THE STATE OF HARYANA & ORS versus RAJ KUMAR @ BITTU on 3 August 2021

SUPREME COURT REPORTS

[2021] 8 S.C.R.

THE STATE OF HARYANA & ORS

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v.

RAJ KUMAR @ BITTU

(Criminal Appeal No. 721 of 2021)

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AUGUST 03, 2021

[HEMANT GUPTA and A.S. BOPANNA, JJ.]

Constitution of India: Art. 161 – Code of Criminal Procedure,1973 – s. 432, 433, 433-A – Power of Governor to grantpardon/remission – Order by the High Court whereby the policiesCof the State Government to grant remission were decided, inter alia,directing the State to consider the feasibility of drafting a freshpolicy particularly in respect of exercise of powers conferredu/Art 161; that such policy may have retrospective operation,provided the same does not lead to discrimination amongstDidentically situated prisoners; and till such decision is taken, theappropriate Government can exercise its powers u/ss. 432 and 433in terms of policy dated 13.08.2008, strictly adhering to therestrictions imposed u/s.433A – Sustainability of – Held: Notsustainable – Policies have to be read keeping in view the period ofimprisonment undergone by a prisoner – Power of remission is toEbe exercised by the State Government, as an appropriateGovernment, if the prisoner has undergone 14 years of actualimprisonment in the cases falling within the scope of Section 433-Aand in case the imprisonment is less than 14 years, the power ofpremature release can be exercised by the Hon’ble Governor thoughFon the aid and advice of the State Government – Furthermore, thepolicy dated 13.08.2008 is a statutory policy, which cannot andhas not tried to take over the discretion vested in the Hon’bleGovernor to grant pardons, remissions or commute sentence inexercise of powers conferred u/Art. 161 – Thus, the directions issuedby the Single Bench of the High Court are set aside – On facts, theGprisoner has completed 12 years and 25 days as on 06.07.2021,release of the prisoner in terms of the policy of the State Governmentdated 13.8.2008, can be considered only after he completes 14 yearsof actual imprisonment – However, the State Government canconsider the prisoner for premature release after undergoingHimprisonment for less than 14 years only u/Art.161.

Constitution of India: Art. 161 – Power of Governor to grantpardon/remission – Scope of – Held: Power u/Art. 161 can beexercised by the State Governments, not by the Governor on hisown – Advice of the appropriate Government binds the Head of theState – Policies of the State Government are composite policiesencompassing both situations u/Art. 161 and ss. 432, 433 and433-A – Remission u/Art. 161 will override s. 433-A of the Code, ifthe State Government decides to be governed of its constitutionalpower.

Disposing of the appeals, the Court

HELD: 1.1 The power under Article 161 of the Constitutioncan be exercised by the State Governments, not by the Governoron his own. The advice of the appropriate Government binds theHead of the State. No separate order for each individual case isnecessary but any general order made must be clear enough toidentify the group of cases and indicate the application of mind tothe whole group. Therefore, the policies of the State Governmentare composite policies encompassing both situations under Article161 of the Constitution and Sections 432, 433 and 433-A of theCode. The remission under Article 161 of the Constitution willoverride Section 433-A of the Code, if the State Governmentdecides to be governed of its constitutional power. [Para 11][337-D-F]

1.2 A prisoner has to undergo a minimum period ofimprisonment of 14 years without remission in the case of anoffence, the conviction of which carries death sentence, to takebenefit of policy of remission framed by an appropriategovernment under Section 432 of the Code in view of theoverriding provision of Section 433-A of the Code. However, thepower of the Hon’ble Governor to commute sentence or topardon is independent of any such restriction or limitation. TheState Government can frame a policy of grant of remissions eitherunder Section 432 of the Code or under Article 161 of theConstitution. The Governor continues to exercise the power ofcommutation and release under Article 161 of the Constitution,notwithstanding Section 433-A of the Code. The action ofcommutation and release can thus be pursuant to a governmentaldecision and the order may be issued even without the Governor’sapproval. However, under the Rules of Business and as a matter AB

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Aof constitutional courtesy, it may seek approval of the Governor,if such release is under Article 161 of the Constitution. [Para13][339-G-H; 340-A-C]

1.3 The policy of premature release dated 13.08.2008 wasissued in the name of the Governor and was published in theofficial Gazette. Such notification is said to have been issued inBexercise of the powers conferred under sub-section (1) of Sections432 and 433 of the Code. Such policy is in exercise of the powersconferred on the appropriate Government in terms of theprovisions of the Code and is thus statutory in nature. The otherpolicy dated 12.04.2002 is in fact a memo issued by the FinancialCCommissioner and Secretary to Government, Haryana, JailsDepartment, Chandigarh to the Director General of Prisons,Haryana, Chandigarh. Such policy of premature release wouldagain be traceable to the provisions of the Code. [Para 15][340-F-H]

