The case was referred to a larger bench due to conflicting views in previous judgments regarding which remission policy should apply: the one at the time of conviction or the ...
No Acts & Articles mentioned in this case
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 566 OF 2010
(Arising out of SLP (Crl.) No. 6638 of 2009)
STATE OF HARYANA AND ORS. ..APPELLANTS
Versus
JAGDISH ..RESPONDENT
J U D G M E N T
Dr. B.S. CHAUHAN, J
1.Delay condoned. Leave granted.
2.This matter has come up before us upon reference having been made
by a Two-Judge Bench vide order dated 04.11.2009 upon noticing an
inconsistency in the views expressed by this Court in the case of State of
Haryana & Ors. v. Balwan AIR 1999 SC 3333 on one hand and in the
cases of State of Haryana v. Mahender Singh & Ors. (2007) 13 SCC
606; and State of Haryana v. Bhup Singh AIR 2009 SC 1252, on the other
hand. The inconsistency, which was pointed out in the said order was
noticed by taking into account the para 5 of the judgment in Balwan (supra)
which is as follows :-
“……..However, in order to see that a life convict does
not lose any benefit available under the remission
scheme which has to be regarded as the guideline, it
would be just and proper to direct the State Government
to treat the date on which his case is/was required to be
put up before the Governor under Article 161 of the
Constitution as the relevant date with reference to which
their cases are to be considered ……”
3.The views expressed in Mahender Singh (supra) and Bhup Singh
(supra) were as follows :-
Mahender Singh (supra)
“40. Whenever, thus, a policy decision is made, persons
must be treated equally in terms thereof. A’ fortiori the
policy decision applicable in such cases would be which
was prevailing at the time of his conviction.”
Bhup Singh (supra)
“10….. 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 …….
11......It is, therefore, directed that if the respondents
have not already been released, the State shall consider
their cases in terms of the judgment of this Court in
Mahender Singh case having regard to the policy
decision as was applicable on the date on which they
were convicted and not on the basis of the subsequent
policy decision of the year 2002….”
2
4.The question that has been posed before us is as to whether the policy
which makes a provision for remission of sentence, should be that which
was existing on the date of the conviction of the accused or it should be the
policy that exists on the date of consideration of his case for pre-mature
release by the appropriate authority?
5.In the instant case, we find that the respondent, herein, has been
granted the relief by the Punjab and Haryana High Court for consideration of
his case for grant of clemency as per the policy prevailing on the date of his
conviction. The respondent was convicted and sentenced for life
imprisonment vide judgment and order dated 20.05.1999 and the policy
which was in existence at that point of time was dated 04.02.1993. The
respondent, having served more than 10 years imprisonment, approached the
High Court that in spite of having undergone the sentence as per the
aforesaid policy dated 04.02.1993, his case for pre-mature release was not
being considered in view of the new policy of short sentencing, introduced
on 13.08.2008. The policy dated 13.8.2008 has been brought on record,
which expressly recites that the same was being issued in exercise of the
powers conferred by Sub-Section (1) of Section 432 read with Section 433
of Criminal Procedure Code (hereinafter called Cr.P.C.), 1973. The same
3
further recites that it is in supersession of the Government Memorandum
dated 12.04.2002 and all other earlier policies.
6.The respondent was involved in a case, the FIR whereof was
registered on 16.01.1995 and he was convicted vide judgment and order
dated 20.5.1999 under Sections 302, 148 and 149 Indian Penal Code
(hereinafter called IPC), 1860. In the above background, the respondent
filed a Criminal Misc. Application before the High Court. The Court
placing reliance on the judgments of this Court in Mahender Singh (supra)
and Bhup Singh (supra) came to the conclusion that the case of the
respondent for pre-mature release was to be considered in the light of the
short sentencing policy existing on the date of his conviction and thus, a
direction was issued to the State Authorities to consider his case for pre-
mature release in view of the policy dated 4.2.1993 existing on the date of
his conviction i.e. 20
th
May, 1999 within a period of one month from the
date of receipt of the certified copy of the judgment. Hence, this appeal. In
view of the conflicting views in various judgments of this Court, reference
has been made to the larger Bench.
4
7.Heard Shri Gopal Subramanium, learned Solicitor General, Amicus
Curiae, Shri P.N. Mishra, learned senior counsel appearing for the State of
Haryana, Shri B.S. Malik, Senior Advocate, Shri Manoj Swarup, Shri D.P.
Singh and Shri Sanjay Jain, Advocates for respondents.
8.Shri P.N. Mishra, learned senior counsel appearing for the State of
Haryana has submitted that State has unfettered power to lay down a policy
in regard to remission of sentence. The short sentencing policies are merely
executive instructions having no statutory force, therefore, do not create any
legal/vested right in favour of the convict. Having regard to the provisions of
Sections 54, 55 IPC and Section 433-A Cr.P.C., no interference was required
by the High Court. Case of the respondent for pre-mature release would be
considered in view of the policy dated 13.8.2008. Thus, the judgment and
order of the High Court impugned herein, is liable to be set aside.
9.On the contrary, learned counsel appearing for the respondent in this
appeal and other connected cases, which are being disposed of by separate
order, have contended that all remission schemes were issued making
reference to Article 161 of the Constitution of India (hereinafter called the
Constitution). The clemency power of the executive cannot be subjected to
5
any law whatsoever and thus, a legal right stood crystallised in favour of the
convict, to be considered for pre-mature release in view of the scheme
prevailing on the date of his conviction. They have emphasised that such
scheme envisaged at least a promise and in view of the provisions of
Articles 20(1) and 21 of the Constitution, the conditions contained in
subsequent policies being more stringent cannot be enforced against the
“lifer”. Provisions of the Prisons Act, 1894 (hereinafter called as ‘Act
1894’) and rules framed under it create legal right in favour of the convict.
Such rights cannot be taken away by presently prevailing policy dated
13.8.2008. No policy can be framed in derogation of the statutory rules.
However, in case a lenient policy is enforced at subsequent stage, the same
can be made applicable and thus, the judgment and order of the High Court
does not require any interference. The appeal is liable to be dismissed.
