PATNA UNIVERSITY P.G. DEPARTMENT OF LAW
Execution, Suspension, Remission and Commutation of Sentences Third Semester Project Assignment 2017
Project submitted to:
Ms. Suruchi Faculty, P.G. Department of Law Patna University Project submitted by: Rakesh Roshan Singh ROLL NO.- 19 SEMESTER- 3rd SESSION- 2016-18
COURSE- LL.M.
ACKNOWLEDGMENT In this, third semester of LL.M. Course at PG Deptt. of Law, Patna University, I have got the good fortune to study ‘E xecuti xecuti on, Susp S uspe ensio nsi on, R emi ssio ssi on and Commutation of Sentences’ . Here, the guidance of Ms. Suruchi, Faculty of law, made me able to understand the concept and, thus, I greatly owe to him. He had given a proper direction to my study. His unfettered support made me able to complete this project. I am thankful to other faculty members of Patna University for their co-operation. I am also thankful to the librarians of Patna University for their support. I remain, of course, entirely responsible for any errors.
Rakesh Roshan Singh
2
RESEARCH METHODOLOGY Doctrinal research asks what the law is on a particular issue. It is concerned with analysis of the legal doctrine and how it has been developed and applied.
SOURCES The sources used by the researcher in this project work are primary as well as secondary sources, details of which are given as under:Primary sources: The primary sources used in this project work include Constitution of India, Cr.P.C. and judicial precedents. Secondary sources: As far as secondary sources are concerned books and commentaries have been studied in the present work.
3
TABLE OF CONTENTS
INTRODUCTION .......................................................................................................................... 5 EXECUTION OF SENTENCES ................................................. ................................................... 7 A. -Death sentences .................................................................................................................... 7 B. - Imprisonment .................................................. ..................................................................... 8 C. — Levy of fine ...................................................................................................................... 10 D. — General provisions regarding execution .......................................................................... 12 STATUTORY PROVISIONS FOR REMISSION ................................................. ...................... 14 CONSTITUTION AND STATUTORY PROVISIONS .............................................................. 16 SUSPENSION, REMISSION AND COMMUTATION OF SENTENCES ................................ 17 RESTRICTION ON POWERS OF REMISSION OR COMMUTATION IN CERTAIN CASES ....................................................................................................................................................... 21 CONCLUSION ................................................. ............................................................................ 24 BIBLIOGRAPHY ............................................. ............................................................................ 27
4
INTRODUCTION Power to grant pardon is in essence an executive function to be exercised by the Head of the State after taking into consideration of various matters which may not be germane for consideration before a court of law. The executive's act of grace in showing mercy to an accused or a convicted person takes several forms such as reprieve, pardon, respite, commutation, remission etc. The clemency power of the Executive is absolute and remains unfettered for the reason that the provisions contained under Article 72 or 161 of the Constitution cannot be restricted by the provisions of Sections 432, 433 and 433-A Cr. P.C. though the Authority has to meet the requirements referred to hereinabove while exercising the clemency power. To say that clemency power under Articles 72/161 of the Constitution cannot be exercised by the President or the Governor, as the case may be, before a convict completes the incarceration period provided in the short-sentencing policy, even in an exceptional case, would be mutually inconsistent with the theory that clemency power is unfettered. The Constitution Bench of this Court in Maru Ram clarified that not only the provisions of Section 433-A Cr. P.C. would apply prospectively but any scheme for short sentencing framed by the State would also apply prospectively. Such a view is in conformity with the provisions of Articles 20 (1) and 21 of the Constitution. The expectancy of period of incarceration is determined soon after the conviction on the basis of the applicable laws and the established practices of the State. When a short sentencing scheme is referable to Article 161 of the Constitution, it cannot be held that the said scheme cannot be pressed in service. Even if, a life convict does not satisfy the requirement of remission rules/short sentencing schemes, there can be no prohibition for the President or the Governor of the State, as the case may be, to exercise the power of clemency under the provisions of Article 72 and 161 of the Constitution. Right of the convict is limited to the extent that his case be considered in accordance with the relevant rules etc., he cannot claim pre-mature release as a matter of right. Pardon and remission stand on different footings and give rise to different consequences. Remission and suspension are also not the same. Suspension means a stay of the sentence of the execution of the sentence. The effect of an order of remission is to entitle the prisoner to his freedom on a certain date. Therefore, once that day arrives, he is entitled to be released, and in the eye of law he is a free man from that moment. 5
Two contrary views have always prevailed on the issue of purpose of criminal justice and punishment. The punishment, if taken to be remedial and for the benefit of the convict, remission should be granted. If sentence is taken purely punitive in public interest to vindicate the authority of law and to deter others, it should not be granted. Legal maxim, “Veniae facilitas incentivum est delinquendi ”, is a caveat to the exercise of clemency powers, as it means - “Facility of pardon is an incentive to crime.” It may also prove to be a “grand farce”, if granted ar bitrarily, without any justification, to “privileged class deviants”. Thus, no convict should be a “favoured recipient” of clemency. At the time of considering the case of pre-mature release of a life convict, the authorities may require to consider his case mainly taking into consideration whether the offence was an individual act of crime without affecting the society at large; whether there was any chance of future recurrence of committing a crime; whether the convict had lost his potentiality in committing the crime; whether there was any fruitful purpose of confining the convict any more; the socio-economic condition of the convict’s family and other similar circumstances. Considerations of public policy and humanitarian impulses – supports the concept of executive power of clemency. If clemency power exercised and sentence is remitted, it does not erase the fact that an individual was convicted of a crime. It merely gives an opportunity to the convict to reintegrate into the society. The modern penology with its correctional and rehabilitative basis emphasis that exercise of such power be made as a means of infusing mercy into the justice system. Power of clemency is required to be pressed in service in an appropriate case. Exceptional circumstances, e.g. suffering of a convict from an incurable disease at last stage, may warrant his release even at much early stage.
