The main legal point established in the judgment is that the petitioner was entitled to claim remission under Section 432 of the Code of Criminal Procedure, and that the provisions of the Jail Manual do not override the substantive provision of Section 432.

JUDGMENT :

1. The learned Additional District & Sessions Judge, Handwara [“the trial Court”] vide its judgment dated 15.04.2017 has convicted the petitioner for commission of offences punishable under Section 376 and Section 506 of the RPC and vide order dated 26.04.2017 sentenced him to rigorous imprisonment for a term of ten years and fine of Rs.20,000/- for offence of rape punishable under Section 376 RPC and sentence of simple imprisonment for a term of four years and fine of Rs.5000/- for the commission of offence punishable under Section 506 RPC. It is provided that the petitioner, in default of payment of fine, shall undergo simple imprisonment for a term of six months with respect to offence of rape and will undergo simple imprisonment for a term of two months in default of payment of fine with respect to offence under Section 506 RPC. The trial Court has specifically directed that the two sentences imposed on the petitioner would run consecutively i.e. one after the expiration of the other. In compliance to the judgment of conviction by the trial Court, the petitioner is undergoing his sentence.

2. As is contended by the learned counsel for the petitioner, the petitioner has already undergone more than seven years of his sentence. The petitioner therefore, claims that he, having undergone substantial portion of his sentence, is entitled to remission under Section 432 of the Code of Criminal procedure.

3. Learned senior counsel appearing for the petitioner submits that the petitioner has made several requests to the Jail authorities to forward his case to the government but the Jail authorities have refused to do so on the ground that his case is not covered by the relevant provisions of the Jail Manual.

4. On being put on notice, respondents have filed their objections. In the objections it is submitted that two fold claim made by the petitioner in the writ petition is not tenable in law. The petitioner is not entitled to any short term probation as the same is not permissible under the Probation of Offenders Act, 1966. Relying upon the provisions of Para 54.1 of the Jail Manual, it is submitted that the case of the petitioner does not fall within the ambit of aforesaid paragraph and, therefore, cannot be placed before the Review Board.

5. Having heard learned counsel for the parties and perused the record, it is necessary to first set out Section 432 of the Code of Criminal Procedure:-

“432. Power to suspend or remit sentences.

(1) When any person has been sentenced to punishment for an offence, the appropriate Government may, at any time, without Conditions or upon any conditions which the person sentenced accepts, suspend the execution of his sentence or remit the whole or any part of the punishment to which he has been sentenced.

(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.

(3) If any condition on which a sentence has been suspended or remitted is, In the opinion of the appropriate Government, not fulfilled, the appropriate Government may cancel the suspension or remission, and thereupon the person in whose favour the sentence has been suspended or remitted may, if at large, be arrested by any police officer, without warrant and remanded to undergo the unexpired portion of the sentence.

(4) The condition on which a sentence is suspended or remitted under this section may be one to be fulfilled by the person in whose favour the sentence is suspended or remitted, or one independent of his will.

(5) The appropriate Government may, by general rules or special orders give directions