PATNA UNIVERSITYP.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 ‘Execution, Suspension, Remission 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 Secondary sources: As far as secondary sources are concerned books and commentaries have been studied in the present work. SOURCES The sources used by the researcher in this project work are primary as well as secondary sources. Cr.C. details of which are given as under:- Primary sources: The primary sources used in this project work include Constitution of India. It is concerned with analysis of the legal doctrine and how it has been developed and applied. and judicial precedents. RESEARCH METHODOLOGY Doctrinal research asks what the law is on a particular issue. 3 .P. ........ 27 4 ........................................................................ 10 D............................... -Death sentences ....................................................................... 17 RESTRICTION ON POWERS OF REMISSION OR COMMUTATION IN CERTAIN CASES ........................................................................................................... 7 A.................. —Levy of fine .............................................. 21 CONCLUSION ...................................... 24 BIBLIOGRAPHY .................................................................................. ................................ 7 B............................................................................. REMISSION AND COMMUTATION OF SENTENCES ..................... 16 SUSPENSION.................................... 8 C...................................................................................... TABLE OF CONTENTS INTRODUCTION ................................................................................................................................................................... 14 CONSTITUTION AND STATUTORY PROVISIONS ........................................................................... 12 STATUTORY PROVISIONS FOR REMISSION .............................................................................................................................Imprisonment ................. 5 EXECUTION OF SENTENCES .................................................... —General provisions regarding execution ............................................................. he cannot claim pre-mature release as a matter of right. 433 and 433-A Cr. and in the eye of law he is a free man from that moment.C. Therefore. would apply prospectively but any scheme for short sentencing framed by the State would also apply prospectively. would be mutually inconsistent with the theory that clemency power is unfettered. 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. respite. remission etc. pardon. 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. The effect of an order of remission is to entitle the prisoner to his freedom on a certain date. Right of the convict is limited to the extent that his case be considered in accordance with the relevant rules etc.. as the case may be. To say that clemency power under Articles 72/161 of the Constitution cannot be exercised by the President or the Governor. 5 .C. P. there can be no prohibition for the President or the Governor of the State. before a convict completes the incarceration period provided in the short-sentencing policy. once that day arrives. The executive's act of grace in showing mercy to an accused or a convicted person takes several forms such as reprieve. Even if. P. The Constitution Bench of this Court in Maru Ram clarified that not only the provisions of Section 433-A Cr. as the case may be. he is entitled to be released. Remission and suspension are also not the same. a life convict does not satisfy the requirement of remission rules/short sentencing schemes. Suspension means a stay of the sentence of the execution of the sentence. 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. When a short sentencing scheme is referable to Article 161 of the Constitution. Such a view is in conformity with the provisions of Articles 20 (1) and 21 of the Constitution. commutation. though the Authority has to meet the requirements referred to hereinabove while exercising the clemency power. even in an exceptional case. to exercise the power of clemency under the provisions of Article 72 and 161 of the Constitution. Pardon and remission stand on different footings and give rise to different consequences. it cannot be held that the said scheme cannot be pressed in service. without any justification. If clemency power exercised and sentence is remitted. Legal maxim. e. Power of clemency is required to be pressed in service in an appropriate case. At the time of considering the case of pre-mature release of a life convict. It merely gives an opportunity to the convict to reintegrate into the society. whether the convict had lost his potentiality in committing the crime. ‘Vana Est Illa Potentia Quae Nunquam Venit In Actum’ means-vain is that power which never comes into play. 