‘Vana Est Illa Potentia
Quae Nunquam Venit
In Actum’ means-vain is that power which never comes into play. This project work deals with the “ Execution, Suspension, Remission and Commutation of Sentences.”
6
EXECUTION OF SENTENCES A. -Death sentences When in a case submitted to the High Court for the confirmation of a sentence of death, the Court of Session receives the order of confirmation or other order of the High Court thereon, it shall cause such order to be carried into effect by issuing a warrant or taking such other steps as may be necessary.1 When a sentence of death is passed by the High Court in appeal or in revision, the Court of Session shall, on receiving the order of the High Court, cause the sentence to be carried into effect by issuing a warrant.2 Postponement of execution of sentence of death in case of appeal to Supreme Court 3
(1)
Where a person is sentenced to death by the High Court and an appeal from its judgment lies to the Supreme Court under sub-clause (a) or sub-clause (b) of clause (1) of Article 134 of the Constitution, the High Court shall order the execution of the sentence to be postponed until the period allowed for preferring such appeal has expired, or if an appeal is preferred within that period, until such appeal is disposed of.
(2)
where a sentence of death is passed of confirm by the high court, and the person sentenced makes an application to the High Court for the grant of a certificate under Article 132 or under sub-clause (c) of clause (1) of article 134 of the Constitution, the High Court shall order the execution of the sentence to be postponed until such application is disposed of by the High Court, or if a certificate is granted on such application until the period allowed for preferring an appeal to the Supreme Court on such certificate has expired.
(3)
Where a sentence of death is passed or confirmed by the High Court, and the High Court is satisfied that the person sentenced intends to present a petition to the Supreme Court
1
S. 413 of the Code of Criminal Procedure S. 414 of the Code of Criminal Procedure 3 S. 415 of the Code of Criminal Procedure 2
7
for the grant of special leave to appeal under Article 136 of the Constitution, the High Court shall order the execution of the sentence to be postponed for such period as it considers sufficient to enable him to present such petition. Postponement of capital sentence on pregnant woman
If a woman sentenced to death is found to be pregnant, the High Court shall order the execution of the sentence to be postponed and may, if thinks fit commute the sentence to imprisonment for life.4
B. - Imprisonment Power to appoint place of imprisonment 5
(1)
Except when otherwise provided by any law for the time being in force, the State Government may direct in what place any person liable to be imprisoned or committed to custody under this Code shall be confined.
(2)
If any person liable to be imprisoned or committed to custody under this Code is in confinement in a civil jail the Court of Magistrate ordering the imprisonment or committal may direct that the person be removed to a criminal jail.
(3)
When a person is removed to a criminal jail under sub-section (2), he shall, on being released there from, be sent back to the civil jail, unless either(a)
Three years have elapsed since he was removed to the criminal jail, in which case he shall be deemed to have been released from the civil jail under section 58 of the Code of Civil Procedure, 1908 (5 of 1908) or section 23 of the provincial Insolvency Act, 1920 (5 of 1920), as the case may be; or
(b)
The court which ordered his imprisonment in the civil jail has certified to
4
S. 416 of the Code of Criminal Procedure S. 417 of the Code of Criminal Procedure
5
8
the officer-in-charge of the criminal jail that he is entitled to be released under section 58 of the Code of Civil Procedure, 1908 (5 of 1908) or under section 23 of the Provincial Insolvency Act, 1920 (5 of 1920), as the case may be. Execution of sentence of imprisonment 6
(1)
Where the accused is sentenced to imprisonment for life or to imprisonment for a term in cases other than those provided for by section 413, the Court passing the sentence shall forthwith forward a warrant to the jail or other place in which he is, or is to be, confined, and, unless the accused is already confined in such jail or other place, shall forward him to such jail or other place, with the warrant: Provided that where the accused is sentenced to imprisonment till the rising of the Court, it shall not be necessary to prepare or forward a warrant to a jail and the accused may be confined in such place as the court may direct.
