REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 721 OF 2021
(ARISING OUT OF SLP (CRIMINAL) NO. 4407 OF 2020)
THE STATE OF HARYANA & ORS. .....APPELLANT(S)
VERSUS
RAJ KUMAR @ BITTU .....RESPONDENT(S)
W I T H
CRIMINAL APPEAL NO. 722 OF 2021
(ARISING OUT OF SLP (CRIMINAL) NO. 4634 OF 2020)
A N D
CRIMINAL APPEAL NO. 723 OF 2021
(ARISING OUT OF SLP (CRIMINAL) NO. 2350 OF 2021)
J U D G M E N T
HEMANT GUPTA, J.
1. The State and the writ petitioner before the High Court,1
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, inter alia, directing the State to
consider the feasibility of drafting a fresh policy particularly in re1 Hereinafter referred to as the ‘prisoner’
1
spect of exercise of powers conferred under Article 161 of the
Constitution. It was also 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 substantial number of identically situated prisoners. 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.
2. The learned Single Bench has referred to certain policies circulated by the State Government. First policy referred to was circulated on 23.4.1987 wherein the convicts on whom punishment of
life imprisonment is imposed on conviction of an offence 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 18.12.78, would be
considered by the State Government for premature release after
they have undergone 14 years of substantive sentence. Thereafter, 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 contem2 For short, the ‘Code’
2
plate that the individual cases will have to be placed before the
Hon’ble Governor.
3. 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.
(2) xxxx xxxx
(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:
Provided that 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 the 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) xxxx xxxx
3
(7) In this section and in Section 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.
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.
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.”
4. The issue arising in the present appeals is regarding applicability
of policy dated 12.4.2002 or the policy dated 13.8.2008 to the
prisoner convicted on 25.3.2010. This Court in State of
4
Haryana & Ors. v. Jagdish
3
inter-alia held (para 52) that the
policy dated 4.2.1993 refers to the exercise of powers under
Article 161 of the Constitution whereas the policy dated
13.8.2008 is in exercise of the powers conferred under Section
432 read with Sections 433 and 433-A of the Code. The said
policy is a rule of procedure, thus, subordinate to the
Constitution. The power exercised under Article 161 is a
mandate of the Constitution, therefore, the policy dated
13.8.2008 cannot override the policy dated 4.2.1993. It is the
said finding which is required to be examined in the present
appeals, though in the context of similar later policy dated
12.4.2002. The two polices are reproduced hereinbelow before
the case of premature release can be considered. The two
polices in juxtaposition read as thus:
3 (2010) 4 SCC 216
5
12th
April, 2002
In supersession of Haryana Government Memo No. 36/135/91-1JJ(II), dated 8-
8-2000 which was further substituted bearing same number and date on 23-
2-2001, the Government have decided to revise the policy regarding
premature release of life convicts as follows:
(aa) Convicts whose Death Their cases may be considered
sentence has been Commuted after completion of 20 years actual
to life imprisonment and convicts sentence and 25 years total
who have been imprisoned for life sentence with remissions.
Having committed a heinous crime
such as”
(i) Murder after rape repeated/chained
rape/unnatural offences.
xxx xxx xxx
(a) Convicts who have been imprisoned Their cases may be considered
for life having committed a heinous after completion of 14 years
actual
crime such as: sentence including undertrial
period provided that the total
period of such sentence including
remissions is not less than 20
years.
(i) Murder with wrongful confinement
for extortion/robbery.
(b) Adult life convicts who have been Their cases may be considered
imprisoned for life but whose cases after completion of 10 years
are not covered under (aa) and (a) actual sentence including undertrial
above and who have committed period provided that the total
crime which are not considered period of such sentence including
heinous as mentioned in clause remissions is not less than 14 years.