10.Shri Gopal Subramanium, learned Solicitor General who appeared as
Amicus Curiae, has submitted that even if there is no vested right of the
convict to be considered for pre-mature release, in view of the policy
prevailing on the date of his conviction, at least a human element of
expectation that the convict would have remission as per the guidelines
prevailing on the date of his conviction cannot be ruled out. Even if the
6
convict does not satisfy the requirement of presently existing remission
policy dated 13.8.2008, his case can always be considered for remission
under the provisions of Article 72 or 161 of the Constitution and it will be
for the President or the Governor, as the case may be, to take a view in the
matter in conformity with the decision in Maru Ram v. Union of India
(1981) 1 SCC 107.
11.We have considered the rival submissions made by learned counsel
for the parties and perused the record.
12.In the instant case, the respondent was convicted on 20
th
May, 1999
and sentenced for life imprisonment. Remission policy has been changed
from time to time and provided mainly as under:
Date of Policy Minimum required sentence for
pre-mature release
4
th
February, 1993
(a) Convicts whose death sentence
has been commuted to life
imprisonment and convicts who have
been imprisoned for life for having
committed a heinous crime such as:-
murder with wrongful confinement,
for extortion/robbery; murder with
rape; murder while undergoing life
imprisonment; murder with dacoity
Their cases may be considered after
completion of 14 years actual
sentence including under trial period
and after earning at least 6 years
remission.
7
…. ; murder of a child under the age
of 14 years; and murder on
professional/hired basis….
(b) Adult life convicts who have
been imprisoned for life but whose
cases are not covered under (a)
above and who have committed
crime which are not considered
heinous as mentioned in clause (a)
above, or other life convicts
imprisoned for life for offence for
which death penalty is not a
punishment.
Their cases may be considered after
completion of 10 years of actual
sentence including under trial period,
provided that the total period of
such sentence including remission
is not less than 14 years.
8
th
August, 2000
(a) Convicts whose death sentence
has been commuted to life
imprisonment and convicts who have
been imprisoned for life having
committed a heinous crime such as:-
(i) murder with wrongful
confinement, for extortion/robbery;
(ii) murder with rape; (iii) murder
while undergoing life imprisonment;
(iv) murder with dacoity …. ; (viii)
murder of a child under the age of 14
years; (ix) murder of woman; and
(xi) murder on professional/hired
basis…. (xvi) convicts who have
been awarded life imprisonment a
second time under any offence….
(b) Adult life convicts who have
been imprisoned for life but whose
cases are not covered under (a)
above and who have committed
crime which are not considered
Their cases may be considered after
completion of 14 years actual
sentence including under trial period
provided that the total period of
such sentence including remission
is not less than 20 years.
Their cases may be considered after
completion of 10 years actual
sentence including under trial period
provided that the total period of
such sentence including remission
8
heinous as mentioned in clause (a) is not less than 14 years.
29
th
October, 2001
(aa) Convicts whose death sentence
has been commuted to life
imprisonment and convicts who have
been imprisoned for life having
committed a heinous crime such as:-
(i) murder after rape repeated
chained rape/unnatural offences; (ii)
murder with intention for the
ransom; (iii) murder of more than
two persons; (iv) persons convicted
for second time for murder; and (v)
sedition with murder.
(a) Convicts who have been
imprisoned for life having committed
a heinous crime such as:-
(i) murder with wrongful
confinement for extortion/robbery;
(ii) murder while undergoing life
sentence; murder with dacoity…..
and (vii) murder of a child under the
age of 14 years……
(b) Adult life convicts who have
been imprisoned for life but whose
cases are not covered under (aa) and
(a) above and who have committed
crime which are not considered
heinous as mentioned in clause (aa)
& (a) above.
Their cases may be considered after
completion of 20 years actual
sentence and 25 years total sentence
with remissions.
Their cases may be considered after
completion of 14 years actual
sentence including under trial period
provided that the total period of
such sentence including remissions
is not less than 20 years.
Their cases may be considered after
completion of 10 years actual
sentence including under trial period
provided that the total period of
such sentence including remissions
is not less than 14 years.
9
13
th
August, 2008
(a) Convicts whose death sentence
has been commuted to life
imprisonment and convicts who have
been imprisoned for life having
committed a heinous crime such as:-
(i) murder with rape/unnatural
offences; (ii) murder with intention
to collect ransom/robbery/
kidnapping/abduction; (iii) murder of
more than two persons; (iv) persons
convicted for second time for
murder; (v) sedition; (vi) sedition
with murder; and (vii) murder while
undergoing life sentence……
(b) Convicts who have been
imprisoned for life having committed
any crime which is defined in IPC
and/or NDPS Act as punishable with
death sentence.
(c) ……
Their cases for pre-mature release
may be considered after completion
of 20 years actual sentence and 25
years total sentence with
remissions.
Their cases for pre-mature release
may be considered after completion
of 14 years actual sentence
including under trial period; provided
that the total period of such
sentence including remissions is
not less than 20 years.
…….
It may also be pertinent to mention here that all the aforesaid policies
made a clear-cut distinction and categorised the offence of murder in two
separate categories. Heinous crime means murder, i.e., (i) murder with
wrongful confinement, for extortion/robbery; (ii) murder with rape; (iii)
murder undergoing life imprisonment; (iv) murder with dacoity …. ; (v)
1
murder of a child under 14 years; and (vi) murder on professional/hired basis
etc. Murders not mentioned in either of these above categories have been
treated differently for the purpose of grant of pre-mature release. In all the
policies issued by the Government except policy dated 13
th
August, 2008,
the provisions of Article 161 of the Constitution have been referred to. All
the said policies provided that the cases of life convicts would be put to the
Governor through the Minister for Jails and the Chief Minister, Haryana
with full background of the prisoners and recommendations of the
Committee alongwith the copy of the judgment etc. for orders under Article
161 of the Constitution.
