Section 432(2) Cannot Be Rendered Fatuous: Calcutta High Court Reasserts Balance Between Judicial Opinion and Executive Discretion in Remission Matters

“Opinion of Presiding Judge Is Mandatory, But Not Binding”, In a significant pronouncement on remission jurisprudence, the Calcutta High Court has clarified that while the opinion of the Presiding Judge under Section 432(2) of the Code of Criminal Procedure is a mandatory procedural safeguard, it does not eclipse the independent discretion of the State Government.

Justice Om Narayan Rai set aside the State’s rejection of premature release of a life convict, holding that the executive cannot “mechanically follow the opinion of the Presiding Judge” and that remission decisions must reflect a holistic assessment of reformative factors.

The Court held that the negative judicial opinion in the present case was legally deficient and that the State erred in treating it as determinative.

Life Convict, SSRB Recommendation, and Executive Rejection

The petitioner was convicted in 2005 under Sections 302/34 IPC by the XIIth Bench, City Civil and Sessions Court, Calcutta, and sentenced to life imprisonment. His conviction was affirmed by the High Court in 2013 and by the Supreme Court in 2014. Having undergone more than 19 years of actual incarceration, his case was placed before the State Sentence Review Board (SSRB), which in its 69th meeting on 2 September 2022 recommended his premature release.

Despite this recommendation, the Judicial Department rejected his prayer on 24 December 2024, relying on a negative opinion of the Chief Judge, City Sessions Court, Calcutta. The petitioner challenged this order under Article 226 of the Constitution.

“Section 432(2) Cannot Be Rendered Unworkable”: Chief Judge Held Competent

One of the central issues was whether, in absence of the original convicting Judge, the Chief Judge of the City Sessions Court could render an opinion under Section 432(2) CrPC.

Rejecting a narrow interpretation, the Court held that the provision cannot be paralysed merely because the original Bench ceased to exist. Referring to Section 5 of the City Sessions Court Act, 1953 and Section 35 CrPC, the Court concluded that the Chief Judge, deemed to be the Sessions Judge, could act as successor-in-office.

Justice Rai observed: “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 Court thus answered the competence question in the affirmative.

“Mechanical and Stereotype Reasons Are Not Adequate”

Although the Chief Judge was competent to render the opinion, the High Court found that the substance of the opinion failed to satisfy statutory and judicial standards.

The opinion primarily reiterated the brutality of the offence and concluded that the convict “deserves no mercy,” adding that premature release would threaten society.

The Court found that this approach ignored the parameters laid down by the Supreme Court in Laxman Naskar and reiterated in Ram Chander, namely consideration of reformation, potential for recurrence, loss of criminal propensity, socio-economic background, and the purpose of further incarceration.

Quoting the Supreme Court’s guidance in Ram Chander, the High Court emphasized:

“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.”

The Court held that the opinion exhibited “a wholly uncalibrated approach” and lacked assessment of post-conviction conduct, prison behaviour, or reformation. It therefore failed to meet the mandate of Section 432(2) as interpreted in Bilkis Yakub Rasool.

“State Must Not Mechanically Follow Judicial Opinion”

The Judicial Secretary had rejected remission on the footing that a positive recommendation of the presiding Judge was “sine qua non” for premature release.

The High Court categorically disapproved this understanding. Relying on Ram Chander and Rajo alias Rajwa, it clarified that while the judicial opinion carries significant weight, it does not bind the executive.

The Court underscored: “If the opinion of the Presiding Judge does not comply with the requirements of Section 432(2)… the Government may request the Presiding Judge to consider the matter afresh.”

Overemphasis on judicial opinion, the Court noted, would “denude” executive discretion and undermine the reformative objective of remission.

Since the State accepted the negative opinion without examining its adequacy or seeking reconsideration, the impugned order was held unsustainable.

“In Line with SSRB Recommendation” Does Not Mean Automatic Release

The petitioner argued that an earlier order of the High Court directing consideration “in line with the recommendation made by SSRB” bound the State to grant release.

Justice Rai clarified that SSRB recommendations are subject to governmental approval and that the earlier direction required sincere consideration, not blind implementation.

“Anything that needs approval is by nature not binding,” the Court observed, emphasizing that judicial orders must be read contextually and not “like a statute.”

Parity Claim Rejected

The petitioner also sought parity with a co-accused who had been prematurely released. The Court held that parity is not an absolute right in remission matters and must be established on comparable behavioural and statutory parameters. In absence of adequate material, the plea was rejected.

High Court Declines to Exercise Article 226 Power for Direct Release

Though constitutional courts may in compelling circumstances directly grant remission, the High Court declined to do so in the present case, noting paucity of material regarding reformation and comparative factors.

Unlike cases such as Joseph or Sri Gopal Sarkar, where detailed reformative records were available, the present case contained only a detention certificate and a bare SSRB recommendation.

Following the course adopted by the Supreme Court in Ram Chander and Rajo, the Court remitted the matter for fresh opinion and reconsideration.

Remand with Clear Constitutional Caution

The Court set aside the order dated 24 December 2024 and directed the Chief Judge, City Sessions Court, Calcutta, to render a fresh reasoned opinion within one month, considering the parameters laid down in Laxman Naskar, Ram Chander, and Bilkis Yakub Rasool. The State Government was directed to take a fresh decision within one month thereafter, keeping in mind that it is “not supposed to mechanically follow the opinion of the Presiding Judge.”

The ruling reinforces a crucial constitutional balance. Judicial input under Section 432(2) is mandatory and weighty, but remission ultimately remains an executive function guided by reformative justice. The decision sends a clear message that remission jurisprudence must focus not merely on the gravity of the crime, but equally on the transformation of the convict.

Date of Decision: 11 February 2026