13th
August, 2008
No. 36/135/91-1JJ(II)- In exercise of the powers conferred by Sub-section (1) of
Section 432 read with Section 433 of the Code of Criminal Procedure, 1973 (Act 2 of
1974) and in supersession of Haryana Government Memo No. 36/135/91-1JJ(II), dated
the 12
th
April, 2002 and all other earlier policies, the Governor of Haryana hereby
frames the following policy regarding premature release of life convicts, namely:
(a) Convicts whose death sentence has Their cases for pre-mature release may
been commuted to life imprisonment and considered after completion of 20 years
convicts who have been imprisoned for actual sentence and 25 years total
life having committed a heinous crime sentence with remissions.
such as:
(i) Murder with rape/unnatural
offences.
xxx xxx xxx
(b) Convicts who have been imprisoned Their cases for pre-mature release may
for life having committed any crime be considered after completion of 14
which is defined in IPC and/or NDPS years actual sentence including
Act as punishable with death sentence. Undertrial period; provided that the
total period of such sentence including
remissions is not less than 20 years.
(c) Convicts who have been imprisoned Their cases may be considered after
for life having committed a crime completion of 10 years actual sentence
which is defined in IPC as punishable including undertrial period; provided
with life imprisonment but not with that the total period of such sentence
death sentence. Including remissions is not less than
14 years.
6
(aa) & (a) above.
xxx xxx xxx
5. The Director General of Prisons, Haryana shall put up all such premature
release cases to the State Level Committee for consideration. The Committee
will meet once in three months according to the convenience of the Minister
for jails, Haryana so that cases of review under this policy are not delayed.
The Director General of Prisons, Haryana further will forward a copy of the
decision taken by the Committee alongwith the roll of each of the life convict
to the State Government within one week for further action. Such cases will
be put up to the Governor through the Minister for Jails and the Chief
Minister, Haryana with full background of the prisoner and recommendations
of the committee alongwith the copy of judgment etc. for orders under Article
161 of the Constitution of India.
xxx xxx xxx
8. The Director General of Prisons, Haryana shall put up all such premature release
cases to the State Level Committee for consideration. The Committee will meet once
in three months, so that cases of review under this policy are not delayed. The
Director General of Prisons, Haryana will forward a copy of the decision taken by the
Committee along with the commutation roll of each of the life convict to the State
Government within one week for further action. Such cases will be put up to the Chief
Minister, Haryana along with full background of the convicts and recommendations of
the Committee and a copy of the Court judgement etc. for orders under Section 432
Cr.P.C. It is reiterated that no convict has fundamental right of remission or
shortening of sentence. The State Government in exercise of its executive
discretionary power of remission is to consider each individual case keeping in view
all the relevant factors. This policy is issued in exercise of the power of the State in
such a way that no discrimination is made while considering the case of life convicts
for premature release. This policy shall be applicable to all premature release cases
of life convicts with effect from date of notification irrespective of their date of
conviction.
The date for consideration of premature release of a convict would be the date of
completion of his requisite sentence in the policy.
7
5. In Jagdish, this Court did not approve the judgment of this Court
in Sadhu Singh & Ors. v. State of Punjab
4
wherein it was
held that these policies are executive instructions. Instead, this
Court approved the judgment of this Court reported as State of
Haryana v. Mahender Singh & Ors.
5
wherein it was held that
these 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. Sections 401 and
402 of the Code were not empowering the appropriate
Government to issue general or special orders and the conditions
on which petitions for premature release should be presented
and dealt with. The Sections 432 and 433 of the Code had
corresponding provisions in Sections 401 and 402 of the Code
but sub-section (5) of Section 432 empowers an appropriate
Government to issue general or special orders. Therefore, after
the commencement of the Code on 1.4.1974, the power to issue
general or special orders allowing remissions is traceable to
Section 432 of the Code. Hence, the policies issued thereafter
are statutory in nature, having being framed in exercise of
powers conferred on appropriate Government under Section 432
of the Code.
6. None of the policies framed after 1974, except the one which
4 (1984) 2 SCC 310
5 (2007) 13 SCC 606
8
was published in the State Government Gazette on 13.8.2008,
referred to any provision of law under which such decisions have
been communicated to the Director General of Prisons. The
Constitution Bench judgment of this Court reported as L. Hazari
Mal Kuthiala v. Income Tax Officer, Special Circle, Ambala
Cantt.
