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IN THE HIGH COURT AT CALCUTTA

CONSTITUTIONAL WRIT JURISDICTION

APPELLATE SIDE

BEFORE:

THE HON’BLE JUSTICE OM NARAYAN RAI

WPA 2738 of 2025

Md. Amjad @ Md. Amzad @ Amjed

Vs.

The State of West Bengal & Ors.

For the Petitioner : Mr. Pinak Kumar Mitra, Adv.

Ms. Sampurna Ghosh, Adv.

Ms. Sananda Bhattacherjee, Adv.

Mr. Debendra Nath Saha, Adv.

For the Respondent No. 7 : Mr. Pantu Deb Roy, Ld. AGP.

Mr. Pannalal Bandyopadhyay, Adv.

Mr. Sayan Ganguly, Adv.

For the State : Mr. Sk. Md. Galib, Ld. Sr. Govt. Adv.

Ms. Sujata Mukherjee, Adv.

Hearing Concluded on : 27.01.2026

Judgment on : 11.02.2026

Om Narayan Rai, J.:-

1. This writ petition is at the instance of a life convict. He assails an order dated

December 24, 2024 passed by the Principal Secretary, Judicial Department,

Government of West Bengal whereby his prayer for premature release upon

remission of his sentence of life imprisonment has been rejected.

FACTS OF THE CASE:

2. The petitioner was arrested on May 02, 2003 in connection with New Market

Police Station Case No. 113 initiated on April 12, 2003 under Sections 302/34

of the Indian Penal Code, 1860 (hereafter “IPC”). He and his co-accused were

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thereafter committed for trial in S.T. No. 2 of November 2003/ S.C. No.

80/2003.

3. Ultimately, the petitioner and his co-accused were convicted under Sections

302/34 IPC by a judgment and order dated March 19, 2005 passed by the

Learned Judge, XII

th

Bench, City Civil and Sessions Court, Calcutta, in S.C.

No. 80/2003 and both the accused persons were sentenced to life

imprisonment along with fine of Rs.5000/- each. In default of payment of fine

they were sentenced to undergo further simple imprisonment for a period of

two years.

4. Feeling aggrieved by the said judgment and order of conviction the petitioner

approached this Court by filing an appeal being CRA No. 309 of 2005. The said

appeal was dismissed by the Hon’ble Division Bench of this Court by a

judgment and order dated December 17, 2013. The petitioner carried the

matter to the Hon’ble Supreme Court by way of a Special Leave Petition which

too was dismissed by an order dated July 07, 2014. The petitioner has

thereafter remained in custody.

5. The petitioner’s case for premature release (along with several others) was

considered by the State Sentence Review Board (hereafter “SSRB”) in its 69

th

meeting held on September 02, 2022 and the petitioner’s case was

recommended for premature release.

6. As the petitioner was not released despite the recommendation, the petitioner’s

wife followed up with a representation dated February 23, 2024 to the

respondent no. 2 i.e. the Principal Secretary to the Government of West Bengal

requesting for the petitioner’s premature release. The said representation too

could not lead to a release order. The petitioner’s wife therefore approached

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this Court by filing a writ petition being WPA 16927 of 2024 praying inter alia,

for a direction upon the respondent to take steps and to act on the basis of the

recommendation of the 69

th

Meeting of the SSRB.

7. The said writ petition was disposed of by this Court by an order dated

November 20, 2024 thereby directing the Judicial Secretary to take steps to

consider and dispose of the prayer of the petitioner in line with the

recommendation made by the SSRB at the earliest.

8. Pursuant to the said order dated November 20, 2024, the Principal Secretary,

Judicial Department, Government of West Bengal passed the order impugned

thereby holding that the petitioner was not entitled to remission and

premature release. The order indicates that upon the SSRB’s recommendations

being communicated to the Judicial Department, the said Department had

forwarded the same to this Court for obtaining the opinion of the presiding

Judge of either the convicting Court or the conforming Court and that the

convicting Court had thereupon rendered a negative opinion which has been

accepted by the Principal Secretary, Judicial Department, Government of West

Bengal.

9. The said order is undated. However, the same was communicated to the

petitioner’s learned Advocate under the cover of a letter dated December 24,

2024. Feeling aggrieved by the said order the petitioner has approached this

Court by way of the present writ petition.

SUBMISSIONS ON BEHALF OF THE PETITIONER:

10. Mr. Mitra, learned Advocate appearing for the petitioner has submitted that the

order impugned is wholly unreasoned inasmuch as the same has been passed

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by mechanically relying on the opinion of the respondent no. 7 being the

Learned Chief Judge, City Sessions Court, Calcutta.

11. It was submitted that the said order has been passed in total disregard of the

comments of the other authorities and the recommendation of the SSRB.

12. It was next submitted that the opinion of the respondent no. 7 could not be

termed as an opinion of the presiding Judge of the Court before or by which

the petitioner had been convicted. Asserting that the provisions of Section 432

of the Code of Criminal Procedure, 1973 (hereafter “the Code”) are clear and

specific, Mr. Mitra argued that the opinion must be had from the presiding

Judge of the very Court which either passed the order of conviction or

confirmed the same and not from any other person.

13. He contended that since in the case at hand opinion had been taken from the

Learned Chief Judge of the City Sessions Court, Calcutta, who was/is not the

presiding Judge of the Court which passed the order of conviction of the

petitioner, such opinion could not at all have been taken into consideration by

the respondent no. 2 while passing the order impugned.

14. In support of his contention, that in terms of Section 432 (2) of the Code, the

opinion of presiding Judge of the Court by which the order of conviction was

passed alone is important, Mr. Mitra relied on a judgment of the Hon’ble

Supreme Court in the case of Bilkis Yakub Rasool vs. Union of India &

Others

1

.

15. Attention of this Court was then drawn to the judgment of the Hon’ble

Supreme Court in the case of Jaswant Singh & Others vs. State of

1

(2024) 5 SCC 481

Page 5 of 32

Chhattisgarh & Another

2

for the proposition that when a co-accused has

been treated in a particular way, the other co-accused should also be similarly

treated. It was submitted that there should be parity in treatment of one co-

accused with the other.

16. Another judgment of the Hon’ble Supreme Court in the case of Ram Chander

vs. State of Chhattisgarh & Another

3

was relied on for the proposition that

the opinion of the presiding Judge was only a guiding factor but the same

would not be binding.