13.This Court in Gopal Vinayak Godse v. State of Maharashtra &
Ors. AIR 1961 SC 600 considered the provisions of Section 53-A IPC,
Cr.P.C. and also considered the Code of Criminal Procedure Amendment
Act, 1955 which provided that a person sentenced to transportation for life
before the Amendment Act would be considered as sentenced to rigorous
imprisonment for life. The life convict was bound to serve the remainder of
sentence imprisoned. Unless the sentence was commuted or remitted by the
Competent Authority, such sentence would not be equated with any fixed
term. The benefit of remission or any short sentencing policy in accordance
1
with the rules framed under the Act 1894, if any, would be considered
towards the end of the term and the said question was within the exclusive
domain of the appropriate Government. In the said case, in spite of the fact
that certain remissions had been made, the competent authority did not remit
the entire sentence. While deciding the said case, this court placed reliance
on the judgment of the Privy Council in Pt. Kishorilal v. Emperor AIR
1946 P.C. 64.
14.In Dalbir Singh & Ors. v. State of Punjab AIR 1979 SC 1384, this
court came to the conclusion that ‘life imprisonment’ means imprisonment
for the whole of the man’s life. But in practice it amounts to incarceration
for a period between 10 to 14 years.
15.In State of Haryana v. Nauratta Singh & Ors. AIR 2000 SC 1179,
this Court clearly held that 14 years mentioned in Section 433-A Cr. P.C. is
the actual period of imprisonment undergone without including any period
of remission.
16.In Swamy Shraddananda@Murali Manohar Mishra v. State of
Karnataka AIR 2008 SC 3040, this Court had passed the order that the
1
appellant therein would not be released from prison till the rest of his life.
Such a punishment was considered necessary because this Court substituted
the death sentence given to the appellant by the Trial Court and confirmed
by the High Court, with imprisonment for life with a direction that the said
appellant would not be released from prison for the rest of his life. Thus, the
Court came to the conclusion, on the facts of that case, that in such an
eventuality the pre-mature release after a minimum incarceration for a
period of 14 years as envisaged under Section 433-A Cr.P.C. would not be
acceded to, since the sentence of death had been stepped down to that of life
imprisonment which was definitely a lenient punishment.
17. In Ramraj @ Nanhoo @ Bihnu v. State of Chhattisgarh AIR 2010
SC 420, this Court held as under:
“In the various decisions rendered after the decision in
Godse case, “imprisonment for life” has been repeatedly
held to mean imprisonment for the natural life term of a
convict, though the actual period of imprisonment may
stand reduced on account of remissions earned. But in
no case, with the possible exception of the powers vested
in the President under Article 72 of the Constitution and
the powers vested in the Governor under Article 161 of
the Constitution, even with remissions earned, can a
sentence of imprisonment for life be reduced to below 14
years. It is thereafter left to the discretion of the
authorities concerned to determine the actual length of
imprisonment having regard to the gravity and intensity
of the offence.”
1
18.In Mohd. Munna v. Union of India (2005) 7 SCC 417, this Court
came to the conclusion that life imprisonment was not equivalent to
imprisonment for 14 years or 20 years. Life imprisonment means
imprisonment for the whole of the remaining period of the convicted
person’s natural life. There was no provision either in the IPC or Cr.P.C.
whereby life imprisonment could be treated as either 14 years or 20 years
incarceration without there being a formal remission by the Appropriate
Government. The contention that having regard to the provisions of Section
57 IPC, a prisoner was entitled to be released on completing 20 years of
imprisonment under the West Bengal Correctional Services Act, 1992 and
the West Bengal Jail Code, was rejected.
19.Before we proceed to consider the exercise of powers with regard to
remission, as provided for either under the Constitution, the IPC or the
Cr.P.C., it would be worth reiterating what has already been traversed and
laid down by this Court right from the case of Maru Ram (supra) to the
decision in the case of Ram Raj (supra).
1
20.In Maru Ram (supra), this Court elaborately dealt with the issue of
validity of Section 433-A Cr.P.C. and the remission/short sentencing
policies and held as under:
“54. The major submissions which deserve high
consideration may now be taken up. They are three and
important in their outcome in the prisoners’ freedom
from behind bars. The first turns on the ‘prospectivity’
(loosely so called) or otherwise of Section 433-A. We
have already held that Article 20(1) is not violated but
the present point is whether, on a correct construction,
those who have been convicted prior to the coming into
force of Section 433-A are bound by the mandatory limit.
If such convicts are out of its coils their cases must be
considered under the remission schemes and ‘short-
sentencing’ laws. The second plea, revolves round
‘pardon jurisprudence’, if we may coarsely call it that
way, enshrined impregnably in Articles 72 and 161 and
the effect of Section 433-A thereon. The power to remit is
a constitutional power and any legislation must fail
which seeks to curtail its scope and emasculate its
mechanics. Thirdly, the exercise of this plenary power
cannot be left to the fancy, frolic or frown of
Government, State or Central, but must embrace reason,
relevance and reformation, as all public power in a
republic must. On this basis, we will have to scrutinize
and screen the survival value of the various remission
schemes and short-sentencing projects, not to test their
supremacy over Section 433-A, but to train the wide and
beneficent power to remit life sentences without the
hardship of fourteen fettered years.
xx xx xx
67. All these go to prove that the length of imprisonment
is not regenerative of the goodness within and may be
proof of the reverse — a calamity which may be averted
1
by exercise of power under Article 161…… In short, the
rules of remission may be effective guidelines of a
recommendatory nature, helpful to Government to
release the prisoner by remitting the remaining term.
xx xx xx
72(7) We declare that Section 433-A, in both its limbs
(i.e. both types of life imprisonment specified in it), is
prospective in effect…… It follows, by the same logic,
that short-sentencing legislations, if any, will entitle a
prisoner to claim release thereunder if his conviction by
the court of first instance was before Section 433-A was
brought into effect.
xx xx xx
72(10) Although the remission rules or short-sentencing
provisions proprio vigore may not apply as against
Section 433-A, they will override Section 433-A if the
Government, Central or State, guides itself by the
selfsame rules or schemes in the exercise of its
constitutional power. We regard it as fair that until fresh
rules are made in keeping with experience gathered,
current social conditions and accepted penological
thinking—a desirable step, in our view—the present
remission and release schemes may usefully be taken as
guidelines under Articles 72/161 and orders for release
passed. We cannot fault the Government, if in some
intractably savage delinquents, Section 433-A is itself
treated as a guideline for exercise of Articles 72/161.
