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Supreme Court in its judgment delivered yesterday clarified that A State Government while exercising powers under Sections 432, 433, CrPC cannot remit or commute sentence unless the convict has undergone a 14 years of minimum imprisonment. However, it may be opted through Article 161 which allows the Governor to do so, on the aid and advice of the State Government.

A Division Bench of Justice Hemant Gupta and Justice AS Bopanna, while allowing the appeal and drawing parallels between the statutory power and the Constitutional Power, said,

“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. The remission 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.”

It was added,

” 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 of the Code. However, the power of the Hon’ble Governor to commute sentence or to pardon is independent of any such restriction or limitation.

The State Government can frame a policy of grant of remissions either under Section 432 of the Code or under Article 161 of the Constitution. The Governor continues to exercise the power of commutation and release under Article 161 of the Constitution, notwithstanding Section 433-A of the Code.

The action of commutation and release can thus be pursuant to a governmental decision and the order may be issued even without the Governor's approval. However, under the Rules of Business and as a matter of constitutional courtesy, it may seek approval of the Governor, if such release is under Article 161 of the Constitution.”

Appellants had approached the Top Court against an order by Punjab & Haryana High Court, wherein policies of the State Government to grant remission to the prisoners were decided, inter alia, 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.

It was held that the State may also consider the feasibility of having a policy with retrospective operation, provided the same does not lead to discrimination amongst identically situated prisoners.

The High Court added that unless such a policy is put to place, the State Government can exercise its powers under Sections 432 and 433 of the CrPC, 1973 in terms of policy dated August 13, 2008, while strictly adhering to Section 433 A of the Code.

Statutory Provisions

Section 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.

Section 433 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 provided by the Indian Penal Code (45 of 1860);

(b) A sentence of imprisonment for life, for imprisonment for a term not exceeding fourteen years or for fine;

(c) A sentence of rigorous imprisonment, for simple imprisonment for any term to which that person might have been sentenced, or for fine;

(d) A sentence of simple imprisonment, for fine.

Section 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.

Policies circulated by the State Government

April 23, 1987 – convicts on whom punishment of life imprisonment is imposed, for which death is one of the punishments provided by law, or where the sentence of death imposed on a person had been commuted under Section 433 of the Code on or after December 18, 1978, would be considered by the State Government for premature release, after they have undergone 14 years of substantive sentence.

September 28, 1988, November 19, 1991, August 8, 2000 and April 12, 2002 – 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 Governor.

August 13, 2008 – did not contemplate that the individual cases will have to be placed before the Hon’ble Governor.

Issue before the Top Court was whether policy decision dated April 12, 2002 or August 13, 2008, will be applicable to a prisoner convicted on March 25, 2010.

Supreme Court held that the case for premature release of the prisoner can be considered as per policy of 2008, after he completes 14 years of actual imprisonment or may be granted as per the procedure under Article 161 of the Constitution.

Case Title: State of Haryana v. Raj Kumar | CRIMINAL APPEAL NO. 721 of 2021