Remission Shouldn't Be Denied Solely On Reports Of Presiding Judge Or Police : Supreme Court Lays Down Factors For Premature Release

The Supreme Court recently pronounced a notable judgment explaining the factors which a Government should take into account while deciding to grant remission of sentence to convicts as per Section 432 of the Code of Criminal Procedure.

Apart from other considerations (such as the nature of the crime, whether it affected the society at large, the chance of its recurrence etc), the government, while considering the potential of the convict to commit crimes in the future, should also consider whether there remains any fruitful purpose of continued incarceration.

The government should also take into account factors such as age, health, familial relationships, reintegration possibilities, extent of earned remission, and 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 Court suggested that the government could also benefit from a report prepared by a qualified psychologist after interacting with the convict. This would provide a more comprehensive understanding of the individual's post-conviction development, rehabilitation efforts, and potential for reintegration into society.

Presiding Judge's opinion should not be the sole consideration

The Court also emphasized that a holistic approach, considering various inputs beyond the Presiding Judge's opinion under Section 432(2) of the Code of Criminal Procedure. Mechanical reliance on the Presiding Judge's report could undermine the core objective of remission.

The Court observed that “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.”

The bench comprising Justices S. Ravindra Bhat and Justice Prashant Kumar Mishra was hearing a writ petition filed under Article 32 seeking premature release since he has been in custody for 24 years without grant of remission or parole.

The case in question pertains to the rejection of a petitioner's application for premature release by the Remission Board on both occasions because of the adverse opinion of the Presiding Judge.

The Court raised concerns over the weight given to the Presiding Judge's opinion in the rejection of the petitioner's application. It was observed that the adverse reports submitted by the Presiding Judge during both rounds of application were primarily based on judicial records, focusing solely on the conviction handed down by the trial court and the subsequent affirmation by the High Court. This approach, the Court noted, offers only a limited and outdated perspective on the petitioner's rehabilitation and progress during his term of imprisonment.

"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 judgment authored by Justice Bhat

In contrast, authorities such as Probation Officers and Jail authorities, who are more closely involved in the prisoner's day-to-day life, are in a better position to evaluate the convict's post-conviction transformation and potential for reintegration into society.

The Court elucidated that while the Presiding Judge's opinion is a significant input, it must be in compliance with statutory requirements and include a thorough evaluation of relevant factors as laid down in Laxman Naskar v. State of W.B(2000).

The Court's pronouncement came in light of the recent case of Ram Chander v. State of Chhattisgarh 2022 LiveLaw (SC) 401 which observed “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 (2000, )the Government may request the Presiding Judge to consider the matter afresh.”

The Court highlighted the disparity between post-conviction conduct and the nature of the crime, which the Presiding Judge's opinion primarily relies upon, emphasizing the need for a more holistic evaluation.

The Court opined “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”.

The Court emphasized that the ultimate objective of imprisonment, even in the gravest crimes, is to reform the offender through a period of punishment and rehabilitation.

The court referred to its earlier ruling in Maru Ram v. Union of India, where it highlighted the need to consider post-conviction conduct while assessing the suitability of convicts for remissions and early release.

The Court acknowledged the importance of individualized assessments and a nuanced approach to premature release decisions. The court cited the minority view in Sriharan’s case which expressed that, “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 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.”

Remission Board thus should not entirely rely either on the presiding judge, or the report prepared by the police.

The Court cautioned that the Board should not entirely rely on the report of the presiding judge or the police. In the instant case, the petitioners were convicted for murdering police officers. Therefore, the Court said that the element of bias in the police report regarding remission cannot be ruled out.

"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"

Prisoner entitled to benefit of remission policy which is more liberal

As far as the applicability of the remission policy is concerned, the court held that the one that is in place at the time of a convict's conviction governs the case. However, the court referred to Jagdish’s case where it was recognized that if a more liberal policy exists on the date of consideration, the benefit should be provided.

Applying these principles in the case at hand, on the date of conviction (24.05.2001), the court found that it is the pre-2002 policy that was applicable. The policy did not outline any ineligibility criteria.

In light of the above, the court directed the Remission Board to re-examine the convict's application. The court held “The concerned presiding judge is hereby directed to 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’s case within one month. With the benefit of this new report, the Remission Board may reconsider the application – without entirely or solely relying on it, but treating it as valuable (maybe weighty) advice that is based on the judicial record. Given the long period of incarceration already suffered by the writ petitioner and his age, the Remission Board should endeavour to consider the application at the earliest and render its decision, preferably within three months.”

Case title: Rajo @Rajwa@Rajendra Mandal v. State of Bihar

Citation: 2023 LiveLaw (SC) 717

Click here to read the judgment