The Supreme Court has said there cannot be "overemphasis" on the presiding judge's opinion and complete disregard of comments of other authorities, as it will render the government's decision on a remission application of a convict unsustainable.
The top court said the remission board of the state government should not entirely rely either on the opinion of the presiding judge, or the report prepared by the police while considering an application for premature release of a convict.
Section 432(1) of the CrPC empowers the appropriate government to suspend or remit sentences of a convict.
Section 432(2) of the CrPC prescribes 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 application should be allowed or rejected, along with reasoning.
A bench of Justices S Ravindra Bhat and Prashant Kumar Mishra gave its ruling in a verdict pronounced on Friday on a plea of Bihar resident Rajo alias Rajendra Mandal, who was awarded life sentence for murdering three people, including two police personnel, challenging the rejection of his remission application.
The bench noted that Mandal, who was convicted of murder and offenses under the Arms Act, has been in custody for 24 years without grant of remission or parole, and his remission application has been rejected twice by the remission board due to adverse report of the presiding judge and the superintendent of police.
The presiding judge had twice given adverse reports and the SP once against Mandal's release. As per remission rules in the Bihar Jail Manual, the opinion of the presiding judge of the convicting court, probation officer, and the superintendent of police is sought by the remission board prior to consideration of any application for premature release.
"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 bench said.
It added that sentencing is a judicial exercise of power and 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, 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," the bench said.
It said the procedure laid out in Section 432(2) of CrPC, has been held to be mandatory by a five-judge bench of the apex court in its 2015 verdict, where it has held that the opinion of the presiding judge is a safeguard from arbitrary exercise of power by the executive.
"The discretion that the executive is empowered within 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 behavior geared towards reformation in a modern legal system," the top court said.
It said from the record it clearly emerges that the reason for rejection of the Mandal's application is the adverse report submitted by the presiding judge in the first 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 finding of guilt by the trial court and the High Court. This offers 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," the bench said.
It said, yet, the remission board has privileged the presiding judge's opinion over the other authorities like the probation officer, and Jail authorities, who are in a far better position to comment on Mandal's post-conviction reformation, offering a cautionary tale.
Such a report cannot be relied on as carrying predominance if it focuses on the crime with little or no attention to the criminal, it said.
"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), 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,” the top court said.
The bench said the appropriate government should take a holistic view of all the opinions received, including the judicial view of the presiding judge of the court concerned court, keeping in mind the purpose and objective of remission.
It has been repeatedly emphasized that the aim and ultimate goal of imprisonment, even in the most serious crime, is reformative, after the offender has undergone a sufficiently long spell of punishment through imprisonment, the bench said.
The top court also flagged its concern over the report of the superintendent of police which was adverse in the second round in the case of Mandal and said, "In each case, the appropriate government has to be cognizant of the latent 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."
The bench asked the remission board of the state to reconsider the case of Mandal within three months and asked the presiding judge concerned to provide an opinion on Mandal’s application within one month from the date of this judgment.