(2)
Where the accused is not present in Court when he is sentenced to such imprisonment as is mentioned in subsection (1), the court shall issue a warrant for his arrest for the purpose of forwarding him to jail or other place in which he is to be confined and in such case the sentence shall commence on the date of his arrest.
Direction of warrant for execution. - Every warrant for the execution a sentence of
imprisonment shall be directed to the officer-in charge of th e jail or of the place in which the prisoner is, or is to be, confined.7 Warrant with whom to be lodged. - When the prisoner is to be confined in a jail, the warrant
shall be lodged with the jailor.8
6
S. 418 of the Code of Criminal Procedure S. 419of the Code of Criminal Procedure 8 S. 420 of the Code of Criminal Procedure 7
9
C. — Levy of fine Section 421 : Warrant for levy of fine. –
(1)
When an offender has been sentenced to pay a the court passing the sentence make action for the recovery of the fine in either or - both of the following ways, that is to say, it may (a)
Issue a warrant for the levy of the amount by attachment and sale of any movable property belonging to the offender
(b)
Issue a warrant to the Collector of the district, authorizing him to realize the amount as arrears of land revenue from the movable or immovable property, or both of the defaulters; Provided that, if the sentence directs that in default of payment of the fine, the offender shall be imprisoned, and if such offender has undergone the whole of such imprisonment in default, no court shall issue such warrant unless, for special reasons to be recorded in writing, it considers it necessary so to do, or unless it has made an order for the pa yment of expenses or compensation out of the fine under section 357.
(2)
The State Government may make rules regulating the manner in which warrants under clause (a) of sub-section (1) are to be executed, and for the summary determination of any claims made by any person other than the offender in respect of any property attached in execution of such warrant.
(3)
Where the court issues a warrant to the Collector under clause (b) of sub-section (1), the Collector shall realize the amount in accordance with the law relating to recovery of arrears of' land revenue, as if such warrant were a certificate issued under such law:
10
Provided that no such warrant shall be executed by the arrest or detention in prison of the offender. Section 422: Effect of such warrant. -A warrant issued under clause (a) of sub-section (1) of
section 421 by any court may be executed within the local jurisdiction of such court, and it shall authorise the attachment and sale of any such property outside such jurisdiction, when it is endorsed by the District Magistrate within whose local Jurisdiction such property is found. Section 423: Warrant for levy of fine issued by a court in any territory to which this Code does not extend. - Notwithstanding anything contained in this Code or in any other law
for the time being in force, when an offender has been sentenced to pay a fine by a Criminal Court in any territory to which this Code does not extend and the Court passing the sentence issues a warrant to the Collector of a district in the territories to which this Code extends, authorizing him to realize the amount as if it were an arrear of land revenue, such warrant shall be deemed to be a warrant issued under clause (b) of subsection (1) of section 421 by a court in the territories to which this Code extends, and the provisions of sub-section (3) of the said section as to the execution of such warrant shall apply accordingly. Suspension of execution of sentence of imprisonments 9
(1)
When an offender has been sentenced to fine only and to imprisonment in default of payment of the fine and the fine is not paid forthwith, the court ma y-
(a)
Order that the fine shall be payable either in fully on or before a date not more than thirty days from the date of the order, or in two or three installments, of which the first shall be payable on or before a date not more than thirty days from the date of the order and the other or others at an interval or at intervals, as the case may be, of not more than thirty days;
(b)
Suspend the execution of the sentence of imprisonment and release the offender,
9
S. 424 of the Code of Criminal Procedure
11
on the execution by the offender of a bond, with or without sureties, as the court thinks fit, on conditioned for his appearance before the court on the date or dates on or before which payment of the fine or the installment thereof, as the case may be, is to be made; and if the amount of the fine or of any installment, as the case may be, is not realised on or before the latest date on which it is payable under the order, the court may direct the sentence of imprisonment to be carried into execution at once. (2)
The provisions of sub-section (1) shall be applicable also in any case in which an order for the payment of money has been made on non-recovery of which imprisonment may be awarded and the money is not paid forthwith; and, if the person against whom the order has been made, on being required to enter into a bond such as is referred to in that sub-section, fails to do so, the court may at once pass sentence of imprisonment.
D. — General provisions regarding execution Who may issue warrant: - Every warrant for the execution of a sentence may be issued either by
the Judge or Magistrate who passed the senten ce, or by his successor in-officer. Sentence on escaped convict when to take effect. –
(1)
When a sentence of death, imprisonment for life or fine is passed under this Code on an escaped convict, such sentence shall, subject to the provisions hereinbefore contained, take effect immediately.
