Harishankar ,Gayaprasad Jaiswal vs State Of Gujarat on 8 March, 2018

[Cites 116, Cited by 0]

Gujarat High Court

Harishankar ,Gayaprasad Jaiswal vs State Of Gujarat on 8 March, 2018

Bench: J.B.Pardiwala

        R/SCR.A/9089/2017                                           JUDGMENT




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

           SPECIAL CRIMINAL APPLICATION NO. 9089 of 2017


FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA                                Sd/-

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1     Whether Reporters of Local Papers may be allowed to see the              YES
      judgment ?

2     To be referred to the Reporter or not ?                                  YES

3     Whether their Lordships wish to see the fair copy of the                 NO
      judgment ?

4     Whether this case involves a substantial question of law as to           NO
      the interpretation of the Constitution of India or any order made
      thereunder ?

      Circulate this Judgment in the Subordinate Judiciary.

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            HARISHANKAR GAYAPRASAD JAISWAL.... Petitioner
                              Versus
                 STATE OF GUJARAT & 3.... Respondents
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Appearance:
MR H N SEVAK for the PETITIONER(s) No. 1
MS MOXA THAKKAR, APP for the RESPONDENT(s) No. 1
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    CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA

                                 Date : 08/03/2018

                                ORAL JUDGMENT

1. By this writ application under Article 226 of the Constitution of India, the writ applicant, a convict accused of a sensational case popularly known as the Bijal Joshi gang rape case, undergoing imprisonment for life, has prayed for the following reliefs:

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R/SCR.A/9089/2017 JUDGMENT "26(A) Your Lordships be pleased to issue a writ of mandamus or any other writ, direction or order in the nature of writ or mandamus directing the jail authorities to consider the case of the son of petitioner for commutation of his sentence and premature release from jail as he has completed 14 year in jail as per provision of Section 433 of Cr.P.C. and at present is undergoing 17th year inclusive of remission and other reprieves like furlough and parole period;

(B) Your Lordships be pleased to direct the respondent authorities to consider the representation dated 27/10/2017 within a period of four weeks in the interest of justice.

(C) Your Lordships be pleased to issue a writ of mandamus or any other writ directing the jail authorities to process and to count the period of parole as well as furlough leaves towards the actual sentence of the son of petitioner as law laid down by the constitutional Bench of the Hon'ble Court of India, in the interest of justice.

(D) Your Lordships be pleased to grant such other and further relief (s) as are deemed fit, just and proper in the facts and circumstances of the case, in the interest of justice."

2. The case put up by the convict prisoner in his own words, as pleaded in his writ application, is extracted hereunder:

"2. The petitioner is the father of convict prisoner namely Sugam who has suffered incarceration period of more than 17 years inclusive of remission and other reprieves like parole and furlough, is filing the present petition challenging his illegal detention under provision of Section 433A of Code of Criminal Procedure. It is required by the authority to consider Page 2 of 132 R/SCR.A/9089/2017 JUDGMENT the case of the petitioner for premature release under the provisions of Section 433 of the Code and not under provision of Section 433 A of Code.

3. The petitioner submits that the son of the petitioner came to be arrested on 4th January 2004 in connection with C.R. No.I02 of 2004 register at Shahibaug Police Station and thereupon Sessions Case Nos.53 of 2005 was registered. The accused in the said case came to be convicted by the Hon'ble City Sessions Court No.13 of Ahmedabad for the offences punishable under Section 323 r/w Section 34 of the Indian Penal Code, 1860 and sentenced to rigorous imprisonment for 1 year and with fine of Rs.1,000/ in default of payment of fine, to undergo 10 days simple imprisonment; (2) for the offences punishable under Section 328 read with section 34 of the I.P.C. rigorous imprisonment for 10 years and with fine of Rs.10,000/, in default of payment of fine, to undergo 3 months simple imprisonment (3) for the offences punishable under Section 342 read with Section 34 of the I.P.C. rigorous imprisonment for 1 year and with fine of Rs.1,000/, in default of payment of fine, to undergo 10 days simple imprisonment, (4) for the offences punishable under Section 376(2)(g) read with Section 34 of the I.P.C. sentencing to life imprisonment and with fine of Rs.15,000/, in default of payment of fine to undergo 3 months simple imprisonment.

4. It is submitted that in appeal, this Hon'ble Court (Coram: Hon'ble Mr. Jayant Patel and Mr. Mohinder Pal JJ) in Criminal Appeal No.2124 of 2008 was pleased to confirm the order of conviction by the judgment and order dated 27/12/2012.

5. The petitioner states and submits that the son of the petitioner herein was not released on bail during the pendency of the trial and had undergone the sentence as an under trial prisoner of the said case. It is respectfully submitted that since June 20th 2008 he is undergoing the Page 3 of 132 R/SCR.A/9089/2017 JUDGMENT period of conviction in Ahmedabad Central Prison and is lodged as convict No.D/14349. Thus as on 21st November, 2017 the son of petitioner has already undergone the period of 12 years and 10 months and 08 days of actual imprisonment without remission and along with setoff period (period amounts as under trial prisoner). The period amounts to more than 16 years approximately inclusive of remission. The said period is calculated excluding the bail period and other reprieves granted by the concerned authority of Court of Law.

6. The petitioner submits that the son of the petitioner was released on regular bail for the period commencing from 16.08.2012 and 10.01.2013. During that period the conduct and behavior of prisoner was good peaceful and there was no breach of peace and he immediately surrendered before the Jail Authority after completion of bail period.

7. The petitioner states and submits that after completion of parole / furlough leaves, the son of petitioner has surrendered before the jail authority in time and promptly.

8. The petitioner respectfully submits that the State Government very recently has framed policy for premature release of the convicted prisoner wherein prisoners convicted for life imprisonment and who have undergone 12 (twelve) years of actual imprisonment including setoff as on 26th January 2017 or before, are granted full remission of the remaining period.

9. The petitioner states and submits that the case of the son of petitioner fulfill each condition of the above government resolution and therefore had made application to the authorities extent benefit of the said government resolution to the petitioner. But upon inquiring about the application submitted before the jail authority, he was orally informed from the Judicial department that his case falls under Section 433A of Page 4 of 132 R/SCR.A/9089/2017 JUDGMENT Code of Criminal Procedure and he needs to undergo actual imprisonment of 14 years excluding remission and parole, furlough leave period and as he has not completed the said period his case cannot be put before the Jail advisory Board for consideration for premature release and such approach on the part of authorities is erroneous and contrary to law.

10. In the background of the aforesaid factual, matrix of the conviction period undergone, the petitioner now states and submits that the punishment awarded to the son of petitioner is under Section 376(2)(g) of Indian Penal Code which is punishable with R.I. for a term which shall not be less than 10 years, which may extend to imprisonment for life. This life imprisonment is not minimum sentence, but is a maximum sentence which has been awarded to the petitioner. So, his case is covered under Section 433 and not under 433A of Code of Criminal Procedure.

11. The petitioner states and submits that the maximum punishment awarded to the son of petitioner is under Section 376(2)(g) of Indian Penal Code which is punishable with R.I. For a term which shall not be less than 10 years, which may extend to imprisonment for life. This life imprisonment is not minimum sentence, but is a maximum sentence which has been awarded to the petitioner.

12. The petitioner states and submits that it is required to bring to the notice of Hon'ble Court that the period parole and furlough leave enjoyed by the petitioner is to be treated as actual period undergone said counted towards sentence as law laid down by the Hon'ble Supreme Court of India in the case of Sunil Fulchand Shah v/s Union of India decided on 16 th February 2000 by the Constitution Bench that parole period is temporary release from the custody which does not suspend the sentence or period of detention, but provides conditional release from the custody and only changes the mode of undergoing sentence.

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R/SCR.A/9089/2017 JUDGMENT

13. That similar view is taken in another judgment "Union of India - Appellants vs. Sadha Singh" and Bombay High Court in case of Dadu @ Tulsidas Manpher Patel vs. State of Maharashtra & Ors; but the Jail authority does not count such period toward the actual period undergone and such approach on the part of the authorities is erroneous and contrary to law. The relevant portion of the judgment reads as under:

"Black's Law Dictionary - Sixth Edition "Release from Jail, prison, or other confinement after actually serving part of sentence; conditional release from imprisonment which entitles parolee to serve remainder of his term outside confines of an institution, if he satisfactorily complies with all terms and conditions provided in parole order."

"Since release on parole is only a temporary arrangement by which a detenu is released for a temporary fixed period to meet certain situations, it does not interrupt the period of detention and, thus, needs to be counted towards the total period of detention unless the rules, instructions or terms for grant of parole, prescribe otherwise."

14. The petitioner submits that the son of petitioner has been incarcerated for over a period of 16 years and therefore his case is fit for consideration for commutation of his sentence. The petitioner states that to the best of his information and knowledge the advisory board is likely to hold its meeting in September 2017 or October 2017. The petitioner submits that in absence of urgent appropriate direction in the present petitioner the case of the petitioner may not be placed for consideration for premature release by the jail authority. The petitioner submits that the advisory board is going to hold its meeting after a reasonably long period of time and nonplacement of his papers for consideration in the present meeting would result in the petitioner continuing to remain in jail for unduly long period of time.

