Premature release of convicts who have undergone imprisonment of more than 14 yrs, and less than 14 yrs: With whom lies the power? SC discusses

Supreme Court: A Division Bench of Hemant Gupta and A.S. Bopanna, JJ. disposed of a criminal appeal holding, inter alia, that 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 in case of the prisoner who has not undergone 14 years or more of actual imprisonment, the Governor has a power to grant pardon, reprieve, respite and remission of punishment or to suspend, remit or commute the sentence of any person.

Appeal

The parties before the Supreme Court were aggrieved by the order of the Punjab and Haryana High Court wherein it had, inter alia, directed the State to consider the feasibility of drafting a fresh policy for grant of remission to prisoners, particularly in respect of exercise of powers conferred under Article 161 of the Constitution.

The High Court referred to several policies circulated by the State Government. The first policy in connection with the premature release of prisoners was circulated in 1987. After that came the policies of 1988, 1991, 2000 and 2002 which contemplated that the case of premature release would be considered on individual basis to be reviewed by a State Committee and thereafter shall be put before the Governor. However, the latest policy of 2008 did not contemplate that individual cases will have to be placed before the Governor.

The issue in the instant appeals was regarding applicability of the 2002 policy or the 2008 policy to the prisoner convicted in March 2010. The proposition for the consideration of the Court was that the 2002 policy referred to exercise of powers under Article 161 of the Constitution (since it mandated placing of individual cases before the Governor), whereas the 2008 policy was in exercise of powers under Section 432 read with Sections 433 and 433-A CrPC.

Discussion and Decision

At the outset, the Court referred to Article 161 (Power of Governor to grant pardons etc., and to suspend, remit or commute sentences in certain cases) of the Constitution; and Sections 432 (Power to suspend or remit sentences), 433 (Power to commute sentence) and 433-A (Restriction on powers of remission or commutation in certain cases) of the Criminal Procedure Code. The former article refers to power of the Governor, while the latter three sections refer to power of the appropriate Government.

The Court noted that the power of an appropriate Government to issue general or special orders allowing remissions is traceable to Section 432 CrPC. The policies in question were framed in exercise of powers conferred on appropriate Government under Section 432, and hence were statutory in nature.

The High Court’s direction for the State to consider drafting a fresh policy for remission was particularly in respect of  exercise of powers conferred under Article 161. The Supreme Court noted that the power under Article 161 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. The Court was of the opinion that 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. It was stated:

“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.”

It was however clarified that the remission under Article 161 will override Section 433-A CrPC, if the State Government decides to be governed of its constitutional power.

The Court noted further that it has been a consistent view that the policy prevalent at the time of conviction shall be taken into consideration for considering the premature release of a prisoner. The 2008 policy for premature release was issued in the name of the Governor and was published in the official Gazette.  The 2008 policy which substituted the 2002 policy did not take over the discretion vested in the Governor to grant pardons, remissions or commute sentence in exercise of powers conferred under Article 161. Moreover,  the 2002 policy was also a statutory policy and cannot be put at a higher pedestal than the 2008 policy for the reason that it sought approval from the Governor. Such policy as was specifically superseded by the 2008 policy, ceased to be operative for the convicts who are convicted after 13-8-2008.

Coming to the restrictions on exercise of powers of remission under CrPC, the Court noted that Section 433-A starts with a non-obstante clause restricting the right of the appropriate Government to suspend the sentence of life imprisonment 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. However, the power of the Governor under Article 161 to pardon or to commute sentence is independent of any such restriction or limitation.

As a necessary corollary, if a prisoner has undergone more than 14 years of actual imprisonment, the State 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. The Court said that:

“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.”

To conclude, the Supreme Court found that the impugned directions issued by the High Court were not sustainable “for the reason that the policies have to be read keeping in view the period of imprisonment undergone by a prisoner”.

On merits, it was noted that prisoner before the Court had completed 12 years and 25 days in prison. The prisoner was convicted in March 2010 and therefore as per his date of conviction, the 2008 policy was applicable to him. Accordingly, it was held that the case for premature release of the prisoner in terms of the State Government’s 2008 policy 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. [State of Haryana v. Raj Kumar, 2021 SCC OnLine SC 539, decided on 3-8-2021]


Tejaswi Pandit, Senior Editorial Assistant has reported this brief.

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