6
held that exercise of powers will be referrable to a
jurisdiction which confers validity upon it and not to a jurisdiction
under which it will be nugatory. This Court held as under:
“5. …The Commissioner, when he transferred this case,
referred not to the Patiala Income Tax Act, but to the
Indian Income Tax Act, and it is contended that if the
Patiala Income Tax Act was in force for purposes of
reassessment, action should have been taken under that
Act and not the Indian Income Tax Act. This argument,
however, loses point, because the exercise of a power will
be referable to a jurisdiction which confers validity upon it
and not to a jurisdiction under which it will be nugatory.
This principle is well-settled. See Pitamber
Vajirshet v. Dhandu Navlapa [ILR 12 Bom 486, 489] .”
7. Such principle of law was reiterated in a three-Judge Bench
judgment of this Court reported as N. Mani v. Sangeetha
Theatre & Ors.
7
wherein it was held as under:
“9. It is well settled that if an authority has a power under
the law merely because while exercising that power the
source of power is not specifically referred to or a
reference is made to a wrong provision of law, that by
itself does not vitiate the exercise of power so long as the
power does exist and can be traced to a source available
in law.”
8. Therefore, even if there is no specific reference to the statutory
power under which such policies have been issued or even if a
6 AIR 1961 SC 200
7 (2004) 12 SCC 278
9
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.
9. In Maru Ram v. Union of India & Ors.
8
, a Constitution Bench
considering the scope of Article 161 of the Constitution and the
provisions of the Code held as under:
“54. …. The second plea, revolves round ‘pardon
jurisprudence”, if we may coarsely call it that way,
enshrined impregnably in Articles 72 and 161 and the
effect of Section 433-A thereon. The power to remit is a
constitutional power and any legislation must fail which
seeks to curtail its scope and emasculate its mechanics.
Thirdly, 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. On this
basis, we will have to scrutinize and screen the survival
value of the various remission schemes and shortsentencing projects, not to test their supremacy over
Section 433-A, but to train the wide and beneficent power
to remit life sentence without the hardship of fourteen
fettered years.
xxx xxx xxx
57. We now move on to the second contention which
deals with the power of remission under the Constitution
and the fruits of its exercise vis-à-vis Section 433-A.
Nobody has a case – indeed can be heard to contend –
that Article 72 and 161 must yield to Section 433-
A…………………...
xxx xxx xxx
59. It is apparent that superficially viewed, the two
powers, one constitutional and the other statutory, are
coextensive. But two things may be similar but not the
same. That is precisely the difference. We cannot agree
that the power which is the creature of the Code can be
equated with a high prerogative vested by the
8 (1981) 1 SCC 107
10
Constitution in the highest functionaries of the Union and
the States. The source is different, the substance is
different, the strength is different, although the stream
may be flowing along the same bed. We see the two
powers as far from being identical, and, obviously, the
constitutional power is ‘untouchable’ and
‘unapproachable’ and cannot suffer the vicissitudes of
simple legislative processes. Therefore, Section 433-A
cannot be invalidated as indirectly violative of Articles 72
and 161. What the Code gives, it can take, and so, an
embargo on Sections 432 and 433(a) is within the
legislative power of Parliament.
60. Even so, we must remember the constitutional status
of Articles 72 and 161 and it is common ground that
Section 433-A does not stand and cannot affect even a
wee bit the pardon power of the Governor or the
President. The necessary sequel to this logic is that
notwithstanding Section 433-A the President and the
Governor continue to exercise the power of commutation
and release under the aforesaid articles.