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R/SCR.A/9089/2017 JUDGMENT

15. The petitioner submits that in recent year 2017 in case of Taranjitsingh @ Ranjitsingh vs. State of Maha & Ors Bombay High Court held that:

"As per the provision of Section 433 of Cr.P.C. he could not have been kept behind bars for the period of more than 14 years and this period was inclusive of remission period. It is contended that as such decision was not taken by the State and the Authority he was required to file Criminal Writ Petition No.209 of 2000 in this Court for direction. It is contended that, the direction was given by this court to the respondent to take decision on representation made by the petitioner in which contention of aforesaid nature was made. This petition came to be disposed of with direction of such nature to the respondent. On 01.11.2000 the respondent informed to the petitioner that, his case was covered by amended provision like Section 433A of Cr.P.C. and so, the remission period cannot be considered, and he needs to be kept in jail, as per the new provision. It is contended that, he then filed Criminal Writ Petition No.460 of 2001 to challenge the aforesaid decision of respondent. It is contended that, this Court allowed the Writ Petition and held that, provision of Section 433 of Cr.P.C., which was not amended was applicable in this case. It is contended that, due to wrong decision of the respondent/ state, he was kept behind bars, for period of 3 years 9 months and 12 days, and this period was more than the period for which he could have been kept behind bars under Section 433 of Cr.P.C. It is contended that, due to illegal detention for such period, he is entitled to get the aforesaid compensation.."

16. The petitioner submits that the convict does not have an absolute and indefeasible right of being released from the jail on his completing 14 Page 7 of 132 R/SCR.A/9089/2017 JUDGMENT year of stay in jail. However, he enjoys a right in law to have his case considered by the jail authority without any discrimination or being influenced by extraneous consideration in accordance with the declared policy of the Government and the law laid down by the Hon'ble Supreme Court of India.

17. The petitioner states and submits that the conduct of son of petitioner inside prison is good and he actively participated in educational spiritual activities conducted as part of reformation inside prison for which he has earned appreciation certificate as well as special remission from time to time from jail authority.

18. The petitioner states and submits that he has not been found to have indulged, either direct or indirectly, in any criminal activity which can be proved thereat for the society during the several times when he has been released on parole and furlough leaves. The petitioner submits that his conduct inside and outside the jail has been good. The petitioner, therefore, submits that no useful or productive purpose would be served by confining him in jail for more number of years. The petitioner therefore submits that it would be in the interest of justice if the state government is directed to consider the case of the petitioner for commutation of his sentence accordance with the law laid down in Section 433 of Cr.P.C.

19. The petitioner states that prior to filling of the present petition, the son of petitioner has made written representation dated 27/10/2017 to the jail authorities and the government requesting and urging for having his case considered for premature release accordance with the law laid down in Section 433 of Cr.P.C. Unfortunately, the representation does not appear to have been considered by the authorities as ostensibly no corrective or lawful action has been taken by the jail authorities and the case of the petitioner is still not being taken up for consideration for premature release.

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R/SCR.A/9089/2017 JUDGMENT

20. The petitioner submits that he has no other alternative remedy available to him except approaching this Hon'ble Court in exercise of its writ jurisdiction praying for issuance of appropriate direction to the respondents to consider the case of the petitioner for commutation of sentence in exercise of power under Section 433 of Cr.P.C.

21. The petitioner state and submit that vide case No.233/10/97 98(FC) National Human Rights Commission, (Law DivisionIV), September 26, 2003 all the States / UTs were requested to review the existing practice and procedure governing premature release of life convicts and bring it in conformity with the guideline issued by the commission. After considering the response received from a number of States / UTs the commission has now decided its guidelines issued and stated as below:

"3.2 All the convicted male prisoners not covered by Section 433A of CrPC undergoing the sentence of life imprisonment would be entitled to be considered for premature release after they have served at least 14 years of imprisonment inclusive of remission but only after completion of 10 years actual imprisonment i.e. without remissions."

22. The petitioner states and submits that four of the coaccused have approached this Hon'ble Court by filing Sp. Cr. App. No.7166/2017, 7162/2017, 8621/17 and 8620/17 and this Hon'ble Court was pleased to direct to the State Government to consider their case for premature release."

3. Mr. Sevak, the learned counsel appearing for the writ applicant submitted that the convict was arrested on 1st January 2004 in connection with a First Information Report being IC.R. No.2 of 2004, Page 9 of 132 R/SCR.A/9089/2017 JUDGMENT which came to be registered at the Shahibaug Police Station, Ahmedabad, for the offence punishable under Sections 323, 328, 342 and 376(2)(g) read with 34 of the Indian Penal Code and Sections 66(1)

(b) and 85(1)(3) of the Bombay Prohibition Act, 1949. The convict prisoner was tried along with the other coaccused for the offences enumerated above, and ultimately, came to be convicted by the Sessions Court, Ahmedabad city, for all the offences enumerated above. The Trial Court sentenced the convict herein to undergo imprisonment for life. It is pointed out that, on 13th October 2017, the convict could be said to have undergone the actual sentence of 12 years 9 months and 4 days, including the period of furlough, parole and remission. The convict could be said to have undergone sentence of almost 17 years. It is prayed that, the State Government be directed to consider the case of the convict for commutation of the sentence under the provisions of Section 433 of the Code of Criminal Procedure or in the alternative, for remission of the sentence.

4. The learned counsel submitted that, an appropriate writ, order or directions be issued to the State Government so far as the plea for commutation of the sentence or remission of the sentence is concerned.

5. This writ application has been vehemently opposed by Ms. Moxa Thakkar, the learned Additional Public Prosecutor appearing for the State. The learned A.P.P. submitted that no writ can be issued to the State Government by this Court in exercise of its extraordinary powers under Article 226 of the Constitution of India so far as the plea of remission or commutation of sentence raised by a convict is concerned. It is the discretion of the State Government to consider such plea for commutation or remission of the sentence in accordance with its policy and other rules and regulations. The learned A.P.P. submitted that, the Page 10 of 132 R/SCR.A/9089/2017 JUDGMENT convict herein is undergoing sentence of life imprisonment, as he was found guilty of a very serious offence of gang rape.

6. In such circumstances referred to above, the learned A.P.P. submitted that there being no merit in this writ application, the same be rejected.

7. Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is whether the writ applicant is entitled to any relief, as prayed for, in this writ application.

8. Since there has been some confusion as regards, whether the subject matter of this writapplication is commutation of sentence or remission of sentence, I need to explain the fine distinction between the two.

9. A commutation of sentence is a reduction in sentence. In a commutation of sentence, a person is not absolved from a conviction completely, but his/her punishment is substituted with a lesser punishment. For example, a death sentence may be commuted to a sentence of imprisonment for life. A commutation of sentence may be granted according to the statutes existing in the different States. It is permitted by law to grant a commutation of sentence. A Governor of a State is vested with the exclusive power to pardon and it may be subject to the Legislative controls. A Legislature may provide for commutation of the sentence of convicts for good behavior. In a commutation of sentence, there occurs a change in a sentence or punishment. Therefore it does not include parole, because no sentence reduction takes place in parole. The distinction between pardon and commutation are that a pardon is a complete remission of penalty by a sovereign power as Page 11 of 132 R/SCR.A/9089/2017 JUDGMENT authorized by law. But, a commutation of a sentence is only a substitution of a lesser punishment for a greater punishment. Also, a pardon has to be accepted by the person who is pardoned, while a sentence may be commuted without the consent of the convict.

10. Let me explain the terms 'pardon', 'respite' and 'reprieve'. 'Pardon' It removes both, the sentence and the conviction and completely absolves the convict from all the sentences, punishments and disqualifications. 'Respite' It denotes awarding a lesser sentence in place of one originally awarded due to some special fact, such as the physical disability of convict or the pregnancy of a woman offender. 'Reprieve' It implies a stay of the execution of a sentence (especially that of death) for a temporary period. Its purpose is to enable the convict to have time to seek pardon or commutation from the President.

11. The remission of a sentence is not the same thing as commutation of a sentence. To say that it is one and the same thing, is totally fallacious. The ordinary dictionary meaning of 'remission' is to remit, relinquishment of a claim, pardon, forgiveness. On the other hand, 'to commute' means to exchange or to exchange for a punishment less severe. This was the precise meaning attributed to these two words by the Law Commission in its 41st report while it was considering the revision of Sections 401 and 402 of the earlier Cr.P.C. This is what the Commission observed in its report :

"'Remission' originally meant a pardon under the great seal and release, but laterly it came to mean the same as a reduction of the quantum of the punishment, e.g. amount of the fine imposed or terms of imprisonment awarded (without changing its character). 'Commutation' means the alteration of a sentence of one kind into a Page 12 of 132 R/SCR.A/9089/2017 JUDGMENT sentence of a less severe kind as indicated in Section 402 of the Code (New Code 433)."

12. It is thus patent that the power of the State Government to grant remission or direct commutation of sentences in such cases is not the same. Under Section 433, Cr.P.C. the appropriate Government can only commute a sentence, i.e. can change its character by making it less severe. It cannot order release. The object of Section 433A of the Code is to prescribe minimum imprisonment of 14 years for those who are convicted or an offence for which death is one of the punishments provided by law or where a sentence of death imposed on a person has been commuted or altered under Section 433 into one of imprisonment for life. The opening non obstante clause of this section makes it clear that such minimum imprisonment is notwithstanding anything contained in Section 432, Cr.P.C. which means that the power to suspend or remit sentence under that section cannot be exercised so as to reduce the imprisonment of a person convicted of such an offence or whose death sentence has been commuted or altered to life imprisonment for less than 14 years. Clause (b) of Section 433, Cr.P.C. entitles or empowers the appropriate Government to commute a sentence of imprisonment for life which in he normal course is to end up with the last breath of the convict for imprisonment to lesser term but not less than 14 years or to fine. This power of the Government has nothing to do with the power or remission or pardon as envisaged by Section 432, Cr.P.C.

