Holding

An opinion of the presiding judge that is not accompanied by adequate reasons and does not consider the statutory factors fails to meet the requirements of Section 432(2) CrPC and must be re‑issued before the government can decide on remission.

Summary

The petitioner, convicted of murder and related offences, served 16 years of a life sentence and applied for premature release under Chhattisgarh Prison Rule 358. The appropriate government sought the opinion of the Special Judge who, without providing detailed reasons or considering the factors laid down in Laxman Naskar, simply rejected remission. The petitioner challenged the adequacy of the judge's opinion under Section 432(2) of the CrPC, arguing that the opinion must be reasoned and address specific factors. The Supreme Court held that an opinion lacking adequate reasoning does not satisfy the statutory requirement and cannot be treated as a mere formality. Consequently, the Court directed the Special Judge to re‑examine the application with proper reasons and the State to decide afresh, allowing the writ petition.

Issues considered

The adequacy of the presiding judge's opinion under Section 432(2) of the CrPC for remission applications
Whether the opinion of the presiding judge is binding on the appropriate government
Whether the appropriate government can exercise remission power arbitrarily
Whether the petitioner is entitled to premature release after completing the statutory period without remission

Legislation cited

Chhattisgarh Prisons Rule, 1968s. Rule 358
Code of Criminal Procedure, 1973s. 432, s. 433A
Constitution of Indias. Art.32
Indian Penal Code, 1860s. 148, s. 149, s. 302
Scheduled Castes and Tribes (Prevention of Atrocities) Act, 1989s. 3(2)(5)

Subjects

remission of sentenceSection 432 CrPCpremature releasejudicial reviewpresiding judge opinionprocedural fairnessArticle 32criminal procedure

Judgment

[2022] 4 S.C.R. 1103 1103

RAM CHANDER A
v.
THE STATE OF CHHATTISGARH & ANR.
(Writ Petition (Crl.) No. 49 of 2022)
APRIL 22, 2022 B
[DR. DHANANJAYA Y CHANDRACHUD AND
ANIRUDDHA BOSE, JJ.]
Code of Criminal Procedure, 1973: s. 432- Power to suspend
or remit sentences – Application of a convict for premature release
C
– On completion of 16 years of imprisonment without remission –
Value of the Opinion of the Presiding Judge – There is nothing to
indicate that the presiding judge took into account the factors for
grant of remission – In his opinion dated 21 July 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 D
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) 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
E
satisfied if the concerned authority has provided relevant reasons
– Mechanical reasons are not considered adequate – Thus, an
opinion accompanied by inadequate reasoning would not satisfy
the requirements of Section 432 (2) of the 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 F
informed decision taking into consideration all the relevant factors
– Petitioner’s application for remission should be re-considered –
Special Judge, Durg to provide an opinion on the application afresh
accompanied by adequate reasoning that takes into consideration
all the relevant factors that govern the grant of remission.
G
Constitution of India, 1950 – Art.32 – Penal Code, 1860 –
ss.148,149,302 – Code of Criminal Procedure, 1973 – ss. 432,
433A - Chhattishgarh Prisons Rule 1968 - Rule 358- Pre-mature
release - Remission of sentence - On 7 December 2010, trial court
convicted the petitioner and other accused for assaulting the
H
1103
1104 SUPREME COURT REPORTS [2022] 4 S.C.R.

A complainant and killing his father and brother – Petitioner sentenced
to life imprisonment – Sentence confirmed by High Court – Special
leave petition filed by petitioner also got dismissed – Thereafter, on
completion of 16 years of imprisonment without remission, petitioner
applied for premature release to respondent under Rule 358 of
Chhattishgarh Prisons Rule 1968 – As required to be taken u/s.
B
433 A CrPC, Jail Superintendent sought opinion of the Special Judge
on whether the petitioner can be released on remission - On 2 July
2021, the Special Judge gave his opinion - That in view of all the
facts and circumstances of the case, it would not be appropriate to
allow remission of the remaining sentence of the petitioner - Opinion
C of Law Department also sought – Law Department stated that since
the presiding judge of the sentencing court has not given a positive
opinion, he cannot be released – Feeling aggrieved, present appeal
filed - Held : The purpose of the procedural safeguard u/s 432 (2)
of the CrPC would stand defeated if the opinion of the presiding
judge becomes just another factor that may be taken into
D
consideration by the government while deciding the application for
remission – It is possible then that the procedure u/s. 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
E comply with the requirements of s. 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 – 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
F
Naskar – Thus, an opinion accompanied by inadequate reasoning
would not satisfy the requirements of s. 432 (2) of the CrPC –
Further, it will not serve the purpose for which the exercise u/s. 432
(2) is to be undertaken, which is to enable the executive to make an
informed decision taking into consideration all the relevant factors
G – Hence, the petitioner’s application for remission should be re-
considered – Special Judge is directed to provide an opinion on the
application afresh accompanied by adequate reasoning that takes
into consideration all the relevant factors that govern the grant of
remission as laid down in Laxman Naskar.
H Power of Remission - Judicial Review - Discussed.
RAM CHANDER v. THE STATE OF CHHATTISGARH & ANR. 1105