D1.4 Different policies have been issued from time to timeand the later policy has superseded the earlier one, so there wasno hiatus when a policy of premature release was not in operationor at any given point of time, the two polices were operational.The policy dated 12.04.2002 is in supersession of earlier policycirculated on 08.08.2000 substituted later on 23.02.2001. TheEpolicy dated 13.08.2008 has substituted the earlier policy dated12.04.2002 and such policy has been published on behalf of theGovernor of the State. The policy dated 13.08.2008 has beenissued in exercise of powers conferred by sub-section (1) ofSection 432 read with Section 433 of the Code and in supersessionFof Government Memorandum dated 12.04.2002 and all otherpolicies. The policy dated 13.08.2008 is a statutory policy. Thesaid policy cannot and has not tried to take over the discretionvested in the Hon’ble Governor to grant pardons, remissions orcommute sentence in exercise of powers conferred under Article161 of the Constitution but it is the policy issued under a StatuteGand therefore, such policy has a statutory force. The policy dated12.04.2002 is again a statutory policy and cannot be put at a higherpedestal than the policy dated 13.08.2008 for the reason that itseeks approval from the Hon’ble Governor. Such policy has beenspecifically superseded on 13.08.2008, ceases to be operativeHfor the convicts who are convicted after 13.08.2008. [Para 16][341-A-E]

1.5 Section 433-A of the Code starts with a non-obstanteclause restricting the right of the appropriate Government, tosuspend the sentence of imprisonment for life imposed onconviction of a person for an offence for which death is one of thepunishments provided by law, that such person shall not bereleased from prison unless he has served at least 14 years ofimprisonment. Therefore, the power of the appropriateGovernment to release a prisoner after serving 14 years of actualimprisonment is vested with the State Government. On the otherhand, the power conferred on the Governor, though exercisedon the aid and advice of the State, is without any restriction of theactual period of imprisonment undergone by the prisoner. Thus,if a prisoner has undergone more than 14 years of actualimprisonment, the State Government, as an appropriateGovernment, is competent to pass an order of premature release,but if the prisoner has not undergone 14 years or more of actualimprisonment, 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 therestrictions imposed under Section 433-A of the Constitution.Such power is in exercise of the power of the sovereign, thoughthe Governor is bound to act on the aid and advice of the StateGovernment. [Para 17][341-E-H; 342-A-B]

1.6 The policy of 12.04.2002 is applicable in the cases ofthe prisoners who have undergone actual sentence of 14 years ofimprisonment and also the prisoners who have not completed 14years of actual imprisonment. Therefore, the cases of theprisoners who have completed 14 years of actual imprisonmentcan be decided by the State Government in terms ofSections 432 and 433 of the Code unless the State Governmentchoses to seek the approval of the Hon’ble Governor. There isnothing illegal or improper to seek approval of the Hon’bleGovernor in all cases but in the cases where the prisoner has notundergone 14 years of actual imprisonment falling within scopeof Section 433-A of the Code, it is for the Hon’ble Governor toexercise the power conferred under Article 161 of theConstitution, though on the aid and advice of the StateGovernment. Clause (b) of the policy dated 12.04.2002 providedfor the cases of the prisoners to be considered after completion AB

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Aof 10 years of actual sentence including undertrial period providedthe total period of such sentence including remission is not lessthan 14 years. The remissions not contemplated by Section 433-A of the Code, the power to remit or commute sentence can beexercised by the Governor in exercise of the power conferredunder Article 161 of the Constitution. This explains the last lineBin the policy that such cases would be put up before the Governorwith full background of the prisoner and recommendation of theCommittee including copy of the judgment for orders underArticle 161 of the Constitution. [Para 18][342-B-F]

1.7 The Notification dated 13.08.2008 published in exerciseCof the powers conferred upon an appropriate Government underSection 432(5) of the Code, provides that the appropriateGovernment may, by general rules or special orders, givedirections as to the suspension of sentences and the conditionson which petitions should be presented and dealt with. Therefore, Dall the polices issued from time to time are under Section 432 ofthe Code, though no reference is made to such provisions in anyof the policies except the last one dated 13.08.2008. The sourceof power to frame guidelines or the policies for remission etc.was earlier in Section 59(5) of the Prisons Act, 1894 and now interms of Section 432(5) of the Code. Therefore, such policiesEare statutory in nature, framed in exercise of power conferredupon appropriate government under Section 432(5) of the Code.[Para 19][342-F-H; 343-A]

1.8 The clause 2(c) of the policy dated 13.08.2008 dealswith the convicts who have been imprisoned for life havingFcommitted a crime which is defined in the Penal Code, 1860 aspunishable for life imprisonment but not with death sentence.The cases of such prisoners can be considered after completionof 10 years of actual sentence including undertrial period providedthe total period of such sentence including remission is not lessGthan 14 years. The distinction is that in such cases, the remissionis taken into consideration whereas, the remissions earned by aprisoner convicted for an offence under Section 302 IPC, anoffence punishable with death, cannot be considered for prematurerelease. If such a prisoner is to be considered for premature H

release in the cases of life imprisonment for an offence underIPC, the bar under Section 433-A of the Code would not apply.The judgment in Jagdish’case has to be read in the light of thedistinction drawn between the power exercised by the Hon’bleGovernor and the power to be exercised by the State Government.[Para 20][343-B-D]