13. In the aforesaid context, I may refer to and rely upon a decision of the Supreme Court in the case of State (Government of NCT of Delhi) v. Prem Raj, (2003)7 SCC 121. The relevant observations are extracted hereunder :

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R/SCR.A/9089/2017 JUDGMENT "7. Section 432 of the Code corresponds to and reproduces almost word for word Section 401 and subsection (3) of Section 402 of the Code of Criminal Procedure, 1889 (in short old Code). Subsections (1) to (4) of Section 432 reproduce word for word subsections (1) to (4) of Section 401 of the old Code. Sub section (5) reproduces word for work subsection (6) of the old Section. Subsection (6) similarly reproduces subsection (4 A) of the old section. Subsection (5) of old Section 401 had been omitted earlier in 1950. Subsection (7) corresponds to subsection (3) of Section 402 of the old Code. The main paragraph and clause (a) reproduce the old provision word for word without any change. Clause (b) is slightly different, but without any change of substance. That clause reads. "(b) in other cases, the State Government. "

8. Article 72 of the Constitution of India, 1950 (in short the Constitution) confers upon the President power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence. The power so conferred is without prejudice to the similar power conferred on Court Martial or the Governor of a State. Article 161 of the constitution confers upon the Governor of a state similar powers in respect of any offence against any law relating to a matter to which the executive power of the State extends. The power under Articles 72 and 161 of the Constitution is absolute and cannot be fettered by any statutory provision such as, Section 432, 433 or 433A of the Code or by any Prison rules. But the President or the Governor as the case may be, must act on the advice of the council of Ministers.

9. A pardon is an act of grace, proceeding from the power entrusted with the execution of the laws, which exempts the individual on whom it is bestowed from the punishment the law inflicts for a crime he has committed. It affects both the punishment prescribed for the offence and the guilt of the offender; in other words, a full pardon may blot out the Page 14 of 132 R/SCR.A/9089/2017 JUDGMENT guilt itself. It does not amount to an acquittal unless the Court otherwise directs. Pardon is to be distinguished from "amnesty" which is defined as "general pardon of political prisoners; an act of oblivion. " As understood in common parlance, the word "amnesty" is appropriate only where political prisoners are released and not in cases where those who have committed felonies and murders are pardoned.

10. Reprieve means a stay of execution of sentence, a postponement of capital sentence. Respite means awarding a lesser sentence instead of the penalty prescribed in view of the fact that the accused has had no previous conviction. It is some thing like a release on probation of good conduct under Section 360 of the Code. Remission is reduction of the amount of a sentence without changing its character. In the case of a remission, the guilt of the offender is not affected, nor is the sentence of the Court, except in the sense that the person concerned does not suffer incarceration for the entire period of the sentence, but is relieved from serving out a part of it. Commutation is a change of a sentence to a lighter sentence of a different kind (Section 433 a empowers the appropriate Government to suspend or remit sentences). The expression "appropriate Government" means the Central government in cases where the sentences or order relates to matter to which the executive power of the Union extends, and the State government in other cases. The release of prisoners condemned to death in exercise of powers conferred under Section 433A of the code and Article 161 of the Constitution does not amount to interference with the due and proper course of justice, as the power of the high Court to pronounce upon the validity, propriety and correctness of the conviction and sentence remains unaffected Powers under article 161 of the Constitution can be exercised before, during or after trial. By reducing the sentence, the authority concerned does not thereby modify the judicial sentence The fact that the sentence was remitted by the appropriate government or that on account of certain remissions which he earned under the Jail rules or under some order of general amnesty, the person was released earlier, does Page 15 of 132 R/SCR.A/9089/2017 JUDGMENT not affect disqualifications incurred, if any. Section 432 confines the power of the Government to the suspension of the execution of the sentence of the remission of the whole or any part of the punishment. The conviction under which the sentence is imposed remains unaffected the section gives no power to the Government to revise judgment of the Court. It only provides with the power to remitting the sentence. Remission of punishment assumes the correctness of the conviction and only reduces the punishment in part or in whole. The word "remit" as used in Section 432 is not a term of art. Some of the meanings of the word "remit" are "to pardon, to refrain from inflicting, to give up. " A remission of sentence does not mean acquittal and an aggrieved party has every right to vindicate himself or herself.

11. Section 428 contemplates a conviction by the court and it operates at the time of the pronouncement of the sentence by the court, whereas Section 433 deals with com mutation by the State authority. Consequences that follow from the provisions of Section 433 do not affect Section 428. Sections 432 and 433 appear under the heading "suspension, remission and Commutation of Sentences. " under Section 432 (1) there is power in the appropriate Government in the case of any person, who has been sentenced to punishment for an offence, to suspend the execution of his sentence or remit the whole or any part of the punishment to which he has been sentenced without conditions or upon any condition which the person sentenced accepts. Under subsection (2) it is provided that whenever an application is made to the appropriate Government for the suspension or remission of a sentence, the appropriate Government may require the Presiding Judge of the Court before or by which the conviction was made or confirmed to state his opinion as to whether the application should be granted or refused together with his reasons for such opinion and also to forward with the statement of such opinion, a certified copy of the record of the trial or of such record thereof as exists. Section 433 of the Code provides for a power of the State Government to commute the sentence Page 16 of 132 R/SCR.A/9089/2017 JUDGMENT and Clause (b) thereof provides that the appropriate Government may without the consent of the person sentenced commute a sentence of imprisonment for life, for imprisonment for a term not exceeding 14 years or for fine. It may be pointed out that this provision is similar to the provision in Section 55 of the Indian Penal Code, 1860 (in short the 'IPC'). The power to commute a sentence of death is independent of Section 433 A. The restriction under Section 433A comes into operation only after the power under Section 433 is exercised. Clause (c) of Section 433 deals with commutation of a sentence of rigorous imprisonment to simple imprisonment for any term to which the person might have been sentenced, or to fine.

12. "Pardon is one of the many prerogatives which have been recognized since time immemorial as being vested in the sovereign, wherever the sovereignty might life. " This sovereign power to grant a pardon has been recognized in our Constitution in Articles 72 and 161, and also in Sections 432 and 433 of the code. Grant of pardon to an accomplice under certain conditions as contemplated by Section 306 of the Code is a variation of this very power. The grant of pardon, whether it is under article 161 or 72 of the Constitution or under Sections 306, 432 and 433 is the exercise of sovereign power.

13. An identical question regarding exercise of power in terms of Section 433 of the code was considered in Delhi Administration (Now NCT) of Delhi) v. Madan Lal (2002 (6) supreme 77). The bench speaking through one of us (Doraiswamy Raju, J) was of the view that exercise of power under Section 433 was an executive discretion. The High Court in exercise of its revisional jurisdiction had no power conferred on it to commute the sentence imposed where a minimum sentence was provided for offence. In State of Punjab v. Kesar singh (1996 (5) SCC 495) this Court observed as follows (though it was in the context of Section 433 (b) :

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R/SCR.A/9089/2017 JUDGMENT "The mandate of Section 433 Cr. PC enables the Government in an appropriate case to commute the sentence of a convict and to prematurely order his release before expiry of the sentence as imposed by the courts. .......That apart; even if the High Court could give such a direction, it could only direct consideration of the case of premature release by the Government and could not have ordered the premature release of the respondent itself. The right to exercise the power under Section 433 Cr. PC vests in the Government and has to be exercised by the Government in accordance with the rules and established principles. The impugned order of the High Court cannot, therefore, be sustained and is hereby set aside. "

14. The powers conferred upon the appropriate Government under Section 433 have to be exercised reasonably and rationally keeping in view 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. "Commutation" is in essence the alteration of a sentence of one kind into a sentence of less severe kind. The powers of commutation exclusively vest with the appropriate Government. The 41st report of the Law Commission throws beacon light on the exercise of such power. The report was in respect of Sections 401 and 402 of the old code which reads as follows:

"The provisions of this Chapter are ancillary to the powers conferred on the president of India and the Governors of the States by article 72 and article 161, respectively, of the Constitution. Both these articles first refer to the power to grant pardons, reprieves, respites or remissions of punishment, and then, to the power to suspend, remit or commute the sentence of any person convicted of any offence. Section 401 contains detailed provisions in regard to the suspensions and remissions of sentences, while Section 402 Page 18 of 132 R/SCR.A/9089/2017 JUDGMENT deals with the commutation of sentences. Following article 72 (1)

(c) of the Constitution, Section 402a makes the powers conferred by Sections 401 and 402 on the State governments in respect of State field of offence exercisable also by the Central government.

It is noteworthy that these sections do not circumscribe in any way the power of the President and Governors to grant pardons, reprieves and respites, which is analogous to sovereign's prerogative of mercy in England.

