Madhya Pradesh High Court
The State Of Madhya Pradesh vs Sobran Singh @ Siromani Singh on 3 June, 2019
Equivalent citations: AIRONLINE 2019 MP 1772
Bench: Sanjay Yadav, Vivek Agarwal
1
WA.694.2019
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
DIVISION BENCH:
HON'BLE SHRI JUSTICE SANJAY YADAV
&
HON'BLE SHRI JUSTICE VIVEK AGARWAL
WRIT APPEAL NO. 694 OF 2019
State of M.P. and others
Vs.
Sobran Singh @ Siromani Singh
*********************
Shri Ankur Modi, learned Additional Advocate General, for
appellants/State.
Shri Rajmani Bansal, learned counsel for respondent.
*********************
JUDGMENT
(03/06/2019) Per Justice Sanjay Yadav:
This appeal under Section 2(1) of Madhya Pradesh Uchcha Nayalaya (Khand Nyayapeeth Ko Appeal) Adhiniyam, 2005, is directed against the order dated 05.03.2019 passed in Writ Petition No.5038/2018.
(2) In Writ Petition, the respondent, a life convict, as per judgment 2 WA.694.2019 dated 01/10/1994 in Sessions Trial No.42/1990 for causing dual murder, raised grievance against the discriminatory act of the State Government in extending the benefit of remission to co-convict Mahendra Singh by order dated 16/12/2008; whereas, the application by the petitioner was rejected on 21/12/2017. Evidently, the main reason for not releasing the respondent was the change of policy. It was stated that at the time when co-accused was released on 26.01.2009 by order dated 16.12.2008, the policy in vogue contemplated 14 years actual custody. And the co-convict having undergone the said period was released. Whereas, the respondent, having not completed 14 years' actual custody in 2008, was declined the remission as he was found to be on bail during trial. The respondent questioned the rejection of his application on the anvil of the decision in "State of Haryana and others Vs. Jagdish [(2010) 4 SCC 216]"; wherein, as per the respondent, the controversy which existed on the issue of applicability of policy of remission prevailing at the time of conviction or not was sorted out that the policy prevalent at the time of conviction will be applicable. Learned Single Judge finding substance in the contention of the petitioner set aside the order dated 21.12.2017 with the direction to the appellant to reconsider the claim of respondent in the light of policy which prevailed at the time when he was convicted in 1994.
(3) The State of Madhya Pradesh and its functionaries are in appeal 3 WA.694.2019 against the impugned order. The contentions, in nutshell, are that Article 72 & Article 161 of the Constitution empowers the President and the Governor, respectively, to grant pardons, etc., and to suspend, remit, or commute sentence in certain cases. And that Article 73 and Article 162 provide for the extent of executive powers of the Union and State shall extend to matters upon which the Parliament and the State Legislature is competent to legislate. The decision in Jagdish (supra), it is urged, mainly turned on the principle that the policy framed under Article 162 of the Constitution shall have overriding effect over the policy framed by the State in exercise of its powers under Section 432 and 433 of the Code of Criminal Procedure, 1973.
It is urged that the conclusion arrived at in paragraph 42 of the judgment in Jagdish (supra) that the power exercised under Article 161 of Constitution is a mandate of the Constitution and therefore policy under Section 432 and 433 of Cr.P.C. cannot override the policy under Article 161 of the Constitution has been impliedly overruled by the Constitutional Bench in "Union of India Vs. V. Sriharan alias Murugan and others [(2016) 7 SCC 1]". It is urged that since it is held that a life convict has no right to remission but only a right to claim remission, it is the policy in vogue on the date when such a right is exercised would be applicable and not the policy which was in vogue at the time of conviction.
(4) In the context of the issue involved in the matter as to whether it 4 WA.694.2019 is the policy in vogue on the date when an incumbent is eligible for consideration or the date of conviction, the contention made by the learned Additional Advocate General that since there is no vested right in the convict for premature release or right to remission, but only has a right to claim remission; therefore, the policy in vogue when such right is claimed would be applicable, has substantial force.