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. if taken to be remedial and for the benefit of the convict. whether there was any chance of future recurrence of committing a crime. This project work deals with the “Execution. to “privileged class deviants”. remission should be granted. whether there was any fruitful purpose of confining the convict any more. if granted arbitrarily. it should not be granted.” It may also prove to be a “grand farce”.g. Thus.” 6 . is a caveat to the exercise of clemency powers. Remission and Commutation of Sentences.“Facility of pardon is an incentive to crime. Exceptional circumstances. Considerations of public policy and humanitarian impulses – supports the concept of executive power of clemency. Suspension. the socio-economic condition of the convict’s family and other similar circumstances. suffering of a convict from an incurable disease at last stage. it does not erase the fact that an individual was convicted of a crime. may warrant his release even at much early stage. “Veniae facilitas incentivum est delinquendi”.Two contrary views have always prevailed on the issue of purpose of criminal justice and punishment. If sentence is taken purely punitive in public interest to vindicate the authority of law and to deter others. The punishment. no convict should be a “favoured recipient” of clemency. as it means . 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. -Death sentences When in a case submitted to the High Court for the confirmation of a sentence of death. 413 of the Code of Criminal Procedure 2 S. 415 of the Code of Criminal Procedure 7 . 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. EXECUTION OF SENTENCES A. 414 of the Code of Criminal Procedure 3 S. or if an appeal is preferred within that period. (2) where a sentence of death is passed of confirm by the high court. it shall cause such order to be carried into effect by issuing a warrant or taking such other steps as may be necessary. the High Court shall order the execution of the sentence to be postponed until the period allowed for preferring such appeal has expired. the Court of Session shall. the Court of Session receives the order of confirmation or other order of the High Court thereon. (3) Where a sentence of death is passed or confirmed by the High Court.2 Postponement of execution of sentence of death in case of appeal to Supreme Court3 (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 such application is disposed of by the High Court. until such appeal is disposed of. cause the sentence to be carried into effect by issuing a warrant. 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.1 When a sentence of death is passed by the High Court in appeal or in revision. on receiving the order of the High Court. and the High Court is satisfied that the person sentenced intends to present a petition to the Supreme Court 1 S. 1920 (5 of 1920). be sent back to the civil jail. for the grant of special leave to appeal under Article 136 of the Constitution. 417 of the Code of Criminal Procedure 8 . (3) When a person is removed to a criminal jail under sub-section (2).Imprisonment Power to appoint place of imprisonment5 (1) Except when otherwise provided by any law for the time being in force. the High Court shall order the execution of the sentence to be postponed and may. 416 of the Code of Criminal Procedure 5 S. unless either- (a) Three years have elapsed since he was removed to the criminal jail. or (b) The court which ordered his imprisonment in the civil jail has certified to 4 S. as the case may be. Postponement of capital sentence on pregnant woman If a woman sentenced to death is found to be pregnant. the State Government may direct in what place any person liable to be imprisoned or committed to custody under this Code shall be confined. 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. in which case he shall be deemed to have been released from the civil jail under section 58 of the Code of Civil Procedure. he shall. if thinks fit commute the sentence to imprisonment for life.4 B. 1908 (5 of 1908) or section 23 of the provincial Insolvency Act. on being released there from. (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. . Direction of warrant for execution. 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. 1908 (5 of 1908) or under section 23 of the Provincial Insolvency Act. unless the accused is already confined in such jail or other place.When the prisoner is to be confined in a jail.Every warrant for the execution a sentence of imprisonment shall be directed to the officer-in charge of the jail or of the place in which the prisoner is. the Court passing the sentence shall forthwith forward a warrant to the jail or other place in which he is. 420 of the Code of Criminal Procedure 9 . and. (2) Where the accused is not present in Court when he is sentenced to such imprisonment as is mentioned in subsection (1).7 Warrant with whom to be lodged. the officer-in-charge of the criminal jail that he is entitled to be released under section 58 of the Code of Civil Procedure. with the warrant: Provided that where the accused is sentenced to imprisonment till the rising of the Court. 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. . confined. confined. 418 of the Code of Criminal Procedure 7 S. or is to be.8 6 S. the warrant shall be lodged with the jailor. Execution of sentence of imprisonment6 (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. 