As mentioned earlier, articles 72 and 161 of the Constitution first refer to the power to grant pardons, reprieves, respites or remissions of punishments, and then to the power to suspend, remit or commute, of any person convicted of any offence. "reprieve" means to take back or withdraw a sentence for a time, the effect being simply to suspend the sentence. It is no more than a temporary postponement and, in England, is used as the first step in commuting a death sentence. The term "respite" means delaying the punishment, specially in the case of a death sentence, and means much the same as reprieve. It would seem that granting a respite or reprieve of punishment is practically indistinguishable from suspending the execution of the sentence awarded by a court for a temporary period. "remission" originally meant a pardon under the great seal and release but latterly it came to mean the same as a reduction of the quantum of punishment (e.g. amount of the fine imposed or term of imprisonment awarded) without changing its character. "commutation" means the alteration of a sentence of one kind into a sentence of a less severe kind, as indicated in Section 402 of the Code.

The Constitution has lumped together both these powers (i.e. those under Section 295 (1) and (2) of the Government of India Act, Page 19 of 132 R/SCR.A/9089/2017 JUDGMENT 1935) and placed them on the same footing. The overlap that obviously exists does not harm. There is, however, no need to enlarge the scope of Section 401 of the Code so as to cover expressly pardons, reprieves and respites besides suspension and remissions.

The question of inserting in the Code a provision on the lines of S.69 of the criminal Justice Act, 1948, was raised during the discussion before us. It was suggested for example that if a person who was sentenced to imprisonment for a term by the Court and a part of this sentence was remitted by the State Government or the sentence was commuted to one of fine, the convicted person should be deemed to have been sentenced to the shorter term of imprisonment, or, as the case may be, to fine only by the Court. This could be of practical importance because many Acts provide for collateral disqualification in the case of a person convicted for an offence and sentenced to imprisonment for a specified minimum term. We have, however, come to the conclusion that the gravity of the offence for which the law provides for such disqualification should depend on the sentence awarded by the Court and not on the view which the State Government may take while remitting or commuting the sentence. In any event, this is essentially a question of policy and if such an amendment is considered desirable in the context of a particular special law, it may more appropriately be made in that view.

Another suggestion was that there should be provision for "general amnesty" which would relieve the appropriate government from the necessity of passing separate orders of remission and release in every case. In our opinion an amendment of the Code for this purpose is not necessary. Once the policy of granting a "general amnesty" for certain categories of convicted prisoners is decided upon by the Government, it is hardly desirable that the Page 20 of 132 R/SCR.A/9089/2017 JUDGMENT Government should pass a general order and leave it to be applied to individual cases by the prison authorities.

Subsection (1) of Section 402 enables the appropriate Government to commute sentences without the consent of the person sentenced. The general provision has, however, to be read with section 54 and Section 55 of the I.P.C. which contains special provision in regard to commutation of sentences of death and of imprisonment for life. The definition of "appropriate Government" in Section 402(3) is substantially the same as that contained in Section 55a of the I. P. C. It would obviously be desirable to remove this duplication and to state the law in one place. In the present definition of "appropriate Government" in Section 402(3), the reference to State government is somewhat ambiguous. It will be noticed that clause (b) of Section 55a of the Indian Penal Code specifies the particular State Government which is competent to order commutation as "the Government of the State within which the offender is sentenced."

We, therefore, propose that Sections 54, 55 and 55a may be omitted from the IPC and their substance incorporated in s.402 Criminal Procedure Code.

(ii) "clauses 441 to 444 These clauses correspond to sections 401 and 402 and sections 54, 55 and 55a of the IPC.

The Commission has recommended that in respect of cases investigated by the central Bureau of Investigation or involving misappropriation or destruction or damage to Central Government property and offences committed by Central government servants in the discharge of their official duties, remission or commutation of sentences should be granted by the State Government only after consultation with the Central Government. It is considered better to Page 21 of 132 R/SCR.A/9089/2017 JUDGMENT require 'concurrence' of the Central Government instead of merely consultation with it.

Where persons are prosecuted for offences, some under laws in the State field and some in the Union field and sentenced to separate terms of imprisonment to run concurrently, State Governments sometime remit the whole sentence without a reference to the Central government, although legally the central Government has to order remission in relation of offences in the Union field. A provision is being added requiring specifically that the person cannot be released unless the Central Government also remits the part of the sentence relating to an offence in the Union field"."

14. I may also refer to and rely upon a Division Bench decision of the High Court of Patna in the case of Tarachand Kapari @ Taranand Kapari @ Karo Kapri son of late Bonia Kapari v. State of Bihar and others, 2016 Cri.L.J. 1998. The relevant observations are extracted hereunder :

"2. The other question, which is inseparable and equally fundamental, is:

What is commutation of sentence and how does commutation of a sentence differ from remission of the sentence? This question gives rise to yet another question and the question is: Can a High Court, in exercise of its power under Article 226 of the Constitution of India, direct a State Government to commute, remit or release such a convicted person, as aforesaid, who has undergone the minimum prescribed period for a person sentenced to imprisonment for life? Conversely put, the question is : Has a convicted person an indefeasible right to demand his release from imprisonment on completing the minimum period of the sentence of imprisonment, which a given Penal Statute may prescribe?

10. It may be pointed out that Section 54 of the Indian Penal Code, Page 22 of 132 R/SCR.A/9089/2017 JUDGMENT too, provides for commutation of sentence of death inasmuch as it states, "In every case in which sentence of death shall have been passed, the appropriate Government may, without the consent of the offender, commute the punishment for any other punishment provided by this Code."

11. Similarly, Section 55 of the Indian Penal Code provides for commutation of sentence of imprisonment for life inasmuch as it states, "In every case in which sentence of imprisonment for life shall have been passed, the appropriate Government may, without the consent of the offender, commute the punishment for imprisonment of either description for a term not exceeding fourteen years".

12. Thus, while Section 54 of the Indian Penal Code provides for commutation of sentence of death for any other punishment, which the Indian Penal Code may have provided, Section 55 of the Indian Penal Code provides for commutation of sentence of imprisonment for life to punishment for imprisonment of either description for a term not exceeding fourteen years.

13. What is, however, of immense importance to note is that the power to commute a sentence of death, embodied in Section 54 of the Indian Penal Code, or a sentence of imprisonment for life, as contained in Section 55 of the Indian Penal Code, is independent of the power of commutation, which appropriate Government has been provided under Clause (b) of Section 433 of the Code of Criminal Procedure.

14. What is, however, equally important to note is that to the power Page 23 of 132 R/SCR.A/9089/2017 JUDGMENT of the appropriate Government to commute a sentence of imprisonment for life, Section 433A of the Code of Criminal Procedure puts a restriction by laying down that commutation of sentence of imprisonment for a term, cannot be for a period less than fourteen years. This apart, the restriction, which Section 433A of the Code of Criminal Procedure, imposes on the power of the commutation operates only after the power of commutation under Section 433 of the Code of Criminal Procedure is exercised meaning thereby that if the sentence of imprisonment for life is commuted to a sentence of imprisonment for a term, or for fine, the convict cannot be released until he undergoes the minimum prescribed period of 14 years of imprisonment. However, if the imprisonment for life is not commuted, the imprisonment continues until as we would show, the death of the convict.

15. What also follows from a close reading of Section 433A of the Code of Criminal Procedure is that by way of even remission, a sentence of imprisonment for life cannot be reduced to an imprisonment for a term less than fourteen years.

16. The expression "appropriate Government", appearing in Sections 432 and 433 of the Code of Criminal Procedure, means the Central Government in the cases, where the sentence or order relates to the matter to which the executive power of the Union extends; but in all other cases, the Government of the State, within which the offender is sentenced, is the appropriate Government.

17. Though Section 432 of the Code of Criminal Procedure empowers the Government to remit sentence, the fact remains that Page 24 of 132 R/SCR.A/9089/2017 JUDGMENT remission of punishment assumes that the conviction is correct and only reduces the punishment in part or in whole. A remission of sentence does not mean acquittal and an aggrieved party has every right to vindicate himself or herself that his or her conviction is not sustainable in law. (See State (Govt. of NCT of Delhi) v. Prem Raj, reported in (2003) 7 SCC 121).

18. In other words, remission is reduction of the amount of a sentence without changing its character. In the case of remission, the guilt of the offender is not affected nor does remission alter the sentence of the Court except in the sense that the convicted person does not suffer incarceration for the entire period of the sentence, but is relieved from serving out a part of the sentence.

19. From a close reading of Section 433 of the Code of Criminal Procedure, it becomes clear that an appropriate Government may commute the sentence of a person, who has been awarded death sentence, to any other punishment, which may be provided by the Indian Penal Code. The appropriate Government is also empowered, under Section 433 of the Code of Criminal Procedure, to commute a sentence of 'imprisonment for life' to 'imprisonment for a term' not exceeding fourteen years or for fine.

20. Thus, commutation of sentence is not same as remission of sentence inasmuch as commutation is conversion or alteration of sentence into another form of sentence, such as, a sentence of death into a sentence of imprisonment for life as prescribed by the Indian Penal Code or conversion or alteration of a sentence of imprisonment for life into a sentence of imprisonment for any other term.

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21. Clarified the Supreme Court, in Prem Raj (supra), that commutation of a sentence is, in essence, an alteration of a sentence of one kind into a sentence of less severe kind and this power exclusively vests with the appropriate Government and in other cases, the State Government within which the offender is sentenced or the said order is passed.

