Chattisgarh High Court
Devlal vs State Of Chhattisgarh on 25 April, 2025
Author: Ramesh Sinha
Bench: Ramesh Sinha
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2025:CGHC:18799-DB
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
WPCR No. 237 of 2025
Devlal S/o Bahal Sai Aged About 40 Years R/o Village Telaidhar, P.S.
Baikunthpur, District- Koriya, Chhattisgarh, Presently In Central Jail
Ambikapur, District Sarguja, Chhattisgarh
... Petitioner(s)
versus
1 - State of Chhattisgarh Through Secretary Department of Jail
Correctional Service Mahanadi Bhawan, Naya Raipur, Atal Nagar,
District Raipur, Chhattisgarh
2 - Additional Secretary Government of Chhattisgarh Department of
Jail Naya Raipur Atal Nagar, District Raipur Chhattisgarh
3 - Secretary Department of Law and Legislative Affairs Government of
Chhattisgarh Naya Raipur, Atal Nagar, District - Raipur, Chhattisgarh
4 - Director General of Jail and Correctional Service Chhattisgarh
Sector 19 Naya Raipur, Atal Nagar, District - Raipur, Chhattisgarh
5 - Superintendent of Jail Central Jail Ambikapur, District Surguja,
Chhattisgarh
... Respondents
For Petitioner : Mr. Saurabh Dangi, Advocate
For State : Mr. Shaleen Singh Baghel, Government
Advocate
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Hon'ble Shri Ramesh Sinha, Chief Justice
Hon'ble Shri Arvind Kumar Verma, Judge
Order on Board
Per, Ramesh Sinha, C.J.
25/04/2025
1. The petitioner, in the instant petition has prayed for the following
relief(s):
“10.1 The Hon’ble Court may kindly be pleased to quash
the letter dated 12.07.2024 (Annexure P/1) passed by the
respondent authorities and direct the Respondent State to
prematurely release the petitioner, in accordance with law,
in the interest of justice.
10.2 This Hon’ble Court may kindly be pleased to grant any
other relief as it may deem fit, in the interest of justice.”
2. The facts, in brief, as projected by the petitioner are that the
petitioner has been convicted in Session Trial No. 09/2008 vide
judgment dated 08.02.2011 by the Sessions Judge, Baikunthpur,
District Koriya for the offence punishable under Sections 147, 148
and 302/149 of the IPC and sentenced to life imprisonment. The
petitioner was also convicted in Session Trial No.08/2008 for the
offence punishable under Section 427 (ii) of the Cr.P.C. and both
the sentences were directed to run concurrently. However, an
appeal was filed before a Division Bench of this Court being Cr.A.
No. 474/2011, the said appeal was dismissed by this Court vide
judgment dated 17.12.2014. Learned Sessions Judge, Koriya,
vide letter dated 11/09/2023 in S.T. No.08/2008 gave an opinion
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that the sentences be remitted under Section 432 (2) of the
Cr.P.C. However, the application for remission of the petitioner
was rejected by the Additional Secretary to the Government of
Chhattisgarh, Department of Jail, vide order dated 12.07.2024 on
the ground that as per the provisions of the Chhattisgarh Prison
Rule, 1968 certain category of crime committed the prisoner
cannot be granted the benefit of remission/premature release and
their application cannot be considered by the State Government.
3. Mr. Dangi, learned counsel for the petitioner submits that the
petitioner-Ran Singh has remained in jail for a period of 14 years
of jail sentence including the remission earned and as such, he
has undergone sufficient period of incarceration. He would next
contend that the case of the petitioner is also covered by the
order passed by this Court in WPCR No.189 of 2024, therefore,
he is also entitled to be granted the benefit of remission.
4. On the other hand, Mr. Baghel, learned Deputy Government
Advocate appearing for the State/respondents submits that the
application of the petitioner has been rejected in light of Rule
358(3)(g) of the Chhattisgarh Prisons Rules, 1968. the aforesaid
Rule provides that those cases shall not be placed before the
Board for consideration of grant of remission in which the
convicts have been sentenced under Section 302 and 149 IPC.
5. We have heard learned counsel for the parties, perused the
pleadings and documents appended thereto.
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6. The application for grant of the benefit of remission of the
petitioner has been rejected in light of Rule 358(3)(g) of the Rules
of 1968. The said Rule came into existence vide Notification
dated 14.12.2001 issued by the Department of Jail, Government
of Chhattisgarh. No other reason has been assigned for rejecting
the application of the petitioners.