(2)
When a sentence of imprisonment for a term is passed under this Code on an escaped convict, -
(a)
If such sentence is severer in kind than the sentence, which such convict was undergoing when he escaped, the new sentence shall take effect immediately;
(b)
If such sentence is not severer in kind than the sentence, which such convict was undergoing when he escaped, the new sentence shall take effect after he has suffered imprisonment for a further period equal to that, which, at the time of his escape, remained 12
unexpired of his former sentence. (3)
For the purposes of sub-section (2), a sentence of rigorous imprisonment shall be deemed to be severer in kind than a sentence of simple imprisonment.
Sentence on offender already sentenced for another offence. –
(1) When a person already undergoing a sentence of imprisonment is sentenced on a subsequent conviction to imprisonment or imprisonment for life, such imprisonment or imprisonment for life shall commence at the expiration of the imprisonment to which he has been previously sentenced, unless the court directs that the subsequent sentence shall run concurrently with such previous sentence: Provided that where a person who has been sentenced to imprisonment by an order under section 122 in default of furnishing security sentenced to imprisonment for an offence committed prior to the making of such order, the latter sentence shall commence immediately. (2)
When a person already undergoing a sentence of imprisonment for life is sentenced on a subsequent conviction to imprisonment for a term o r imprisonment for life, the subsequent sentence shall run concurrently with such previous sentence.
Period of detention undergone by the accused to be set off against the sentence of imprisonment. –
Where an accused person has, on conviction, been sentenced to imprisonment, for a term not being imprisonment in default of payment of fine, the period of detention, if any, undergone by him during the investigation, inquiry or trial of the same case and before the date of such conviction shall be set off against the term of imprisonment imposed on him on such conviction, and the liability of such person to undergo imprisonment on such conviction shall be restricted to the remainder, if any, of the term of imprisonment imposed on him. Return of warrant on execution of sentence. - When a sentence has been fully executed, the
officer executing it shall return the warrant to the court from which it is issued, with an endorsement under his hand certifying the manner in which the sentence has been executed. 13
STATUTORY PROVISIONS FOR REMISSION Indian
legal
mechanism
provides
pardoning
power
sourcing
from
both
statuary and constitutional authorities. By virtue of article 72 and 161 of the Constitution of India,
the
President
and
Governor
can
grant
pardon,
to
suspend,
remit or commute a sentences passed by the courts. In
addition
Procedure
to
the
Code,
above
1973
constitutional
(Cr.P.C)
provides
for
provisions
the
Criminal
Suspension,
remission
and
commutation of sentences. Sections 432, 433, 433A, 434 and 435, empower the government to suspend or remit sentence. When a person has been sentenced to punishment without
for
an
offence,
conditions,
suspend
part of the punishment Indian
Penal
commute therein.
Code
sentence Section
the
Government
execution
of
may a
at
any
time
or
remit
sentence
under this section. Further, Sections 54
(IPC)
of
54
the
confer
death of
or
the
power
sentence
Indian
on of
Penal
the
the and
appropriate
imprisonment
Code
and
1860
for
with
or
whole
or
55
of the
government life
empowers
as
the
to
provided appropriate
Government i.e. the Central Government in the case of an offence committed in the
Union
Territories,
and
State
Government
in
case
of
an
offence
committed
in the States, to commute i.e. to change a punishment to one of a different type than
the
originally
awarded
the
sentence
of
death
to
any
other
punishment
provided under the Code. The powers vested under Section 55 can be exercised by the Government on its own initiative with no prayer to that effect by the accused
in
provision should
question. in
be
punishment
the
The
framers
following
empowered provided
to
by
the
of
the
words:
‘It
commute Code.
Code is
explained
evidently
the
sentence
Many
the
fit of
circumstances
object
of
such
a
that
the
Government
death
for
any
of
which
the
other
executive
authorities ought to be accurately informed, but which more often be unknown to the ablest judges,
may,
at
particular
times
render
it
highly
inconvenient
to
carry a sentence into effect. In have
fact
the
provisions
under
become
redundant
in
sections
view
of
54 the
14
and similar
55
of
Indian
provisions
Penal
Code
contained
under
Section
432
to
appropriate
the
to
434
of
the
Code
Government
of
Criminal
(Central
or
Procedure
State)
to
1973
which
commute
or
empowers
remit
or
to
suspend the sentence passed by the courts. It
is
important
jurisdiction sentence
of
once
Government
the it
note
that
the
matter
courts
since
the
prerogatives
is
accorded
concerned
under
section
Thus,
the
Governor
to
54
of
aforesaid and
the
that the
it
by is
IPC
provisions appropriate
the
court
competent read
of
15
of
the law.
Section powers in
the
falls
beyond
executive Thus,
commute
the
Government
clemency in regard to the convicted person.
of
to
with
exhaust
commutation
the
433 of
it
to
alter
the
is
only
the
sentence of
Cr.
the
matter
of
death
P.C.