Allowing the writ petition, the Court A
HELD: 1. While a discretion vests with the government to
suspend or remit the sentence, the executive 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 power of remission cannot be B
exercised arbitrarily. The decision to grant remission should be
informed, fair and reasonable. [Para 12][1116-B-C]
2. 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 C
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 Court has the power to review the decision of the
government regarding the acceptance or rejection of an
application for remission under Section 432 of the CrPC to
D
determine whether the decision is arbitrary in nature. The Court
is empowered to direct the government to reconsider its
decision. [Paras 13 and 14][1116-F-G; 1120-A-B]
3. Sub-section (2) of Section 432 of the CrPC provides that
the appropriate government may take the opinion of the presiding
E
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. [Para 15][1120-B-C]
4. There appears to be a difference of opinion between the F
High Courts on whether the opinion of the presiding judge is
binding on the government. The High Court of Judicature at
Bombay has held that the opinion of the presiding judge is binding.
[Para 18][1123-F-G]
5. On the other hand, the High Court of Patna has held that G
the opinion of the presiding judge is not binding but is only a
guiding factor. The High Court observed that the State Sentence

H
1106 SUPREME COURT REPORTS [2022] 4 S.C.R.

A Remission Board consists of high-level officials who can exercise
their independent wisdom and are not bound by the opinion of
the presiding judge. [Para 19][1124-H; 1125-A]
6. In Sriharan, the Court observed that the opinion of the
presiding judge shines a light on the nature of the crime that has
B 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
C
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
D 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
E
that have been laid down in Laxman Naskar v. Union of India’s
case, the government may request the presiding judge to consider
the matter afresh. [Paras 20 and 21][1125-G-H; 1126-A-C]
7. In the instant case, there is nothing to indicate that the
presiding judge took into account the factors which have been
F
laid down in Laxman Naskar v. Union of India’s case. 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 bykeeping the convict in prison;
G and (v) the socio-economic condition of the convict’s family. These
factors would be considered while deciding the application of a
convict for premature release. [Para 22][1126-C-E]

H
RAM CHANDER v. THE STATE OF CHHATTISGARH & ANR. 1107

State of Haryana v. Jagdish (2010) 4 SCC 216 : [2010] A
3 SCR 716; Laxman Naskar v. State of West Bengal
(2000) 7 SCC 626 : [2000] 3 Suppl. SCR 62 – relied
on.
8. In his opinion dated 21 July 2021 the Special Judge,
referred to the crime for which the petitioner was convicted and B
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. The requirement to give reasons is satisfied if the
concerned authority has provided relevant reasons. Mechanical C
reasons are not considered adequate. Thus, an opinion
accompanied by inadequate reasoning would not satisfy the
requirements of Section 432 (2) CrPC. Further, it would 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 D
decision taking into consideration all the relevant factors.
[Paras 23 and 24][1126-F-G; 1127-D]
Halsbury’s Laws of India (Administrative Law) (Lexis
Nexis, Online Edition) – referred to.
9.The petitioner’s application for remission should be re- E
considered. The Special Judge is directed to provide an opinion
on the application afresh accompanied by adequate reasoning that
takes into consideration all the relevant factors that govern the
grant of remission as laid down in Laxman Naskar v. Union of
India. [Para 25][1127-E-F] F
Union of India v. Sriharan @ Murugan (2014) 4 SCC
242 : [2014] 1 SCR 1093; Sangeet v. State of Haryana
(2013) 2 SCC 452 : [2012] 13 SCR 85; State of
Haryana v. Mohinder Singh (2000) 3 SCC 394 : [2000]
1SCR 698; Bhagwat Saran v. State of UP 1983 (1) SCC G
389; Yoshevel v. State of Bombay Crl. Writ Petition No
273 of 2019; Union of India v. Sriharan (2016) 7 SCC
1 : [2015] 14 SCR 613; State of Madhya Pradesh v.

H
1108 SUPREME COURT REPORTS [2022] 4 S.C.R.

A Ratan Singh (1976) 3 SCC 470 : [1976] 0 Suppl. SCR
552; Rajan v. Home Secretary, Home Department of
Tamil Nadu (2019) 14 SCC 114 : [2019] 6 SCR 1035 –
referred to.
Case Law Reference
B
[2014] 1 SCR 1093 referred to Para (9 v)
[2012] 13 SCR 85 referred to Para (9 vi)
[2000] 1 SCR 698 referred to Para (9 vii)
[1983] 1 SCC 389 referred to Para (9 viii)
C
[2015] 14 SCR 613 referred to Para (10 iii)
[1976] Suppl. SCR 552 referred to Para (10 iv)
[2019] 6 SCR 1035 referred to Para (10 iv)
D [2000] 3 Suppl. SCR 62 relied on Para 22
[2010] 3 SCR 716 relied on Para 22
CRIMINAL ORIGINAL JURISDICTION: Writ Petition (Crl)
No. 49 of 2022.
E (UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA)
Mohd. Irshad Hanif, Rizwan Ahmad, Mujahid Ahmed, A. R.
Siddiqui, Paras Nath Singh, Advs. for the Petitioner.
Sumeer Sodhi, Gaurav Arora, Advs. for the Respondents.
F The Judgment of the Court was delivered by
DR. DHANANJAYA Y CHANDRACHUD, J.
1. The petition under Article 32 of the Constitution has been
instituted by a convict, who is undergoing a sentence of imprisonment
G for life upon being convicted for the commission of offences punishable,
inter alia, under Section 302 read with Section 149 of the Indian Penal
Code1. He seeks the issuance of a writ directing the first respondent to
grant him pre-mature release. The factual background has been set out
below.
1
H “IPC“
RAM CHANDER v. THE STATE OF CHHATTISGARH & ANR. 1109
[DR. DHANANJAYA Y CHANDRACHUD, J.]