(5) Before Larger Bench of the Supreme Court in V. Sriharan (supra), one of the issues was "whether the power under Section 432 and 433 of the Criminal Procedure Code by the appropriate government would be available even after the constitutional power under Article 72 and 161 by the President and the Governor is exercised as well as the power exercised by this Court under Article 32?" [Paragraph 8.3(iii) of the judgment and 52.2 of the reference order) (6) Dwelling on the issue, it is held by the majority speaking through Hon'ble Mr. Justice F.M. Ibrahim Kalifulla:
"112. The first part of the said question pertains to the power of the appropriate Government to grant remission after the parallel power is exercised under Articles 72 and 161 of the Constitution by the President and the Governor of the State respectively. In this context, a reference to Articles 72 and 161 of the Constitution on the one hand and Sections 432 and 433 of the Criminal Procedure Code on the other needs to be noted.
112.1. When we refer to Article 72, necessarily a reference will have to be made to Articles 53 and 74 as well. Under Article 53 of the Constitution the Executive Power of the Union vests in the President and such power should be 5 WA.694.2019 exercised by him either directly or through officers subordinate to him in accordance with the Constitution. Under Article 74, the exercise of the functions of the President should always be based on the aid and advice of the Council of Ministers headed by the Prime Minister. Under the proviso to the said Article, the President can at best seek for reconsideration of any such advice and should act based on such reconsidered advice. Article 74(2) in fact, has insulated any such advice being enquired into by any court. Identical provisions are contained in Articles 154, 161 and 163 of the Constitution relating to the Governor of the State. Reading the above provisions, it is clear that the President of the Union and the Governor of the State while functioning as the Executive Head of the respective bodies, only have to act based on the advice of the Council of Ministers of the Union or the State.
112.2. While so, when we look into the statutory prescription contained in Sections 432 and 433 of the Criminal Procedure Code, though the exercise of the power under both the provisions vests with the appropriate Government either State or the Centre, it can only be exercised by the Executive Authorities headed by the President or the Governor as the case may be. In the first blush though it may appear that exercise of such power under Sections 432 and 433 CrPC is nothing but the one exercisable by the same authority as the Executive Head, it must be noted that the real position is different. 112.3. For instance, when we refer to Section 432 CrPC, the power is restricted to either suspend the execution of sentence or remit the whole or any part of the punishment. Further, under sub-section (2) of Section 432, it is stipulated that exercise of power of suspension or remission may require the opinion of the Presiding Judge of the court before or by which the conviction was held or confirmed. There is also provision for imposing conditions while deciding to suspend or remit any sentence or punishment. There are other stipulations contained in Section 432. Likewise, when we refer to Section 433 CrPC it is provided therein that the appropriate Government may without the consent of the persons sentenced commute any of the sentences to any other sentence which ranges from death sentence to fine.
112.4. One significant feature in the constitutional power which is apparent is that the President is empowered under 6 WA.694.2019 Article 72 of the Constitution to grant pardons, reprieves, respites or remission, suspend or commute the sentence. Similar such power is also vested with the Governor of the State. Whereas under Sections 432 and 433 of the Criminal Procedure Code the power is restricted to suspension, remission and commutation. It can also be noted that there is no specific provision prohibiting the execution of the power under Sections 432 and 433 of the Criminal Procedure Code when once similar such power was exercised by the constitutional authorities under Articles 72 and 161 of the Constitution. There is also no such implied prohibition to that effect.
113. In this context, the learned Solicitor General submitted that while the power under Articles 72 and 161 of the Constitution can be exercised more than once, the same is not the position with Sections 432 and 433 of the Criminal Procedure Code. The learned Solicitor General contended that since the exercise of power under Articles 72 and 161 is with the aid of the Council of Ministers, it must be held that Sections 432 and 433 of the Criminal Procedure Code are only enabling provisions for exercise of power under Articles 72 and 161 of the Constitution. In support of the said submission, the learned Solicitor General, sought to rely upon the passage in Maru Ram Vs. Union of India, (1981) 1 SCC 107 to the effect that: (SCC p. 145, para 58) "58. ... Since Sections 432 and 433(a) are a statutory expression and modus operandi of the constitutional power...."