1973
President, of
the
exercise
the of
CONSTITUTION AND STATUTORY PROVISIONS The
power
of
the
President
or
Governor
to
remit
sentence
awarded
by
the court is absolute and cannot be fettered by any statutory provision such as Sections be
432,
altered
433,
or
433A
modified
of
Criminal
Procedure
or
interfered
with
code,
1973.
This
any
manner
by
any
statutory
remission
or
to
suspend
in
power
cannot
provision or Prison rules. The
authority
of
the
Government
to
grant
sentence under Section 432 of Cr.P.C is independent of the power conferred on the
Governor
Government
under
and
Article
the
161
Governor
of
have
the
Constitution,
concurrent
powers
no
in
matter
regard
to
both
the
suspension,
remission and commutation of sentence. It
seems
that
superficially
the
two
powers,
one
constitutional
viz.,
Article 72 and 161 and the other statutory viz., Section 433A of Cr.P.C. are coextensive. But two things
may
be
similar
but
not
the
same.
That
is
precisely
the
difference. The power which is the creature of the Code cannot be equated with a high prerogative vested by the Constitution in the highest functionaries of the Union and the States. The source is different, the substance is different, and the strength
is
different,
although
the
stream
may
be
flowing
along
the
same
bed.
Higher the power the more cautious would be its exercise. This is particularly so
because
sponsored 433-A
by
Section
by the
the
433-A
Central
Code
has
been
Government
of
Criminal
passed itself.
by
The
Procedure
the
Parliament
Parliament
(Amendment)
on
introduced Act,
being Section
1978.
It
is
therefore, evident that while exercising the powers under Article 72 and 161 of the Constitution neither the President, who acts on the advice of the Council of ministers, nor the State Government is likely to overlook the object, spirit and philosophy
of
Section
433A
so
as
to
create
intent and the executive power.
16
a
conflict
between
the
legislative
SUSPENSION, REMISSION AND COMMUTATION OF SENTENCES Section 432 of Cr.P.C Power to suspend or remit sentences: 1. When
any
person
appropriate any
been
Government
conditions,
execution
has
of
may,
which
his
sentenced at
the
sentence
to
any
time,
person or
punishment without
sentenced,
remit
the
for
whole
an
offence,
conditions
or
the upon
accepts,
suspend
the
or
part
of
the
Government
for
the
any
punishment to which he has been sentenced. 2. Whenever
the
application
is
or
remission
of
suspension require
the
presiding
made a
Judge
to
the
sentence of
the
appropriate
the
appropriate
Court
before
Government
or
by
may
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 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
appropriate thereupon or
of
the
Government the
remitted
person
may,
if
appropriate
may in
at
cancel
whose large,
the
favour be
Government, suspension
or
sentence
has
the
arrested
not
by
any
fulfilled,
the
remission,
and
been
police
suspended
officer,
without
warrant and remanded to undergo the unexpired portion of the sentence. 4. The
condition
section
may
on be
which one
to
a
sentence
is
suspended
be
fulfilled
by
the
or
person
in
remitted
under
this
whose
favour
the
sentence is suspended or remitted, or one independent of his will. 5. The give
appropriate directions
Government as
to
the
may,
by
suspension
of
general
rules
sentences
or
and
the
special
orders,
conditions
on
which petitions should be presented and dealt with: Provided that in the case of any sentence (other than a sentence of fine) passed on a male person above
the age of eighteen
sentenced
or
by
unless
the
any
other
person
years, no such petition by the person
person sentenced
17
on
his is
behalf in
shall jail,
be
entertained, and
–
(a)
Where
such
a
presented
through
(b)
such
Where
petition
is
the
made
officer
petition
is
by
the
in
made
person
charge
by
any
sentenced,
of
other
the
person,
it
is
jail;
or
it
contains
to
any
a
declaration that the person sentenced is in jail. 6. The
provisions
of
passed by
a
other
which
law
the
above
sub-sections
Criminal Court under restricts
the
any
shall
also
apply
section of this Code
liberty
of
any
person
or
order
or of any
imposes
any
liability upon him or his property. 7. In
this
section
and
in
section
433,
the
expression
"appropriate
Government" means, — a)
In
cases
order
where
referred
relating
to
the to
a
sentence
in
matter
is
for
sub-section to
which
an
6
the
offence
is
against,
passed
executive
under,
power
or
the
any
of
law
the
Union
extends, the Central Government; b)
In
other
cases
the
Government
of
the
State
within
and
402(3)
which
the
offender is sentenced or the said order is passed. Section
432
incorporates
the
provisions
of
section
401
of
the
Old
code. There is no change in substance of the old law. This section does not give any
power
provides
to
the
the
Government
power
of
to
reverse
remitting
the
the
judgment
sentence.
of
The
the
Court,
minimum
but
sentence
awardable under Section 302 of Indian Penal Code, being life imprisonment no reduction the
is
possible.