Factual Background A
2. The petitioner and co-accused came in a tractor carrying deadly
weapons and assaulted the complainant and killed his father and brother,
when they were sitting near a village pond along with other villagers.
The cause of the enmity between the parties was the confiscation of
shisham wood belonging to one of the co-accused by the forest B
department and the damage caused to his motorcycle and tractor, for
which the accused persons suspected the complainant and his family.
The trial court2 convicted the petitioner and the other accused on 7
December 2010. The petitioner was convicted of offences under Sections
147, 148, 302/149 and 324/149 of the IPC and sentenced to life
imprisonment. While a charge was also framed under Section 3(2) (5) C
of the Scheduled Castes and Tribes Act 1989 since the complainant and
his family belonged to a Scheduled Caste, the trial court acquitted all the
accused of the charge because no evidence was found to show that the
complainant or the deceased were humiliated or intimidated on the basis
of their caste. The sentence was confirmed by the High Court of D
Chhattisgarh3 on 10 May 2013. Aggrieved by the judgement of the High
Court, the petitioner preferred a special leave petition4 before this Court
which was dismissed.
3. On 25 September 2021, the petitioner completed 16 years of
imprisonment without remission and submitted an application for E
premature release to the respondent under Rule 358 of the Chhattisgarh
Prisons Rule 19685. Rule 358 provides thus:
“Rule 358 – Premature Release of Prisoners Sentenced to
Life Imprisonment
……. F
(3)(A). The matter of every male or female prisoner who is serving
a sentence of life imprisonment after 17th December, 1978 and
who are convicted under the punishable offences under Section
121, 132, 302, 307 and 396 of IPC or under any other criminal
laws, in which capital punishment is one of the sentences, shall be G

2
ST No 16/2006
3
Criminal Appeal No. 933/2010
4
Special Leave Petition (Criminal) No. 1348-49 of 2015
5
“Prison Release Rules” H
1110 SUPREME COURT REPORTS [2022] 4 S.C.R.

A taken into consideration for him/her premature release from the
jail with this condition where such convict has completed the period
of imprisonment of 14 years necessary sentence of imprisonment
without remission subject to the consideration of such prisoners
shall not be prohibited under legal provisions.
B (B) The matter to premature release of all other male prisoners
serving the sentence of life imprisonment shall only be taken into
consideration only in that condition if they have spent the period
of minimum 14 years imprisonment without remission and if they
have completed actual imprisonment of 10 years without remission.
C …..
(D) The matter to premature release of all such prisoners serving
the sentence of life imprisonment shall only be taken into
consideration only in that condition if they have attained the age
of 65 years and if they have completed actual imprisonment of 7
D years without remission. “
4. The State Government is empowered under Section 432 of the
Code of Criminal Procedure6 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
E 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. Sub-section (2) of Section 432 reads thus:
“Section 432- Power to suspend or remit sentences.
….
F
(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 confirmed, to
state his opinion as to whether the application should be granted
G or refused, together with his reasons for such opinion and also to
forward with the statement of such opinion a certified copy of the
record of the trial or of such record thereof as exists.
….”

6
H “CrPC”
RAM CHANDER v. THE STATE OF CHHATTISGARH & ANR. 1111
[DR. DHANANJAYA Y CHANDRACHUD, J.]

5. Section 433-A of the CrPC lays down the restriction on powers A
of remission in the following terms:
“433A. 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 offence for which death is one of B
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.”
C
6. By a letter dated 1 May 2021, the Jail Superintendent of the
Central Jail at Durg sought the opinion of the Special Judge, Durg on
whether the petitioner can be released on remission. On 2 July 2021, the
Special Judge gave his opinion that in view of all the facts and
circumstances of the case, it would not be appropriate to allow remission
of the remaining sentence of the petitioner. The relevant portions of the D
letter containing the opinion of the Special Judge are reproduced below:
“Perused the documents filed alongwith the present application.
Perused the judgement dated 07.12.2010 passed in Special Case
No. 16/2006 “State Vs. Anil & Ors.” under Section 147, 148,
302/ 149, 302/ 149, 307/149 and 3 (2) (5) Scheduled Caste E
Schedule Tribe, (Prevention of Corruption) Act. Accused
Ramchander son of Khajaan Singh alongwith 8 other co-accused
persons has assembled against the law and by using deadly
weapons sword, axe, wooden stick (Danda), has killed Kartikram
and Puneet, in relation to this case the accused is undergoing F
imprisonment.
Then in this situation keeping in view all the facts and
circumstances, it does not seem appropriate to allow remission of
the remaining sentence of the above prisoner, therefore not
recommending for the same.” G
7. The application for remission of the petitioner, along with the
opinion of the Special Judge, was forwarded to the Director General,
Jail and Correctional services. On 30 September 2021, the Director
General presented the case of the petitioner to the Home Department,
Government of Chhattisgarh by a letter addressed to the Additional Chief
H
1112 SUPREME COURT REPORTS [2022] 4 S.C.R.

