Case Note & Summary
The petitioner, convicted for murder and sentenced to life imprisonment, sought premature release after completing over 12 years of actual imprisonment. The case was referred to the State Government, which directed the prison authorities to obtain the opinion of the convicting court under Section 432(2) of the Code of Criminal Procedure, 1973. Due to an administrative error, the Superintendent of Yerawada Open Prison wrote to the Sessions Court, Ratnagiri. That court, however, had originally acquitted the petitioner and two others of all charges in Sessions Case No. 48 of 1992. The High Court later set aside the acquittal for the offence under Section 302 read with Section 34 of the Indian Penal Code in Criminal Appeal No. 40 of 1993 and imposed life imprisonment. The Sessions Court, therefore, declined to give its opinion, stating that it had not convicted the petitioner. The petitioner challenged this communication and also prayed for premature release. The Jail Superintendent subsequently addressed letters dated 27.3.2018 and 15.6.2018 directly to the High Court, seeking its opinion. The core legal issue was which court is the appropriate authority to provide the opinion under Section 432(2) Cr.P.C. when the conviction is by the High Court reversing an acquittal. The court examined the statutory scheme of Section 432, noting sub-section (2) requires the opinion of the presiding Judge of the Court before or by which the conviction was had or confirmed. Relying on the Supreme Court’s decision in Sangeet v. State of Haryana, which mandates a case-by-case consideration, the High Court held that the opinion must come from the court that actually convicted the accused. Since the High Court had convicted the petitioner, it was the competent court to give its appraisal. Consequently, the Sessions Court’s refusal was correct. The court further directed that whenever such a communication is received, the Registry should place it on the administrative side before the senior judge of the bench that decided the case, who may then direct its listing before an appropriate bench. The petition was disposed of with these clarifications, leaving the final decision on remission with the Government after receiving the High Court’s opinion.
Headnote
A) Criminal Procedure - Remission of Sentence - Opinion of Convicting Court - Code of Criminal Procedure, 1973, Section 432(2) - Where an accused is acquitted by the trial court but convicted by the High Court on appeal, the opinion required under Section 432(2) Cr.P.C. must be sought from the High Court as the convicting court, and the Sessions Court that originally acquitted cannot be called upon to give such opinion. Held that the communication of the Sessions Court declining to give opinion was correct in law. (Paras 14-16) B) Criminal Procedure - Remission of Sentence - Procedure for High Court Opinion - Code of Criminal Procedure, 1973, Section 432(2) - When the High Court is the convicting court, the Registry must place the request for opinion before the Senior Judge of the Division Bench that delivered the judgment, on the administrative side, for appropriate directions regarding listing before the same or another bench. Held that this procedure ensures proper consideration of the opinion. (Para 17)
Issue of Consideration
Which court is required to give its opinion under Section 432(2) of the Code of Criminal Procedure, 1973, when the conviction has been recorded by the High Court setting aside an acquittal by the Sessions Court, and what is the procedure for the High Court to deal with such a request?
Final Decision
The High Court held that the Sessions Court rightly refused to give opinion because the High Court had convicted the petitioner. The High Court, being the convicting court, must give its opinion under Section 432(2) Cr.P.C. The petition was allowed in part by holding that the High Court will provide its opinion/appraisal on the premature release of the petitioner, and the communication dated 28.6.2016 of the Sessions Court was upheld as correct. Directions were issued for the Registry to place such requests before the Senior Judge of the convicting Bench on the administrative side for further orders.
Law Points
- The opinion under Section 432(2) Cr.P.C. must be obtained from the presiding Judge of the Court that actually convicted the accused
- if the High Court reversed an acquittal and convicted
- the High Court is the convicting court and its opinion must be sought
- the Sessions Court that acquitted cannot opine
- the High Court should follow the administrative procedure of placing the matter before the Senior Judge of the convicting Bench.