17. A judgment of the Hon’ble Supreme Court in the case of Joseph vs. State of

Kerala & Others

4

was relied on for the proposition that a life convict could be

released directly without remanding the matter to the State Government. For

the same proposition, another judgment of the Hon’ble Supreme Court in the

case of Bhagwat Saran & Others vs. State of Uttar Pradesh & Others

5

was also relied on.

18. Mr. Mitra also pressed into service a judgment of the Hon’ble Supreme Court

in the case of Satish alias Sabbe vs. State of Uttar Pradesh

6

for the

proposition that where the authorities had failed to discharge their statutory

obligations despite judicial directions, a constitutional Court while exercising

its power of judicial review could itself take up the task and ensure compliance

through a Writ of Mandamus.

19. A judgment of the Co-ordinate Bench of this Court in the case of Sri Gopal

Sarkar vs. State of West Bengal & Others

7

was also cited to demonstrate

2

(2023) 17 SCC 297

3

(2022) 12 SCC 52

4

2023 SCC OnLine SC 1211; MANU/SC/1049/2023

5

(1983) 1 SCC 389

6

(2021) 14 SCC 580

7

WPA 17248 of 2021, decided on August 30, 2022

Page 6 of 32

that this Court can also direct premature release of the petitioner, in exercise

of its writ jurisdiction under Article 226 of the Constitution of India even where

the opinion of the presiding Judge is not available.

20. Another judgment of a Co -ordinate Bench of this Court in the case of

Aniruddha Halder & Another vs. State of West Bengal

8

was relied on for

the proposition that this Court can direct the release of a convict while

exercising to its power under Section 432 of the Code read with Article 227 of

the Constitution of India even in cases where the opinion of the presiding

Judge is not available.

21. Mr. Mitra also submitted that when this Court had by its order dated

November 20, 2024 directed the Judicial Secretary to take steps to consider

and dispose of the prayer for the petitioner’s premature release ―in line with the

recommendation made by SSRB‖ , it was not open to the Judicial Secretary to

take a contrary view and reject the request by accepting an opinion which had

(has) no value at all. Mr. Mitra sought for directions for premature release of

the petitioner upon quashing of the order impugned.

SUBMISSIONS ON BEHALF OF THE RESPONDENTS:

22. Mr. Galib, learned Advocate appearing for the State respondent vehemently

opposed the prayer of Mr. Mitra. It was submitted that the opinion of the

presiding Judge of the Court which passed the order of conviction is

mandatory and an order of remission and premature release could not be

passed in the absence of such opinion. In support of his submission, he relied

on the judgment of the Hon’ble Supreme Court in the case of Ram Chander

(supra), Bilkis Yakub Rasool (supra) and Jaswant Singh (supra).

8

2023 (3) AICLR 664 (Cal.)

Page 7 of 32

23. Mr. Galib next submitted that the petitioner has confounded the expression

“Bench of a Court” with the expression “Court” while interpreting the

provisions of Section 432 of the Code. It was submitted that the opinion of the

Learned Chief Judge, City Sessions Court, Calcutta has been obtained in the

case at hand in the peculiar facts of the case where the XII

th

Bench of the

Sessions Court which passed the order of conviction is no longer in existence.

It was submitted that since the Bench which passed the order of conviction

(was) is no longer in existence, therefore, in order to ensure substantial

compliance with the provisions of Section 432 of the Code, opinion of the

Learned Chief Judge of the City Sessions Court was obtained.

24. In order to demonstrate that the expression “Court” must be interpreted in a

wide and generous sense and not in a narrow and pedantic sense, he relied on

a judgment of the Hon’ble Supreme Court in the case of Trans Mediterranean

Airways vs. Universal Exports & Another

9

. In order to differentiate the

expression “Court” from “Bench‖ and to assert that the expressions “Court”

and “Judge” though used interchangeably are actually not synonymous, Mr.

Galib relied on a judgment of the Hon’ble Supreme Court in the case of

Supreme Court Legal Aid Committee Representing Undertrial Prisoners

vs. Union of India & Others

10

.

25. Mr. Galib strenously asserted that remission of sentence and premature

release of a convict must not be granted lightly and that in case it is found that

the order under judicial review is flawed or infirm, the Court can always send

the matter back to the relevant State authority for reconsideration.

9

(2011) 10 SCC 316

10

(1994) 6 SCC 731

Page 8 of 32

26. Mr. Galib also cited two orders passed by the Hon’ble Supreme Court in the

case of Sonadhar vs. The State of Chhattisgarh in order to demonstrate

that the entire process of granting remission and premature release in terms of

Section 432(2) of the Code has been streamlined. The first is the order dated

July 7, 2021 in Sonadhar vs. State of Chhattisgarh

11

, which was cited to

assert that the Hon’ble Supreme Court has directed that remission

applications should be dealt with in a time bound manner. The next order is

dated September 15, 2022 whereby the Hon’ble Supreme Court has directed

the State of West Bengal to take note of the anomaly , in the manner of

processing remission applications by the State Government, to the effect that

requirement for obtaining opinion of the concerned Judge was prior to the

recommendation and upon the recommendation being made, there was no

need to refer it to the Court again.

27. He also cited a Notification dated December 21, 2022 published by the

Government of West Bengal, Judicial Department and submitted the anomaly

indicated in the order dated September 15, 2022 passed by the Hon’ble

Supreme Court in the case of Sonadhar (supra) has been addressed and it

has been specified that the SSRB would recommend the case of a life convict

for premature release upon considering the opinion of the convicting or

confirming Courts. It was submitted that presently the said procedure is being

followed.

28. Mr. Deb Roy learned Advocate appearing for the respondent No.7 adopted the

submissions made by Mr. Galib appearing on behalf of the State.

11

2021 SCC OnLine SC 3544

Page 9 of 32

ANALYSIS & DECISION:

29. Heard learned Advocates for the respective parties and considered the material

on record.

30. The present proceeding falls to be decided on the following questions:-

(i) Whether in absence of the presiding Judge of the Court before or by which

conviction was had, the Learned Chief Judge of the City Sessions Court

was competent to render an opinion under Section 432(2) of the Code?

(ii) Whether the opinion rendered by the Learned Chief Judge in the instant

case conforms to the statutory requirements and the settled principles of

law?