419of the Code of Criminal Procedure 8 S. 1920 (5 of 1920). as the case may be. shall forward him to such jail or other place. . or is to be. if the sentence directs that in default of payment of the fine. —Levy of fine Section 421 : Warrant for levy of fine.both of the following ways. it considers it necessary so to do. the offender shall be imprisoned. no court shall issue such warrant unless. 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.C. 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. authorizing him to realize the amount as arrears of land revenue from the movable or immovable property. Provided that. that is to say. as if such warrant were a certificate issued under such law: 10 . or both of the defaulters. or unless it has made an order for the payment of expenses or compensation out of the fine under section 357. and if such offender has undergone the whole of such imprisonment in default. – (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. the Collector shall realize the amount in accordance with the law relating to recovery of arrears of' land revenue. (2) The State Government may make rules regulating the manner in which warrants under clause (a) of sub-section (1) are to be executed. (3) Where the court issues a warrant to the Collector under clause (b) of sub-section (1). for special reasons to be recorded in writing. Notwithstanding anything contained in this Code or in any other law for the time being in force. (b) Suspend the execution of the sentence of imprisonment and release the offender. Section 422: Effect of such warrant. authorizing him to realize the amount as if it were an arrear of land revenue. 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. Suspension of execution of sentence of imprisonments9 (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. as the case may be. of not more than thirty days. and it shall authorise the attachment and sale of any such property outside such jurisdiction. or in two or three installments. 424 of the Code of Criminal Procedure 11 . 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. 9 S. 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. 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. Provided that no such warrant shall be executed by the arrest or detention in prison of the offender. the court may- (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. and the provisions of sub-section (3) of the said section as to the execution of such warrant shall apply accordingly. . -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. at the time of his escape. the new sentence shall take effect immediately. remained 12 . —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 sentence. on being required to enter into a bond such as is referred to in that sub-section. with or without sureties. the court may direct the sentence of imprisonment to be carried into execution at once. which such convict was undergoing when he escaped. Sentence on escaped convict when to take effect. which. as the case may be. as the case may be. imprisonment for life or fine is passed under this Code on an escaped convict. (b) If such sentence is not severer in kind than the sentence. is to be made. take effect immediately. (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 impris- onment may be awarded and the money is not paid forthwith. as the court thinks fit. the court may at once pass sentence of imprisonment. on the execution by the offender of a bond. which such convict was undergoing when he escaped. or by his successor in-officer. 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. if the person against whom the order has been made. – (1) When a sentence of death. such sentence shall. and. - (a) If such sentence is severer in kind than the sentence. fails to do so. the new sentence shall take effect after he has suffered imprisonment for a further period equal to that. and if the amount of the fine or of any installment. (2) When a sentence of imprisonment for a term is passed under this Code on an escaped convict. subject to the provisions hereinbefore contained. is not realised on or before the latest date on which it is payable under the order. D. been sentenced to imprisonment. if any. 13 . 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. (2) When a person already undergoing a sentence of imprisonment for life is sentenced on a subsequent conviction to imprisonment for a term or imprisonment for life. 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. – (1) When a person already undergoing a sentence of imprisonment is sentenced on a subsequent conviction to imprisonment or imprisonment for life. with an endorsement under his hand certifying the manner in which the sentence has been executed. the latter sentence shall commence immediately. the period of detention. if any. the officer executing it shall return the warrant to the court from which it is issued. for a term not being imprisonment in default of payment of fine. undergone by him during the investigation. (3) For the purposes of sub-section (2). on conviction. unexpired of his former sentence. Sentence on offender already sentenced for another offence. Period of detention undergone by the accused to be set off against the sentence of imprisonment. a sentence of rigorous imprisonment shall be deemed to be severer in kind than a sentence of simple imprisonment. – Where an accused person has. such imprisonment or imprisonment for life shall commence at the expiration of the imprisonment to which he has been previously sentenced. the subsequent sentence shall run concurrently with such previous sentence. of the term of imprisonment imposed on him. and the liability of such person to undergo imprisonment on such conviction shall be restricted to the remainder. -When a sentence has been fully executed. Return of warrant on execution of sentence. 