1.9 The directions issued by the High Court are notsustainable for the reason that the policies have to be readkeeping in view the period of imprisonment undergone by aprisoner. The power of remission is to be exercised by the StateGovernment, as an appropriate Government, if the prisoner hasundergone 14 years of actual imprisonment in the cases fallingwithin the scope of Section 433-A of the Code and in case theimprisonment is less than 14 years, the power of prematurerelease can be exercised by the Hon’ble Governor though onthe aid and advice of the State Government. The directions issuedby the Single Bench are set aside. [Para 21, 22][343-D-F]

1.10 The prisoner has completed 12 years and 25 days ason 06.07.2021 as per the custody certificate produced by the State.The case for premature release of the prisoner in terms of thepolicy of the State Government dated 13.08.2008, the policy whichwas applicable on the date of his conviction, can be consideredonly after he completes 14 years of actual imprisonment. However,the State Government can consider the prisoner in question forpremature release after undergoing imprisonment for less than14 years only under Article 161 of the Constitution. [Para 23][343-G-H; 344-A]

State of Haryana & Ors. v. Jagdish (2010) 4 SCC 216: [2010] 3 SCR 716; Sadhu Singh & Ors. v. State ofPunjab (1984) 2 SCC 310 : [1984] 2 SCR 741; Stateof Haryana v. Mahender Singh & Ors. (2007) 13 SCC606 : [2007] 11 SCR 932; L. Hazari Mal Kuthiala v.Income Tax Officer, Special Circle, Ambala Cantt. AIR1961 SC 200 : [1961] SCR 892; N. Mani v. SangeethaTheatre & Ors. (2004) 12 SCC 278; Maru Ram v. Unionof India & Ors. (1981) 1 SCC 107 : [1981] 1 SCR

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A1196; Union of India v. V. Sriharan & Ors. (2016) 7SCC 1 : [2015] 14 SCR 613; State of Haryana v.Nauratta Singh & Ors. (2000) 3 SCC 514 : [2000] 2SCR 246 – referred to.

Case Law Reference

CRIMINAL APPELLATE JURISDICTION: Criminal AppealNo.721 of 2021.

From the Judgment and Order dated 12.05.2020 of the High Courtof Punjab and Haryana at Chandigarh in CRWP No.2025 of 2019.

EWith

Civil Appeal Nos.722 And 723 of 2021

Nikhil Goel, AAG, Ms. Naveen Goel, Vinay Mathew, Dr. MonikaGusain, Rishi Malhotra, Advs. for the appearing parties.

FThe Judgment of the Court was delivered by HEMANT GUPTA, J.

1. The State and the writ petitioner before the High Court,[1] areaggrieved by an order passed by the learned Single Bench of the HighCourt of Punjab & Haryana at Chandigarh on 12.5.2020 whereby theGpolicies of the State Government to grant remission to the prisonerswere decided, inter alia, directing the State to consider the feasibility ofdrafting a fresh policy particularly in respect of exercise of powersconferred under Article 161 of the Constitution. It was also held that theState may also consider the feasibility of having a policy with retrospective H1 Hereinafter referred to as the ‘prisoner’

H1 Hereinafter referred to as the ‘prisoner’

operation, provided the same does not lead to discrimination amongstsubstantial number of identically situated prisoners. The Court furtherobserved that till such time a decision is taken, the appropriate Governmentcan exercise its powers under Sections 432 and 433 of the Code ofCriminal Procedure, 1973[2] in terms of policy dated 13.8.2008, but whilestrictly adhering to the restrictions imposed under Section 433-A of theCode.

2. The learned Single Bench has referred to certain policiescirculated by the State Government. First policy referred to was circulatedon 23.4.1987 wherein the convicts on whom punishment of lifeimprisonment is imposed on conviction of an offence for which death isone of the punishments provided by law, or where the sentence of deathimposed on a person had been commuted under Section 433 of the Codeon or after 18.12.78, would be considered by the State Government forpremature release after they have undergone 14 years of substantivesentence. Thereafter, policies dated 28.9.1988, 19.11.1991, 8.8.2000 and12.4.2002 were issued contemplating that case of premature releasewould be considered on individual basis after review by the State LevelCommittee falling within the purview of Section 433 of the Code andcases thereafter shall be put up to the Hon’ble Governor. However, thepolicy dated 13.8.2008 did not contemplate that the individual cases willhave to be placed before the Hon’ble Governor.

3. The relevant provisions of the Constitution and the Code readas thus:

Constitution of India

“Article 161 – Power of Governor to grant pardons etc., and tosuspend, remit or commute sentences in certain cases. - TheGovernor of a State shall have the power to grant pardons,reprieves, respites or remissions of punishment or to suspend, remitor commute the sentence of any person convicted of any offenceagainst any law relating to a matter to which the executive powerof the State extends.

Code of Criminal Procedure 1973

432. Power to suspend or remit sentences. - (1) When any personhas been sentenced to punishment for an offence, the appropriate 2 For short, the ‘Code’

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AGovernment may, at any time, without conditions or upon anyconditions which the person sentenced accepts, suspend theexecution of his sentence or remit the whole or any part of thepunishment to which he has been sentenced.