A Secretary, Jail Department. Thereafter, the Jail Department in a note
sheet dated 6 October 2021 forwarded the case of the petitioner to the
Law Department of the State Government. The Under Secretary of the
Law Department shared his opinion through a note sheet dated 27
November 2021 stating that the petitioner cannot be given the benefit of
the provisions of Section 433-A CrPC because the presiding judge opined
B
against releasing the petitioner on remission.
8. On 2 March 2022. the Director General, Jail and Correctional
Services again forwarded the case of the petitioner to the Additional
Chief Secretary, Jail Department to be considered for remission since
the petitioner had completed 20 years of imprisonment with remission.
C The Jail Department sought the opinion of the Law Department, which
stated that since the presiding judge of the sentencing court has not
given a positive opinion with regard to the release of the petitioner, he
cannot be released.
Submissions of Counsel
D
9. Mr MD Irshad Hanif, counsel appearing on behalf of the
petitioner, made the following submissions:
(i) A convict-prisoner can be considered for pre-mature release
under Section 433-A of the CrPC after the completion of
E 14 years even without the consent of the presiding judge of
the sentencing court;
(ii) Under Section 432 (2) of the CrPC, the appropriate
Government has the discretion to seek the opinion of the
presiding judge of the sentencing court;
F (iii) There is absence of clarity in Section 432(2) of the CrPC
to indicate whether the presiding judge whose opinion is to
be sought should be the same as the judge who recorded
the conviction since he would not have observed the conduct
of the accused-convict during the trial;
G (iv) The petitioner is entitled to be considered for pre-mature
release under Rule 358 (3) (A), (B) and (D) of the Prison
Rules;
(v) While the government is bound to seek the opinion of the
sentencing court under Section 432 (2) of the CrPC, it is
H not bound by the opinion itself. The decision of this Court in
RAM CHANDER v. THE STATE OF CHHATTISGARH & ANR. 1113
[DR. DHANANJAYA Y CHANDRACHUD, J.]

Union of India v. Sriharan @ Murugan7 is indicative in A
this regard;
(vi) In Sangeet v. State of Haryana8, this Court has held that
the opinion of the presiding judge of the sentencing court
must be accompanied by reasons;
(vii) In State of Haryana v. Mohinder Singh9, this Court has B
held that the power of remission cannot be exercised
arbitrarily. The decision to grant remission should be
informed, fair and reasonable;
(viii) The presiding judge has simply stated in his opinion that in
view of all the facts and circumstances, it is not appropriate C
to allow the application of remission. There is nothing to
indicate that the judge took into consideration the following
three factors to grant remission – (i) antecedents of the
petitioner; (ii) conduct of the petitioner in prison; and (iii)
the likelihood of the petitioner committing a crime if released. D
In Bhagwat Saran v. State of UP10, this Court has held
that a “bald statement without any attempt to indicate how
law and order is likely to be adversely affected by their
release cannot be accepted”;
(ix) The policy applicable at the time of conviction must be E
considered for deciding the application of pre-mature release
in terms of the decision of this Court in State of Haryana
v. Jagdish11. Thus, the rules as applicable at the time of
petitioner’s conviction in 2010 would be applicable for
considering his application for remission; and
F
(x) In Laxman Naskar v. Union of India12, this Court laid
down that the following factors must be reported by the
police in respect of the grant of pre-mature release:
(a) Whether the offence is an individual act of crime
that does not affect the society;
G
7
(2014) 4 SCC 242
8
(2013) 2 SCC 452
9
(2000) 3 SCC 394
10
Writ Petition (Criminal) Nos. 1145-1149 of 1982 dated 6 December 1982
11
(2010) 4 SCC 216
12
(2000) 2 SCC 595 H
1114 SUPREME COURT REPORTS [2022] 4 S.C.R.

A (b) Whether there is a chance of the crime being repeated
in future;
(c) Whether the convict has lost the potentiality to commit
crime;
(d) Whether any purpose is being served in keeping the
B convict in prison; and
(e) Socio-economic conditions of the convict’s family.
10. Mr Sumeer Sodhi, counsel appearing on behalf of the
respondents, made the following submissions:
C (i) Petitioner’s case can be considered only under Rule 358
(3) (A) of the Prison Rules and not under Rule 358 (3) (B)
or 358 (3) (D);
(ii) A Full Bench of the High Court of Bombay13 has held that
the opinion given by the presiding judge in terms of Section
D 432(2) of the CrPC is binding on the government;
(iii) In Union of India v. Sriharan14, this Court has held that
the ultimate order of suspension or remission should be
guided by the opinion of the presiding officer of the sentencing
court and that a convict does not have a right to remission,
but only a right to claim remission; and
E
(iv) In State of Madhya Pradesh v. Ratan Singh15, this Court
has held that the government has the sole discretion to remit
or refuse to remit the sentence of the convict. No writ can
be issued to the government to release the prisoner. The
decisions of this Court in Rajan v. Home Secretary, Home
F Department of Tamil Nadu16 and Sriharan (supra) uphold
the same principle.
Analysis
A. Judicial Review of the Power of Remission
G 11. The respondents submit that the appropriate government has
the absolute discretion to decide whether the application for remission
13
Yoshevel v. State of Bombay, Crl. Writ Petition No 273 of 2019
14
(2016) 7 SCC 1; “Sriharan“
15
(1976) 3 SCC 470
16
(2019) 14 SCC 114
H
RAM CHANDER v. THE STATE OF CHHATTISGARH & ANR. 1115
[DR. DHANANJAYA Y CHANDRACHUD, J.]