433. 433A. to commute i. the Government may at any time and with or without conditions. may. Section 54 of the Indian Penal Code 1860 empowers the appropriate Government i.P. The framers of the Code explained the object of such a provision in the following words: ‘It is evidently fit that the Government should be empowered to commute the sentence of death for any other punishment provided by the Code. By virtue of article 72 and 161 of the Constitution of India. 1973 (Cr. Many circumstances of which the executive authorities ought to be accurately informed. STATUTORY PROVISIONS FOR REMISSION Indian legal mechanism provides pardoning power sourcing from both statuary and constitutional authorities.C) provides for Suspension. 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 question.e. In fact the provisions under sections 54 and 55 of Indian Penal Code have become redundant in view of the similar provisions contained under 14 . When a person has been sentenced to punishment for an offence. the President and Governor can grant pardon. empower the government to suspend or remit sentence. Further. and State Government in case of an offence committed in the States. Sections 432.e. suspend the execution of a sentence or remit the whole or part of the punishment under this section. remission and commutation of sentences. 434 and 435. the Central Government in the case of an offence committed in the Union Territories. Sections 54 and 55 of the Indian Penal Code (IPC) confer power on the appropriate government to commute sentence of death or sentence of imprisonment for life as provided therein. In addition to the above constitutional provisions the Criminal Procedure Code. remit or commute a sentences passed by the courts. at particular times render it highly inconvenient to carry a sentence into effect. but which more often be unknown to the ablest judges. to suspend. 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. C. It is important to note that the matter of commutation falls beyond the jurisdiction of the courts since the prerogatives of the executive to alter the sentence once it is accorded by the court of law.Section 432 to 434 of the Code of Criminal Procedure 1973 which empowers to the appropriate Government (Central or State) to commute or remit or to suspend the sentence passed by the courts. Thus. the Governor and the appropriate Government in the matter of exercise of clemency in regard to the convicted person. the aforesaid provisions exhaust the powers of the President. it is only the Government concerned that it is competent to commute the sentence of death under section 54 of the IPC read with Section 433 of Cr. P. 15 . 1973 Thus. Article 72 and 161 and the other statutory viz. But two things may be similar but not the same. That is precisely the difference. The source is different. Section 433A of Cr. although the stream may be flowing along the same bed.P. 1978.P. 433.. the substance is different. 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 432. 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. remission and commutation of sentence. The Parliament introduced Section 433-A by the Code of Criminal Procedure (Amendment) Act. It seems that superficially the two powers.C is independent of the power conferred on the Governor under Article 161 of the Constitution. are coextensive. Higher the power the more cautious would be its exercise.C. evident that while exercising the powers under Article 72 and 161 of the Constitution neither the President. one constitutional viz. who acts on the advice of the Council of ministers. nor the State Government is likely to overlook the object. The authority of the Government to grant remission or to suspend sentence under Section 432 of Cr. 1973.. and the strength is different. It is therefore. 433A of Criminal Procedure code. This power cannot be altered or modified or interfered with in any manner by any statutory provision or Prison rules. This is particularly so because Section 433-A has been passed by the Parliament on being sponsored by the Central Government itself. 16 . no matter both the Government and the Governor have concurrent powers in regard to suspension. spirit and philosophy of Section 433A so as to create a conflict between the legislative intent and the executive power. Whenever the 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. If any condition on which a sentence has been suspended or remitted is. unless the person sentenced is in jail. accepts. to state his opinion as to whether the application should be granted or refused. no such petition by the person sentenced or by any other person on his behalf shall be entertained.P. in the opinion of the appropriate Government. The appropriate Government may. the appropriate Government may cancel the suspension or remission. 