61. … The upshot is that the State Government, whether
the Governor likes it or not, can advice and act under
Article 161, the Governor being bound by that advice. The
action of commutation and release can thus be pursuant
to a governmental decision and the order may issue even
without the Governor's approval although, under the Rules
of Business and as a matter of constitutional courtesy, it
is obligatory that the signature of the Governor should
authorise the pardon, commutation or
release…………....The Governor vis-à-vis his Cabinet is no
higher than the President save in a narrow area which
does not include Article 161. The constitutional conclusion
is that the Governor is but a shorthand expression for the
State Government and the President is an abbreviation for
the Central Government.
xxx xxx xxx
69. …. We have no hesitation to reject the notion that
Articles 72/161 should remain uncanalised. We have to
direct the provisional acceptance of the remission and
short-sentencing schemes as good guide-lines for exercise
of pardon power – a jurisdiction meant to be used as often
and as systematically as possible and not to be abused,
much as the temptation so to do may press upon the pen
of power.
11
70. The learned Solicitor-General is right that these Rules
are plainly made under the Prisons Act and not under the
constitutional power, the former fail under the pressure of
Section 433-A. But that, by no means, precludes the
States from adopting as working rules the same remission
schemes which seem to us to be fairly reasonable. After
all, the government cannot meticulously study each
prisoner and the present praxis of marks, until a more
advanced and expertly advised scheme is evolved, may
work. Section 433-A cannot forbid this method because it
is immunized by Article 161. We strongly suggest that,
without break, the same rules and schemes of remission
be continued as a transmigration of soul into Article 161,
as it were, and benefits extended to all who fall within
their benign orbit – save, of course, in special cases which
may require other relevant consideration. The wide power
of executive clemency cannot be bound down even by
self-created rules.
xxx xxx xxx
72. We conclude by formulating our findings:
(1) xxx xxx
(2) We affirm the current supremacy of Section 433-A
over the Remission Rules and short-sentencing
statutes made by the various States.
(3) xxx xxx
(4) We hold that Section 432 and Section 433 are not a
manifestation of Articles 72 and 161 of the
Constitution but a separate, though similar power,
and Section 433-A, by nullifying wholly or partially
these prior provisions does not violate or detract
from the full operation of the constitutional power to
pardon, commute and the like.
(5) xxx xxx
(6) We follow Godse case to hold that imprisonment for
life lasts until the last breath, and whatever the
length of remissions earned, the prisoner can claim
release only if the remaining sentence is remitted by
government.
(7) xxx xxx
(8) The power under Articles 72 and 161 of the
Constitution can be exercised by the Central and
State Governments, not by the President or Governor
on their own. The advice of the appropriate
Government binds the Head of the State. No
12
separate order for each individual case is necessary
but any general order made must be clear enough to
identify the group of cases and indicate the
application of mind to the whole group.
(9) xxx xxx
(10) Although the remission rules or short-sentencing
provisions proprio vigore may not apply as against
Section 433-A, they will override Section 433-A if the
government, Central or State, guides itself by the
self-same rules or schemes in the exercise of its
constitutional power. We regard it as fair that until
fresh rules are made in keeping with experience
gathered, current social conditions and accepted
penological thinking – a desirable step, in our view –
the present remission and release schemes may
usefully be taken as guide-lines under Articles 72/161
and orders for release passed. We cannot fault the
government, if in some intractably savage
delinquents, Section 433-A is itself treated as a
guide-line for exercise of Articles 72/161. These
observations of ours are recommendatory to avoid a
hiatus, but it is for Government, Central or State, to
decide whether and why the current Remission Rules
should not survive until replaced by a more
wholesome scheme.
(11) The U.P. Prisoners’ Release on Probation Act, 1938,
enabling limited enlargement under licence will be
effective as legislatively sanctioned imprisonment of
a loose and liberal type and such licensed
enlargement will be reckoned for the purpose of the
14-year duration. Similar other statutes and rules will
enjoy similar efficacy.
xxx xxx”
10. The Constitution Bench in Union of India v. V. Sriharan &
Ors.
9
inter alia examined the provisions of Articles 161 and 162
of the Constitution. It was held as under:
“22. Therefore, the resultant position would be that the
Executive Power of the Union and its authorities in relation
to grant of remission, commutation, etc. are available and
can be exercised by virtue of the implication of Article
73(1)(a) read along with its proviso and the exercise of
9 (2016) 7 SCC 1
13
such power by the State would be controlled and limited
as stipulated in the proviso to Article 162 to the extent to
which such control and limitations are prescribed in the
Criminal Procedure Code.”