should be allowed. Indeed, in Ratan Singh (supra), this Court has A
observed that the State has an undoubted discretion to remit or refuse to
remit the sentence and no writ can be issued to direct the State
Government to release the petitioner. The Court was interpreting Section
401 of the Code of Criminal Procedure 1898, which corresponds to
Section 432 of the CrPC. Section 401 empowered the appropriate
B
government to remit the whole or any part of the punishment sentence.
The Court while summarizing the propositions that govern the exercise
of the power of the remission, observed:
“9. From a review of the authorities and the statutory provisions
of the Code of Criminal Procedure the following propositions C
emerge:
“(1) that a sentence of imprisonment for life does not automatically
expire at the end of 20 years including the remissions, because
the administrative rules framed under the various Jail Manuals or
under the Prisons Act cannot supersede the statutory provisions D
of the Penal Code, 1860. A sentence of imprisonment for life
means a sentence for the entire life of the prisoner unless the
appropriate Government chooses to exercise its discretion to remit
either the whole or a part of the sentence under Section 401 of
the Code of Criminal Procedure;
E
(2) that the appropriate Government has the undoubted
discretion to remit or refuse to remit the sentence and
where it refuses to remit the sentence no writ can be issued
directing the State Government to release the prisoner;
(3) that the appropriate Government which is empowered to grant F
remission under Section 401 of the Code of Criminal Procedure is
the Government of the State where the prisoner has been convicted
and sentenced, that is to say, the transferor State and not the
transferee State where the prisoner may have been transferred
at his instance under the Transfer of Prisoners Act; and
G
(4) that where the transferee State feels that the accused has
completed a period of 20 years it has merely to forward the request
of the prisoner to the concerned State Government, that is to say,
the Government of the State where the prisoner was convicted
and sentenced and even if this request is rejected by the State
H
1116 SUPREME COURT REPORTS [2022] 4 S.C.R.

A Government the order of the Government cannot be interfered
with by a High Court in its writ jurisdiction.”
(emphasis supplied)
12. While a discretion vests with the government to suspend or
remit the sentence, the executive power cannot be exercised arbitrarily.
B
The prerogative of the executive is subject to the rule of law and fairness
in state action embodied in Article 14 of the Constitution. In Mohinder
Singh(supra), this Court has held that the power of remission cannot be
exercised arbitrarily. The decision to grant remission should be informed,
fair and reasonable. The Court held thus:
C “9. The circular granting remission is authorized under the law. It
prescribes limitations both as regards the prisoners who are eligible
and those who have been excluded. Conditions for remission of
sentence to the prisoners who are eligible are also prescribed by
the circular. Prisoners have no absolute right for remission of their
D sentence unless except what is prescribed by law and the circular
issued thereunder. That special remission shall not apply to a
prisoner convicted of a particular offence can certainly be a
relevant consideration for the State Government not to exercise
power of remission in that case. Power of remission, however,
cannot be exercised arbitrarily. Decision to grant remission has to
E be well informed, reasonable and fair to all concerned.”
In Sangeet (supra), this Court reiterated the principle that the
power of remission cannot be exercised arbitrarily by relying on the
decision in Mohinder (supra).

F 13. 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.

G In Laxman Naskar v. State of West Bengal17, while the jail
authorities were in favour of releasing the petitioner, the review committee
constituted by the government recommended the rejection of the claim
for premature release on the grounds that (i) the two witnesses who had
deposed during the trial and people of the locality were apprehensive
17
H (2000) 7 SCC 626
RAM CHANDER v. THE STATE OF CHHATTISGARH & ANR. 1117
[DR. DHANANJAYA Y CHANDRACHUD, J.]

that the release of the petitioner will disrupt the peace in the locality; (ii) A
the petitioner was 43 years old and had the potential of committing a
crime; and (iii) the crime had occurred in relation to a political feud
which affected the society at large. The Court while placing reliance on
Laxman Naskar v. Union of India (supra) stipulated the factors that
govern the grant of remission, namely:
B
“6…(i) Whether the offence is an individual act of crime without
affecting the society at large.
(ii) Whether there is any chance of future recurrence of committing
crime.
(iii) Whether the convict has lost his potentiality in committing C
crime.
(iv) Whether there is any fruitful purpose of confining this convict
any more.
(v) Socio-economic condition of the convict’s family.”
D
Based on the above factors, the Court found that the government’s
decision to reject the claim of remission was based on reasons that were
irrelevant or devoid of substance. The Court quashed the order of the
government and directed it to decide the matter afresh. The Court held
thus:
E
“8. If we look at the reasons given by the Government, we are
afraid that the same are palpably irrelevant or devoid of substance.
Firstly, the views of the witnesses who had been examined in the
case or the persons in the locality cannot determine whether the
petitioner would be a danger if prematurely released because the
persons in the locality and the witnesses may still live in the past F
and their memories are being relied upon without reference to the
present and the report of the jail authorities to the effect that the
petitioner has reformed himself to a large extent. Secondly, by
reason of one’s age one cannot say whether the convict has still
potentiality of committing the crime or not, but it depends on his G
attitude to matters, which is not being taken note of by the
Government. Lastly, the suggestion that the incident is not an
individual act of crime but a sequel of the political feud affecting
society at large, whether his political views have been changed or
still carries the same so as to commit crime has not been examined
by the Government. H
1118 SUPREME COURT REPORTS [2022] 4 S.C.R.