Though the submission looks attractive, we are not convinced. We find that the said set of expression cannot be strictly stated to be the conclusion of the Court. In fact, if we read the entire sentence, we find that it was part of the submission made which the Court declined. On the other hand, in the ultimate analysis, the majority view was summarised wherein it was held at SCR p. 1248 as under:
(Maru Ram Vs. Union of India, (1981) 1 SCC 107, SCC p. 154, para 72) "72. (4) We hold that Sections 432 and 433 are not a manifestation of Articles 72 and 161 of the Constitution but a separate, though similar power, 7 WA.694.2019 and Section 433-A, by nullifying wholly or partially these prior provisions does not violate or detract from the full operation of the constitutional power to pardon, commute and the like."
114. Therefore, it must be held that there is every scope and ambit for the appropriate Government to consider and grant remission under Sections 432 and 433 of the Criminal Procedure Code even if such consideration was earlier made and exercised under Article 72 by the President and under Article 161 by the Governor. As far as the implication of Article 32 of the Constitution by this Court is concerned, we have already held that the power under Sections 432 and 433 is to be exercised by the appropriate Government statutorily, it is not for this Court to exercise the said power and it is always left to be decided by the appropriate Government, even if someone approaches this Court under Article 32 of the Constitution. We answer the said question on the above terms.
179. The exercise of power under Sections 432 and 433 of the Criminal Procedure Code will be available to the appropriate Government even if such consideration was made earlier and exercised under Article 72 by the President or under Article 161 by the Governor. As far as the application of Article 32 of the Constitution by this Court is concerned, it is held that the powers under Sections 432 and 433 are to be exercised by the appropriate Government statutorily and it is not for this Court to exercise the said power and it is always left to be decided by the appropriate Government."
(7) Concurring with the majority view, on the issue, Hon. Mr. Justice U.U. Lalit observed:
"241. As regards this question, the submissions of the learned Solicitor General were twofold. According to him the Governor while exercising power under Article 161 of the Constitution, having declined remission in or commutation of sentences awarded to the respondent convicts, second or subsequent exercise of Executive Power under Sections 432/433 by the State Government was not 8 WA.694.2019 permissible and it would amount to an overruling or nullification of the exercise of constitutional power vested in the Governor. In his submission, the statutory power under Sections 432/433 CrPC could not be exercised in a manner that would be in conflict with the decision taken by the constitutional functionary under Article 161 of the Constitution. It was his further submission that Sections 432 and 433 CrPC only prescribe a procedure for remission, while the source of substantive power of remission is in the Constitution. According to him Sections 432 and 433 CrPC are purely procedural and in aid of constitutional power under Article 72 or 161. He further submitted that as laid down in Maru Ram Vs. Union of India [(1981) 1 SCC 107], while exercising powers under Articles 72 and 161, the President or the Governor act on the aid and advice of the Council of Ministers and thus the Council of Ministers, that is to say the executive having already considered the matter and rejected the petition, a subsequent exercise by the same executive is impermissible. On the other hand, it was submitted by Mr Rakesh Dwivedi, learned Senior Advocate that there was nothing in the statute which would bar or prohibit exercise of power on the second or subsequent occasion and in fact Section 433-A CrPC itself gives an indication that such exercise is permissible. It was further submitted that the power conferred upon an authority can be exercised successively from time to time as occasion requires.