11. Thus, the power under Article 161 of the Constitution can be
exercised by the State Governments, not by the Governor on his
own. The advice of the appropriate Government binds the Head
of the State. No separate order for each individual case is
necessary but any general order made must be clear enough to
identify the group of cases and indicate the application of mind
to the whole group. Therefore, 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. 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.
12. In State of Haryana v. Nauratta Singh & Ors.
10
, this Court
referred to Maru Ram’s case holding that period of 14 years as
specified in Section 433-A of the Code is the actual period of
imprisonment undergone by the prisoner without including any
period of remission. This Court was examining the case where
the accused was acquitted by the trial court but was convicted
by the High Court. He was on bail during the pendency of the
appeal before the High Court. The claim of the prisoner was that
10 (2000) 3 SCC 514
14
the period of bail in terms of the order of the High Court has to
be included in the period of 14 years of imprisonment. The Court
held as under:
“5. We may point out that Section 433-A of the Code was
introduced in the statute-book on 8-12-1978 by which the
power of a State Government to release a person (who
has been convicted and sentenced to life imprisonment of
any offence punishable with death or imprisonment for
life) has been curtailed by introducing the rider that such
convicted person should have served at least 14 years of
imprisonment. A Constitutional Bench of this Court has
held in Maru Ram v. Union of India that the period of 14
years envisaged in the new provision is the actual period
of imprisonment undergone by the prisoner without
including any period of remission.”
9. In Jagdish, the question raised was as to whether the policy
which makes a provision for remission of sentence should be the
one which was existing on the date of the conviction of the
accused or the one which existed on the date of consideration of
his case for premature release by the appropriate authority. The
Court held that the amendment inserting Section 433-A in the
Code would apply prospectively. The life convicts who had been
sentenced prior to 18.12.1978 i.e., date of enforcement of
amendment would not come within the purview of the provisions
of Section 433-A of the Code. The remission rules/short-sentencing policies could be taken as guidelines for exercise of powers
under Article 72 or 161 of the Constitution and in such an eventuality, remission rules would override Section 433-A of the
Code. This Court held that Section 433-A of the Code cannot and
does not in any way affect the constitutional power conferred on
15
the President/Governor under Articles 72/161 of the Constitution.
It was held as under:
“26. This Court in Ashok Kumar [(1991) 3 SCC 498 : 1991
SCC (Cri) 845 : AIR 1991 SC 1792] considered the matter
elaborately taking into consideration a large number of its
earlier judgments including Maru Ram [(1981) 1 SCC 107 :
1981 SCC (Cri) 112] , Bhagirath v. Delhi Admn. [(1985) 2
SCC 580 : 1985 SCC (Cri) 280 : AIR 1985 SC 1050] ; Kehar
Singh v. Union of India [(1989) 1 SCC 204 : 1989 SCC (Cri)
86 : AIR 1989 SC 653] and came to the following
conclusions:
(i) Section 433-A CrPC denied premature release
before completion of actual 14 years of incarceration to only those limited convicts convicted of a
capital offence i.e. exceptionally heinous crime;
(ii) Section 433-A CrPC cannot and does not in any
way affect the constitutional power conferred on
the President/Governor under Articles 72/161 of the
Constitution;
(iii) Remission Rules have a limited scope and in
case of a convict undergoing sentence for life imprisonment, it acquires significance only if the sentence is commuted or remitted subject to Section
433-A CrPC or in exercise of constitutional power
under Article 72/161 of the Constitution; and
(iv) Case of a convict can be considered under Articles 72 and 161 of the Constitution treating the