These observations of ours are recommendatory to avoid
a hiatus, but it is for Government, Central or State, to
decide whether and why the current Remission Rules
should not survive until replaced by a more wholesome
scheme.”
1
21.Thus, the Court held that the amendment would apply prospectively.
The life convicts who had been sentenced prior to 18.12.1978 i.e. date of
enforcement of amendment would not come within the purview of the
provisions of Section 433-A Cr.P.C. and short sentencing policy would also
apply prospectively. Remission rules/short sentencing policies could be
taken as guidelines for exercise of power under Articles 72 or 161 of the
Constitution and in such eventuality, remission rules will override Section
433-A Cr.P.C.
22.In State of Punjab v. Joginder Singh AIR 1990 SC 1396 this Court
held that remission cannot detract from the quantum and quality of judicial
sentence except to the extent permitted by Section 433 Cr.P.C. subject of
course, to Section 433-A or where the clemency power under the
Constitution is invoked. But while exercising the constitutional power under
Articles 72/161 of the Constitution, the President or the Governor, as the
case may be, can exercise an absolute power which cannot be fettered by
any statutory provision such as Sections 432, 433 and 433-A Cr.P.C. This
power cannot be altered, modified or interfered with in any manner
whatsoever by any statutory provisions or Prison Rules.
1
23.In Sadhu Singh v. State of Punjab AIR 1984 SC 739, this Court
examined the nature of the provisions contained in para 516-B of the Punjab
Jail Manual which provided for remissions etc. and executive instructions
issued by the Punjab Government from time to time and came to the
conclusion that the Jail Manual contained merely executive instructions
having no statutory force. Thus, it was always open to the State Government
to alter, amend or withdraw the executive instructions or supersede the same
by issuing fresh instructions. But the Court observed as under:
“Any existing executive instruction could be substituted
by issuing fresh executive instructions for processing the
cases of lifers for pre-mature release but once issued
these must be uniformly and invariably apply to all cases
of lifers”
24.A similar view has been re-iterated by this Court in Balwan (supra);
and Laxman Naskar v. Union of India & Ors. (2000) 2 SCC 595.
25.In Ashok Kumar @ Golu v. Union of India & Ors. AIR 1991 SC
1792 this Court considered the scope and relevancy of Rajasthan Prisons
(Shortening of Sentences) Rules, 1958 qua the provisions of Section 433-A
Cr.P.C. The said Rajasthan Rules 1958 provided that a “lifer” who had
served actual sentence of about nine years and three months was entitled to
1
be considered for pre-mature release if the total sentence including
remissions worked out to 14 years and he was reported to be of good
behaviour. The grievance of the petitioner therein had been that his case for
pre-mature release had not been considered by the Concerned Authorities in
view of the provisions of Section 433-A Cr.P.C. This Court considered the
matter elaborately taking into consideration large number of its earlier
judgments including Maru Ram (supra), Bhagirath v. Delhi
Administration AIR 1985 SC 1050; Kehar Singh & Anr. v. Union of
India & Anr. AIR 1989 SC 653, and came to the following conclusions:
(i)Section 433-A Cr.P.C. denied pre-mature release before
completion of actual 14 years of incarceration to only those
limited convicts convicted of a capital offence i.e. exceptionally
heinous crime;
(ii)Section 433-A Cr.P.C. cannot and does not in any way affect
the constitutional power conferred on the President/Governor
under Article 72/161 of the Constitution;
(iii)Remission Rules have a limited scope and in case of a convict
undergoing sentence for life imprisonment, it acquires
significance only if the sentence is commuted or remitted
1
subject to Section 433-A Cr.P.C. or in exercise of constitutional
power under Article 72/161 of the Constitution; and
(iv)Case of a convict can be considered under Articles 72 and 161
of the Constitution treating the 1958 Rules as guidelines.
The aforesaid case was disposed of by this Court observing that in
case the clemency petition of the petitioner therein was pending despite of
the directive of the High Court, it would be open to the said petitioner to
approach the High Court for compliance of its order.
26.In Mahender Singh (supra), this Court as referred to hereinabove
held that the policy decision applicable in such cases would be which was
prevailing at the time of his conviction. This conclusion was arrived on the
following ground:
“38. A right to be considered for remission, keeping in
view the constitutional safeguards of a convict under
Articles 20 and 21 of the Constitution of India, must be
held to be a legal one. Such a legal right emanates from
not only the Prisons Act but also from the Rules framed
thereunder.”
2
27.Nevertheless, we may point out that the power of the sovereign to
grant remission is within its exclusive domain and it is for this reason that
our Constitution makers went on to incorporate the provisions of Article 72
and Article 161 of the Constitution of India. This responsibility was cast
upon the Executive through a Constitutional mandate to ensure that some
public purpose may require fulfillment by grant of remission in appropriate
cases. This power was never intended to be used or utilised by the
Executive as an unbridled power of reprieve. Power of clemency is to be
exercised cautiously and in appropriate cases, which in effect, mitigates the
sentence of punishment awarded and which does not, in any way, wipe out
the conviction. It is a power which the sovereign exercises against its own
judicial mandate. The act of remission of the State does not undo what has
been done judicially. The punishment awarded through a judgment is not
overruled but the convict gets benefit of a liberalised policy of State pardon.
However, the exercise of such power under Article 161 of the Constitution
or under Section 433-A Cr. P.C. may have a different flavour in the statutory
provisions, as short sentencing policy brings about a mere reduction in the
period of imprisonment whereas an act of clemency under Article 161 of the
Constitution commutes the sentence itself.