(iii) Whether the impugned order passed by the Judicial Secretary is legally

sustainable and justified?

(iv) Whether it was open to the Judicial Secretary to reject decline the request

for the petitioner’s premature release upon remission of his sentence after

the order dated November 20, 2024 was passed in WPA 16927 of 2024

whereby the Judicial Secretary had been directed to take steps to consider

and dispose of the prayer for the petitioner’s premature release ―in line

with the recommendation made by SSRB‖?.

(v) Whether this Court should grant remission and direct premature release

of the petitioner?

As Regards Question No. (i):-

31. Since the petitioner has questioned the competence and authority of the

Learned Chief Judge, City Sessions Court, Calcutta to render the opinion

under Section 432(2) of the Code, instead of the presiding Judge of the Court

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before or by which conviction was had, therefore, the said provision should be

noticed first:-

―432. Power to suspend or remit sentences. –

(1) **********

(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 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.

****************************** ****************************** ******************************‖

32. After the pronouncement of the Hon’ble Supreme Court in the case of Union of

India vs. V. Sriharan alias Murugan & Others

12

which has been relied on

in Ram Chander (supra), it is now well established that the procedure

stipulated in Section 432(2) of the Code is mandatory. The question is what

would happen in case the presiding Judge is not available.

33. The respondent no.7 has, in its affidavit in opposition to the writ petition,

indicated the reasons for the Learned Chief Judge rendering the opinion under

Section 432(2) of the Code instead of the presiding Judge of the convicting

Court. It has been asserted that at the time when the petitioner’s case was

tried, City Sessions Court, Calcutta did not have independent existence and as

such the petitioner’s case was tried by the Judge XII

th

Bench, City Civil and

City Sessions Court, Calcutta. The said opposition further reveals that City

Civil Court and City Sessions Court started functioning independently from

August 11, 2005 and the XII

th

Bench, City Civil and City Sessions Court,

Calcutta ceased to exist. It has thus been contended that since the relevant

12

(2016) 7 SCC 1

Page 11 of 32

Bench that passed the order of conviction was no longer in existence,

therefore, the Learned Chief Judge, City Sessions Court rendered the opinion.

34. It is not in dispute (and it cannot be) that on and from August 11, 2005 both

City Civil Court and City Sessions Court started functioning independently.

There is no reason to disbelieve or discard the statement of the respondent

no.7 that with the separation of the two Courts, XII

th

Bench, City Sessions

Court no longer remained in existence. In cases such as the present one,

would it mean that opinion under Section 432(2) of the Code would not be

obtained at all? In the considered view of this Court, a negative answer to the

question posed would trample the avowed objective of the provision; therefore,

opinion must be obtained.

35. In such a situation, a combined reading of the provisions of Section 5 of the

City Sessions Court Act, 1953 and Section 35 of the Code can show the path

forward. The aforesaid provisions may first be noticed. Section 5 of the City

Sessions Court Act, 1953 reads thus:-

―5. City Sessions Court to be a Court of Session and the Code to apply to such

Court.—For the purposes of the Code, the Presidency-town of Calcutta shall be deemed to

be a sessions division and a district, the City Sessions Court shall be deemed to be a

Court or Session established for such sessions division, and the Chief Judge and the

other Judges of the City Sessions Court shall be deemed respectively to be the Sessions

Judge and the Additional Sessions Judges appointed for such Court of Session; and save

as otherwise provided in this Act all the provisions of the Code shall apply accordingly.‖

[Emphasis Supplied]

36. Section 35 of the Code provides as follows:-

―35. Powers of Judges and Magistrates exercisable by their successors -in-

office.—

(1) Subject to the other provisions of this Code, the powers and duties of a Judge or

Magistrate may be exercised or performed by his successor-in-office.

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(2) When there is any doubt as to who is the successor-in-office of any Additional or

Assistant Sessions Judge, the Sessions Judge shall determine by order in writing the

Judge who shall, for the purposes of this Code or of any proceedings or order thereunder,

be deemed to be the successor-in-office of such Additional or Assistant Sessions Judge.

(3) When there is any doubt as to who is the successor-in-office of any Magistrate, the

Chief Judicial Magistrate, or the District Magistrate, as the case may be, shall determine

by order in writing the Magistrate who shall, for the purpose of this Code or of any

proceedings or order thereunder, be deemed to be the successor -in-office of such

Magistrate.‖

[Emphasis Supplied]

37. The underscored provisions of the two Sections extracted hereinabove read

cumulatively would lead to the following conclusions:-

a) The Chief Judge of the City Sessions Court is the Sessions Judge and the

other Sessions Judges would be Additional Sessions Judges;

b) In case of doubt as to who shall be the successor -in-office of any

Additional Sessions Judge, the Chief Judge shall be the authority to

decide;

c) Axiomatically, the Chief Judge can himself also take up the task that he

could assign to any other Additional Sessions Judge.

38. Although the aforequoted provisions pertain to the judicial power and duties’

domain of the Chief Judge/Sessions Judge, the Additional Sessions Judges

and the Magistrates, yet, there is no reason why the spirit thereof cannot be

invoked in situations where a Judge is required to render a valuable opinion

and provide a "procedural safeguard" in the decision making process of the

executive as regards the remission and premature release of a convict.

39. In such view of the matter, this Court does not find any illegality in the

Learned Chief Judge, City Sessions Court , Calcutta, rendering opinion in

absence of the presiding Judge of the Court before or by which conviction was

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had. The provisions of Section 432(2) cannot be rendered fatuous and

unworkable by imposing such a strict interpretation on it that absent the

presiding officer of the Court before or by which conviction was had, no opinion

can be had at all. The first question thus stands answered in the affirmative.

As Regards Question No. (ii):-

40. In the case at hand, the Learned Chief Judge, City Sessions Court, Calcutta

has rendered the following opinion:-

―In this juncture, the case record is put up before me for forming conclusive opinion in

respect of the concerned life convict namely, Md. Amjad S/O Late Sagir Ahmed at present

suffering life sentence at Midnapore Central Correctional Home. It appears from the case

record that the life imprisonment of the convict Md. Amjad passed by the Ld. Sessions

Judge, XIIth Bench, City Sessions Court, Calcutta in C/W Sessions Case No. 80 of 2003,

U/S. 302/34 I.P.C. was affirmed by the Hon‘ble High Court, Calcutta on 17.12.2013 in

c/w CRA No. 309 of 2005.