7. The Supreme Court, in Rajo alias Rajwa alias Rajendra Mandal
(supra) has observed as under:
“22. It has been repeatedly emphasized that the aim,
and ultimate goal of imprisonment, even in the most
serious crime, is reformative, after the offender
undergoes a sufficiently long spell of punishment
through imprisonment. Even while upholding Section
433A, in Maru Ram v. Union of India [1981] 1 SCR
1196, this court underlined the relevance of post-
conviction conduct, stating whether the convict,“Had his in-prison good behavior been
rewarded by reasonable remissions linked to
improved social responsibility, nurtured by
familial contacts and liberal parole, cultured by
predictable, premature release, the purpose of
habilitation would have been served, If law–S.
433-A in this case–rudely refuses to consider
the subsequent conduct of the prisoner and
forces all convicts, good, bad and indifferent, to
serve a fixed and arbitrary minimum it is an
angry flat untouched by the proven criteria of
reform.”
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24. Apart from the other considerations (on the nature
of the crime, whether it affected 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 qualification whilst in custody,
volunteer services offered, 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 thus should not entirely rely
either on the presiding judge, or the report prepared by
the police. In this court’s considered view, it would also
serve the ends of justice if the appropriate government
had the benefit of a report contemporaneously
prepared by a qualified psychologist after interacting /
interviewing the convict that has applied for premature
release. The Bihar Prison Manual, 2012 enables a
convict to earn remissions, which are limited to one
third of the total sentence imposed. Special remission
for good conduct, in addition, is granted by the rules.
{See Rules 405 and 413 of the Bihar Prison Manual,
2012.} If a stereotypical approach in denying the
benefit of remission, which ultimately results in
premature release, is repeatedly adopted, the entire
idea of limiting incarceration for long periods
(sometimes spanning a third or more of a convict’s
lifetime and in others, result in an indefinite sentence),
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would be defeated. This could result in a sense of
despair and frustration among inmates, who might
consider themselves reformed- but continue to be
condemned in prison.
25. The majority view in Sriharan (supra) and the
minority view, had 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. The minority view (of
Lalit and Sapre JJ) had cautioned the court from
making sentencing rigid:
“73. […] Any order putting the punishment
beyond remission will prohibit exercise of
statutory power designed to achieve same
purpose Under Section 432/433 Code of
Criminal Procedure In our view Courts cannot
and ought not deny to a prisoner the benefit to
be considered for remission of sentence. By
doing so, the prisoner would be condemned to
live in the prison till the last breath without
there being even a ray of hope to come out.
This stark reality will not be conducive to
reformation of the person and will in fact push
him into a dark hole without there being
semblance of the light at the end of the tunnel.”
8. In Joseph v. State of Kerala {2023 SCC OnLine 1211}, the
Apex Court, while dealing with a similar issue, and directing
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release of the accused therein with immediate effect, had
observed as under:
“32. To issue a policy directive, or guidelines, over and
above the Act and Rules framed (where the latter
forms part and parcel of the former), and undermine
what they encapsulate, cannot be countenanced.
Blanket exclusion of certain offences, from the scope
of grant of remission, especially by way of an
executive policy, is not only arbitrary, but turns the
ideals of reformation that run through our criminal
justice system, on its head. Numerous judgments of
this court, have elaborated on the penological goal of
reformation and rehabilitation, being the cornerstone of
our criminal justice system, rather than retribution. The
impact of applying such an executive
instruction/guideline to guide the executive’s discretion
would be that routinely, any progress made by a long-
term convict would be rendered naught, leaving them
feeling hopeless, and condemned to an indefinite
period of incarceration. While the sentencing courts
may, in light of this court’s majority judgment in
Sriharan (supra), now impose term sentences (in
excess of 14 or 20 years) for crimes that are specially
heinous, but not reaching the level of ‘rarest of rare’
(warranting the death penalty), the state government
cannot – especially by way of executive instruction,
take on such a role, for crimes as it deems fit.
33. It is a well-recognized proposition of administrative
law that discretion, conferred widely by plenary statute
or statutory rules, cannot be lightly fettered. This
principle has been articulated by this court many a
time. In U.P. State Road Transport Corporation & Anr
8v. Mohd. Ismail & Ors. {[1991] 2 SCR 274}, this court
observed:
“It may be stated that the statutory discretion
cannot be fettered by self-created rules or policy.
Although it is open to an authority to which
discretion has been entrusted to lay down the
norms or rules to regulate exercise of discretion it
cannot, however, deny itself the discretion which
the statute requires it to exercise in individual
cases.”
34. Likewise, in Chairman, All India Railway Rec.
Board & Ors. v. K. Shyam Kumar & Ors. { [2010] 6
SCR 291} this court explained the issue, in the
following manner:
“Illegality as a ground of judicial review means
that the decision maker must understand
correctly the law that regulates his decision
making powers and must give effect to it.
