,state of heath, familial relationships and possibility of reintegration, extentof earned remission, and the post-conviction conduct including, but notlimited to- whether the convict has attained any educational qualifi cationwhilst in custody, volunteer services off ered, job/work done, jail conduct,whether they were engaged in any socially aimed or productive activity, andthe overall development as a human being – The Board should not entirelyrely either on the presiding judge, or the report prepared by the police – It would also serve the ends of justice if the appropriate government had thebenefi t of a report contemporaneously prepared by a qualifi ed psychologistafter interacting/interviewing the convict that has applied for prematurerelease. [Paras 20 and 21]Adminstration of Criminal Justice – Sentencing – Balancingsocietal interests with the rights of the convict:Held: The majority view and the minority view in Sriharan underlinedthe need to balance societal interests with the rights of the convict (that ina given case, the sentence should not be unduly harsh, or excessive) – Thecourt acknowledged that it lies within the executive’s domain to grant, orrefuse premature release; however, such power would be guided, and thediscretion informed by reason, stemming from appropriate rules.[Para 22]Code of Criminal Procedure, 1973 – Remission – Diff erent policieson the date of conviction and on the date of consideration for prematurerelease:Held: This court had grappled with the situation of diff erent remissionpolicies/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 forpremature release, are diff erent – It has been held that the policy prevailingon the date of the conviction20 , would be applicable – However, in Jagdishit was also recognised that if a more liberal policy exists on the date ofconsideration, the benefi t should be provided – In the present case, on the dateof conviction (24.05.2001), it is the pre-2002 policy that was applicable – Inthe old pre-2002 policy, there is no mention of any ineligibility criteria, muchless one that is analogous to Rule 529(iv)(b) of the 2002 policy, which wascited by the Remission Board in its rejection of the petitioner’s applicationon 20.04.2023. [Paras 23 and 24] |