In this pretext, it would be appropriate to reproduce the observation of the Ld. Court as

it is reflected in the judgment dated 19.03.2005. Page No. 59 of the judgment reflects that

convict, Md. Amjad along with another convict Md. Kallu were not in good terms with

victims and that both convicts threatened both victims prior to the incident, occasionally

on two occasions and thereby it can be safely said that both the convicts assaulted both

the victims with proper plan, rather their plan was prepared prior to the incident having

common intention to kill the victims and the convicts fulfilled their intention by killing the

victims with deadly weapons. Thus it can be safely said that both the victims were

murdered by both the convicts, which is cold blooded and brutal without any provocation

from the end of the victims.

In this regard, it is submitted that this Court is not aware whether this convict namely

Md. Amjad has lost his potentiality about his criminal act further or he still maintains

relationship with his old criminal associates or there is any possibility of his inclination to

commit criminal acts.

In such a situation the conduct of this convict suggests that he deserves no mercy.

When we propose to establish a society founded on the principal of welfare state, we

should endeavour to engender in the minds of the common people not only the feeling but

assurance too that rule of law is in force to protect the lives and properties of the people.

Having thus, based upon the delineation made above and also regard being given to

the materials on the case record, I am of the opinion that premature release of such

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convict would not only cause threat to the society but encourage the convict to commit

such heinous crime again also.

Therefore, premature release of the concerned convict namely, Md. Amjad S/O Late

Sagir Ahmed at present suffering life sentence in Midnapore Central Correctional Home

should not be done in the interest of justice and public safety.‖

41. The Hon’ble Supreme Court has in the case of Ram Chander (supra)

considered the earlier judgments in the cases of Laxman Naskar vs. Union of

India & Others

13

and Laxman Naskar vs. State of West Bengal &

Another

14

, and reiterated the significant factors which are required to be

considered by the presiding Judge of the Court before whom the order of

conviction was passed or confirmed in paragraph 15 of the said judgment. The

said paragraph is extracted herein below:-

―15. In Laxman Naskar v. State of W.B. [Laxman Naskar v. State of W.B., (2000) 7

SCC 626 : 2000 SCC (Cri) 1431] , 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 that the

release of the petitioner will disrupt the peace in the locality; (ii) 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 [Laxman Naskar v. Union of India, (2000) 2

SCC 595 : 2000 SCC (Cri) 509] stipulated the factors that govern the grant of remission,

namely : (Laxman Naskar case [Laxman Naskar v. State of W.B., (2000) 7 SCC 626 :

2000 SCC (Cri) 1431] , SCC p. 598, para 6)

―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 crime.

(iv) Whether there is any fruitful purpose of confining this convict any more.

(v) Socio-economic condition of the convict's family.‖

13

(2000) 2 SCC 595

14

(2000) 7 SCC 626

Page 15 of 32

42. In the case of Bilkis Yakub Rasool (supra) too the Hon’ble Supreme Court

after considering a number of authorties and earlier judgments of the Hon’ble

Supreme Court observed as follows:-

―205. Thus, the consistent view of this Court which emerges is that the expression

―may‖ has to be interpreted as ―shall‖ and as a mandatory requirement under sub-section

(2) of Section 432CrPC. The said provision has sufficient guidelines as to how the opinion

must be provided by the Presiding Judge of the court which has convicted the accused

inasmuch as—

(i) the opinion must state as to whether the application for remission should be granted

or refused and for either of the said opinions, the reasons must be stated;

(ii) naturally, the reasons must have a bearing on the facts and circumstances of the

case;

(iii) the reasons must be in tandem with the record of the trial or of such record thereof

as exists;

(iv) the Presiding Judge of the court before or by which the conviction was had or

confirmed, must also forward along with the statement of s uch opinion granting or

refusing remission, a certified copy of the record of the trial or of such record thereof as

exists.‖

43. On perusing the opinion of the Learned Chief Judge, City Sessions Court,

Calcutta in the light of the judgment of the Hon’ble Supreme Court in Ram

Chander (supra), it will be clear that none of the factors listed at serial nos. (ii)

to (v) in paragraph 15 of the said judgment have received ap propriate

consideration of the said Learned Judge. The opinion has only tangentially

touched upon the aspects of chance of future recurrence of crime and loss of

potentiality of crime, sans an informed deduction. It exhibits a wholly

uncalibrated approach and is strongly suggestive of lack of requisite material

to arrive at the proper conclusion.

44. Similarly the opinion also falls short of fulfilling the requirements of Section

432(2) of the Code as enunciated by the Hon’ble Supreme Court in the case of

Bilkis Yakub Rasool (supra).

Page 16 of 32

45. Since the relevant factors have not been appropriately considered and the

requisite requirements have not been fulfilled by the Learned Chief Judge, City

Sessions Court, Calcutta in rendering the opinion in terms of Section 432(2) of

the Code, it fails to serve the purpose wherefor it was sought. The second

question is thus answered in the negative.

As Regards Question No. (iii):-

46. The impugned order passed by the Judicial Secretary declining remission of

the petitioner’s sentence and his premature release, indicates that the same

has been passed on the misconception that the opinion of the Learned Chief

Judge of the City Sessions Court, Calcutta is binding on him and must be

accepted. The same would be evident from the following extract of the order

impugned:-

―Considering all documents placed in those two files, I am of the view that positive

‗Recommendation‘ of the presiding Judge of the confirming/convicting Court is sine qua

non for premature release of the convict, in pursuance of the Order dtd. 20.11.2012 of the

Hon‘ble Supreme Court in Crl. Appeal No.-491 of 2011, in the matter of Sangeet & Anr. –

vs- State of Haryana and in case of the life convict Md. Amjad, the presiding Judge of the

convicting Court has been categorically negate the premature release of the instant life

convict in the interest of justice and public safety.

Accordingly, the opinion of ‗Non-recommendation‘ of the presiding Judge of the

convicting Court in respect of the life convict, namely, Md. Amjad @ Md. Amzad @ Md.

Amjed, shall be accepted in view of the observation of the Hon‘ble Supreme Court in

Sangeet & Anr. –vs- State of Haryana and necessary Govt. Order for release in favour of

the life convict, namely, Md. Amjad @ Md. Amzad @ Md. Amjed, shall not be issued at

this stage.