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(5) The appropriate Government may, by general rules or specialorders, give directions as to the suspension of sentences and theconditions on which petitions should be presented and dealt with:

Provided that in the case of any sentence (other than asentence of fine) passed on a male person above the age ofCeighteen years, no such petition by the person sentenced or byany other person on his behalf shall be entertained, unless theperson sentenced is in jail, and—

(a) where such petition is made by the person sentenced, it ispresented through the officer in charge of the jail; or D

(b) where such petition is made by any other person, it containsa declaration that the person sentenced is in jail.

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(7) In this section and in Section 433, the expression “appropriateEGovernment” means—

(a) in cases where the sentence is for an offence against, orthe order referred to in sub-section (6) is passed under, anylaw relating to a matter to which the executive power of theUnion extends, the Central Government; F

(b) in other cases, the Government of the State within whichthe offender is sentenced or the said order is passed.

433. Power to commute sentence. - The appropriateGovernment may, without the consent of the person sentenced,commute—

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(a) a sentence of death, for any other punishment provided bythe Indian Penal Code (45 of 1860); (b) a sentence of imprisonment for life, for imprisonment for aterm not exceeding fourteen years or for fine; H

(c) a sentence of rigorous imprisonment, for simpleimprisonment for any term to which that person might havebeen sentenced, or for fine; (d) a sentence of simple imprisonment, for fine.

433-A. Restriction on powers of remission or commutation incertain cases. - Notwithstanding anything contained inSection 432, where a sentence of imprisonment for life is imposedon conviction of a person for an offence for which death is one ofthe punishments provided by law, or where a sentence of deathimposed on a person has been commuted under Section 433 intoone of imprisonment for life, such person shall not be releasedfrom prison unless he had served at least fourteen years ofimprisonment.”

4. The issue arising in the present appeals is regarding applicabilityof policy dated 12.4.2002 or the policy dated 13.8.2008 to the prisonerconvicted on 25.3.2010. This Court in State of Haryana & Ors. v.Jagdish[3 ]inter-alia held (para 52) that the policy dated 4.2.1993 refersto the exercise of powers under Article 161 of the Constitution whereasthe policy dated 13.8.2008 is in exercise of the powers conferred underSection 432 read with Sections 433 and 433-A of the Code. The saidpolicy is a rule of procedure, thus, subordinate to the Constitution. Thepower exercised under Article 161 is a mandate of the Constitution,therefore, the policy dated 13.8.2008 cannot override the policy dated4.2.1993. It is the said finding which is required to be examined in thepresent appeals, though in the context of similar later policy dated12.4.2002. The two polices are reproduced hereinbelow before the caseof premature release can be considered. The two polices in juxtapositionread as thus:

5. In Jagdish, this Court did not approve the judgment of thisCourt in Sadhu Singh & Ors. v. State of Punjab[4] wherein it was heldthat these policies are executive instructions. Instead, this Court approvedthe judgment of this Court reported as State of Haryana v. MahenderSingh & Ors.[5] wherein it was held that these policies of remission arein exercise of the powers conferred under Section 59(5) of the PrisonsAct, 1894, contemplating “for the award of marks and the shortening of 3 (2010) 4 SCC 2164 (1984) 2 SCC 3105 (2007) 13 SCC 606

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Asentences” and thus, they are statutory rules. Sections 401 and 402 ofthe Code were not empowering the appropriate Government to issuegeneral or special orders and the conditions on which petitions forpremature release should be presented and dealt with. The Sections 432and 433 of the Code had corresponding provisions in Sections 401 and402 of the Code but sub-section (5) of Section 432 empowers anBappropriate Government to issue general or special orders. Therefore,after the commencement of the Code on 1.4.1974, the power to issuegeneral or special orders allowing remissions is traceable to Section 432of the Code. Hence, the policies issued thereafter are statutory in nature,having being framed in exercise of powers conferred on appropriateCGovernment under Section 432 of the Code.

6. None of the policies framed after 1974, except the one whichwas published in the State Government Gazette on 13.8.2008, referredto any provision of law under which such decisions have beencommunicated to the Director General of Prisons. The Constitution BenchDjudgment of this Court reported as L. Hazari Mal Kuthiala v. IncomeTax Officer, Special Circle, Ambala Cantt.[6] held that exercise ofpowers will be referrable to a jurisdiction which confers validity upon itand not to a jurisdiction under which it will be nugatory. This Court heldas under:

E“5. …The Commissioner, when he transferred this case, referrednot to the Patiala Income Tax Act, but to the Indian Income TaxAct, and it is contended that if the Patiala Income Tax Act was inforce for purposes of reassessment, action should have been takenunder that Act and not the Indian Income Tax Act. This argument,however, loses point, because the exercise of a power will beFreferable to a jurisdiction which confers validity upon it and not toa jurisdiction under which it will be nugatory. This principle iswell-settled. See Pitamber Vajirshet v. Dhandu Navlapa [ILR12 Bom 486, 489] .”