22. In the light of what have been discussed above, it becomes transparent that the release of a prisoner condemned to death, in exercise of powers conferred under Section 432 or Section 433 of the Code of Criminal Procedure, does not amount to interference with the due and proper course of justice inasmuch as the power of the High Court to pronounce upon the validity, propriety and correctness of the conviction and sentence remains unaffected. By reducing the sentence, the Government concerned does not thereby modify the judicial sentence. The fact that a sentence was remitted by the appropriate Government or that on account of certain remission (which a convict earned under the Jail Rules or under some order of general amnesty), does not, in any manner, dilute his conviction, but merely reduces the period of his sentence. Consequently, the disqualifications, if any (which such a convict may have incurred due to his or her conviction) under any other laws, such as, Election Laws, would remain unaltered even if such a convicted person's sentence is remitted by the appropriate Government. The Code of Criminal Procedure does not empower any Government to revise a judgment of conviction or sentence passed by Court. (See, State (Govt. of NCT of Delhi v. Prem Raj, reported in (2003) 7 SCC 121)."

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15. Let me now proceed as if the case of the writapplicant is one for remission of the sentence.

16. Before adverting to the rival submissions canvassed on either side, I must first look into the provisions of law.

17. Section 432 of the Criminal Procedure, 1973 provides for suspension or remission of the sentences. Section 432 of the Cr.P.C. is extracted hereunder:

"432. Power to suspend or remit sentences (1) When any person has been sentenced to punishment for an offence, the appropriate Government may, at any time, without conditions or upon any conditions which 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.

(2) Whenever an application is made to the appropriate Government for the suspension or remission of a sentence, the appropriate Government may require the presiding Judge of the Court before or by which the conviction was had or confirmed, to state his opinion as to whether the application should be granted or refused, together with his reasons for such opinion and also to forward with the statement of such opinion a certified copy of the record of the trial or of such record thereof as exists.

(3) If any condition on which a sentence has been suspended or remitted is, in the opinion of the appropriate Government, not fulfilled, the appropriate Government may cancel the suspension or remission, and thereupon the person in whose favour the sentence has been suspended or remitted may, if at large, be arrested by any police officer, without Page 27 of 132 R/SCR.A/9089/2017 JUDGMENT warrant and remanded to undergo the unexpired portion of the sentence.

(4) The condition on which a sentence is suspended or remitted under this section may be one to be fulfilled by the person in whose favour the sentence is suspended or remitted, or one independent of his will.

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

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

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

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

(6) The provisions of the above subsections shall also apply to any order passed by a Criminal Court under any section of this Code or of any other law which restricts the liberty of any person or imposes any liability upon him or his property.

(7) In this section and in section 433, the expression "appropriate Government" means,

(a) in cases where the sentence is for an offence against, or the order referred to in subsection (6) is passed under, any law relating to a matter to which the executive power of the Union extends, the Central Government;

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

18. Section 433 of the Cr.P.C. is extracted hereunder:

"433. Power to commute sentence The appropriate Government may, without the consent of the person sentenced, commute

(a) a sentence of death, for any other punishment provided by the Indian Penal Code;

(b) a sentence of imprisonment for life, for imprisonment for a term not exceeding fourteen years or for fine;

(c) a sentence of rigorous imprisonment, for simple imprisonment for any term to which that person might have been sentenced, or for fine;

(d) a sentence of simple imprisonment, for fine."

19. Section 433A of the Cr.P.C. is extracted hereunder:

"433A. Restriction on powers of remission or commutation in certain cases Notwithstanding anything contained in section 432, where a sentence of imprisonment for life is imposed on conviction of a person for an offence for which death is one of the punishments 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 had served at least fourteen years of imprisonment."

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20. Section 432 of the Cr.P.C. deals with the power of the appropriate Government to suspend and remit the sentences. Section 433 of the Cr.P.C. empowers the appropriate Government to commute the sentences in the manner enumerated therein. Section 433A, Cr. P.C. inserted by the Amendment Act of 1978 obligates the actual detention in prison for full 14 years as a mandatory minimum in the two classes of cases where the Court could have punished the offenders with death but did not or where the Court did punish the culprit with death but he survived through the conviction to life imprisonment granted under Section 433, Cr. P.C. In the case of Maru Ram v. Union of India, AIR 1980 SC 2147, the Supreme Court elucidated the law on the subject and held that Section 433A is prospective in its application. It was also held therein that every person who had been convicted by the sentencing court before December, 1978 (when the Amendment Act of 1978 came into force) would be entitled to the benefits accruing to him from the remissions scheme or short sentencing projects as if Section 433A did not stand in his way.

● SECTION 433A OF THE CODE:

21. While dealing with the constitutional validity of Section 433A of the Code, the Constitution Bench of the Apex Court in the case of Maru Ram (supra), upholding the constitutional validity, held as under:

"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 Page 30 of 132 R/SCR.A/9089/2017 JUDGMENT functionaries of the Union and the States. The source is different, the substance is different, the strength is different, although the stream may be following 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 process. Therefore Section 433A 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(3) in within the legislative power of Parliament.

60. Even so, we must remember the constitutional status of Articles 72 and 161 and it is common ground that Section 433A does not and cannot affect even a wee bit the pardon power of the Governor or the President.

The necessary sequel to this logic is that notwithstanding Section 433A the President and the Governor continue to exercise the power of communication and release under the aforesaid articles.

61. Are we back to square one? Has Parliament indulged in legislative futility with a formal victory but a real defeat? The answer is 'yes' and 'no'. Why 'yes'? Because the President is symbolic, the Central Government is the reality even as the Governor is the formal head and sole repository of the executive power but is incapable of acting except on, and according to, the advice of his Council of Ministers. The upshot is that the State Government, whether the Governor likes it or not, can advice and act under Article 161, the Governor being bound by the advice. The action of commutation and release can thus be pursuant to a Governmental decision and the order may issue even without the Governor's approval although, under the Rules of Business and as a matter of constitutional Courtesy, it is obligatory that the signature of the Governor should authorise the pardon, commutation or release. The position is substantially the same regarding the President. It is not open either to the President or the Governor to take independent decision to direct release or refuse release of Page 31 of 132 R/SCR.A/9089/2017 JUDGMENT anyone of their own choice. It is fundamental to the Westminister system that the Cabinet rules and the Queen reigns being too deeply rooted as fundamental to our system no serious encounter was met from the learned Solicitor General whose sure grasp of fundamentals did not permit him to controvert the proposition, that the President and the Governor, be they ever so high in textual terminology, are but functional euphemisms promptly acting on and only on the advice of the Council of Ministers have in a narrow area of power. The subject is now beyond controversy, this Court having authoritatively laid down the law in Shamsher Singh case (AIR 1974 SC 2192). So, we agree, even without reference to Article 367(1) and Sections 3(8)(b) and 3(60)(b) of the General Clauses Act, 1897, that, in the matter of exercise of the powers under Articles 72 and 161, the two highest dignitaries in our constitutional scheme act and must act not on their own judgment but in accordance with the aid and advice of the ministers. Article 74, after the 42nd Amendment silences speculation and obligates compliance. The Governor visavis his Cabinet is no higher than the President save in a narrow area which does not include Article

161. The constitutional conclusion is that the Government is but a shorthand expression for the State Government and the President is an abbreviation for the Central Government.

62. An issue of deeper import demands our consideration at this stage of the discussion. Wide as the power of pardon, commutation and release (Articles 72 and 161) is, it cannot run riot; for no legal power can run unruly like John Gilpin on the horse but must keep sensibly to a steady course. Here, we come upon the second unconstitutional fundamental which underlies the submissions of counsel. It is that all public power, including constitutional power, shall never be exercisable arbitrarily or mala fide and, ordinarily, guidelines for fair and equal execution are guarantors of the valid play of power.

70. The learned SolicitorGeneral is right that these Rules are plainly Page 32 of 132 R/SCR.A/9089/2017 JUDGMENT made under the Prisons Act and not under the constitutional power. The former fail under the pressure of Section 433A. But that, by no means, precludes the State from adopting as working rules the same remission schemes which seem to us to be fairly reasonable. After all, the Government cannot meticulously study each prisoner and the present praxis of marks, until a more advanced and expertly advised scheme is evolved, may work. Section 433A cannot forbid this method because it is immunised by Article 161. We strongly suggest that, without break, the same rules and schemes of remission be continued as a transmigration of soul into Article 161, as it were, and benefits extended to all who fall within their benign orbit save, of course, in special cases which may require other relevant considerations. The wide power of executive clemency cannot be bound down even by selfcreated rules. Ultimately they concluded the judgment by formulating their findings as under:

72. We conclude by formulating our findings:

(1) We repulse all the thrusts on the vires of Section 433A. May be, penologically the prolonged term prescribed by the section is supererogative. If we had our druthers we would have negatived the need for a fourteen years gestation for reformative. But ours is to construe, not construct, to decode, not to make a code.

(2) We affirm the current supremacy of Section 433A over the Remission Rules and shortsentencing statutes made by the various States.

(3) We uphold all remissions and shortsentencing passed under Articles 72 and 161 of the Constitution but release will follow, in life sentence cases, only on Government making in order en masse or individually, in that behalf.

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R/SCR.A/9089/2017 JUDGMENT (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 433A, by nullifying wholly or partially these price provisions does not violate or detract from the full operation of the constitutional power to pardon, commute and the like.