Non-recommendation by the convicting Court of the case of the life convict Md. Amjad @

Md. Amzad @ Md. Amjed, shall be communicated to the SLSA, WB, in view of the

observation of the Hon‘ble Apex Court in SLP (CRL) No. 529/21, in the matter of Sonadhar

–vs- State of Chhattisgarh.

The prayer of the petitioner, namely, Asghari Begum is hereby disposed of.‖

Page 17 of 32

47. The Judicial Secretary has clearly misinterpreted the ratio of the judgment of

the Hon’ble Supreme Court in the case of Sangeet & Another vs. State of

Haryana

15

, to mean that the opinion of the presiding Judge of the Court

before or by which conviction was had or confirmed must be given precedence

over everything else without independent application of mind. In fact Sangeet

(supra) did not mandate that the opinion of the presiding Judge must be

accepted in all cases. Paragraph 77.7 of the said judgment may be noticed in

this context:-

―77.7. Before actually exercising the power of remission under Section 432 CrPC the

appropriate Government must obtain the opinion (with reasons) of the Presiding Judge of

the convicting or confirming Court. Remissions can, therefore, be given only on a case-by-

case basis and not in a wholesale manner.‖

[Emphasis Supplied]

48. The Hon’ble Supreme Court has clearly explained the importance and effect of

the opinion of the presiding Judge of the Court before or by which conviction

was had or confirmed in the case of Ram Chander (supra) after considering a

number of authorities including Sangeet (supra) and V. Sriharan (supra) in

the following words:-

―25. In Sriharan, 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 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 determinative

effect on the application for remission. The purpose of the procedural safeguard under

Section 432(2) 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.

15

(2013) 2 SCC 452

Page 18 of 32

26. 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 , the Government may request the Presiding Judge to consider

the matter afresh.‖

[Emphasis Supplied]

49. In the case at hand the respondent State has accepted the opinion of the

Learned Chief Judge of the City Sessions Court, Calcutta as a binding verdict

without ascertaining as to whether the opinion fulfilled the requirements of

Section 432(2) of the Code and as to whether the relevant factors for grant of

remission indicated in Laxman Naskar (supra) have been considered or not. If

the State authority had followed the ruling, ratio and ordainment of the

Hon’ble Supreme Court in the case of Ram Chander (supra), the matter may

not have walked up to this Court. The respondent State authority would then

itself have requested the Learned Chief Judge of the City Sessions Court,

Calcutta to consider the matter afresh as observed by the Hon’ble Supreme

Court in Ram Chander (supra). The respondent State authority has not done

so. For all the reasons aforesaid, the impugned decision taken by the State

authority (Judicial Secretary) is clearly unsustainable. The third question is

thus also answered in the negative.

As Regards Question No. (iv):-

50. By the order dated November 20, 2024 passed in WPA 16927 of 2024 the order

dated November 20, 2024 directed the Judicial Secretary to take steps to

consider and dispose of the prayer for the petitioner’s premature release ―in

line with the recommendation made by SSRB‖.

Page 19 of 32

51. It was submitted by Mr. Mitra that after the said order, the Judicial Secretary

was no longer authorised to take a view contrary to the recommendation of the

SSRB. Although a cursory reading of the order may at the first blush

precipitate such an inference but the same would at once perish on a

meaningful reading of the said order dated November 20, 2024.

52. The said order clearly records in paragraph 4 that ―The remission cum release

order is to be issued by the Judicial Department on getting approval from the

Government.‖ The Court therefore clearly did not hold the recommendation of

the SSRB to be binding. Anything that needs “approval‖ is by nature not

binding. In such cases, the final decision rests with the approving authority i.e.

the State Government which has the discretion to accept or reject the

recommendation based on legally acceptable and sound reasons. The Court

cannot and did not supplant such statutory mechanism provided for grant of

remission and premature release.

53. In such view of the matter the expression ―in line with the recommendation

made by SSRB‖ cannot be treated to be a mandate to bypass the statutory or

procedural requirements as suggested by the petitioner. All that it meant was

that the Judicial Secretary would give a sincere consideration to the SSRB

recommendation. It is settled that an order or a judgment of Court is not to be

read like a statute. It is equally trite that the text of an order must be read in

the context of the facts and the law applicable. The order dated November 20,

2024 should also be read in the context of the facts as well as the context of

entire administrative scheme for remission and premature release of convicts.

54. It must not be lost sight of that SSRB itself made its recommendation subject

to approval by the State Government and therefore even if the expression ―in

Page 20 of 32

line with the recommendation made by SSRB‖ used in the order is read to best

suit the petitioner’s arguments, as insisted by Mr. Mitra, it would only mean -

to follow the recommendation through its natural legal life cycle including final

approval.

55. In such view of the matter there is no reason to hold that the Judicial

Secretary was bound to give effect to the recommendation without application

of mind. The fourth question stands answered accordingly.

As Regards Question No. (v):-

56. It was submitted by Mr. Mitra that this Court itself should grant remission and

order premature release of the petitioner in exercise of its power under Article

226 of the Constitution of India. There is no dispute on the aspect that this a

constitutional Court can in appropriate cases certainly grant remission of

sentence and direct premature release of a life convict. However, in order to

exercise such power, the Court must have sufficient material before it to be

satisfied that in the given case direction for remission of sentence and

premature release is warranted and justified. In the present case there is

precious little before the Court to go ahead and pass such orders. To wit, there

is a “Detention Certificate” issued by the Superintendent, Midnapore

Correctional Home containing his remarks that - the petitioner’s behaviour

inside the correctional home is good; that he performs the allotted task

satisfactorily and that there is no complaint received against him till date.

Then there is the bare recommendation of SSRB without the preceding

discussion or the detailed minutes of the 69

th

meeting of the SSRB. The same

is extracted hereinbelow:-

Page 21 of 32

―(Sl. No. 035) (Reg. No. 6-156-2018-CT) Md Amjad S/o – Late Sagir Ahamed (57yrs)

S of Midnapore Central Correctional Home. He was convicted for life imprisonment on 19

– March – 2005 by Ld. City Sessions Court, 12th Bench, Calcutta in c/w ST No.

2(11)2003, u/s- 302/34 IPC and has undergone more th an 19 years of actual

imprisonment. His case for premature release has been recommended by all concerned.