242. We would first deal with the submission of the learned Solicitor General that the provisions of Sections 432/433 CrPC are purely procedural and in aid of the constitutional power. This Court had an occasion to deal with the issue, though in a slightly different context, in Maru Ram Vs. Union of India [(1981) 1 SCC 107]. We may quote paras 58 and 59 of the decision, which are as under: (SCC pp. 145-
46) "58. ... What is urged is that by the introduction of Section 433-A, Section 432 is granted a permanent holiday for certain classes of lifers and Section 433(a) suffers eclipse. Since Sections 432 and 433(a) are a statutory expression and modus operandi of the constitutional power, Section 433-A is ineffective because it detracts from the operation of Sections 432 and 433(a) which are the legislative surrogates, as it were, of the pardon power under the Constitution. We are unconvinced by the 9 WA.694.2019 submissions of counsel in this behalf.
59. It is apparent that superficially viewed, the two powers, one constitutional and the other statutory, are coextensive. But two things may be similar but not the same. That is precisely the difference. We cannot agree that the power which is the creature of the Code can be equated with a high prerogative vested by the Constitution in the highest functionaries of the Union and the States. The source is different, the substance is different, the strength is different, although the stream may be flowing along the same bed. 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 simple legislative processes. Therefore, Section 433-A cannot be invalidated as indirectly violative of Articles 72 and 161. What the Code gives, it can take, and so, an embargo on Sections 432 and 433(a) is within the legislative power of Parliament."
243. The submission that Sections 432 and 433 are a statutory expression and modus operandi of the constitutional power was not accepted in Maru Ram Vs. Union of India [(1981) 1 SCC 107]. In fact this Court went on to observe that though these two powers, one constitutional and the other statutory, are coextensive, the source is different, the substance is different and the strength is different. This Court saw the two powers as far from being identical. The conclusion in para 72(4) in Maru Ram Vs. Union of India [(1981) 1 SCC 107] was as under:
(SCC p. 154) "72. (4) We hold that Section 432 and Section 433 are not a manifestation of Articles 72 and 161 of the Constitution but a separate, though similar power, and Section 433-A, by nullifying wholly or partially these prior provisions does not violate or detract from the full operation of the constitutional power to pardon, commute and the like."
244. It is thus well settled that though similar, the powers under Sections 432/433 CrPC on one hand and those under Articles 72 and 161 on the other, are distinct and different.
10WA.694.2019 Though they flow along the same bed and in same direction, the source and substance is different. We, therefore, reject the submission of the learned Solicitor General.
245. Section 433-A CrPC inter alia states, "... 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 had served at least 14 years of imprisonment. It thus contemplates an earlier exercise of power of commuting the sentence under Section 433 CrPC. It may be relevant to note that under Section 433 a sentence of death can be commuted for any other punishment including imprisonment for life. A prisoner having thus been granted a benefit under Section 433 CrPC can certainly be granted further benefit of remitting the remainder part of the life sentence, subject of course to statutory minimum period of 14 years of actual imprisonment. We, therefore, accept the submission of Mr Rakesh Dwivedi, learned Senior Advocate that there is nothing in the statute which either expressly or impliedly bars second or subsequent exercise of power. In fact Section 433-A contemplates such subsequent exercise of power.
246. At this stage, the observations in G. Krishta Goud v. State of A.P. [(1976) 1 SCC 157] in the context of constitutional power of clemency are relevant: (SCC p. 161, para 10) "10. ... The rejection of one clemency petition does not exhaust the power of the President or the Governor."
This principle was reiterated in para 7 of the decision in Krishnan v. State of Haryana [(2013) 14 SCC 24] as follows: (SCC pp. 28-29) "7. In fact, Articles 72 and 161 of the Constitution provide for residuary sovereign power, thus, there could be nothing to debar the authorities concerned to exercise such power even after rejection of one clemency petition and even in the changed circumstances."
247. In State of Haryana v. Jagdish [(2010) 4 SCC 216] it was observed by this Court as under: (SCC p. 237, para 46) 11 WA.694.2019 "46. At the time of considering the case of premature 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 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."