1958 Rules.
xx xx xx
28. Nevertheless, we may point out that the power of
the sovereign to grant remission is within its exclusive
domain and it is for this reason that our Constitution
makers went on to incorporate the provisions of Article
72 and Article 161 of the Constitution of India. This responsibility was cast upon the executive through a
constitutional mandate to ensure that some public
purpose may require fulfilment by grant of remission
in appropriate cases. This power was never intended
to be used or utilised by the executive as an unbridled
power of reprieve. Power of clemency is to be exercised cautiously and in appropriate cases, which in effect, mitigates the sentence of punishment awarded
and which does not, in any way, wipe out the convic16
tion. 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. However, the exercise of
such power under Article 161 of the Constitution or under Section 433-A CrPC may have a different flavour in
the statutory provisions, as short-sentencing policy
brings about a mere reduction in the period of imprisonment whereas an act of clemency under Article 161
of the Constitution commutes the sentence itself. as
guidelines.”
13. Thus, 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.
17
14. Still further, it is the consistent view of this Court that the policy
prevalent at the time of conviction shall be taken into
consideration for considering the premature release of a prisoner.
In Jagdish, while determining the policy which would be
applicable for the remission of sentence, this Court held as under:
“27. In Mahender Singh, this Court as referred to
hereinabove held that the policy decision applicable
in such cases would be which was prevailing at the
time of his conviction. This conclusion was arrived on
the following ground: (SCC p. 619, para 38)
38. 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. Such a legal right emanates from not only
the Prisons Act but also from the Rules framed
thereunder.”
15. The policy of premature release dated 13.8.2008 was issued in
the name of the Governor and was published in the official
Gazette. Such notification is said to have been issued in exercise
of the powers conferred under sub-section (1) of Sections 432
and 433 of the Code. Keeping in view the principles of law
enunciated above, such policy is in exercise of the powers
conferred on the appropriate Government in terms of the
provisions of the Code and is thus statutory in nature. The other
policy dated 12.4.2002 is in fact a memo issued by the Financial
Commissioner and Secretary to Government, Haryana, Jails
Department, Chandigarh to the Director General of Prisons,
18
Haryana, Chandigarh. Such policy of premature release would
again be traceable to the provisions of the Code.
16. Mr. Nikhil Goel, learned Additional Advocate General for the State
of Haryana, submitted that different policies have been issued
from time to time and the later policy has superseded the earlier
one, so there was no hiatus when a policy of premature release
was not in operation or at any given point of time, the two
polices were operational. The argument of Mr. Goel merit
acceptance inasmuch as the policy dated 12.4.2002 is in
supersession of earlier policy circulated on 8.8.2000 substituted
later on 23.2.2001. The policy dated 13.8.2008 has substituted
the earlier policy dated 12.4.2002 and such policy has been
published on behalf of the Governor of the State. The policy
dated 13.8.2008 has been issued in exercise of powers conferred
by sub-section (1) of Section 432 read with Section 433 of the
Code and in supersession of Government Memorandum dated
12.4.2002 and all other policies. The policy dated 13.8.2008 is a
statutory policy. The said policy cannot and has not tried to take
over the discretion vested in the Hon’ble Governor to grant
pardons, remissions or commute sentence in exercise of powers
conferred under Article 161 of the Constitution but it is the policy
issued under a Statute and therefore, such policy has a statutory
force. The policy dated 12.4.2002 is again a statutory policy and
cannot be put at a higher pedestal than the policy dated
13.8.2008 for the reason that it seeks approval from the Hon’ble
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Governor. Such policy has been specifically superseded on
13.8.2008, ceases to be operative for the convicts who are
convicted after 13.8.2008.
17. Section 433-A of the Code starts with a non-obstante clause
restricting the right of the appropriate Government, to suspend
the sentence of imprisonment for life imposed on conviction of a
person for an offence for which death is one of the punishments
provided by law, that such person shall not be released from
prison unless he has served at least 14 years of imprisonment.