****************************** ****************************** ******************************

5. Now, further action with regard to approval of the competent authority in the

Government of West Bengal, maintaining all formalities considering existing rules in force

and judicial pronouncements relevant to the issue be taken up by the Judicial

Department, Government of West Bengal. The Remission cum Release Orders in respect

of life convicts shall be issued subsequently by the Judicial Department on getting

approval of the Government for premature release u/s- 432 of CrPc. Reasoned Order in

respect of cases ―not recommended‖ are to be communicated to the State Legal Services

Authority by the Judicial Department. But such orders are to be communicated to the

respective convicts by the Directorate of Correctional services through the Superintendent

of Correctional Homes.‖

57. The only other material available is the opinion of the Learned Chief Judge of

the City Sessions Court, Calcutta and the order impugned. While it is true that

this Court can direct all the material to be produced before it, analyse the

same and then pass an order but then this Court would not be justified in

doing so unless the circumstances of the case are compelling enough to take

up the executive function and grant remission and premature release. In fact

all the high authorities cited by the petitioner in such context clearly instruct

in the same tone. The same may be noticed one by one.

58. In the case of Satish alias Sabbe (supra) relied on by Mr. Mitra the Hon’ble

Supreme Court had observed that it would not be inappropriate for

constitutional Court while exercising its powers of judicial review to assume

the task (of passing an order of remission and premature release of a convict)

on itself and direct compliance through a writ of mandamus, in a case where

the authorities are found to have failed to discharge their statutory obligations

Page 22 of 32

despite judicial directions. Such observations were made in the facts of the

said case as the relevant State authorities before the Hon’ble Supreme Court

had acted in defiance of the order of the Hon’ble Supreme Court on two

occasions, by rejecting the petitioner’s prayer for remission arbitrarily.

Paragraphs 10, 11 and 17 of the report may be noticed in such regard:-

―10. It was brought to the notice of this Court on the next date of hearing that the

respondent State had, without due application of mind, passed an unreasoned order

dated 13-7-2020 rejecting premature release of Satish based on an earlier evaluation

conducted on 29-1-2018. This was contended to be in contravention of the directions

issued by this Court as well as on a misconceived notion of individual dignity. Similar

allegations of evasive compliance and mechanical rejection of Vikky's case for premature

release vide Government Order dated 29-7-2020, despite his long incarceration and good

conduct, were reiterated. Restricting their prayer(s) in terms of the order dated 6-9-2019

[Satish v. State of U.P., 2019 SCC OnLine SC 1892] of this Court, the learned counsel for

Satish and Vikky have cited some judgmen ts, and relied upon various remission

guidelines; to substantiate their plea to set aside the orders rejecting petitioner's prayer

for premature release.

11. Finding that earlier orders directing fresh consideration of petitioners' cases for

premature release had not been faithfully complied with, this Court on 25 -8-2020

[Satish v. State of U.P., 2020 SCC OnLine SC 814] , once more directed the respondent

State to consider both the cases afresh and pass appropriate reasoned orders within a

week. Since the petitioner's prayer for premature release has again been declined vide

Government Orders dated 1-9-2020, hence the learned counsel for the parties have been

heard on the aforestated limited issue.

*********************** *********************** *****************************

17. It is no doubt trite law that no convict can claim remission as a matter of right.

However, in the present case, the circumstances are different. What had been sought and

directed by this Court through repeated orders was not premature release itself, but due

application of mind and a reasoned decision by executive authorities in terms of existing

provisions regarding premature release. Clearly, once a law has been made by the

appropriate legislature, then it is not open for the executive authorities to surreptitiously

subvert its mandate. Where the authorities are found to have failed to discharge their

statutory obligations despite judicial directions, it would then not be inappropriate for a

Page 23 of 32

constitutional court while exercising its powers of judicial review to assume such task

onto itself and direct compliance through a writ of mandamus.‖

[Emphasis Supplied]

59. It would be evident upon perusal of the aforequoted paragraphs that in the

said case too, the Hon’ble Supreme Court did not direct premature release at

the very first or even second instance. The matter had been remitted to the

State authorities twice by the Hon’ble Supreme Court itself but even then the

State authorities failed to perform their duties.

60. The case of Bhagwat Saran (supra) was one where the Hon’ble Supreme

Court had passed the order for premature release on a petition under Article

32 of the Constitution of India where although the recommendation of the

committee was favourable, the State had rejected the petitioner’s prayer for

release only ―in view of the law and order situation‖.

61. The case of Joseph (supra) was again considered by the Hon’ble Supreme

Court in the context of a person who had been in jail for 26 years after having

served sentence for 35 years including 8 years of remission earned. Paragraphs

38 and 39 of the said judgment deserve notice in such regard:-

―38. In the petitioner's case, the 1958 Rules are clear - a life sentence, is deemed to be

20 years of incarceration. After this, the prisoner is entitled to premature release. The

guidelines issued by the NHRC pointed out to us by the counsel for the petitioner, are also

relevant to consider - that of mandating release, after serving 25 years as sentence (even

in heinous crimes). At this juncture, redirecting the petitioner who has already undergone

over 26 years of incarceration (and over 35 years of punishment with remission), before

us to undergo, yet again, consideration before the Advisory Board, and thereafter, the

state government for premature release - would be a cruel outcome, like being granted

only a salve to fight a raging fire, in the name of procedure. The grand vision of the rule of

law and the idea of fairness is then swept away, at the altar of procedure - which this

court has repeatedly held to be a ―handmaiden of justice‖.

39. Rule 376 of the 2014 Rules prescribes that prisoners shall be granted remission

for keeping peace and good behaviour in jail. As per the records produced by the State,

Page 24 of 32

the petitioner has earned over 8 years of remission, thus demonstrating his good conduct

in jail. The discussions in the minutes of the meetings of the Jail Advisory Board are also

positive and find that he is hardworking, disciplined, and a reformed inmate. Therefore,

in the interest of justice, this court is of the opinion, that it would be appropriate to direct

the release of the petitioner, with immediate effect. It is ordered accordingly.‖

[Emphasis Supplied]

62. The aforequoted extract of Joseph (supra) would reveal that in the said case

the Kerala Prison Rules, 1958 were applicable whereunder a life sentence, is

deemed to be 20 years of incarceration. Furthermore the Hon’ble Supreme

Court had enough material before it as would be evident from the underscored

portion of paragraph 39 extracted hereinabove to consider grant of remission.