248. In Kehar Singh v. Union of India [(1989) 1 SCC 204] it was observed: (SCC p. 218, para 16) "16. ... the power under Article 72 is of the widest amplitude, can contemplate a myriad kinds and categories of cases with facts and situations varying from case to case, in which the merits and reasons of State may be profoundly assisted by prevailing occasion and passing of time."
Having regard to its wide amplitude and the status of the functions to be discharged thereunder, it was found unnecessary to spell out any specific guidelines for exercise of such power. The observations made in the context of power under Article 72 will also be relevant as regards exercise under Sections 432/433 CrPC.
249. In State (Govt. of NCT of Delhi) v. Prem Raj [(2003) 7 SCC 121] it was observed thus: (SCC p. 128, para 14) "14. The powers conferred upon the appropriate Government under Section 433 have to be exercised reasonably and rationally keeping in view the reasons germane and relevant for the purpose of law, mitigating circumstances and/or commiserative facts necessitating the commutation and factors like interest of the society and public interest."
250. We see no hindrance or prohibition in second or subsequent exercise of power under Sections 432/433 12 WA.694.2019 CrPC. As stated above, such exercise is in fact contemplated under Section 433-A. An exercise of such power may be required and called for depending upon exigencies and fact situation. A person may be on the deathbed and as such the appropriate Government may deem it fit to grant remission so that he may breathe his last in the comfort and company of his relations. Situations could be different. It would be difficult to put the matter in any straitjacket or make it subject to any guidelines, as was found in Kehar Singh v. Union of India [(1989) 1 SCC 204]. The aspects whether "the convict had lost his potentiality in committing the crime and whether there was any fruitful purpose of confining the convict any more" as stated in State of Haryana v. Jagdish [(2010) 4 SCC 216] could possibly yield different assessment after certain period and can never be static. Every case will depend on its individual facts and circumstances. In any case, if the repeated exercise is not for any genuine or bona fide reasons, the matter can be corrected by way of judicial review. Further, in the light of our decision as aforesaid, in any case an approach would be required to be made under Section 432(2) CrPC to the court concerned which would also result in having an adequate check.
Our answer to question posed in paragraph 52.2 of the Referral Order [Union of India v. V. Sriharan (2014) 11 SCC 1] Question 52.2. Whether the "appropriate Government" is permitted to exercise the power of remission under Sections 432/433 of the Code after the parallel power has been exercised by the President under Article 72 or the Governor under Article 161 or by this Court in its constitutional power under Article 32 as in this case?
Answer
253. In the circumstances, in our view it is permissible to the appropriate Government to exercise the power of remission under Sections 432/433 CrPC even after the exercise of power by the President under Article 72 or the Governor under Article 161 or by this Court in its constitutional power under Article 32."
(8) In view of the principle of law laid down in V. Sriharan (supra), it is manifestly clear that there exists no vested right in the 13 WA.694.2019 convict to be released premature. The only right is to claim such remission which when claimed would attract the applicability of the provisions in vogue on the date when such claim is made and not which expressly or by implication are superseded. The provisions, in vogue at the time of conviction, in our considered opinion, will definitely be not applicable.
(9) In the wake of the judgment by Larger Bench on the issue in hand, the decisions relied by the respondent in "Commissioner of Municipal Corporation, Shimla Vs. Prem Lata Sood and others [(2007) 11 SCC 40]", "State of Haryana Vs. Mahender Singh and others [(2007) 13 SCC 606]", "State of Haryana Vs. Bhup Singh and others [(2009) 2 SCC 268]" are of no assistance, as they turn on their respective facts.
(10) The impugned order passed by learned Single Judge when tested on the anvil of above analysis cannot be given the stamp of approval. Consequently, it is set aside. The order, rejecting the application for remission on the anvil of the statutory stipulations in vogue, revives.
(11) Appeal is finally disposed of in above terms. No cost.
(Sanjay Yadav) (Vivek Agarwal)
Judge Judge
pd
PAWAN
DHARKAR
2019.06.01
13:04:40
-07'00'