7. Such principle of law was reiterated in a three-Judge BenchGjudgment of this Court reported as N. Mani v. Sangeetha Theatre &Ors.[7] wherein it was held as under:

6 AIR 1961 SC 200H7 (2004) 12 SCC 278

“9. It is well settled that if an authority has a power under the lawmerely because while exercising that power the source of poweris not specifically referred to or a reference is made to a wrongprovision of law, that by itself does not vitiate the exercise ofpower so long as the power does exist and can be traced to asource available in law.”

8. Therefore, even if there is no specific reference to the statutorypower under which such policies have been issued or even if a wrongprovision is mentioned, the policy instructions would continue to bestatutory instructions framed either under the Prisons Act, 1894 or underSection 432 of the Code.

9. In Maru Ram v. Union of India & Ors.[8], a Constitution Benchconsidering the scope of Article 161 of the Constitution and the provisionsof the Code held as under:

“54. …. The second plea, revolves round ‘pardon jurisprudence”,if we may coarsely call it that way, enshrined impregnably inArticles 72 and 161 and the effect of Section 433-A thereon. Thepower to remit is a constitutional power and any legislation mustfail which seeks to curtail its scope and emasculate its mechanics.Thirdly, the exercise of this plenary power cannot be left to thefancy, frolic or frown of government, State or Central, but mustembrace reason, relevance and reformation, as all public powerin a republic must. On this basis, we will have to scrutinize andscreen the survival value of the various remission schemes andshort-sentencing projects, not to test their supremacy over Section433-A, but to train the wide and beneficent power to remit lifesentence without the hardship of fourteen fettered years.

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57. We now move on to the second contention which deals withthe power of remission under the Constitution and the fruits of itsexercise vis-à-vis Section 433-A. Nobody has a case – indeedcan be heard to contend – that Article 72 and 161 must yield toSection 433-A…………………...

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59. It is apparent that superficially viewed, the two powers, oneconstitutional and the other statutory, are coextensive. But twothings may be similar but not the same. That is precisely thedifference. We cannot agree that the power which is the creatureof the Code can be equated with a high prerogative vested by theConstitution in the highest functionaries of the Union and the States.The source is different, the substance is different, the strength isdifferent, although the stream may be flowing along the samebed. 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 simplelegislative processes. Therefore, Section 433-A cannot beinvalidated as indirectly violative of Articles 72 and 161. What theCode gives, it can take, and so, an embargo on Sections 432 and433(a) is within the legislative power of Parliament.

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60. Even so, we must remember the constitutional status of Articles72 and 161 and it is common ground that Section 433-A does notstand and cannot affect even a wee bit the pardon power of theGovernor or the President. The necessary sequel to this logic isthat notwithstanding Section 433-A the President and the Governorcontinue to exercise the power of commutation and release underthe aforesaid articles.

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61. … The upshot is that the State Government, whether theGovernor likes it or not, can advice and act under Article 161, theGovernor being bound by that advice. The action of commutationand release can thus be pursuant to a governmental decision andthe order may issue even without the Governor’s approval although,Funder the Rules of Business and as a matter of constitutionalcourtesy, it is obligatory that the signature of the Governor shouldauthorise the pardon, commutation or release…………....TheGovernor vis-à-vis his Cabinet is no higher than the Presidentsave in a narrow area which does not include Article 161. TheGconstitutional conclusion is that the Governor is but a shorthandexpression for the State Government and the President is anabbreviation for the Central Government.

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THE STATE OF HARYANA & ORS v. RAJ KUMAR @ BITTU[HEMANT GUPTA, J.]

69. …. We have no hesitation to reject the notion thatArticles 72/161 should remain uncanalised. We have to direct theprovisional acceptance of the remission and short-sentencingschemes as good guide-lines for exercise of pardon power – ajurisdiction meant to be used as often and as systematically aspossible and not to be abused, much as the temptation so to domay press upon the pen of power.

70. The learned Solicitor-General is right that these Rules areplainly made under the Prisons Act and not under the constitutionalpower, the former fail under the pressure of Section 433-A. Butthat, by no means, precludes the States from adopting as workingrules the same remission schemes which seem to us to be fairlyreasonable. After all, the government cannot meticulously studyeach prisoner and the present praxis of marks, until a moreadvanced and expertly advised scheme is evolved, may work.Section 433-A cannot forbid this method because it is immunizedby Article 161. We strongly suggest that, without break, the samerules and schemes of remission be continued as a transmigrationof soul into Article 161, as it were, and benefits extended to allwho fall within their benign orbit – save, of course, in specialcases which may require other relevant consideration. The widepower of executive clemency cannot be bound down even byself-created rules.

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72. We conclude by formulating our findings:

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72. We conclude by formulating our findings:

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(2) We affirm the current supremacy of Section 433-A over theRemission Rules and short-sentencing statutes made by thevarious States.

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(4) We hold that Section 432 and Section 433 are not amanifestation of Articles 72 and 161 of the Constitution but aseparate, though similar power, and Section 433-A, by nullifyingwholly or partially these prior provisions does not violate ordetract from the full operation of the constitutional power topardon, commute and the like.