A 9. On the basis of the grounds stated above the Government could
not have rejected the claim made by the petitioner. In the
circumstances, we quash the order made by the Government and
remit the matter to it again to examine the case of the petitioner in
the light of what has been stated by this Court earlier and our
comments made in this order as to the grounds upon which the
B
Government refused to act on the report of the jail authorities and
also to take note of the change in the law by enacting the West
Bengal Correctional Services Act 32 of 1992 and to decide the
matter afresh within a period of three months from today. The
writ petition is allowed accordingly. After issuing rule the same is
C made absolute.”
14. In Rajan (supra), the court observed that while the grant of
remission is the exclusive prerogative of the executive and the court
cannot supplant its view, the Court can direct the authorities to re-consider
the representation of the convict. The Court made the following
D observations:
“18. The petitioner would, however, rely on the unreported decision
of this Court in Ram Sewak [Ram Sewak v. State of U.P., 2018
SCC OnLine SC 2012] , to contend that this Court may direct the
authorities to release the petitioner forthwith and that there is no
E point in directing further consideration by the State as the petitioner
had already undergone over 30 years of sentence and with
remission, over 36 years. The order passed by this Court in Ram
Sewak [Ram Sewak v. State of U.P., 2018 SCC OnLine SC 2012]
, is obviously in the facts of that case. As a matter of fact, it is
well settled by now that grant or non-grant of remission is
F the prerogative to be exercised by the competent authority
and it is not for the court to supplant that procedure. Indeed,
grant of premature release is not a matter of privilege but
is the power coupled with duty conferred on the appropriate
Government in terms of Sections 432 and 433 CrPC, to be
G exercised by the competent authority after taking into
account all the relevant factors, such as it would not
undermine the nature of crime committed and the impact
of the remission that may be the concern of the society as
well as the concern of the State Government.

H …..
RAM CHANDER v. THE STATE OF CHHATTISGARH & ANR. 1119
[DR. DHANANJAYA Y CHANDRACHUD, J.]

20. Thus understood, we cannot countenance the relief A
claimed by the petitioner to direct the respondents to
release the petitioner forthwith or to direct the respondents
to remit the remaining sentence and release the petitioner.
The petitioner, at best, is entitled to the relief of having
directions issued to the respondents to consider his
representation dated 5-2-2018, expeditiously, on its own B
merits and in accordance with law. We may not be understood
to have expressed any opinion either way on the merits of the
claim of the petitioner. The fact that the petitioner’s request for
premature release was already considered once and rejected by
the Advisory Board of the State Government, in our opinion, ought C
not to come in the way of the petitioner for consideration of his
fresh representation made on 5-2-2018. We say so because the
opinion of the Advisory Board merely refers to the negative
recommendation of the Probation Officer, Madurai and the District
Collector, Madurai. The additional reason stated by the State
Government seems to be as follows: D
“(4) The proceedings of the Advisory Board held on 20-1-2010
is as follows:
(i) The case is heard and examined the relevant records. The
accused is a Srilankan National and lodged at Special Camp at
Chengalpet before the commission of this grave offence. E
(ii) The Probation Officer, Madurai and the District Collector,
Madurai have not recommended the premature release.
(iii) Also this prisoner has not repented for his act.
(iv) The plea for premature release is ‘Not-Recommended’. F
(5) The Government after careful examination accept the
recommendation of the Advisory Board, Vellore and the premature
release of Life Convict No. 23736, Rajan, s/o Robin, confined in
Central Prison, Vellore is hereby rejected.”
With the passage of time, however, the situation may have G
undergone a change and, particularly, because now the claim of
the petitioner for premature release will have to be considered
only in reference to the sentence of life imprisonment awarded to
him for the offences under Section 302 (3 counts) and Section
307 (4 counts) of IPC, respectively.”
(emphasis supplied) H
1120 SUPREME COURT REPORTS [2022] 4 S.C.R.

A The above discussion makes it clear that the Court has the power
to review the decision of the government regarding the acceptance or
rejection of an application for remission under Section 432 of the CrPC
to determine whether the decision is arbitrary in nature. The Court is
empowered to direct the government to reconsider its decision.
B B. The Value of the Opinion of the Presiding Judge
15. Sub-section (2) of Section 432 of the CrPC 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
C or rejected, together with the reasons for such opinion.
16. In Sangeet (supra), the Court held that sub-sections (2) to (5)
of Section 432 lay down procedural safeguards to check arbitrary
remissions. The Court observed that the government is required to
approach the presiding judge of the court to opine on the application for
D remission. The Court observed thus:
“61. It appears to us that an exercise of power by the appropriate
Government under sub-section (1) of Section 432 CrPC cannot
be suo motu for the simple reason that this sub-section is only an
enabling provision. The appropriate Government is enabled to
E “override” a judicially pronounced sentence, subject to the
fulfilment of certain conditions. Those conditions are found either
in the Jail Manual or in statutory rules. Sub-section (1) of Section
432 CrPC 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
F 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
G confirmed 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
H issue of grant of remission. It also eliminates “discretionary” or
RAM CHANDER v. THE STATE OF CHHATTISGARH & ANR. 1121
[DR. DHANANJAYA Y CHANDRACHUD, J.]