63. Insofar as the co-ordinate Bench judgment of this Court in the case of Sri

Gopal Sarkar (supra) is concerned, the same again turned on its peculiar

facts. Paragraphs 23, 25, 27 to 31 and 43 of the said judgment deserve notice

in such regard:-

―23. Upon hearing learned counsel appearing for the parties, a salient feature which

catches the eye is that the petitioner, who is in his late fifties, has been in custody for

more than 23 years. Out of the said period, for about eight years, he was on bail (March

26, 1998 to September 10, 2006), till his sentence was affirmed. During the entire period,

the petitioner‘s records stand unblemished. About thirty local residents filed joint petition

indicating their view that they had no objection if the petitioner was rehabilitated in

normal life upon remission.

****************************** ****************************** ******************************

25. That apart, the two brothers of the petitioner, namely Nepal and Kamal, affirmed

affidavits on several occasions to say that they are willing to take responsibility of the

petitioner upon remission. It is to be noted that the affidavit in support of the present writ

petition has been affirmed by the wife of one of such brothers. Hence, the ground cited in

the refusal of remission to the petitioner, that the petitioner does not have the potential to

earn livelihood and does not have anyone to go back to, apart from one brother who has

been visiting him, is perverse on the face of it. That apart, it cannot be expected that the

convict, even after incarceration for almost a quarter of a century, would be proficient in

Page 25 of 32

some vocation. Adverse inference drawn against the convict on such ground would be

entirely counter-productive to the concept of remission and negate the reformative purpose

of punishment.

****************************** ****************************** ******************************

27. Surprisingly, the report of the Probation-cum-After-care Officer dated September

9, 2021, which has been annexed to the present writ petition, was never considered. The

report of the Superintendent of the Dum Dum Correctional Home dated January 23, 2021,

which was sent to the respondent-authorities, clearly reflects the impeccable records of

the petitioner. It is clearly evident from the same that the petitioner had all along shown

good and respectful attitude to the administration as well as his co-inmates. Not only

that, the petitioner, according to the said report, also undertook nursing activities and

looked after mentally unsound prisoners.

28. Such acts of the petitioner clearly speak out loud in favour of his remission.

29. That apart, the petitioner has had no crminla antecedent otherwise than the

present conviction.

30. Such documents and factors were utterly overlooked in refusing the petitioner‘s

remission.

31. During his entire jail tenure of 23 years, the petitioner was never castigated even

by a single adverse report by the jail authorities. Apart from the eight years while he

was on bail, the petitioner had obtained five paroles for a total of 42 days during the

pandemic period. During this entire period when the petitioner roamed free, he does not

have even a single incident reported against his from any quarter of society.

****************************** ****************************** ******************************

43. In any event, since the above discussion shows that there are overwhelming

materials-on-record unerringly indicating towards remission of the petitioner, there is no

justifiable cause to violate the petitioner‘s right of equality as enshrined in Article 14 of

the Constitution of India in discriminating against the petitioner to refuse such remission.

Since the respondents, including the SSRB (which was not validly constituted as per the

NHRC guidelines), shirked their responsibility to adhere to the law and relevant criteria,

further remand would unnecessarily rob the petitioner of his personal liberty for a further

inordinate period, for which this Court cannot be pardoned by its own judicial

conscience.‖

[Emphasis Supplied]

Page 26 of 32

64. The underscored portions of the judgment would clearly indicate the

peculiarity of the case of Sri Gopal Sarkar (supra) before the co-ordinate

Bench. As already indicated hereinabove, there is lack of adequate material

before this Court to direct premature release of the writ petitioner in exercise of

its powers under Article 226 of the Constitution of India.

65. The case of Aniruddha Halder (supra) was yet another case where the Court

took a decision based on its peculiar facts and the prime considerations were

that the ―entire case was based on circumstantial evidence‖ ; that the

petitioners were ―aged about 73 years and 84 years‖ and that ―At the fag end of

life they will get mental peace if they are allowed to lead last few years of their

life with their family members‖.

66. In the present case the opinion of the Learned Chief Judge of the City Sessions

Court, Calcutta falls short of fulfilling the requirement of Section 432(2) of the

Code and has been passed without considering the relevant factors as

enunciated by the Hon’ble Supreme Court in the case of Laxman Naskar

(supra) and reiterated in Ram Chander (supra). The Judicial Secretary has

acted on the basis of the negative opinion of the said Learned Judge of the by

treating the same as binding. In a similar situation, the Hon’ble Supreme

Court had in Ram Chander (supra) remitted the mater back for fresh

consideration observing as follows:-

―28. In his opinion dated 21-7-2021 the Special Judge, Durg referred to the crime for

which the petitioner was convicted and simply stated that in view of the facts and

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. Halsbury's Laws of India (Administrative

Law) notes that the requirement to give reasons is satisfied if the authority concerned has

Page 27 of 32

provided relevant reasons. 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 necessary for the authority to write out a

judgment as a court of 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

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

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.‖

[Halsbury's Laws of India (Administrative Law) (Lexis Nexis, Online Edition).]

29. Thus, an opinion accompanied by inadequate reasoning would not satisfy the

requirements of Section 432(2) 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 informed decision taking into consideration all the relevant factors.

30. In view of the above discussion, we hold that the petitioner's application for

remission should be reconsidered. We direct the 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 as laid down

in Laxman Naskar v. Union of India [Laxman Naskar v. Union of India, (2000) 2 SCC 595

: 2000 SCC (Cri) 509] . 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 application for remission afresh within a month of

receiving the opinion of the Special Judge, Durg.‖

67. At this juncture the following extract from the judgment of the Hon’ble

Supreme Court in the case of Rajo alias Rajwa alias Rajendra Mandal vs.

State of Bihar & Others

16

may also be noticed:-

―19. 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 remissi on application,

16

2023 SCC OnLine SC 1068

Page 28 of 32

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.

20. All this is not to say that the presiding judge's view is only one of the factors that

has no real weight; but instead that if the presiding judge's report is only reflective of the

facts and circumstances that led to the conclusion of the convict's guilt, and is merely a

reiteration of those circumstances available to the judge at the time of sentencing (some

14 or more years earlier, as the case may be), then the appropriate government should

attach weight to this finding, accordingly. 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

appropriate government, should take a holistic view of all the opinions received (in terms

of the relevant rules), including the judicial view of the presiding judge of the concerned

court, keeping in mind the purpose and objective, of remission.