2. not fulfilled. at any time. or one independent of his will. suspend the execution of his sentence or remit the whole or any part of the punishment to which he has been sentenced. 3. The condition on which a sentence is suspended or remitted under this section may be one to be fulfilled by the person in whose favour the sentence is suspended or remitted. by general rules or special orders. and thereupon the person in whose favour the sentence has been suspended or remitted may. When any person has been sentenced to punishment for an offence. and – 17 . the appropriate Government may. SUSPENSION. 4. without conditions or upon any conditions. without warrant and remanded to undergo the unexpired portion of the sentence. 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. 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. which the person sentenced. if at large.C Power to suspend or remit sentences: 1. REMISSION AND COMMUTATION OF SENTENCES Section 432 of Cr. 5. be arrested by any police officer. pardons and remissions etc. Section 432 of Criminal Procedure Code is not manifestation of Articles 72 and 161 of the Constitution but a separate. 7. 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 imposes any liability upon him or his property. 18 . (a) Where such a petition is made by the person sentenced. 6. being life imprisonment no reduction is possible. b) In other cases the Government of the State within which the offender is sentenced or the said order is passed. which are contemplated by Section 432(1) of Criminal Procedure Code not being fulfilled. Section 432 (3) contemplates remanding the person so subjected to remission to jail once again. The minimum sentence awardable under Section 302 of Indian Penal Code. the expression "appropriate Government" means. In this section and in section 433. whereas section 432 of Criminal Procedure Code speaks of remission or suspension with any condition. the Central Government. it does not speak of imposition of conditions for the grant. Section 432(3) specifically provides for consequences of the conditions. or the order referred to in sub-section 6 is passed under. While Article 161 of the Constitution speaks of grant of reprieves. Section 432 incorporates the provisions of section 401 and 402(3) of the Old code.. though similar provision. This power is executive in nature.— a) In cases where the sentence is for an offence against. but provides the power of remitting the sentence. or (b) Where such petition is made by any other person. any law relating to a matter to which the executive power of the Union extends. it contains a declaration that the person sentenced is in jail. it is presented through the officer in charge of the jail. There is no change in substance of the old law. This section does not give any power to the Government to reverse the judgment of the Court. The word remit as used in Section 432 is not a term of art. There is therefore.P. Reference under sub-section (2) of Section 432 Criminal Procedure Code is not mandatory and therefore non-compliance of the said provision does not make 19 . no obstacle in the way of the Governor in remitting a sentence of death. is justiciable on any of the following grounds: a) That the authority exercising the power had no jurisdiction. because the power of granting mercy is vest with the executive but not with the judiciary. An order passed under Section 432 Cr. b) That the impugned order goes beyond the extent of power conferred by law. to refrain from inflicting. then it recommends such cases to the Government. is a result of malafide exercise of power. 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. The brother of the murdered person is considered to one of the most aggrieved parties and has the locus standi to challenge the order of remission of punishment. and to give up. 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.C. While the State Government is not legally obliged to give reasons for remitting sentence. the Judge may report any extenuating circumstances calling for a mitigation of punishment to the Government and the Government may thereupon take such action under this section as it thinks fit. The initial onus is on the petitioner to give prima facie evidence to show that the power has been exercised malafide. Some of the meanings of the word "remit” are to pardon. it is duty bound to reply to allegations made in petition challenging the remission. The State Government is not bound to produce the records under writ of certiorari.In cases of murder. d) a sentence of simple imprisonment. for fine. The Supreme Court upheld validity of Section 433. or for fine. Even though the sentence Revising Board is not required to give detailed reasons.P. for imprisonment for a term not exceeding fourteen years or for fine. nevertheless the administrative orders are subject to judicial review. for any other punishment provided by the Indian Penal Code (45 of 1860).the impugned order without jurisdiction. without the consent of the person sentenced commute a) a sentence of death.Power to commute sentence: The appropriate Government may. b) a sentence of imprisonment for life.C. 20 . c) a sentence of rigorous imprisonment for simple imprisonment for any term to which that person might have been sentenced. Section 433 of Cr. Government cannot reduce or commute sentence to less than 14 years for weighty reasons as the crime was serious. 