2
28.In Epuru Sudhakar & Another v. Govt. of A.P. & Ors. AIR 2006
SC 3385 this Court held that reasons had to be indicated while exercising
power under Articles 72/161. It was further observed (per Kapadia, J) in his
concurring opinion:
“Pardons, reprieves and remissions are manifestation of
the exercise of prerogative power. These are not acts of
grace. They are a part of Constitutional scheme. When a
pardon is granted, it is the determination of the ultimate
authority that public welfare will be better served by
inflicting less than what the judgment has fixed……..
Exercise of Executive clemency is a matter of discretion
and yet subject to certain standards. It is not a matter of
privilege. It is a matter of performance of official duty. It
is vested in the President or the Governor, as the case
may be, not for the benefit of the convict only, but for the
welfare of the people who may insist on the performance
of the duty…….
Granting of pardon is in no sense an overturning of a
judgment of conviction, but rather it is an Executive
action that mitigates or sets aside the punishment for a
crime……..
The power under Article 72 as also under Article 161 of
the Constitution is of the widest amplitude and envisages
myriad kinds and categories of cases with facts and
situations varying from case to case.”
29.There is no dispute to the settled legal proposition that the power
exercised under Articles 72/161 could be the subject matter of limited
judicial review. (vide Kehar Singh (supra); Ashok Kumar (supra);
2
Swaran Singh v. State of U.P. AIR 1998 SC 2026; Satpal & Anr. v. State
of Haryana & Ors. AIR 2000 SC 1702; and Bikas Chatterjee v. Union of
India (2004) 7 SCC 634). In Epuru Sudhakar (supra) this Court held that
the orders under Articles 72/161 could be challenged on the following
grounds:
(a)that the order has been passed without application of mind;
(b)that the order is mala fide;
(c)that the order has been passed on extraneous or wholly
irrelevant considerations;
(d)that relevant materials have been kept out of consideration;
(e)that the order suffers from arbitrariness.
30.The power of clemency that has been extended is contained in
Articles 72 and 161 of the Constitution. This matter relates to the State of
Haryana. The Governor of Haryana may exercise the clemency power.
Article 161 of the Constitution enables the Governor of a State “to grant
pardons, reprieves, respites or remissions of punishment or to suspend, remit
or commute the sentence of any person convicted of any offence against any
law relating to a matter to which the executive power of the State extends”
2
31.Sections 54 and 55 IPC provide for punishment. However, the
provisions of Sections 432 and 433-A Cr.P.C., relate to the present
controversy. Section 432(1) Cr.P.C. empowers the State Government to
suspend or remit sentences of any person sentenced to punishment for an
offence, at any time, without conditions or upon any conditions that the
person sentenced accepts, suspend the execution of his sentence or remit the
whole or any part of the punishment to which he has been sentenced. Section
433-A Cr.P.C. imposes restriction on powers of remission or commutation
where a sentence of imprisonment for life is imposed on conviction of a
person for an offence for which death is one of the punishment provided by
law or where a sentence of death imposed on a person has been commuted
under section 433 into one of imprisonment for life, such person shall not be
released from prison unless he has served at least fourteen years of
imprisonment.
32. Pardon is one of the many prerogatives which have been recognised
since time immemorial as being vested in the sovereign, whoever the
sovereignty might be. Whether the sovereign happened to be an absolute
monarch or a popular republic or a constitutional king or queen, Sovereignty
has always been associated with the source of power — the power to appoint
2
or dismiss public servants, the power to declare war and conclude peace, the
power to legislate and the power to adjudicate upon all kinds of disputes etc.
The rule of law, in contradiction to the rule of man, includes within its
wide connotation the absence of arbitrary power, submission to the ordinary
law of the land, and the equal protection of the laws. As a result of the
historical process aforesaid, the absolute and arbitrary power of the monarch
came to be canalised into three distinct wings of the Government, (Vide
K.M. Nanavati v. State of Bombay AIR 1961 SC 112).
33.Articles 72 and 161 of the Constitution provide for a residuary
sovereign power, thus, there can be nothing to debar the concerned authority
to exercise such power, even after rejection of one clemency petition, if the
changed circumstances so warrant. (Vide G. Krishta Goud & J.
Bhoomaiah v. State of Andhra Pradesh & Ors. (1976) 1 SCC 157)
34.In Regina v. The Secretary of State for the Home Department
(1996) EWCA Civ 555, the question came for consideration, before the
Court that if the short-sentencing policy is totally inflexible, whether it
amounts to transgression on the clemency power of the State which is
2
understood as unfettered? The court considered the issue at length and came
to the conclusion as under:
“…… the policy must not be so rigid that it does not
allow for the exceptional case which requires a
departure from the policy, otherwise it could result in
fettering of the discretion which would be unlawful….
It is inconsistent with the very flexibility which must
have been intended by the Parliament in giving such a
wide and untrammeled discretion to the Home
Secretary……Approximately 90 years ago an
enlightened Parliament recognised that a flexible
sentence of detention is what is required in these cases
with a very wide discretion being given to the person
Parliament thought best suited to oversee that discretion
so that the most appropriate decision as to release could
be taken in the public interest. The subsequent statutes
have not altered the nature of the discretion.” (Emphasis
added).
Thus, it was held therein that the clemency power remains unfettered
and in exceptional circumstances, variation from the policy is permissible.
35.In view of the above, it is evident that 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, 433 and 433-A Cr. P.C. though
the Authority has to meet the requirements referred to hereinabove while
exercising the clemency power.
2
To say that clemency power under Articles 72/161 of the Constitution
cannot be exercised by the President or the Governor, as the case may be,
before a convict completes the incarceration period provided in the short-
sentencing policy, even in an exceptional case, would be mutually
inconsistent with the theory that clemency power is unfettered.
The Constitution Bench of this Court in Maru Ram (supra) clarified
that not only the provisions of Section 433-A Cr. P.C. would apply
prospectively but any scheme for short sentencing framed by the State would
also apply prospectively. Such a view is in conformity with the provisions
of Articles 20 (1) and 21 of the Constitution. 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. When a short
sentencing scheme is referable to Article 161 of the Constitution, it cannot
be held that the said scheme cannot be pressed in service. Even if, a life
convict does not satisfy the requirement of remission rules/short sentencing
schemes, there can be no prohibition for the President or the Governor of the
State, as the case may be, to exercise the power of clemency under the
provisions of Article 72 and 161 of the Constitution. Right of the convict is
limited to the extent that his case be considered in accordance with the
relevant rules etc., he cannot claim pre-mature release as a matter of right.