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(6) We follow Godse case to hold that imprisonment for life lastsuntil the last breath, and whatever the length of remissionsearned, the prisoner can claim release only if the remainingsentence is remitted by government.B(7) xxxxxx

(8) The power under Articles 72 and 161 of the Constitution canbe exercised by the Central and State Governments, not bythe President or Governor on their own. The advice of theappropriate Government binds the Head of the State. NoCseparate order for each individual case is necessary but anygeneral order made must be clear enough to identify the groupof cases and indicate the application of mind to the wholegroup.

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(10) Although the remission rules or short-sentencing provisionsproprio vigore may not apply as against Section 433-A, theywill override Section 433-A if the government, Central or State,guides itself by the self-same rules or schemes in the exerciseof its constitutional power. We regard it as fair that until freshErules are made in keeping with experience gathered, currentsocial conditions and accepted penological thinking – adesirable step, in our view – the present remission and releaseschemes may usefully be taken as guide-lines underArticles 72/161 and orders for release passed. We cannot faultFthe government, if in some intractably savage delinquents,Section 433-A is itself treated as a guide-line for exercise ofArticles 72/161. These observations of ours arerecommendatory to avoid a hiatus, but it is for Government,Central or State, to decide whether and why the currentRemission Rules should not survive until replaced by a moreGwholesome scheme.

(11) The U.P. Prisoners’ Release on Probation Act, 1938, enablinglimited enlargement under licence will be effective aslegislatively sanctioned imprisonment of a loose and liberaltype and such licensed enlargement will be reckoned for theH

purpose of the 14-year duration. Similar other statutes andrules will enjoy similar efficacy.

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10. The Constitution Bench in Union of India v. V. Sriharan &Ors.[9 ]inter alia examined the provisions of Articles 161 and 162 of theConstitution. It was held as under:

“22. Therefore, the resultant position would be that the ExecutivePower of the Union and its authorities in relation to grant ofremission, commutation, etc. are available and can be exercisedby virtue of the implication of Article 73(1)(a) read along with itsproviso and the exercise of such power by the State would becontrolled and limited as stipulated in the proviso to Article 162 tothe extent to which such control and limitations are prescribed inthe Criminal Procedure Code.”

11. Thus, the power under Article 161 of the Constitution can beexercised 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 generalorder made must be clear enough to identify the group of cases andindicate the application of mind to the whole group. Therefore, the policiesof the State Government are composite policies encompassing bothsituations under Article 161 of the Constitution and Sections 432, 433and 433-A of the Code. The remission under Article 161 of theConstitution will override Section 433-A of the Code, if the StateGovernment decides to be governed of its constitutional power.

12. In State of Haryana v. Nauratta Singh & Ors.[10], this Courtreferred to Maru Ram’s case holding that period of 14 years as specifiedin Section 433-A of the Code is the actual period of imprisonmentundergone by the prisoner without including any period of remission.This Court was examining the case where the accused was acquittedby the trial court but was convicted by the High Court. He was on bailduring the pendency of the appeal before the High Court. The claim ofthe prisoner was that the period of bail in terms of the order of the HighCourt has to be included in the period of 14 years of imprisonment. TheCourt held as under:

9 (2016) 7 SCC 110 (2000) 3 SCC 514

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A“5. We may point out that Section 433-A of the Code wasintroduced in the statute-book on 8-12-1978 by which the powerof a State Government to release a person (who has beenconvicted and sentenced to life imprisonment of any offencepunishable with death or imprisonment for life) has been curtailedby introducing the rider that such convicted person should haveBserved at least 14 years of imprisonment. A Constitutional Benchof this Court has held in Maru Ram v. Union of India that theperiod of 14 years envisaged in the new provision is the actualperiod of imprisonment undergone by the prisoner without includingany period of remission.”C

9. In Jagdish, the question raised was as to whether the policywhich makes a provision for remission of sentence should be the onewhich was existing on the date of the conviction of the accused or theone which existed on the date of consideration of his case for prematurerelease by the appropriate authority. The Court held that the amendmentDinserting Section 433-A in the Code would apply prospectively. The lifeconvicts who had been sentenced prior to 18.12.1978 i.e., date ofenforcement of amendment would not come within the purview of theprovisions of Section 433-A of the Code. The remission rules/short-sentencing policies could be taken as guidelines for exercise of powersunder Article 72 or 161 of the Constitution and in such an eventuality,Eremission rules would override Section 433-A of the Code. This Courtheld that Section 433-A of the Code cannot and does not in any wayaffect the constitutional power conferred on the President/Governor underArticles 72/161 of the Constitution. It was held as under:

“26. This Court in Ashok Kumar [(1991) 3 SCC 498 : 1991 SCCF(Cri) 845 : AIR 1991 SC 1792] considered the matter elaboratelytaking into consideration a large number of its earlier judgmentsincluding 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)G1 SCC 204 : 1989 SCC (Cri) 86 : AIR 1989 SC 653] and came tothe following conclusions:

(i) Section 433-A CrPC denied premature release beforecompletion of actual 14 years of incarceration to only thoselimited convicts convicted of a capital offence i.e. exceptionallyHheinous crime;

(ii) Section 433-A CrPC cannot and does not in any way affectthe constitutional power conferred on the President/Governorunder Articles 72/161 of the Constitution;

(iii) Remission Rules have a limited scope and in case of aconvict undergoing sentence for life imprisonment, it acquiressignificance only if the sentence is commuted or remittedsubject to Section 433-A CrPC or in exercise of constitutionalpower under Article 72/161 of the Constitution; and

(iv) Case of a convict can be considered under Articles 72 and161 of the Constitution treating the 1958 Rules.