(5) We negate the plea that Section 433A contravenes Article 20(1) of the Constitution.

(6) We follow Godse case (AIR 1961 SC 600) to hold that imprisonment for life lasts until the last breath, and whatever the length of remissions earned, the prisoner can claim release only if the remaining sentence is remitted by Government.

(7) We declare that Section 433A, in both its limbs (i.e., both types of life imprisonment specified in it), is prospective in effect. To put the position beyond doubt, we direct that the mandatory minimum of 14 years actual imprisonment will not operate against those whose cases were decided by the trial Court before December 18, 1978 when Section 433A came into force. All 'Lifers' whose conviction by the Court of first instance was entered prior to that date are entitled to consideration by Government for release on the strength of earned remissions although a release can take place only if Government makes an order to that effect. To this extent the battle of the tenses is won by the prisoners. It follows, by the same logic, the shortsentencing legislation, if any, will entitle a prisoner to claim release thereunder if his conviction by the Court of first instance was before Section 433A was brought into effect.

(8) The power under Articles 72 and 161 of the Constitution can be exercised by the Central and State Government, not by the President or Governor or their own. The advice of the appropriate Government binds the Head of the State. No separate order for each individual case is Page 34 of 132 R/SCR.A/9089/2017 JUDGMENT necessary but any general order made must be clear enough to identify the group of cases and indicate the application of mind to the whole group.

(9) Considerations for exercise of power under Articles 72/161 may be myriad and their occasions protean, and are left to the appropriate Government, but no consideration nor occasion can be wholly irrelevant, irrational, discriminatory or mala fide. Only in these rare cases will the Court examine the exercise.

(10) Although the remission rules or shortsentencing provisions proprio vigore may not apply as against Section 433A, they will override Section 433A 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 433A is itself treated as a guideline for exercise of Article 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.

(11) The U.P. Prisoners' Release on Probation Act, 1938, enabling limited enlargement under licence will be effective as legislatively sanctioned imprisonment of a loose and liberal type and such licensed enlargement will be reckoned for the purpose of the 14 year duration. Similar other statues and rules will enjoy similar efficacy.

(12) In our view, penal humanitarianism and rehabilitative desideratum warrant liberal paroles, subject to security safeguards, and other Page 35 of 132 R/SCR.A/9089/2017 JUDGMENT humanizing strategies for inmates so that the dignity and worth or the human person are not desecrated by making mass jails anthropoid zoos.

Human rights awareness must infuse institutional reform and search for alternatives.

(13) We have declared the law all right, but lawinaction fulfils itself not be declaration alone and needs the wings of communication to the target community. So, the further direction goes from this Court that the last decretal part is translated and kept prominently in each ward and the whole judgment, in the language of the State, made available to the inmates in the jail library.

(14) Section 433A does not forbid parole or other release within the 14 year span. So it interpret the section as to intensify inner tension and intermissions of freedom is to do violence to language and liberty.

Hon'ble Justice Fazal Ali, while concurring with the majority judgment expressed the following views on the nature and character of the reformative aspect of penology:

"93. Thus, on a consideration of the circumstances, mentioned above, the conclusion is inescapable that Parliament by enacting Section 433A has rejected the reformative character of punishment, in respect of offences contemplated by it, for the time being in view of the prevailing conditions in our country. It is well settled that the legislature understands the needs and requirements of its people much better than the Courts because the Parliament consists of the elected representatives of the people and if the Parliament decides to enact a legislation for the benefit of the people, such a legislation must be meaningfully construed and given effect to so as to subserve the purpose for which it is meant."

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22. Article 72 of the Constitution of India is extracted hereunder:

"72. Power of President to grant pardons, etc., and to suspend, remit or commute sentences in certain cases (1) The President shall have the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence(a) in all cases where the punishment or sentence is by a Court Martial

(b) in all cases where the punishment or sentence is for an offence against any law relating to a matter to which the executive power of the Union extends;

(c) in all cases where the sentence is a sentence of death.

(2) Nothing in subclause (a) of clause (1) shall affect the power conferred by law on any officer of the Armed Forces of the Union to suspend, remit or commute a sentence passed by a CourtMartial.

(3) Nothing in subclause (c) of clause (1) shall affect the power to suspend, remit or commute a sentence of death exercisable by the Governor of a State under any law for the time being in force."

23. The Constitution Bench of the Apex Court in the case of Kehar Singh and another v. Union of India and Anr., reported in 1989 SCC (Cri) 86 : (AIR 1989 SC 653), while interpreting Article 72 of the Constitution of India, which confers power on the President to grant pardons, respites or remission, held as under:

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R/SCR.A/9089/2017 JUDGMENT "7. The Constitution of India, in keeping with modern constitutional practice, is a constitute document, fundamental to the governance of the country, whereby, according to accepted political theory, the people of India have provided a constitutional policy consisting of certain primary organs, institutions and functionaries to exercise the powers provided in the Constitution, All power belongs to the people, and it is entrusted by them to specified institutions and functionaries with the intention of working out, maintaining and operating a constitutional order. The Preambular statement of the Constitution begins with the significant recital:

We, the people of India, having solemnly resolved to constitute India into a Sovereign Socialist Secular Democratic Republic...do hereby adopt, enact and give to ourselves this Constitution.

To any civilised society, there can be no attributes more important than the life and personal liberty of its members. That is evident from the paramount position given by the Courts to Article 21 of the Constitution. These twin attributes enjoy a fundamental ascendancy over II other attributes of the political and social order, and consequently, the Legislature, the Executive and the Judiciary are more sensitive to them than to the other attributes of daily existence. The deprivation of personal liberty and the threat of the deprivation of life by the action of the State is in most civilised societies regarded seriously and, recourse, either under express constitutional provision or through legislative enactment is provided to the judicial organ. But, the fallibility of human judgment being undeniable even in the most trained mind, a mind resourced by a harvest of experience, it has been considered appropriate that in the matter of life and personal liberty, the protection should be extended by entrusting power further to some high authority to scrutinise the validity of the threatened denial of life or the threatened or continued denial of personal liberty. The power so entrusted is a power belonging to the people Page 38 of 132 R/SCR.A/9089/2017 JUDGMENT and reposed in the highest dignitary of the State. In England, the power is regarded as the royal prerogative of pardon exercised by the Sovereign, generally through the Home Secretary. It is a power which is capable of exercise on a variety of grounds, for reasons of State as well as the desire to safeguard against judicial error. It is an act of grace issuing from the Sovereign. In the United States, however, after the founding of the Republic, a pardon by the President has been regarded not as a private act of grace but as a part of the constitutional scheme. In an opinion, remarkable for its erudition and clarity, Mr. Justice Holmes, speaking for the Court in W.I. Biddle v. Vuco Perovich enunciated this view, and it has since been affirmed in other decisions. The power to pardon is a part of the constitutional scheme, and we have no doubt, in our mind, that it should be so treated also in the Indian Republic. It has been reposed by the people through the Constitution in the Head of the State, and enjoys high status. It is a constitutional responsibility of great significance, to be exercised when occasion arises in accordance with the discretion contemplated by the context. It is not denied, and indeed it has been repeatedly affirmed in the course of argument by learned counsel. Shri Ram Jethmalani and Shri Shanti Bhushan, appearing for the petitioners that the power to pardon rests on the advice tendered by the Executive to the President, who subject to the provisions of Article 74(1) of the Constitution, must act in accordance with such advice. We may point out that the Constitution Bench of this Court held in Maru Ram v. Union of India (AIR 1980 SC 2147), that the power under Article 72 is to be exercised on the advice of the Central Government and not by the President on his own, and that the advice of the Government binds the Head of the State."

10. We are of the view that it is open to the President in the exercise of the power vested in him by Article 72 of the Constitution to scrutinise the evidence on the record of the criminal case and come to a different conclusion from that recorded by the Court in regard to the guilt of, and Page 39 of 132 R/SCR.A/9089/2017 JUDGMENT sentence imposed on, the accused. In doing so, the President does not amend or modify or supersede the judicial record. The judicial record remains intact, and undisturbed. The President acts in a wholly different plane from that in which the Court acted. He acts under a constitutional power, the nature of which is entirely different from the judicial power and cannot be regarded as an extension of it. And this is so, notwithstanding that the practical effect of the Presidential act is to remove the stigma of guilt from the accused or to remit the sentence imposed on him. In U.S.V. Benz Sutherland, J. observed:

The judicial power and the executive power sentences are readily distinguishable. To render judgment is a judicial function. To carry the judgment into effect is an executive function. To cut short a sentence by an act or clemency is an exercise of executive power which abridges the enforcement of the judgment, but does not alter in qua a judgment. To reduce a sentence by amendment alters the terms of the judgment itself and is a judicial act as much as the imposition of the sentence in the first instance.