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. 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. To read down or interpret section 433A of the Code with the aid of the changes proposed by the Indian Penal Code (Amendment) Bill would tantamount to hearing the provisions of the said bill as forming part of the Indian Penal Code which is clearly impermissible. 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. Unless the Government specifically grants remission of sentence and orders release prematurely a life convict cannot ask for release on the grounds that he has put in 20 years of sentence in jail with or without remissions. such person shall not be released from prison unless he had served at least 14 years of imprisonment. notwithstanding anything contained in Section 432. By reason of the powers conferred on Government by statute and on the President or Governor by the Constitution for remission of sentences. The right to ask for remission of sentence by a life convict would be under the law as was prevailing on the date on which the judgment of conviction and sentence was passed. or where a sentence of death imposed on a person has been commuted under Section 433 into one of imprisonment for life. 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 for life. RESTRICTION ON POWERS OF REMISSION OR COMMUTATION IN CERTAIN CASES As per Section 433-A of the Code of Criminal Procedure. 21 . a life convict is not entitled. Para 5 22 .ordinary. In Gopal Vinayak Godse v. Dealing with the Rules framed under the Prisons Act.C.P. The Code of Criminal Procedure does confer wide powers of remission and commutation of sentences. State of Maharashtra10 the Constitutional bench of the Supreme Court held that a sentence of transportation for life or imprisonment for life must be treated as transportation or imprisonment for whole of the remaining period of the convict‘s normal life.The mandate of Section 433 Cr. unless the said sentence is commuted or remitted by the appropriate Government. This embargo directs that commutation in such cases shall not 10 AIR 1961 SC 600. 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. but it is only for that particular purpose and not for any other purpose. The High Court can direct consideration of premature release by the Govt.P. special and State - the said remissions were to be given credit towards his term of imprisonment and for the purpose of working out the remissions the sentence of transportation for life was equated with a definite period. in accordance with the rules and established principles. Lastly it observed that the question of remission was exclusively within the province of the appropriate Government. provides that the sentence of imprisonment for life may be commuted for imprisonment for a term not exceeding 14 years or fine.P. it emphatically intends to carve out extreme category from the broad generosity of such executive Section 432.433A to a serious restriction. 1894 it held that even though they were statutory in Character they did not confer an indefeasible right on a prisoner sentenced to transportation for life to an unconditional release on the expiry of a particular term including remissions.C. it is further held that the rules framed under the Prisons Act enabled a prisoner to earn remissions.C.and the whole mandate of the rest of the section of Sec. Clause (b) of Section 433 Cr. which has to exercise the power under Section 433 Cr. Assuming that Rules under the Prisons Act are valid and cannot be dismissed as State Law. These vintage schemes do not vanish with the enactment of the Constitution but suffer a partial eclipse if they conflict with and become repugnant to a Central law like the Procedure Code. 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. The notwithstanding clauses in Section 433-A the Remission Rules and like Provisions stand excluded so far as ‘lifers’ punished for capital offenses are concerned. 23 . If Section. Even so. a harmonious reading of Section 433-A and the Prison Rules must be the way out. 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 the pardon power of the Government or the President. forces a permanent holiday on the prison remission laws of the States vis -a. since even new legislations on remissions and rewards are good under Entry 4 of List II. They are intra-vires. Otherwise the later law must prevail or implied repeal may be inferred. 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. is therefore. The State has the power to make rules on Remission Systems and many States have for long made and worked such rules.vis certain classes of lifers the former must prevail in situations of irreconcilability.reduce the actual duration of imprisonment below 14years. 