Can a policy framed under Article 161 for grant of remission override the requirements under Section 433-A CrPC? Larger bench to decide

Supreme Court: Dealing with an issue relating to special remission being granted to certain categories of prisoners by the Governor of Haryana on the occasion of the Independence Day i.e., 15th August, 2019, in exercise of powers conferred by Article 161 of the Constitution of India, The 3-judge bench of UU Lalit, MM Shantanagoudar and Vineet Saran referred the question to a larger bench and framed the following issue:

“Whether in exercise of power conferred under Article 161 of the Constitution a policy can be framed, whereunder certain norms or postulates are laid down, on the satisfaction of which the benefit of remission can thereafter be granted by the Executive without placing facts or material with respect to any of the cases before the Governor and whether such exercise can override the requirements under Section 433-A of the Code.”

In the matter before the Court, the appellant was convicted under Section 302 read with Section 34 of the Penal Code and sentenced to suffer life imprisonment and to other punishments including fine and default sentence under certain other offences. The Supreme Court had rejected his bail application in 2017 and when t\the Court took up the second bail application for consideration, it was reported that after having completed 8 years of actual sentence and the Appellant being aged above 75 years, in accordance with the existing policy of the State Government, he was prematurely released in 2019.

The Court, therefore, called upon the State to file an affidavit indicating whether the policy permitted premature release even before completion of actual sentence of 14 years in connection with an offence punishable under Section 302 IPC. State submitted before the Court that special remission was granted to certain categories of prisoners by the Governor of Haryana on the occasion of the Independence Day i.e., 15th August, 2019, in exercise of powers conferred by Article 161 of the Constitution of India. The individual facts and circumstances of the case were not even placed before the Governor.

While hearing the matter, the Court noticed that the consistent line of cases decided by this Court has laid down that the principles of Section 433-A of the Code do not and cannot apply to the exercise of constitutional power either under Article 72 or under Article 161 of the Constitution.

“It has always been accepted that no limitation can be read into the exercise of such constitutional power that the sovereign power would not be bound by restrictions emanating from Section 433-A of the Code.”

In Maru Ram v. Union of India, (1981) 1 SCC 107 , the Constitution Bench of this Court considered the validity of Section 433-A of the Code. The majority Judgment cautioned that mere length of imprisonment may not by itself regenerate goodness in a convict and stated that the rules of remission may be effective guidelines of a recommendatory nature.

“The decisions of this Court rendered since Maru Ram and some of them being decisions of the Benches of three Judges of this Court, do show that the relevant material must be placed before the Governor in order to enable him to exercise the power under Article 161 of the Constitution and failure on that count could result in quashing of the concerned orders of remission issued under Article 161 of the Constitution.”

The Court further noticed that the modalities adopted in the present matter, unmistakably, show that the individual facts and circumstances of the case were not even placed before the Governor. The basic aspects viz., the manner in which the crime was committed, the impact of the crime on the Society and the seriousness of the crime got completely suppressed and relegated in the background under the norms laid down in the policy and it was then left to the Executive to see whether any individual case came within the parameters laid down by the policy. The basic facts and circumstances of the case were not even looked into.

Hence, considering that the decision in Maru Ram was rendered by the Constitution Bench, the Court thought it proper to refer the matter to a larger bench.

[Pyare Lal v. State of Haryana, 2020 SCC OnLine SC 583 , order dated 17.07.2020]

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