2
36.Two contrary views have always prevailed on the issue of purpose of
criminal justice and punishment. The punishment, if taken to be remedial
and for the benefit of the convict, remission should be granted. If sentence
is taken purely punitive in public interest to vindicate the authority of law
and to deter others, it should not be granted.
In Salmond on Jurisprudence, 12
th
Edition by P.J. Fitzgerald, the
author in Chapter 15 dealt with the purpose of criminal justice/punishment
as under :-
“Deterrence acts on the motives of the offender, actual
or potential; disablement consists primarily in physical
restraint. Reformation, by contrast, seeks to bring about
a change in the offender’s character itself so as to
reclaim him as a useful member of society. Whereas
deterrence looks primarily at the potential criminal
outside the dock, reformation aims at the actual offender
before the bench. In this century increasing weight has
been attached to this aspect. Less frequent use of
imprisonment, the abandonment of short sentences, the
attempt to use prison as a training rather than a pure
punishment, and the greater employment of probation,
parole and suspended sentences are evidence of this
general trend. At the same time, there has been growing
concern to investigate the causes of crime and the effects
of penal treatment……...The reformative element must
not be overlooked but it must not be allowed to assume
undue prominence. How much prominence it may be
allowed, is a question of time, place and circumstance.”
R.M.V.Dias, in his book Jurisprudence (Fifth Edition- 1985) observed
as under :-
2
“The easing of laws and penalties on anti-social conduct
may conceivably result in less freedom and safety for the
law-abiding. As Dietze puts it: ‘Just as the despotio
variant of democracy all too often has jeopardized
human rights, its permissive variant threatens these
rights by exposing citizens to the crimes of their
fellowmen………
………. The more law-abiding people lose confidence in
the law and those in authority to protect them, the more
will they be driven to the alternative of taking matters
into their own hands, the perils of which unthinkable and
are nearer than some liberty-minded philanthropists
seem inclined to allow……”
Legal maxim, “Veniae facilitas incentivum est delinquendi”, is a
caveat to the exercise of clemency powers, as it means - “Facility of pardon
is an incentive to crime.” It may also prove to be a “grand farce”, if granted
arbitrarily, without any justification, to “privileged class deviants”. Thus, no
convict should be a “favoured recipient” of clemency.
37.Liberty is one of the most precious and cherished possessions of a
human being and he would resist forcefully any attempt to diminish it.
Similarly, rehabilitation and social reconstruction of life convict, as
objective of punishment become of paramount importance in a welfare state.
“Society without crime is a utopian theory”. The State has to achieve the
goal of protecting the society from convict and also to rehabilitate the
2
offender. There is a very real risk of revenge attack upon the convict from
others. Punishment enables the convict to expiate his crime and assist his
rehabilitation. The Remission policy manifests a process of reshaping a
person who, under certain circumstances, has indulged in criminal activity
and is required to be rehabilitated. Objectives of the punishment are wholly
or predominantly reformative and preventive. The basic principle of
punishment that “guilty must pay for his crime” should not be extended to
the extent that punishment becomes brutal. The matter is required to be
examined keeping in view modern reformative concept of punishment. The
concept of “Savage Justice” is not to be applied at all. The sentence
softening schemes have to be viewed from a more human and social science
oriented approach. Punishment should not be regarded as the end but as only
the means to an end. The object of punishment must not be to wreak
vengeance but to reform and rehabilitate the criminal. More so, relevancy of
the circumstances of the offence and the state of mind of the convict, when
the offence was committed, are the factors, to be taken note of.
38. At the time of considering the case of pre-mature release of a life
convict, the authorities may require to consider his case mainly taking into
consideration whether the offence was an individual act of crime without
3
affecting the society at large; whether there was any chance of future
recurrence of committing a crime; whether the convict had lost his
potentiality in committing the crime; whether there was any fruitful purpose
of confining the convict any more; the socio-economic condition of the
convict’s family and other similar circumstances.
39. Considerations of public policy and humanitarian impulses – supports
the concept of executive power of clemency. If clemency power exercised
and sentence is remitted, it does not erase the fact that an individual was
convicted of a crime. It merely gives an opportunity to the convict to
reintegrate into the society. 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. Power of clemency is
required to be pressed in service in an appropriate case. Exceptional
circumstances, e.g. suffering of a convict from an incurable disease at last
stage, may warrant his release even at much early stage. ‘Vana Est Illa
Potentia Quae Nunquam Venit In Actum’ means-vain is that power which
never comes into play.
3
40.Pardon is an act of grace, proceedings from the power entrusted with
the execution of the laws, which exempts the individual on whom it is
bestowed from the punishment which law inflicts for a crime he has
committed.Every civilised society recognises and has therefore provided
for the pardoning power to be exercised as an act of grace and humanity in
appropriate cases. This power has been exercised in most of the States from
time immemorial, and has always been regarded as a necessary attribute of
sovereignty. It is also an act of justice, supported by a wise public policy.
It cannot, however, be treated as a privilege. It is as much an official duty as
any other act. It is vested in the Authority not for the benefit of the convict
only, but for the welfare of the people; who may properly insist upon the
performance of that duty by him if a pardon or parole is to be granted.
41.This Court in Mahender Singh (supra) has taken note of the
provisions of Act 1894 and rules framed thereunder as well as the relevant
paragraphs of Punjab Jail Manual. Section 59 (5) of Act 1894 enables the
Government to frame rules for “award of marks and shortening of sentence”.