Constitution
This
speaks
of
power
is
executive
grant
of
reprieves,
in
nature.
pardons
While and
Article
161
of
remissions
etc.,
it
does not speak of imposition of conditions for the grant, whereas section 432 of Criminal
Procedure
Code
condition.
Section
432(3)
conditions,
which
are
speaks
of
remission
specifically
contemplated
provides
by
Section
or for
432(1)
suspension
with
any
of
the
consequences of
Criminal
Procedure
Code not being fulfilled. Section 432 (3) contemplates remanding the person so subjected
to
Code
not
is
remission
to
manifestation
jail of
once Articles
again. 72
separate, though similar provision. 18
Section and
161
432
of
of
the
Criminal
Procedure
Constitution
but
a
In
cases
calling may
of
murder,
the
a
mitigation
of
for
thereupon
take
such
Judge
may
punishment
action
report
to
under
the
this
any
extenuating
Government
section
as
it
and
circumstances
the
thinks
Government
fit.
The
word
remit as used in Section 432 is not a term of art. Some of the meanings of the word "remit” are to pardon, to refrain from inflicting, and to give up. There is therefore,
no
obstacle
in
the
way
of
the
Governor
in
remitting
a
sentence
of
death. When the concerned Court feels sympathetic towards the accused, owing to some reasons such
as
the
wife
of
the
accused
is
a
cancer
patient
with
six children or the accused is a boy of tender years or accused is a young lady who
committed
murder
under
the
influence
of
others
but
legally
constrained
to show mercy, then it recommends such cases to the Government, because the power of granting mercy is vest with the executive but not with the judiciary. An
order
passed
under
Section
432
Cr.P.C.
is
justiciable
on
any
of
the
following grounds: a)
That the authority exercising the power had no jurisdiction.
b)
That the impugned order goes beyond the extent of power conferred by law.
c)
That the order has been obtained on the ground of fraud or that it has been
passed
taking
into
account
the
extraneous
considerations
not
germane to the exercise of the power or in other words, is a result of malafide exercise of power. The brother of the murdered person is considered to one of the most aggrieved parties
and
punishment.
has
the
locus
While
the
State
standi
to
Government
challenge is
not
the
order
legally
of
obliged
to
remission give
of
reasons
for remitting sentence, it is duty bound to reply to allegations made in petition challenging records prima
the
under facie
remission. writ
of
evidence
The
State
Government
certiorari.
The
initial
to
that
the
show
is
onus power
not
is has
bound
on
the
been
to
produce
petitioner exercised
to
the give
malafide.
Reference under sub-section (2) of Section 432 Criminal Procedure Code is not mandatory and therefore
non-compliance
of
the
said 19
provision
does
not
make
the
impugned
Board
is
order
not
without
required
to
jurisdiction.
give
Even
detailed
though
reasons;
the
nevertheless
sentence the
Revising
administrative
orders are subject to judicial review.
Section 433 of Cr.P.C - Power to commute sentence: The
appropriate
Government
may,
without
the
consent
of
the
person
sentenced
commute a) a
sentence
of
death,
for
any
other
punishment
for
life,
for
imprisonment
for
provided
by
the
Indian Penal Code (45 of 1860); b) a
sentence
of
imprisonment
imprisonment
for
a
term
not exceeding fourteen years or for fine; c) a
sentence
any
term
of to
rigorous
which
that
person
might
have
simple been
imprisonment
for
sentenced,
for
or
fine; d) a sentence of simple imprisonment, for fine. The
Supreme
Court
upheld
validity
of
Section
433,
Government
cannot
reduce
or commute sentence to less than 14 years for weighty reasons as the crime was serious.
20
RESTRICTION ON POWERS OF REMISSION OR COMMUTATION IN CERTAIN CASES As
per
Section
433-A
of
the
Code
of
Criminal
Procedure,
notwithstanding anything contained in Section 432, where a sentence of imprisonment for life is imposed
on
conviction
of
a
person
for
an
offence
for
which death is one of the punishments provided by law, or where a sentence of death imposed on a person has been commuted under Section 433 into one of imprisonment for life, such person shall not be released from prison unless he had served at least 14 years of imprisonment. A
life
convict
covered
by
Section
433-A
cannot
invoke
for
his
premature release under Sections 432 and 433 if he has not completed 14 years of actual imprisonment without any remission. The right to ask for remission of sentence by a life convict would be under the law as was prevailing on the date on To
which read
changes
the
down
judgment
or
proposed
tantamount
to
interpret by
hearing
conviction
section
the the
of
433A
Indian
provisions
and
of
the
Penal of
the
Code
Code said
sentence with
was the
aid
(Amendment) bill
as
passed. of
Bill
forming
the
would
part
of
the
Indian Penal Code which is clearly impermissible. To put such an interpretation with
the
aid
of
such
extrinsic
material
would
result
in
violence
to
the
plain
language of section 433A of the Code. By
reason
of
the
powers
conferred
on
Government
by
statute
and
on
the President or Governor by the Constitution for remission of sentences, a life convict is not entitled, as of right to contend that his life imprisonment ought to be
construed
as
imprisonment
for
twenty
years
and
that
the
remissions
earned
by him in prison ought to be necessarily taken into consideration and he should be prematurely released from prison even if the sentences awarded to him is one of imprisonment remission
of
for
life.