The legal effect of the pardon is wholly different from a judicial supersession of the original sentence. It is the nature of the power which is determinative. In Sarat Chandra Rabha v. Khagendranath Nath (AIR 1961 SC 334), Wanchoo, J. speaking for the Court addressed himself to the question whether the order or remission by the Governor of Assam had the effect of reducing the sentence imposed on the appellant in the same way in which an order of an appellate or revisional criminal Court has the effect of reducing the sentience passed by the Trial Court, and after discussing the law relating to the power to grant pardon, he said:

Though, therefore, the effect of an order of remission is to wipe out that part of the sentence of imprisonment which has not been served out and thus in practice to reduce the sentence to the period already undergone, in Page 40 of 132 R/SCR.A/9089/2017 JUDGMENT law the order of remission merely means that the rest of the sentence need not be undergone, leaving the order of conviction by the Court and the sentence passed by it untouched. In this view of the matter the order of remission passed in this case though it had the effect that the appellant was released from jail before he had served the full sentence of three years' imprisonment and had actually served only about sixteen months' imprisonment, did not in any way affect the order of conviction and sentence passed by the Court which remained as it was and again;

Now where the sentence imposed by a trial Court is varied by way of reduction by the appellant or revisional Court, the final sentence is again imposed by a Court; but where a sentence imposed by a Court is remitted in part under Section 401 of the Code of Criminal Procedure that has not the effect in law of reducing the sentence imposed by the Court, though in effect the result may be that the convicted person suffers less imprisonment than that imposed by the Court. The order or remission affects the execution of the sentence imposed by the Court but does not affect the sentence as such, which remains what it was in spite of the order of remission.

It is apparent that the power under Article 72 entitles the President to examine the record of evidence of the criminal case and to determine for himself whether the case is one deserving the grant of the relief falling within that power. We are of opinion that the President is entitled to go into the merits of the case notwithstanding that it has been judicially concluded by the consideration given to it by this Court."

24. Following the aforesaid judgment, the Supreme Court in the case of Swaran Singh v. State of U. P. and others, [(1998) 4 SCC 75] :

(AIR 1998 SC 2026) held that if such power was exercised arbitrarily, mala fide or in absolute disregard of the finer canons of the Page 41 of 132 R/SCR.A/9089/2017 JUDGMENT constitutionalism, the by product order cannot get the approval of law and in such cases, the judicial hand must be stretched to it. In that case they held as under : "13.....When the Governor was not posted with material facts such as those indicated above, the Governor was apparently deprived of the opportunity to exercise the powers in a fair and just manner. Conversely, the order now impugned fringes on arbitrariness. What the Governor would have ordered if he were apprised of the above facts and materials is not for us to consider now because the Court cannot then go into the merits of the grounds which persuaded the Governor in taking a decision in exercise of the said power".

25. Yet, another Bench of the Supreme Court, in the case of Satpal and another v. State of Haryana and others [(2000) 5 SCC 170] :

(AIR 2000 SC 1702), following the aforesaid judgment of the Apex Court in Kehar Singh's case (AIR 1989 SC 653) held as under : "6. Bearing in mind the parameters of judicial review in relation to an order granting pardon by the Governor, when we examined the case in hand, the conclusion is irresistible that the Governor had not applied his mind to the material on record and has mechanically passed the order just to allow the prisoner to overcome the conviction and sentence passed by this Court. It is indeed curious to note that the order dated 2511999 clearly indicates that the Governor of Haryana is pleased to grant pardon remitting the unexpired portion of the sentence passed on prisoner Siriyans Kumar Jain confined in the Central Jail, Hissar. But the said prisoner was not confined in the Central Jail, Hissar on that date and on the other hand after obtaining the order of pardon and remission of sentence to give an appearance of compliance with the order of the Page 42 of 132 R/SCR.A/9089/2017 JUDGMENT Supreme Court the said Siriyans Kumar Jain surrendered before the Court of Sessions Judge, Hissar on 221999 and also was released on the very same day in view of the order of the Governor dated 2511999. If by order dated 2511999, the accused has already been granted pardon and there has been a remission of the sentence then there was no reason for him to go and surrender before the District Judge on 221999. That apart, the Governor has not been made aware of as to what is the total period of sentence the accused has really undergone, and if at all has undergone any sentence. When an accused is convicted of the heinous offence of murder and is sentenced to imprisonment for life the authority who has been conferred with power to grant pardon and remission of sentence under Article 161 of the Constitution must be made aware of the period of sentence in fact undergone by the said convict as well as his conduct and behaviour while he has been undergoing the sentence which would all be germane considerations for exercise of the power. Not being aware of such material facts would tend to make an order of granting pardon authority and irrational, as has been held by this Court in Swaran Singh case (AIR 1998 SC 2026)."

26. Article 161 of the Constitution of India is extracted hereunder:

"161. Power of Governor to grant pardons, etc., and to suspend, remit or commute sentences in certain cases The Governor of a State shall have the power 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."

27. The Supreme Court dealing with Article 161 of the Constitution of India in the case of Dhananjoy Chatterjee alias Dhana v. State of W. Page 43 of 132 R/SCR.A/9089/2017 JUDGMENT B., [(2004) 9 SCC 751] : (AIR 2004 SC 3454), after referring to the aforesaid judgments, held as under:

"10...... the Governor was deprived of the opportunity to exercise his power in a fair and just manner. It is true that the power under Article 161 of the Constitution is to be exercised by the Governor on the basis of the aid and advice given by the State Government. However, the material facts should have been placed before the Governor. Pursuant to our direction, the relevant file was produced before this Court. We have also perused the same and we feel that all material facts, including the mitigating factors were not placed before the Governor. The appellant's mercy petition was rejected on 1621994 without there being a proper consideration of all relevant facts.

11. Therefore, we direct the respondent authorities to put up the mercy petition filed by the appellant on 221994 to the Governor again and bring all relevant facts to the notice of the Governor for an appropriate decision in the case."

28. The Apex Court in the case of Epuru Sudhakar and another v.

Government of A.P. and others, [(2006) 8 SCC 161] : (AIR 2006 SC 3385)] has held as under:

"34. The position, therefore, is undeniable that judicial review of the order of the President or the Governor under Article 72 or Article 161, as the case may be, is available and their orders can be impugned 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;

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(d) that relevant materials have been kept out of consideration;

(e) that the order suffers from arbitrariness."

● WHAT IS PREROGATIVE POWER ?

29. Pardon is one of the many prerogatives which have been recognised since time immemorial as being vested in the sovereign, wherever the sovereignty might lie. 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 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. The King, using the term in a most comprehensive sense, has been the symbol of the sovereignty of the State from whom emanate all power, authority and jurisdictions. As kingship was supposed to be of divine origin, an absolute king had no difficulty in proclaiming and enforcing his divine right to govern, which includes the right to rule, to administer and to dispense justice. It is a historical fact that it was this claim of divine right of kings that brought the Stuart Kings of England in conflict with the Parliament as the spokesman of the people. We know that as a result of this struggle between the King, as embodiment of absolute power in all respects, and the Parliament, as the champion of popular liberty, ultimately emerged the constitutional head of the Government in the person of the King who, in theory, wields all the power, but, in practice, laws are enacted by the Parliament, the executive power vests in members of the Government, collectively called the Cabinet, and judicial power is vested in a Judiciary appointed by the Government in the name of His Majesty. Thus, in theory, His Majesty or Her Majesty continues to appoint the Judges of the highest Courts, the members of the Government and the Page 45 of 132 R/SCR.A/9089/2017 JUDGMENT public servants, who hold office during the pleasure of the sovereign. As a result of historical processes emerged a clear cut division of Governmental functions into executive, legislative and judicial. Thus was established the "Rule of Law" which has been the pride of Great Britain and which was highlighted by Prof. Dicey. The Rule of Law, in contradistinction 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. There has been a progressive increase in the power, authority and jurisdiction of the three wings of the Government and a corresponding diminution of absolute and arbitrary power of the King. It may, therefore, be said that the prerogatives of the Crown in England, which were wide and varied, have been progressively curtailed with a corresponding increase in the power, authority and jurisdiction of the three wings of Government, so much so that most of the prerogatives of the Crown, though in theory they have continued to be vested in it, are now exercised in his name by the Executive, the Legislature and the Judiciary. This dispersal of the Sovereign's absolute power amongst the three wings of Government has now become the norm of division of power; and the prerogative is no greater than what the law allows. In the celebrated decision of the House of Lords in the case of Attorney General v. De Keyser's Royal Hotel, Limited which involved the right of the Crown by virtue of its prerogative, to take possession of private property for administrative purposes in connection with the defence of the realm, it was held by the House of Lords that the Crown was not entitled by virtue of its prerogative or under any statute, to take possession of property belonging to a citizen for the purposes aforesaid, without paying compensation for use and occupation. The prerogative has been defined Page 46 of 132 R/SCR.A/9089/2017 JUDGMENT by a learned author as 'the residue of discretionary or arbitrary' authority which at any given time is legally left in the hands of the Crown'. It is the ultimate resource of the executive, and when there exists a statutory provision covering precisely the same ground there is no longer any room for the exercise of the Royal Prerogative. It has been taken away by necessary implication because the two rights cannot live together. The prerogative is defined by a learned constitutional writer as 'the residue of discretionary or arbitrary authority which at any given time is legally left in the hands of the Crown'. Inasmuch as the Crown is a party to every Act of Parliament it is logical enough to consider that when the Act deals with something which before the Act could be effected by the prerogative, and specially empowers the Crown to do the same thing, but subject to conditions, the Crown assents to that, and by that Act, to the prerogative being curtailed. The prerogative is thus created and limited by the common law, and the Sovereign can claim no prerogatives except such as the law allows, nor such as are contrary to Magna Carta, or any other statute, or to the liberties of the subject. The Courts have jurisdiction, therefore, to inquire into the existence or extent of any alleged prerogative.