Grounds such as acting ultra vires, errors of law
and/or fact, onerous conditions, improper
purpose, relevant and irrelevant factors, acting in
bad faith, fettering discretion, unauthorized
delegation, failure to act etc., fall under the
heading “illegality”. Procedural impropriety may
be due to the failure to comply with the
mandatory procedures such as breach of natural
justice, such as audi alteram partem, absence of
bias, the duty to act fairly, legitimate
expectations, failure to give reasons etc.”
35. The latitude the Constitution gives to the executive,
under Articles 72 and 162, in regard to matters such as
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remission, commutation, etc, therefore, cannot be
caged or boxed in the form of guidelines, which are
inflexible.
36. This court’s observations in State of Haryana v.
Mahender Singh {(2007) 13 SCC 606} are also
relevant here:
“38. A right to be considered for remission
keeping in view the constitutional safeguards
under Articles 20 and 21 of the Constitution of
India, must be held to be a legal one. Such a
legal right emanates from not only the Prisons
Act but also from the Rules framed thereunder.
39. It is now well-settled that any guidelines
which do not have any statutory flavour are
merely advisory in nature. They cannot have the
force of a statute. They are subservient to the
legislative act and the statutory rules.”
37. Classifying – to use a better word, typecasting
convicts, through guidelines which are inflexible, based
on their crime committed in the distant past can result
in the real danger of overlooking the reformative
potential of each individual convict. Grouping types of
convicts, based on the offences they were found to
have committed, as a starting point, may be justified.
However, the prison laws in India – read with Articles
72 and 161 – encapsulate a strong underlying
reformative purpose. The practical impact of a
guideline, which bars consideration of a premature
release request by a convict who has served over 20
or 25 years, based entirely on the nature of crime
committed in the distant past, would be to crush the life
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force out of such individual, altogether. Thus, for
instance, a 19 or 20 year old individual convicted for a
crime, which finds place in the list which bars
premature release, altogether, would mean that such
person would never see freedom, and would die within
the prison walls. There is a peculiarity of continuing to
imprison one who committed a crime years earlier who
might well have changed totally since that time. This is
the condition of many people serving very long
sentences. They may have killed someone (or done
something much less serious, such as commit a
narcotic drug related offences or be serving a life
sentence for other nonviolent crimes) as young
individuals and remain incarcerated 20 or more years
later. Regardless of the morality of continued
punishment, one may question its rationality. The
question is, what is achieved by continuing to punish a
person who recognises the wrongness of what they
have done, who no longer identifies with it, and who
bears little resemblance to the person they were years
earlier? It is tempting to say that they are no longer the
same person. Yet, the insistence of guidelines,
obdurately, to not look beyond the red lines drawn by it
and continue in denial to consider the real impact of
prison good behavior, and other relevant factors (to
ensure that such individual has been rid of the
likelihood of causing harm to society) results in
violation of Article 14 of the Constitution. Excluding the
relief of premature release to prisoners who have
served extremely long periods of incarceration, not
only crushes their spirit, and instils despair, but
signifies society’s resolve to be harsh and unforgiving.
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The idea of rewarding, a prisoner for good conduct is
entirely negated.”
9. Even this Court, in a number of cases, relying on the decision of
the Supreme Court in Sangeet v. State of Haryana {AIR 2013
SC 447}, Mohinder Singh v. State of Punjab {2013 Cri.L.J.
1559}, Laxman Naskar v. Union of India {(2000) 2 SCC 595},
Union of India v. Sriharan {(2016) 7 SCC 1} and Ram Chander
v. State of Chhattisgarh {AIR 2022 SC 2017} had directed
remitted the matter back to the State to decide the case of the
petitioners therein and to consider the matter in light of the
judgments rendered by the Supreme Court in the cases (supra).
10. The orders passed by the respondent authorities rejecting the
application of the petitioner for grant of remission is non-speaking
and have been passed without application of mind and without
taking into consideration the ratio laid down by this Court as well
as the Apex Court in the cases (supra), and as such, they are set
aside.
11. Consequently, the matter is remitted to the State Government to
decide the application of the petitioner for remission afresh. The
State Government will call for the opinion of the concerned
learned Additional Sessions Judge / Sessions Judge afresh, who
will provide his opinion on the petitioner’s application within one
month from the date of requisition as per Laxman Naskar (supra)
and thereafter, the State Government will decide petitioner’s
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application within two month from the date of receipt of opinion
from learned Judge in light of the decisions rendered by the
Supreme Court in the cases (supra) and also the observations
made herein.
12. Accordingly, the petition stands allowed.
Sd/- Sd/-
d/- (Arvind Kumar Verma) (Ramesh Sinha)
JUDGE CHIEF JUSTICE
J.