STATE OF HARYANA & ORS. Vs. RAJ KUMAR @ BITTU, [CRIMINAL APPEAL NO. 721 OF 2021]

HEMANT GUPTA, J (TWO JUDGE BENCH)

3RD AUGUST 2021

LAW POINTS

• Power under Article 161 could be exercised by the State Governments and not by the Governor on his own. The advice of the appropriate Government binds the Head of the State and the policies of the State Government are composite policies, encompassing both situations under Article 161 of the Constitution and Sections 432, 433 and 433-A of the Code.
• Remission granted under Article 161 of the Constitution will override Section 433- A of the Code, if the State Government decides to be governed of its constitutional power.
• A prisoner has to undergo a minimum period of imprisonment of 14 years without remission in the case of an offence, the conviction of which  carries  death sentence, to take benefit of policy of remission framed by an appropriate government under Section 432 of the Code, in view of the overriding provision of Section 433-A. However, the power of the Hon’ble Governor to commute sentence or to pardon is independent of any such restriction or limitation notwithstanding Section 433-A.

BRIEF BACKGROUND

The State government policies dated 28.9.1988, 19.11.1991, 8.8.2000 and 12.4.2002 were issued contemplating that case of premature release would be considered on individual basis after review by the State Level Committee falling within the purview of Section 433 of the Code and cases thereafter shall be put up to the Hon’ble Governor. However, the policy dated 13.8.2008 did not contemplate that the individual cases will have to be placed before the Hon’ble Governor.

The State and the writ petitioner before the High Court, are aggrieved  by  an  order passed by the learned Single Bench of the High Court of  Punjab  &  Haryana  at Chandigarh on 12.5.2020 whereby the policies of the State Government to  grant remission to the prisoners were decided, directing the State to consider the feasibility of drafting a fresh policy particularly in respect of exercise of powers conferred under Article 161 of the Constitution. The Court further  observed  that  till  such  time  a decision is taken, the appropriate Government can exercise its powers under Sections 432 and 433 of the Code of Criminal Procedure, 19732 in terms of  policy  dated 13.8.2008, but while strictly adhering to the restrictions imposed under Section 433- A of the Code

RELEVANT PROVISIONS

The relevant provisions of the Constitution and the Code read as thus: Constitution of India:

“Article 161 – Power of Governor to grant pardons etc., and to suspend, remit or commute sentences in certain cases. – The Governor of a State shall have the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence against any law relating to a matter to which the executive power of the State extends.

Code of Criminal Procedure 1973:

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.

(5) The appropriate Government may, by general  rules  or  special  orders,  give directions as to the suspension of sentences and the conditions on  which  petitions should be presented and dealt with:

• In this section and in Section 433, the expression “appropriate Government” means-

• in cases where the sentence is for an offence against, or the order referred to in sub-section is passed under, any law relating to a matter to which the  executive power of the Union extends, the Central Government;

• in other cases, the Government of the State within which the offender is sentenced or the said order is passed.

433. Power to commute sentence. – The appropriate Government may,  without  the consent of the person sentenced, commute-

• a sentence of death, for any other punishment provided by the Indian Penal Code

• a sentence of imprisonment for life, for imprisonment for a term not exceeding fourteen years or for fine;

• a sentence of rigorous imprisonment, for simple imprisonment  for  any  term  to which that person might have been sentenced, or for fine;

• a sentence of simple imprisonment, for fine.

433-A. Restriction on powers of remission or commutation in certain cases. – 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 fourteen years of imprisonment.”

OBSERVATIONS BY HON’BLE SUPREME COURT

THE PARDON JURISPRUDENCE

In Maru Ram v. Union of India &  Ors., the  Constitution Bench, considering the scope of Article 161 of the Constitution and the provisions of the Code held that the power to remit is a constitutional power and any legislation must fail which seeks to curtail its scope and emasculate its mechanics.

The exercise of this plenary power cannot be left to the fancy, frolic or frown of government, State or Central, but must embrace reason, relevance  and reformation, as all public power in a republic must.

NATURE OF REMISSION POLICY

The policies of remission are in exercise of the powers conferred under Section 59(5) of the Prisons Act, 1894, contemplating “for the award of marks and the shortening of sentences” and thus, they are statutory rules and not mere executive instructions (State  of  Haryana  v.  Mahender  Singh  &  Ors.)

Thus, even if there is no specific reference to the statutory power under which such policies have been issued or even if a wrong provision is mentioned, the policy instructions would continue to be statutory instructions framed either under the Prisons Act, 1894 or under Section 432 of the Code.

POWER OF REMISSION UNDER THE CONSTITUTION AND THE FRUITS OF  ITS EXERCISE VIS-Ã -VIS SECTION 433-A.

The Court observed that statutory provisions  under  the  Code  of Criminal  Procedure that deal with remission and suspension of sentences are separate from Article 161 of the Constitution of India and such statutory provisions cannot affect a constitutional power. The two powers are far from being identical and the constitutional power is ‘untouchable’ and ‘unapproachable’ and cannot suffer the vicissitudes of  simple legislative processes.

However, the Court also explained that the Governor is bound by the advice of the State Government and “the Governor is but a shorthand expression for the State Government.” Therefore, in reality, the power under Article 161 is utilized by the State Government and not the Governor.

Rules are plainly made under the Prisons Act and not under the constitutional power, the former falls under the pressure of Section 433-A.

But, when a State Government frames a policy, it can adopt a composite approach and frame a common policy that encompasses both situations under Article 161 of Constitution of India and other statutory provisions. There is no bar that prohibits a State Government from framing such a policy.

However, the Court cautioned that the power of clemency or pardon is to be exercised carefully and such power was never intended to be used in an unbridled manner as “it is a power  which  the sovereign exercises against its own  judicial mandate. The act of remission of the State does not undo what has been done judicially. The punishment awarded through a judgment is not overruled but the convict gets benefit of a liberalised policy of State pardon.”

And lastly, the Court explained that “a right to be considered for remission, keeping in view the constitutional safeguards of a convict under Articles 20 and 21 of the Constitution of India, must be held to be a legal one.”

DECISION– The directions  issued  by  the  High  Court  are  not  sustainable  for  the reason that the policies have to be read keeping in view the period of imprisonment undergone by a prisoner. The power of remission is to be exercised by the State Government, as an appropriate  Government,  if  the  prisoner  has  undergone  14  years of actual imprisonment in the cases falling within the scope  of  Section  433-A  of  the Code and in case the imprisonment is less than 14 years,  the  power  of  premature release can be exercised by the Hon’ble Governor though on the aid and advice of the State Government

However, the State Government can consider the prisoner in question for premature release after undergoing imprisonment for less than 14 years only under Article 161 of the Constitution.