en masse release of convicts on “festive” occasions since each A
release requires a case-by-case basis scrutiny.
“62. It must be remembered in this context that it was held in
State of Haryana v. Mohinder Singh [(2000) 3 SCC 394 : 2000
SCC (Cri) 645] that the power of remission cannot be exercised
arbitrarily. The decision to grant remission has to be well informed, B
reasonable and fair to all concerned. The statutory procedure laid
down in Section 432 CrPC does provide this check on the possible
misuse of power by the appropriate Government.”
17. In Sriharan (supra) a Constitution Bench of this Court held
that the procedure stipulated in Section 432(2) is mandatory. The Court C
did not specifically hold that the opinion of the presiding judge would be
binding, but it held that the decision of the government on remission
should be guided by the opinion of the presiding officer of the concerned
court. The Court had framed the following question:
“143..Whether suo motu exercise of power of remission under D
Section 432(1) is permissible in the scheme of the section, if yes,
whether the procedure prescribed in sub-section (2) of the same
section is mandatory or not?”
Answering the above question, the Court held as follows:
“148. Keeping the above principles in mind, when we analyse E
Section 432(1) CrPC, it must be held that the power to suspend or
remit any sentence will have to be considered and ordered with
much more care and caution, in particular the interest of the public
at large. In this background, when we analyse Section 432(1)
CrPC, we find that it only refers to the nature of power available F
to the appropriate Government as regards the suspension of
sentence or remission to be granted at any length. Extent of power
is one thing and the procedure to be followed for the exercise of
the power is different thing. There is no indication in Section 432(1)
that such power can be exercised based on any application. What
is not prescribed in the statute cannot be imagined or inferred. G
Therefore, when there is no reference to any application being
made by the offender, that cannot be taken to mean that such
power can be exercised by the authority concerned on its own.
More so, when a detailed procedure to be followed is clearly set
out in Section 432(2). It is not as if by exercising such power
H
1122 SUPREME COURT REPORTS [2022] 4 S.C.R.

A under Section 432(1), the appropriate Government will be involving
itself in any great welfare measures to the public or the society at
large. It can never be held that such power being exercised suo
motu any great development act would be the result. After all,
such exercise of power of suspension or remission is only going
to grant some relief to the offender who has been found to have
B
committed either a heinous crime or at least a crime affecting the
society at large. 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
C 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 find that the procedure to be followed whenever
any application for remission is moved, the safeguard provided
D under Section 432(2) CrPC should be the sine qua non for the
ultimate power to be exercised under Section 432(1) CrPC.
149. 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,
E including the judicial forum. It must be remembered,
barring minor offences, in cases involving heinous crimes
like, murder, kidnapping, rape, robbery, dacoity, etc., and
such other offences 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,
F having regard to the nature of opinion to be rendered by
the Presiding Officer 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
G 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 Executive Head will have the benefit 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
H
RAM CHANDER v. THE STATE OF CHHATTISGARH & ANR. 1123
[DR. DHANANJAYA Y CHANDRACHUD, J.]

valuable opinion of the judicial forum, which will definitely throw A
much light on the issue relating to grant of suspension or remission.
150. Therefore, it can safely be held that the exercise of power
under Section 432(1) should always be based on an application of
the person concerned as provided under Section 432(2) and after
duly following the procedure prescribed under Section 432(2). B
We, therefore, fully approve the declaration of law made by this
Court in Sangeet [Sangeet v. State of Haryana, (2013) 2 SCC
452 : (2013) 2 SCC (Cri) 611] in para 61 that the power of
appropriate Government under Section 432(1) of the Criminal
Procedure Code cannot be suo motu for the simple reason that
this section is only an enabling provision. We also hold that such C
a procedure to be followed under Section 432(2) is
mandatory. The manner in which the opinion is to be
rendered by the Presiding Officer can always be regulated
and settled by the High Court concerned and the Supreme
Court by stipulating the required procedure to be followed D
as and when any such application is forwarded by the
appropriate Government. We, therefore, answer the said
question to the effect that the suo motu power of remission
cannot be exercised under Section 432(1), that it can only
be initiated based on an application of the persons convicted
as provided under Section 432(2) and that ultimate order E
of suspension or remission should be guided by the opinion
to be rendered by the Presiding Officer of the court
concerned.”
(emphasis supplied)
18. There appears to be a difference of opinion between the High F
Courts on whether the opinion of the presiding judge is binding on the
government. The High Court of Judicature at Bombay18 has held that
the opinion of the presiding judge is binding. The High Court has placed
reliance on Sriharan (supra) to arrive at the following conclusion:
29. The Constitution Bench of the Supreme Court in the case of G
Union of India vs. V. Sriharan @ Murugan & Others (supra) has
answered referral questions pertaining to the provisions of Section
432(2) of Cr.P.C. and held that ultimate order of suspension or
remission should be guided by the opinion to be rendered by the
18
Yovehel v. State of Bombay, Crl. Writ Petition No 273 of 2019 H
1124 SUPREME COURT REPORTS [2022] 4 S.C.R.