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.433A by sheer repugnancy. CONCLUSION The power or pardoning and remission are the noblest prerogative of sovereignty. if at large. the convict should not be sentenced to undergo it. If the punishment is necessary. it is required that strict rules have to be framed for granting remission. in the opinion of the appropriate Government. the authorities are not implementing these guidelines properly. the appropriate Government may require the presiding judge of the Court before or by which the conviction was had or confirmed. the power of pardoning is a necessary corrective: but that corrective is itself an evil. be arrested by any police officer. Make good laws. the appropriate Government may. (3) If any condition on which a sentence has been suspended or remitted is. (2) Whenever an application is made to the appropriate Government for the suspension or remission of a sentence. it ought not to be remitted: if it is not necessary. at any time. Legal provisions regarding power to suspension or remission by the appropriate Government under section 432 of the Code of Criminal Procedure. Frequently the equality clause of the Indian Constitution is violated by the prison authorities. may. without warrant and remanded to undergo the unexpired portion of the sentence. Even though there are statutory rules for remission. 24 . not fulfilled. 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. the appropriate Government may cancel the suspension or remission. Therefore. without conditions or upon any conditions which the person sentenced accepts. Various cases that came before the several High Courts and Supreme Court have revealed this fact. 1973. If the laws are too severe. to state his opinion as to whether the application should be granted or refused. 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. and thereupon the person in whose favour the sentence has been suspended or remitted. and there will be no need of a power to annul them. suspend the execution of his sentence or remit the whole or any part of the punishment to which he has been sentenced. ‘Pardon’ and ‘remission’ stand on different footings. 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. (5) The appropriate Government may. (7) In Sections 432 and 433. or (b) Where such petition is made by any other person. no such petition by the person sentenced or by any other person on his behalf shall be entertained. except in the sense that the person concerned does not suffer incarceration for the entire period of the sentence. (a) In cases where the sentence is for an offence against. in the case of remission. give directions as to the suspension of sentences and the conditions on which persons should be presented and dealt with. 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. unless the person sentenced is in jail. The judiciary has no such ‘mercy jurisdiction’. and. in the case of any sentence (other than a sentence of fine) passed on a male person above the age of eighteen years. 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. the guilt of the offender is not affected nor is the sentence of the Court affected. it contains a declaration that the person sentenced is in jail. (a) Where such petition is made by that person sentenced. However. remit or commute any sentence is ordinarily called ‘mercy jurisdiction’. but is believed from serving out a part of it. it is presented through the officer in charge of the jail. which restricts the liberty of any person or imposed any liability upon him or his property. the Government of the State within which the offender is sentenced or the said order is passed. (b) In other cases. the expression ‘appropriate Government’ means. by general rules or special orders. a fall pardon may blot out the guilt itself. or one independent of his will. in other words. the Central Government. (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.(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. 25 . empowers the Court to suspend the sentence and even the conviction but if there is no such suspension. are not curtailed in any manner nor there is an embargo on its powers merely because the appeal against the conviction is pending. The stage for the exercise of this power generally speaking is post-judicial. 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.C. P. Cr. It is not the duty of the Government to give reasons in its order of remission. 26 . remission and commutation of sentence is both statutory and constitutional. 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. The grant of remission is a matter of policy and it is for the executive branch of Government to decide as to when. But when the sentence is suspended and the convict is ordered to be released on bail. 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. P. 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 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. P. Cr. such an order prevails over the powers of the Government under Section 432.C. the Competent Authority or the Government’s powers under Section 432.C. The law governing suspension. Section 389 of Cr. EBC 4. Seervai. V.. Singh. 3. Eastern Book Company. Lucknow 2. The Code Of Criminal Procedure. 11th Edition. Ltd. 2008. Kelkar R. H.M. Mahendra P. Fifth Edition 2008. “Constitutional Law of India” vol.N. Criminal Procedure. I. Shukla's Constitution of India..V. 3rd Edn. Reprint 2011. Pvt. BIBLIOGRAPHY 1. 1973 27 . Universal Law Publishing Co.
Report "Execution, Suspension, Remission and Commutation of Sentences"