sentence
and
Unless orders
the
release
Government prematurely
a
specifically life
convict
grants
cannot
ask
for release on the grounds that he has put in 20 years of sentence in jail with or without remissions. 21
The
mandate
of
Section
433
Cr.P.C.
enables
the
Government
in
an
appropriate case to commute the sentence of a convict and to prematurely order his release before expiry of the sentence was imposed by courts. Clause (b) of Section 433 Cr.P.C. provides that the sentence of imprisonment for life may be commuted The
for
High
imprisonment
Court
can
for
a
direct
term
not
exceeding
consideration
of
14
years
premature
or
release
fine.
by
the
Govt. which has to exercise the power under Section 433 Cr.P.C. in accordance with the rules and established principles. In
Gopal
bench
of
Vinayak the
Supreme
imprisonment whole
of
for
the
sentence
Godse
is
Court
life
must
remaining commuted
v.
State
held
that a
be
treated
period or
of
sentence as
the
remitted
Maharashtra10
of
the
Constitutional
transportation for life or
transportation
convict‘s
by
of
the
or
normal
imprisonment
life,
appropriate
unless
for
the
Government.
said
Dealing
with the Rules framed under the Prisons Act, 1894 it held that even though they were
statutory
prisoner
in
Character
sentenced
to
they
transportation
did
not
confer
an
for
life
to
unconditional
an
indefeasible
right
release
on on
a the
expiry of a particular term including remissions. it is further held that the rules framed under the Prisons Act enabled a prisoner to earn remissions- ordinary, special and State the of
said
remissions
imprisonment
and
were for
to
the
be
given
purpose
of
credit
working
towards
out
the
his
term
remissions
the
sentence of transportation for life was equated with a definite period, but it is only
for
that
observed
that
particular the
purpose
question
of
and
not
remission
for
was
any
other
exclusively
purpose.
within
Lastly
it
province
of
powers
of
the
the appropriate Government. The
Code
remission extreme the
of
and
commutation
category
whole
restriction.
Criminal
from
mandate This
of
the
of
embargo
Procedure sentences;
broad
the
does
rest
directs
it
generosity of that
the
confer
wide
emphatically
intends
of
such
section
commutation
10
AIR 1961 SC 600.Para 5
22
executive
of in
carve
Section
Sec.433A such
to
to
cases
a
out
432.and serious
shall
not
reduce
the
actual
The
State
has
the
many
States
have
for
duration power long
of
to
imprisonment
make
made
and
rules
worked
on
below
Remission
such
rules.
14years.
Systems
They
are
and
intra-vires,
since even new legislations on remissions and rewards are good under Entry 4 of
List
II.
These
Constitution repugnant
but
to
repugnancy,
vintage
suffer
a
a
Central
forces
a
schemes partial
law
do
eclipse
like
the
permanent
not
vanish if
they
Procedure
holiday
on
with
conflict
Code.
the
the
If
prison
enactment with
of
and
Section.433A remission
the
become by
laws
sheer
of
the
States vis -a- vis certain classes of lifers the former must prevail in situations of irreconcilability.
Assuming
that
Rules
under
the
Prisons
Act
are
valid
and
cannot be dismissed as State Law, a harmonious reading of Section 433-A and the Prison Rules must be the way out. Otherwise the later law must prevail or implied the
repeal
may
Remission
be
Rules
inferred.
and
The
like
notwithstanding
Provisions
stand
clauses
excluded
in so
Section far
as
433-A ‘lifers’
punished for capital offenses are concerned. Even
so,
we
must
remember
the
constitutional
status
of
Articles
72
and 161 and it is common ground that section 433-A does not and cannot affect even
a
wee-bit
necessary
sequel
the to
pardon this
power logic
of is
the
Government
that
or
notwithstanding
the
President.
Section
433-A
The the
President and the Governor continue to exercise the power of commutation and release under the aforesaid Articles. is
therefore,
clear
from
the
aforesaid
observations
that
unless
the
sentence for life imprisonment is commuted or remitted as stated earlier by the appropriate
authority
under
the
provisions
of
the
relevant
law,
a
convict
is
bound in law to serve the entire life term in prison the rules framed under the Prisons
Act
or
like
statute
may
enable
such
a
convict
to
earn
remissions
but
such remissions wilt not entitle him to release before he has completed 14 years of incarceration in view of section 433A of the code unless of course power has been exercised under Article 72 and161 of the Constitution.