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28. Nevertheless, we may point out that the power of the sovereignto grant remission is within its exclusive domain and it is for thisreason that our Constitution makers went on to incorporate theprovisions of Article 72 and Article 161 of the Constitution ofIndia. This responsibility was cast upon the executive through aconstitutional mandate to ensure that some public purpose mayrequire fulfilment by grant of remission in appropriate cases. Thispower was never intended to be used or utilised by the executiveas an unbridled power of reprieve. Power of clemency is to beexercised cautiously and in appropriate cases, which in effect,mitigates the sentence of punishment awarded and which doesnot, in any way, wipe out the conviction. It is a power which thesovereign exercises against its own judicial mandate. The act ofremission of the State does not undo what has been done judicially.The punishment awarded through a judgment is not overruled butthe convict gets benefit of a liberalised policy of State pardon.However, the exercise of such power under Article 161 of theConstitution or under Section 433-A CrPC may have a differentflavour in the statutory provisions, as short-sentencing policy bringsabout a mere reduction in the period of imprisonment whereas anact of clemency under Article 161 of the Constitution commutesthe sentence itself. as guidelines.”

13. Thus, a prisoner has to undergo a minimum period ofimprisonment of 14 years without remission in the case of an offence,the conviction of which carries death sentence, to take benefit of policyof remission framed by an appropriate government under Section 432 of AB

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Athe Code in view of the overriding provision of Section 433-A of theCode. However, the power of the Hon’ble Governor to commute sentenceor to pardon is independent of any such restriction or limitation. TheState Government can frame a policy of grant of remissions either underSection 432 of the Code or under Article 161 of the Constitution. TheGovernor continues to exercise the power of commutation and releaseBunder Article 161 of the Constitution, notwithstanding Section 433-A ofthe Code. The action of commutation and release can thus be pursuantto a governmental decision and the order may be issued even withoutthe Governor’s approval. However, under the Rules of Business and asa matter of constitutional courtesy, it may seek approval of the Governor,Cif such release is under Article 161 of the Constitution.

14. Still further, it is the consistent view of this Court that thepolicy prevalent at the time of conviction shall be taken into considerationfor considering the premature release of a prisoner. In Jagdish, whiledetermining the policy which would be applicable for the remission ofDsentence, this Court held as under:

“27. In Mahender Singh, this Court as referred to hereinaboveheld that the policy decision applicable in such cases would bewhich was prevailing at the time of his conviction. This conclusionwas arrived on the following ground: (SCC p. 619, para 38)

E38. A right to be considered for remission, keeping in view theconstitutional safeguards of a convict under Articles 20 and 21of the Constitution of India, must be held to be a legal one.Such a legal right emanates from not only the Prisons Act butalso from the Rules framed thereunder.”F15. The policy of premature release dated 13.8.2008 was issuedin the name of the Governor and was published in the official Gazette.Such notification is said to have been issued in exercise of the powersconferred under sub-section (1) of Sections 432 and 433 of the Code.Keeping in view the principles of law enunciated above, such policy is inGexercise of the powers conferred on the appropriate Government interms of the provisions of the Code and is thus statutory in nature. Theother policy dated 12.4.2002 is in fact a memo issued by the FinancialCommissioner and Secretary to Government, Haryana, Jails Department,Chandigarh to the Director General of Prisons, Haryana, Chandigarh.Such policy of premature release would again be traceable to theHprovisions of the Code.

16. Mr. Nikhil Goel, learned Additional Advocate General for theState of Haryana, submitted that different policies have been issuedfrom time to time and the later policy has superseded the earlier one, sothere was no hiatus when a policy of premature release was not inoperation or at any given point of time, the two polices were operational.The argument of Mr. Goel merit acceptance inasmuch as the policydated 12.4.2002 is in supersession of earlier policy circulated on 8.8.2000substituted later on 23.2.2001. The policy dated 13.8.2008 has substitutedthe earlier policy dated 12.4.2002 and such policy has been published onbehalf of the Governor of the State. The policy dated 13.8.2008 hasbeen issued in exercise of powers conferred by sub-section (1) of Section432 read with Section 433 of the Code and in supersession of GovernmentMemorandum dated 12.4.2002 and all other policies. The policy dated13.8.2008 is a statutory policy. The said policy cannot and has not triedto take over the discretion vested in the Hon’ble Governor to grantpardons, remissions or commute sentence in exercise of powersconferred under Article 161 of the Constitution but it is the policy issuedunder a Statute and therefore, such policy has a statutory force. Thepolicy dated 12.4.2002 is again a statutory policy and cannot be put at ahigher pedestal than the policy dated 13.8.2008 for the reason that itseeks approval from the Hon’ble Governor. Such policy has beenspecifically superseded on 13.8.2008, ceases to be operative for theconvicts who are convicted after 13.8.2008.