A Presiding Judge of the court concerned and exercise of the powers
under Section 432 (1) of Cr.P.C. must be in accordance with the
procedure as enumerated under Section 432 (2) of Cr.P.C. In
view of the same, to our mind, seeking opinion of the Presiding
Judge of the court or by which conviction was had or confirmed
as to whether the application filed under Section 432(1) of Cr.P.C.
B
should be granted or refused, as not an empty formality. It is true
that if we read Section 432 (2) of Cr.P.C. the word “may” is
used. If we consider the said exercise of calling opinion of the
Presiding Judge of the court as merely relevant circumstance, the
object of the said provision will be defeated. It is well settled that
C in construing the provisions of the statute, the court should be
slow to adopt the construction which tends to make any part of
the statute meaningless or ineffective. If we read sub-section (2)
of Section 432 of Cr.P.C. as a whole, it appears that the
requirement of seeking opinion of the Presiding Judge of the Court
D as to whether the application filed in terms of Section 432(1) of
Cr.P.C. should be granted or refused. In the language of sub-
section (2) of section 432 of Cr.P.C. it is also incumbent upon
such Presiding Judge of the Court to state his opinion together
with his reasons for such opinion.
…
E
30. …..For this reason, in our considered opinion, the Presiding
Judge of the court is best equipped and likely to be more correct
in his view for achieving the purpose and performing the task
satisfactorily. He is an expert in the field and as such a greater
F weight to his opinion is required to be attached. It would be a
fallacy to grant remission to the hardened criminal, who has
committed the offence with extreme brutality etc., by treating the
opinion of the Presiding Judge of the Court as a relevant
circumstance without having any binding effect. We afraid that if
the answer to the referral question No.(iii) is recorded as “relevant
G circumstances” that would open floodgates to the authorities to
treat it as “irrelevant circumstances” and grant benefit of remission
to the unscrupulous prisoners.”
19. On the other hand, the High Court of Patna19 has held that the
opinion of the presiding judge is not binding but is only a guiding factor.
H The High Court observed that the State Sentence Remission Board
RAM CHANDER v. THE STATE OF CHHATTISGARH & ANR. 1125
[DR. DHANANJAYA Y CHANDRACHUD, J.]

consists of high-level officials who can exercise their independent wisdom A
and are not bound by the opinion of the presiding judge. The High Court
held thus:
“7. Now we may come to the function of the Board. From what
has been noted above, it appears that the Board felt bound by the
opinion of the Judicial Officer, however irrelevant it may be. Is B
this stand of the Board correct? In our view, it is not. Board consists
of very high level officials. It consists of the Law Secretary, the
Home Secretary, the Inspector General of Prison, the District
and Sessions Judge, Patna amongst other officials. It is an
independent statutory body which has to exercise its independent
wisdom in accordance with law. It is not bound by the opinion of C
any other person. The opinions of the Jail Superintendent, the
Superintendent of Police, the Probationary Officer, the trial Judge
are guiding factors to enable the Board to come to an independent
opinion. It is not bound by what is said in any one or all of the
opinions. We will not try and illustrate this inasmuch as the Board
D
having been constituted by senior responsible officers, they would
exercise the power keeping in view the legislative policy as enacted
in Section 432 of Cr P C in respect of a convict of a heinous
offence and who has served the sentence substantially. It is only
such person who are to be considered for release. The object of
the Section is not to condemn such persons but to ensure that E
having spent a substantial period of their sentence, they be
permitted to come back into society. It is only when there is serious
apprehension about their future conduct, serious and inevitable
apprehension about their future conduct upon their release which
is bona fide born out from the records that the Board would be
legitimately justified in refusing to release the convict otherwise it F
is not bound by the opinion of the authorities though, as noted
above, they are guiding factors to be taken into account.”
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 G
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
19
Ravi Pratap Mishra v. State of Bihar, Crl. Writ Jurisdiction Case No 272 of 2017 H
1126 SUPREME COURT REPORTS [2022] 4 S.C.R.

A 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.
B
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
C of India (supra), 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 (supra). These factors include assessing (i)
D 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
E of Haryana v. Jagdish20, this Court has reiterated that these factors
will be considered while deciding the application of a convict for pre-
mature release.
23. In his opinion dated 21 July 2021 the Special Judge, Durg
referred to the crime for which the petitioner was convicted and simply
F 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) 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.
G Mechanical reasons are not considered adequate. The following extract
is useful for our consideration:
“[005.066] Adequacy of reasons Sufficiency of reasons, in a
particular case, depends on the facts of each case. It is not

H 20
(2010) 4 SCC 216
RAM CHANDER v. THE STATE OF CHHATTISGARH & ANR. 1127
[DR. DHANANJAYA Y CHANDRACHUD, J.]

necessary for the authority to write out a judgement as a court of A
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
B
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 C
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.”21
24. Thus, an opinion accompanied by inadequate reasoning would
not satisfy the requirements of Section 432 (2) of the CrPC. Further, it D
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.
25. In view of the above discussion, we hold that the petitioner’s
application for remission should be re-considered. We direct the Special
E
Judge, Durg to provide an opinion on the application afresh accompanied
by adequate reasoning that takes into consideration all the relevant factors
that govern the grant of remission as laid down in Laxman Naskar v.
Union of India (supra). The Special Judge, Durg must provide his opinion
within a month of the date of the receipt of this order. We further direct
the State of Chhattisgarh to take a final decision on the petitioner’s F
application for remission afresh within a month of receiving the opinion
of the Special Judge, Durg.
26. The petition under Article 32 of the Constitution is allowed in
the above terms.
27. Pending application(s), if any, stand disposed of. G

Nidhi Jain Writ Petition allowed.
(Assisted by : Tamana, LCRA)

21
Halsbury’s Laws of India (Administrative Law) (Lexis Nexis, Online Edition). H