21. 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. Another factor to bear in mind, is that the presiding

judge would not be the same presiding judge who had occasion to observe the convict (at

a much earlier point in time) and thus form an opinion. The presiding judge, at this stage,

would only look into the record leading to conviction. This judicial involvement in

executive decision making is therefore, largely limited to the input it provides regarding

the nature of the crime, its seriousness, etc. Undoubtedly, even at the stage of sentencing,

the judge ideally is to exercise discretion after looking at a wide range of factors relating

to the criminal and not just the crime; but as noticed in numerous precedents that have

dealt with sentencing in the commission of heinous crimes, this is unfortunately, often not

the reality. Guidance has been offered by this court on how to mitigate this in recent

years, but in this court's considered view, it is pragmatic to acknowledge that it will

require time for our criminal justice system to incorporate, and uniformly reach such

standards. In fact, earlier cases of conviction (such as the present one - in 2001), have an

even lesser probability of a judicial record which reflects consideration of such multi-

dimensional factors at the sentencing stage; the lack of which should not serve as an

obstacle to the convict seeking release (after serving almost two decades, or more),

Page 29 of 32

erasing the reformative journey they may have undertaken as a result of their long

incarceration.

****************************** ****************************** ******************************

30. In light of these findings and the precedents discussed above, it would be

appropriate if the Remission Board reconsidered the petitioner's application for remission

afresh, considering the reports of the police and other authorities, the post-prison record

of the petitioner, the remissions earned (including that which is earned for good conduct)

his age, health condition, family circumstances, and his potential for social engagement,

in a positive manner. 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 (supra), within one month from the date of this judgment. 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 from

the date of this judgment. A copy of this judgment shall be marked by the Registry of this

Court, to the Home Secretary, Government of Bihar, who is the chairperson of the

Remission Board, as well as the concerned Presiding Judge, through the Registrar, High

Court of Judicature at Patna High Court.‖

[Emphasis Supplied]

68. Here too the Hon’ble Supreme Court ultimately sent the matter back to the

State authorities for fresh consideration in accordance with the law obtaining.

69. In such view of the matter, this Court is of the view that the course indicated

by the Hon’ble Supreme Court in the cases of Ram Chander (supra); Jaswant

Singh (supra) and Rajo (supra) should be followed and the matter should be

remitted to the Learned Chief Judge of the City Sessions Court, Calcutta for

rendering a fresh opinion which shall then be considered by the appropriate

State authority while passing the ultimate order. This answers the fifth

question that had fallen for consideration of the Court.

Page 30 of 32

70. Insofar as the petitioner’s contention of parity on the ground of his co-accused

being prematurely released is concerned, the said argument should not detain

this Court for long. It is now well settled that parity cannot be claimed as

matter of absolute right and all the more so in cases of sentence remission and

premature release. In order to claim parity it should either be demonstrated

with an acceptable degree of certainty that the petitioner’s behavioural and

other requisite parameters in terms of remission policy match those of the co-

accused who was granted remission and premature release. Conversely, it

should be shown that the State authorities have applied the remission policy

unequally thereby depriving the petitioner of its benefits despite eligibility while

allowing the same to the co-accused. In both the situations there should be

enough material before the Court to first assess the situational and other

equivalence or similarity between the petitioner and his co-accused in order to

grant parity. There is too scanty material insofar as the petitioner is concerned

and almost nothing insofar as his co-accused is concerned. In such view of the

matter reliance in the case of Jaswant Singh (supra) is misplaced.

71. Trans Mediterranean Airways (supra) has observed that the expression

“court” must be understood in the context of a body that is constituted in order

to settle disputes and decide rights and liabilities of the parties before it.

72. Supreme Court Legal Aid Committee Representing Undertrial Prisoners

(supra) has emphasised that “court” is an agency created by the sovereign for

the purpose of administering justice. It has clarified that the words “court” and

“Judge” are often used interchangeably but they are strictly not synonymous.

Page 31 of 32

CONCLUSION:

73. In view of the discussion made hereinabove, the order impugned herein passed

by the Judicial Secretary, State of West Bengal and communicated to the

petitioner’s learned Advocate under the cover of a letter dated December 24,

2024 is set aside. The Learned Chief Judge, City Sessions Court, Calcutta is

requested to render a fresh opinion taking into account the factors specified in

the case of Laxman Naskar (supra) and reiterated in the case of Ram

Chander (supra) as well as the statutory criteria explained in Bilkis Yakub

Rasool (supra) by the Hon’ble Supreme Court, within a period of one month

from the date of receipt of a copy of this order and forward the same forthwith

to the respondent State authority. The respondent S tate authority shall

thereafter take a fresh decision on the basis of the fresh opinion provided by

the Learned Chief Judge, City Sessions Court, Calcutta within a month from

receipt thereof. It is clarified that while taking the fresh decision, the

respondent State authority shall keep in mind the caution sounded by the

Hon’ble Supreme Court in the case of Ram Chander (supra) and Rajo (supra)

especially to the effect that the State Government is not supposed to

“mechanically follow the opinion of the Presiding Judge‖ and that the decision

should not be taken by “entirely or solely relying on it, but treating it as valuable

(maybe weighty) advice that is based on the judicial record”.

74. It is further clarified that this Court has taken note of the submissions made

by Mr. Galib on behalf of the State that remission applications in the State are

presently being processed in accordance the subsequent notification dated

December 21, 2022 published by the Government of West Bengal, Judicial

Department. However, since the petitioner’s case had been considered by the

Page 32 of 32

SSRB prior to the said notification being issued and publis hed therefore

directing the opinion of the Learned Chief Judge, City Sessions Court, Calcutta

to be placed before the SSRB first for a fresh recommendation upon

consideration of the said opinion which would then fall for the consideration of

the State Government is being consciously avoided in order to expedite the

process which has already come a long way.

75. WPA 2738 of 2025 stands disposed of with the above observations. No costs.

76. Urgent photostat certified copy of this judgment, if applied for, be supplied to

the parties upon compliance of all formalities.

(Om Narayan Rai, J.)