Rules define prisoner including a person committed to prison in default of
furnishing security to keep peace or be of good behaviour. Rules further
provide for classification of prisoners according to the intensity and gravity
3
of the offence. According to the classification of prisoners, Class 1
prisoners are those who had committed heinous organized crimes or
specially dangerous criminals. Class 2 prisoners include dacoits or persons
who commit heinous organized crimes. Class 3 prisoners are those who do
not fall within Class 1 or Class 2. Rule 20 thereof provides that life convict
being a Class 1 prisoner if earned such remission as entitles him to release,
the Superintendent shall report accordingly to the Local Government with a
view to the passing of orders under Section 401 Cr.P.C. Rule 21 provides
that save as provided by Rule 20, when a prisoner has earned such remission
as entitles him to release, the Superintendent shall release him. Instant case
falls in Class 3, not being a case of organized crime or by professionals or
hereditary or specially dangerous criminals.
Undoubtedly, the aforesaid rules are applicable in Haryana in view of
the State Re-organisation Act. These are statutory rules, not merely
executive instructions. Therefore, a “lifer” has a right to get his case
considered within the parameters laid down therein.
It may not be out of place to mention here that while deciding the case
in Sadhu Singh (supra), provisions of the aforesaid Act 1894 and Rules
referred to hereinabove, had not been brought to the notice of this Court.
3
More so, consistent past practice adopted by the State can furnish
grounds for legitimate expectation (vide Official Liquidator v. Dayanand
& Ors. (2008) 10 SCC 1).
42.We have already noticed that the earlier policies including the policy
dated 04.02.1993 refers to the exercise of powers under Article 161 of the
Constitution whereas the policy dated 13.08.2008 is in exercise of the
powers under Section 432 read with Sections 433 and 433-A of Cr. P.C.
The restriction under Section 433-A is only to the extent of the powers to be
exercised in respect of offences as referred to under Section 432 Cr.P.C.
The notification dated 13.08.2008 is, therefore, under a rule of procedure,
which is subordinate to the Constitution. The power exercised under Article
161 of the Constitution is obviously a mandate of the Constitution and,
therefore, the policy dated 13.08.2008 cannot override the policy dated
04.02.1993.
43.The right of the respondent prisoner, therefore, to get his case
considered at par with such of his inmates, who were entitled to the benefit
of the said policy, cannot be taken away by the policy dated 13.08.2008.
This is evident from a bare perusal of the recitals contained in the policies
3
prior to the year 2008, which are referable to Article 161 of the Constitution.
The High Court, therefore, in our opinion, was absolutely justified in
arriving at the conclusion that the case of the respondent was to be
considered on the strength of the policy that was existing on the date of his
conviction. State authority is under an obligation to at least exercise its
discretion in relation to an honest expectation perceived by the convict, at
the time of his conviction that his case for pre-mature release would be
considered after serving the sentence, prescribed in the short sentencing
policy existing on that date. The State has to exercise its power of remission
also keeping in view any such benefit to be construed liberally in favour of a
convict which may depend upon case to case and for that purpose, in our
opinion, it should relate to a policy which, in the instant case, was in favour
of the respondent. In case a liberal policy prevails on the date of
consideration of the case of a “lifer” for pre-mature release, he should be
given benefit thereof.
44.As per the information furnished by the appellant-State of Haryana,
the respondent Jagdish has served more than 14 years (actual) on 12.2.2009
i.e. prior to the date of judgment impugned herein dated 17.2.2009. By now,
3
the respondent has served (actual) for more than 15 years. Respondent falls
in category 3 of the prisoners as he did not indulge in any organised crime.
45.Accordingly, for the reasons given hereinabove, we find no reason to
interfere with the judgment of the High Court, which is hereby affirmed.
The appeal is dismissed accordingly, subject to the direction that the
appellant-State Government shall proceed to calculate the sentence for the
purpose of consideration of remission in the case of the respondent as per the
policy dated 04.02.1993.
………………………………CJI.
…………………………………J.
(J.M. PANCHAL)
…………………………………J.
(Dr. B.S. CHAUHAN)
New Delhi,
March 22, 2010
3
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
SPECIAL LEAVE PETITION (CRL.) NO. 5842 OF 2009