23
CONCLUSION The power or pardoning and remission are the noblest prerogative of sovereignty. If the laws are too severe, the power of pardoning is a necessary corrective: but that corrective is itself an evil. Make good laws, and there will be no need of a power to annul them. If the punishment is necessary, it ought not to be remitted: if it is not necessary, the convict should not be sentenced to undergo it. Even though there are statutory rules for remission, the authorities are not implementing these guidelines properly. Various cases that came before the several High Courts and Supreme Court have revealed this fact. Frequently the equality clause of the Indian Constitution is violated by the prison authorities. Therefore, it is required that strict rules have to be framed for granting remission. Legal provisions regarding power to suspension or remission by the appropriate Government under section 432 of the Code of Criminal Procedure, 1973. Section 432 of the Code of Criminal Procedure provides the following provisions relating the power to suspension or remission by an appropriate Government: (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.
24
(4) The condition on which a sentence is suspended or remitted under Section 432 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, b y general rules or special orders, give directions as to the suspension of sentences and the conditions on which persons should be presented and dealt with. However, in the case of any sentence (other than a sentence of fine) passed on a male person above the age of eighteen years, no such petition by the person sentenced or by any other person on his behalf shall be entertained, unless the person sentenced is in jail, and; (a) Where such petition is made by that person sentenced, it is presented through the officer in charge of the jail; or (b) Where such petition is made by any other person, it contains a declaration that the person sentenced is in jail. (6) The provisions of the above sub-sections shall also apply to any order passed by a criminal Court under any Section of this Code or of any other law, which restricts the liberty of any person or imposed any liability upon him or his property. (7) In Sections 432 and 433, the expression ‘appropriate Government’ means; (a) In cases where the sentence is for an offence against, or the order referred to in sub-section (6) is passed under any law relating to a matter to which the executive power of the Union extends, the Central Government; (b) In other cases, the Government of the State within which the offender is sentenced or the said order is passed. The powers conferred on the President of India and the Governors of States by Articles 72 and 161 of the Constitution of India to suspend, remit or commute any sentence is ordinarily called ‘mercy jurisdiction’. The judiciary has no such ‘mercy jurisdiction’. ‘Pardon’ and ‘remission’ stand on different footings. The difference between a pardon and a remission of sentence lies in the fact that in the case of pardon it affects both the punishment prescribed for the offence and the guilt of the offender, in other words, a fall pardon may blot out the guilt itself; in the case of remission, the guilt of the offender is not affected nor is the sentence of the Court affected, except in the sense that the person concerned does not suffer incarceration for the entire period of the sentence, but is believed from serving out a part of it.
25
The power to grant pardon is in essence an executive function to be exercised by the Head of the State after taking into consideration various matters which may not be germane for consideration before a Court of law inquiring into the offence. The Government of India and State Governments must dispose of the petitions under Sections 432 and 433 of the Code as expeditiously as possible and a self imposed rule should be followed by the authorities rigorously that every such application shall be disposed of within the period of three months from the date on which it is received. The law governing suspension, remission and commutation of sentence is both statutory and constitutional. The stage for the exercise of this power generally speaking is post-judicial. The grant of remission is a matter of policy and it is for the executive branch of Government to decide as to when, to what extent and in what manner remission is to be granted. The Courts cannot give any direction in the matter of policy which is purely within the executive domain of the Government. It is not the duty of the Government to give reasons in its order of remission. The remission of sentence depends on the concept of mercy and it is not a prisoner’s right. The sentence will not automatically be revived when there is a breach of any condition of suspension or remission. It is only when the Government chooses to pass an order of cancellation of the suspension or remission that the convict is arrested and is required to serve the unexpired portion of the sentence. Section 389 of Cr. P.C. empowers the Court to suspend the sentence and even the conviction but if there is no such suspension, the Competent Authority or the Government’s powers under Section 432, Cr. P.C. are not curtailed in any manner nor there is an embargo on its powers merely because the appeal against the conviction is pending. But when the sentence is suspended and the convict is ordered to be released on bail, such an order prevails over the powers of the Government under Section 432, Cr. P.C.
26
BIBLIOGRAPHY 1. Kelkar R.V., Criminal Procedure, Fifth Edition 2008, Reprint 2011, Eastern Book Company, Lucknow 2. Seervai, H.M. “Constitutional Law of India” vol. I, 3rd Edn; Universal Law Publishing Co. Pvt. Ltd. 3. Singh, Mahendra P.; V.N. Shukla's Constitution of India, 11th Edition, 2008, EBC 4. The Code Of Criminal Procedure, 1973
27