17. Section 433-A of the Code starts with a non-obstante clauserestricting the right of the appropriate Government, to suspend thesentence of imprisonment for life imposed on conviction of a person foran offence for which death is one of the punishments provided by law,that such person shall not be released from prison unless he has servedat least 14 years of imprisonment. Therefore, the power of the appropriateGovernment to release a prisoner after serving 14 years of actualimprisonment is vested with the State Government. On the other hand,the power conferred on the Governor, though exercised on the aid andadvice of the State, is without any restriction of the actual period ofimprisonment undergone by the prisoner. Thus, if a prisoner has undergonemore than 14 years of actual imprisonment, the State Government, as anappropriate Government, is competent to pass an order of prematurerelease, but if the prisoner has not undergone 14 years or more of actualimprisonment, the Governor has a power to grant pardons, reprieves,respites and remissions of punishment or to suspend, remit or commute AB

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Athe sentence of any person de hors the restrictions imposed under Section433-A of the Constitution. Such power is in exercise of the power of thesovereign, though the Governor is bound to act on the aid and advice ofthe State Government.

18. The policy of 12.4.2002 is applicable in the cases of the prisonersBwho have undergone actual sentence of 14 years of imprisonment andalso the prisoners who have not completed 14 years of actualimprisonment. Therefore, the cases of the prisoners who have completed14 years of actual imprisonment can be decided by the State Governmentin terms of Sections 432 and 433 of the Code unless the State Governmentchoses to seek the approval of the Hon’ble Governor. There is nothingCillegal or improper to seek approval of the Hon’ble Governor in all casesbut in the cases where the prisoner has not undergone 14 years of actualimprisonment falling within scope of Section 433-A of the Code, it is forthe Hon’ble Governor to exercise the power conferred under Article161 of the Constitution, though on the aid and advice of the StateDGovernment. We find that clause (b) of the policy dated 12.4.2002provided for the cases of the prisoners to be considered after completionof 10 years of actual sentence including undertrial period provided thetotal period of such sentence including remission is not less than 14 years.The remissions not contemplated by Section 433-A of the Code, thepower to remit or commute sentence can be exercised by the GovernorEin 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 upbefore the Governor with full background of the prisoner andrecommendation of the Committee including copy of the judgment fororders under Article 161 of the Constitution.F

19. The Notification dated 13.8.2008 published in exercise of thepowers conferred upon an appropriate Government under Section 432(5)of the Code, provides that the appropriate Government may, by generalrules or special orders, give directions as to the suspension of sentencesand the conditions on which petitions should be presented and dealt with.GTherefore, all the polices issued from time to time are under Section 432of the Code, though no reference is made to such provisions in any ofthe policies except the last one dated 13.8.2008. The source of power toframe guidelines or the policies for remission etc. was earlier inSection 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 governmentunder Section 432(5) of the Code.

20. The clause 2(c) of the policy dated 13.8.2008 deals with theconvicts who have been imprisoned for life having committed a crimewhich is defined in the Indian Penal Code, 1860 (IPC) as punishable forlife imprisonment but not with death sentence. The cases of such prisonerscan be considered after completion of 10 years of actual sentenceincluding undertrial period provided the total period of such sentenceincluding remission is not less than 14 years. The distinction is that insuch cases, the remission is taken into consideration whereas, theremissions earned by a prisoner convicted for an offence under Section302 IPC, an offence punishable with death, cannot be considered forpremature release. If such a prisoner is to be considered for prematurerelease in the cases of life imprisonment for an offence under IPC, thebar under Section 433-A of the Code would not apply. The judgment inJagdish has to be read in the light of the distinction which we havedrawn between the power exercised by the Hon’ble Governor and thepower to be exercised by the State Government.

21. Therefore, we find that the directions issued by the High Courtare not sustainable for the reason that the policies have to be read keepingin view the period of imprisonment undergone by a prisoner. The powerof remission is to be exercised by the State Government, as an appropriateGovernment, if the prisoner has undergone 14 years of actualimprisonment in the cases falling within the scope of Section 433-A ofthe Code and in case the imprisonment is less than 14 years, the powerof premature release can be exercised by the Hon’ble Governor thoughon the aid and advice of the State Government.

22. Consequently, the directions issued by the learned Single Benchare not sustainable and are hereby set aside.

23. The prisoner herein has completed 12 years and 25 days ason 6.7.2021 as per the custody certificate produced by the State. Thecase for premature release of the prisoner in terms of the policy of theState Government dated 13.8.2008, the policy which was applicable onthe date of his conviction, can be considered only after he completes 14years of actual imprisonment. However, the State Government canconsider the prisoner in question for premature release after undergoing A

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Aimprisonment for less than 14 years only under Article 161 of theConstitution.

24. The appeals are disposed of accordingly.

BNidhi Jain

Appeals disposed of.

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