Therefore, the power of the appropriate Government to release a
prisoner after serving 14 years of actual imprisonment is vested
with the State Government. On the other hand, the power
conferred on the Governor, though exercised on the aid and
advice of the State, is without any restriction of the actual period
of imprisonment undergone by the prisoner. Thus, if a prisoner
has undergone more than 14 years of actual imprisonment, the
State Government, as an appropriate Government, is competent
to pass an order of premature release, but if the prisoner has not
undergone 14 years or more of actual imprisonment, the
Governor has a power to grant pardons, reprieves, respites and
remissions of punishment or to suspend, remit or commute the
sentence of any person de hors the restrictions imposed under
Section 433-A of the Constitution. Such power is in exercise of
the power of the sovereign, though the Governor is bound to act
on the aid and advice of the State Government.
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18. The policy of 12.4.2002 is applicable in the cases of the
prisoners who have undergone actual sentence of 14 years of
imprisonment and also the prisoners who have not completed 14
years of actual imprisonment. Therefore, the cases of the
prisoners who have completed 14 years of actual imprisonment
can be decided by the State Government in terms of Sections
432 and 433 of the Code unless the State Government choses to
seek the approval of the Hon’ble Governor. There is nothing
illegal or improper to seek approval of the Hon’ble Governor in
all cases but in the cases where the prisoner has not undergone
14 years of actual imprisonment falling within scope of Section
433-A of the Code, it is for the Hon’ble Governor to exercise the
power conferred under Article 161 of the Constitution, though on
the aid and advice of the State Government. We find that clause
(b) of the policy dated 12.4.2002 provided for the cases of the
prisoners to be considered after completion of 10 years of actual
sentence including undertrial period provided the total period of
such sentence including remission is not less than 14 years. The
remissions not contemplated by Section 433-A of the Code, the
power to remit or commute sentence can be exercised by the
Governor in exercise of the power conferred under Article 161 of
the Constitution. This explains the last line in the policy that
such cases will be put up before the Governor with full
background of the prisoner and recommendation of the
Committee including copy of the judgment for orders under
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Article 161 of the Constitution.
19. The Notification dated 13.8.2008 published in exercise of the
powers conferred upon an appropriate Government under
Section 432(5) of the Code, provides that 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. Therefore,
all the polices issued from time to time are under Section 432 of
the Code, though no reference is made to such provisions in any
of the policies except the last one dated 13.8.2008. The source of
power to frame guidelines or the policies for remission etc.
was earlier in Section 59(5) of the Prisons Act, 1894 and now in
terms of Section 432(5) of the Code. Therefore, such policies are
statutory in nature, framed in exercise of power conferred upon
appropriate government under Section 432(5) of the Code.
20. The clause 2(c) of the policy dated 13.8.2008 deals with the
convicts who have been imprisoned for life having committed a
crime which is defined in the Indian Penal Code, 1860 (IPC) as
punishable for life imprisonment but not with death sentence.
The cases of such prisoners can be considered after completion
of 10 years of actual sentence including undertrial period
provided the total period of such sentence including remission is
not less than 14 years. The distinction is that in such cases, the
remission is taken into consideration whereas, the remissions
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earned by a prisoner convicted for an offence under Section 302
IPC, an offence punishable with death, cannot be considered for
premature release. If such a prisoner is to be considered for
premature release in the cases of life imprisonment for an
offence under IPC, the bar under Section 433-A of the Code
would not apply. The judgment in Jagdish has to be read in the
light of the distinction which we have drawn between the power
exercised by the Hon’ble Governor and the power to be exercised
by the State Government.
21. Therefore, we find that 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.
22. Consequently, the directions issued by the learned Single Bench
are not sustainable and are hereby set aside.
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23. The prisoner herein has completed 12 years and 25 days as on
6.7.2021 as per the custody certificate produced by the State.
The case for premature release of the prisoner in terms of the
policy of the State Government dated 13.8.2008, the policy
which was applicable on the date of his conviction, can be
considered only after he completes 14 years of actual
imprisonment. 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.
24. The appeals are disposed of accordingly.
.............................................J.
(HEMANT GUPTA)
.............................................J.
(A.S. BOPANNA)
NEW DELHI;
AUGUST 03, 2021.
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