State of Haryana &Ors. …Appellants
Versus
Harpal …Respondent
WITH
SLP (Crl.) No.6385/2009
SLP (Crl.) No.6442/2009
SLP (Crl.) No.6441/2009
SLP (Crl.) No.6444/2009
SLP (Crl.) No.5768/2009
SLP (Crl.) No.7629/2009
SLP (Crl.) No.7579/2009
SLP (Crl.) No.7580/2009
SLP (Crl.) No.7581/2009
SLP (Crl.) No.7582/2009
SLP (Crl.) No.8140/2009
SLP (Crl.) No.7631/2009
SLP (Crl.) No.7630/2009
SLP (Crl.) No.7628/2009
SLP (Crl.) No.7622/2009
SLP (Crl.) No.7623/2009
3
SLP (Crl.) No.7625/2009
SLP (Crl.) No.7619/2009
SLP (Crl.) No.7621/2009
SLP (Crl.) No.7659/2009
SLP (Crl.) No.7654/2009
SLP (Crl.) No.7656/2009
SLP (Crl.) No.7657/2009
SLP (Crl.) No.7652/2009
SLP (Crl.) No.7655/2009
SLP (Crl.) No.7661/2009
SLP (Crl.) No.7653/2009
SLP (Crl.) No.7651/2009
SLP (Crl.) No.7660/2009
SLP (Crl.) No.7649/2009
SLP (Crl.) No.7658/2009
SLP (Crl.) No……… /2009 @Crl.M.P. No.13253
SLP (Crl.) No.7974/2008
SLP (Crl.) No.9330/2008
SLP (Crl.) No.9234/2008
SLP (Crl.) No.9268/2008
SLP (Crl.) No. ……………. /2009 @Crl.M.P. No.12754
SLP (Crl.) No. ……………… /2009 Crl.M.P. No.13045
SLP (Crl.) No.6914/2009
SLP (Crl.) No.6913/2009
SLP (Crl.) No.8288/2009
SLP (Crl.) No.8290/2009
SLP (Crl.) No.8291/2009
SLP (Crl.) No.8292/2009
SLP (Crl.) No.8293/2009
SLP (Crl.) No.8294/2009
SLP (Crl.) No.8297/2009
SLP (Crl.) No.8298/2009
SLP (Crl.) No.8300/2009
SLP (Crl.) No.8301/2009
SLP (Crl.) No.8302/2009
SLP (Crl.) No……………. /2009 @Crl.M.P. No.18221
SLP (Crl.) No……………/2009 @Crl.M.P. No.18264
SLP (Crl.) No…………. /2009 @Crl.M.P. No. 18402
SLP (Crl.) No. 831/2009
SLP (Crl.) No. 832/2009
3
SLP (Crl.) No. 1026/2009
SLP (Crl.) No. 1097/2009
SLP (Crl.) No. 1615/2009
SLP (Crl.) No. 2101/2009
SLP (Crl.) No. 1861/2009
SLP (Crl.) No. 2216/2009
SLP (Crl.) No. 3475/2009
SLP (Crl.) No. 3035/2009
SLP (Crl.) No. 3042/2009
SLP (Crl.) No. 3032/2009
SLP (Crl.) No. 3044/2009
SLP (Crl.) No. 3040/2009
SLP (Crl.) No. 3123/2009
SLP (Crl.) No. 4125/2009
SLP (Crl.) No. 4076/2009
SLP (Crl.) No. 4077/2009
SLP (Crl.) No. 4815/2009
SLP (Crl.) No. 4882/2009
SLP (Crl.) No. 5117/2009
SLP (Crl.) No. 5173/2009
SLP (Crl.) No. 6787/2009
SLP (Crl.) No. 6272/2009
SLP (Crl.) No. 6783/2009
SLP (Crl.) No. 6310/2009
SLP (Crl.) No. 6784/2009
SLP (Crl.) No. 6467/2009
SLP (Crl.) No. 6468/2009
SLP (Crl.) No. 6985/2009
SLP (Crl.) No. 6637/2009
SLP (Crl.) No. 6986/2009
SLP (Crl.) No. 6647/2009
SLP (Crl.) No. 6766/2009
SLP (Crl.) No. 6767/2009
SLP (Crl.) No. 6776/2009
SLP (Crl.) No. 6777/2009
SLP (Crl.) No. 7147/2009
SLP (Crl.) No. 8392/2009
SLP (Crl.) No. 4789/2009
SLP (Crl.) No. 6485/2009
SLP (Crl.) No. 4802/2009
3
SLP (Crl.) No. 4803/2009
SLP (Crl.) No. 4909/2009
SLP (Crl.) No. 6487/2009
SLP (Crl.) No. 4933/2009
SLP (Crl.) No. 4934/2009
SLP (Crl.) No. 4943/2009
SLP (Crl.) No. 4956/2009
SLP (Crl.) No. 6488/2009
SLP (Crl.) No. 5115/2009
SLP (Crl.) No. 5118/2009
SLP (Crl.) No. 5166/2009
SLP (Crl.) No. 5170/2009
SLP (Crl.) No. 5174/2009
SLP (Crl.) No. 8800/2009
SLP (Crl.) No. 8802/2009
SLP (Crl.) No. 8801/2009
SLP (Crl.) No. 8806/2009
SLP (Crl.) No. 8804/2009
SLP (Crl.) No. 8807/2009
SLP (Crl.) No. 4883/2009
SLP (Crl.) No. 9364/2009
SLP (Crl.) No. 9373/2009
SLP (Crl.) No. 9392/2009
SLP (Crl.) No. 9379/2009
SLP (Crl.) No. 9376/2009
SLP (Crl.) No. 9382/2009
SLP (Crl.) No. 9384/2009
SLP (Crl.) No. 9387/2009
SLP (Crl.) No. 9389/2009
SLP (Crl.) No. 9372/2009
SLP (Crl.) No. 9366/2009
SLP (Crl.) No. 9371/2009
SLP (Crl.) No. 9368/2009
SLP (Crl.) No. 9388/2009
SLP (Crl.) No. 9383/2009
SLP (Crl.) No. 9385/2009
SLP (Crl.) No. 9378/2009
SLP (Crl.) No. 9377/2009
SLP (Crl.) No. 9381/2009
SLP (Crl.) No. 9374/2009
4
SLP (Crl.) No. 9358/2009
SLP (Crl.) No. 9367/2009
SLP (Crl.) No. 9369/2009
SLP (Crl.) No. 9370/2009
SLP (Crl.) No. 9380/2009
SLP (Crl.) No. 10237/2009
SLP (Crl.) No. 9393/2009
SLP (Crl.) No. 9390/2009
SLP (Crl.) No. 9355/2009
SLP (Crl.) No. 9351/2009
SLP (Crl.) No. 9359/2009
SLP (Crl.) No. 9354/2009
SLP (Crl.) No. 9386/2009
SLP (Crl.) No. 10119/2009
SLP (Crl.) No. 10122/2009
SLP (Crl.) No. 10121/2009
SLP (Crl.) No. 10123/2009
SLP (Crl.) No. 10120/2009
SLP (Crl.) No. 200/2010
SLP (Crl.) No. 211/2010
SLP (Crl.) No. 210/2010
SLP (Crl.) No. 206/2010
SLP (Crl.) No. 207/2010
SLP (Crl.) No. 196/2010
SLP (Crl.) No. 193/2010
SLP (Crl.) No. 194/2010
SLP (Crl.) No. 199/2010
SLP (Crl.) No. 205/2010
SLP (Crl.) No. 197/2010
SLP (Crl.) No. 198/2010
SLP (Crl.) No. 204/2010
SLP (Crl.) No. 208/2010
SLP (Crl.) No. 203/2010
SLP (Crl.) No. 192/2010
SLP (Crl.) No. 437/2010
SLP (Crl.) No. 3118/2009
4
J U D G M E N T
Dr. B.S. CHAUHAN, J.
In view of our judgment pronounced today in Criminal Appeal No…
….…..of 2010 @ SLP(Crl.) No. 6638 of 2009 (State of Haryana & Ors. v.
Jagdish), these Special Leave Petitions are dismissed.
………………………………CJI.
…………………………………J.
(J.M. PANCHAL)
…………………………………J.
(Dr. B.S. CHAUHAN)
New Delhi,
March 22, 2010
.
4
4
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