● INDIAN LAW:

30. The Supreme Court had an occasion to consider the concept of law of pardon in the case of K. M. Nanavati v. State of Bombay [AIR 1961 SC 112]. The Constitution Bench in the said judgment held as under:

"11. We have thus briefly set out the history of the 'genesis and development of the Royal Prerogative of Mercy because Mr. Seervai has strongly emphasised that the Royal Prerogative of Mercy is wide and Page 47 of 132 R/SCR.A/9089/2017 JUDGMENT absolute, and can be exercised at any time. Very elaborate arguments were addressed by him before us on this 'aspect of the matter and several English and American decisions were cited. In so far as his argument was that the power to suspend the sentence is a part of the larger power of granting pardon it may be relevant to consider incidentally the scope and extent of the said larger power; but, as we shall presently point out, the controversy raised by the present petition lies within a very narrow compass; and so concentration on the wide and absolute character of the power to grant pardon and overemphasis on judicial decisions which deal directly with the said question would not be very helpful for our present purpose. In fact we apprehend that entering into an elaborate discussion about the scope and effect of the said larger power, in the light of relevant judicial decisions, is likely to create confusion and to distract attention from the essential features of the very narrow point that falls to be considered in the present case. That is why we do not propose to enter into a discussion of the said topic or to refer to the several decisions cited under that topic."

31. Thereafter, they examined the statutory provisions as contained in the old Code of Criminal Procedure as well as in the Constitution. It is stated as under:

"12. Let us now turn to the law on the subject as it obtains in India since the Code of Criminal Procedure was enacted in 1898. Section 401 of the Code gives power to the executive to suspend the execution of the sentence or remit the whole or any part of the punishment without conditions or upon any conditions which the person sentenced accepts. Section 402 gives power to the executive without the consent of the person sentenced to commute a sentence of death into imprisonment for life and also other sentences into sentences less rigorous in nature. In addition the Governor General had been delegated the power to exercise them prerogative power Page 48 of 132 R/SCR.A/9089/2017 JUDGMENT vesting in His Majesty. Subsection (5) of S. 401 also provides that nothing contained in it shall be deemed to interfere with the right of His Majesty, or the GovernorGeneral when such right is delegated to him, to grant pardons, reprieves, respites or remissions of punishment. This position continued till the Constitution came into force. Two provisions were introduced in the Constitution to cover the former royal prerogative relating to pardon, and they are Arts. 72 and 161. Article 72 deals with the power of the President to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence. Article 161 gives similar power to the Governor of a State with respect to offenses against any law relating to a matter to which the executive power of the State extends. Sections 401 and 402 of the Code have continued with necessary modifications to bring them into line with Arts. 72 and 161. It will be seen, however, that Arts. 72 and 161 not only deal with pardons and reprieves which were within the royal prerogative but have also included what is provided in Ss. 401 and 402 of the Code. Besides the general power, there is also provision in Ss. 337 and 338 of the Code to tender pardon to an accomplice under certain conditions."

32. Interpreting Article 161 of the Constitution, the Apex Court held as under:

"13.....Though Art. 161 does not make any reference to Art. 72 of the Constitution, the power of the Governor of a State to grant pardon etc. to some extent overlaps the same power of the President, particularly in the case of a sentence of death. Articles 72 and 161 are in very general terms. It is, therefore, argued that they are not subject to any limitations and the respective area of exercise of power under these two Articles is indicated separately in respect of the President and of the Governor of a State. It is further argued that the exercise of power under these two Articles is not Page 49 of 132 R/SCR.A/9089/2017 JUDGMENT fettered by the provisions of Arts. 142 and 145 of the, Constitution or by any other law."

Resorting to Article 142(1) they held as under :

"14. It will be seen that it consists of two parts. The first part gives power to this Court in the exercise of its jurisdiction to pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it. The second part deals with the enforcement of the order passed by this Court. Article 145 gives power to this Court with the approval of the President to make rules for regulating generally the practice and procedure of the Court. It is obvious that the rules made under Art. 145 are in aid of the power given to this Court under Art. 142 to pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it."

Dealing with the power of the Governor to grant pardon under Article 161 it is held as under:

"21. There can be no doubt that it is open to the Governor to grant a full pardon at any time even during the pendency of the case in this Court in exercise of what is ordinarily called "mercy jurisdiction". Such a pardon after the accused person has been convicted by the Court has the effect of completely absolving him from all punishment or disqualification attaching to a conviction for a criminal offence. That power is essentially vested in the head of the Executive, because the judiciary has no such 'mercy jurisdiction'. But the suspension of the sentence for the period when this Court is in seizin of the case could have been granted by this Court itself. If in respect of the same period the Governor also has powerto suspend the sentence, it would mean that both the judiciary and the executive would be functioning in the same field at the same time leading to the possibility of conflict of jurisdiction. Such a conflict was not and Page 50 of 132 R/SCR.A/9089/2017 JUDGMENT could not have been intended by the makers of the Constitution. But it was contended by Mr. Seervai that the words of the Constitution, namely, Art. 161 do not warrant the conclusion that the power was in any way limited or fettered. In our opinion there is a fallacy in the argument in so far as it postulates what has to be established, namely, that the Governor's power was absolute and not fettered in any way go long as the judiciary has the power to pass a particular order in a pending case to that extent the power of the Executive is limited in view of the words either of Ss. 401 and 426 of the Code of Criminal Procedure and Arts. 142 and 161 of the Constitution. If that is the correct interpretation to be put on these provisions in order to harmonise them it would follow that what is covered in Art. 142 is not covered by Art. 161 and similarly what is covered by S. 426 is not covered by S. 401. On that interpretation Mr. Seervai would be right in his contention that there is no conflict between the prerogative power of the sovereign State to grant pardon and the power of the Courts to deal with a pending case judicially.

24. It has been strenuously urged before us that the power of granting pardon is wide and absolute and can be exercised at any time, that is to say, it can be exercised even in respect of criminal matters which are sub judice; and the argument is that the power to suspend sentence is part of the larger power to grant pardon, and is similar in character and can be similarly exercised. This argument is fallacious; it ignores the essential difference between the general power to grant pardon etc., and the power to suspend sentence in criminal matters pending before this Court. The first is an exclusively executive power vesting in the Governor under Art. 161; it does not vest in this Court; and so the field covered by it is exclusively subject to the exercise of the said executive power; and so there can be no question of any conflict in such a case; conflict of powers obviously postulates the existence of the same or similar power in two authorities; on the other hand, the latter power vests both in this Court and the Governor, and so the field covered by the said power entrusted to Page 51 of 132 R/SCR.A/9089/2017 JUDGMENT this Court under Art. 142 can also be covered by the executive power of the Governor under Art. 161, and that raises the problem of a possible conflict between the two powers. That is why we have observed earlier that concentration or even undue emphasis on the character and sweep of the larger power to grant pardon is likely to distract attention from the essential features of the power to suspend sentence with which alone we are concerned in the present proceedings."

Ultimately, they concluded as under : "25. As a result of these considerations we have come to the conclusion that the order of the Governor granting suspension of the sentence could only operate until the matter became sub judice in this Court on the filing of the petition for special leave to appeal. After the filing of such a petition this Court was seized of the case which would be dealt with by it in accordance with law. It would then be for this Court, when moved in that behalf, either to apply R. 5 of O. XXI or to exempt the petitioner from the operation of that rule. It would be for this Court to pass such orders as it thought fit as to whether the petitioner should be granted bail or should surrender to his sentence or to pass such order or further orders as this Court might deem fit in all the circumstances of the case. It follows from what has been said that the Governor had no power to grant the suspension of sentence for the period during which the matter was sub judice in this Court."

● MEANING OF SENTENCE FOR LIFE:

33. On the question what is the meaning to be attributed to the phrase 'sentence for life', the Apex Court in the case of State of Madhya Pradesh v. Ratan Singh and others reported in AIR 1976 SC 1552, held as under:

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R/SCR.A/9089/2017 JUDGMENT "It is therefore, manifest from the decision of this Court that the Rules framed under the Prisons Act or under the Jail Manual do not affect the total period which the prisoner has to suffer but merely amount to administrative instructions regarding the various remissions to be given to the prisoner from time to time in accordance with the rules. The Court further pointed out that the question of remission of the entire sentence or a part of it lies within the exclusive domain of the appropriate Government under S. 401 of the Code of Criminal Procedure and neither Section 57 of the Indian Penal Code nor any Rules or local Act can stultify the effect of the sentence of life imprisonment given by the Court under the Indian Penal Code. In other words, this Court has clearly held that a sentence for life would ensure till the lifetime of the accused as it is not possible to fix a particular period of the prisoner's death so any remissions given under the Rules could not be regarded as a substitute for a sentence of transportation of life . In these circumstances, therefore, it is clear that the High Court is in error in thinking that the respondent was entitled to be released as of right on completing the term of 20 years including the remissions."

34. In Ramraj alias Nanhoo alias Bihnu vs. State of Chhatisgarh [(2010) 1 SCC 573], the Supreme Court held as under:

"19. The debate as to what would constitute "life imprisonment" once again surfaced in the case in the case of Mohd. Munna vs. Union of India, [(2005) 7 SCC 417], which was disposed of along with another writ petition filed by one Kartick Biswas, where it was reiterated 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. This Court observed that there was no provision either in the Indian Penal Code or in the Criminal Procedure Code, whereby life imprisonment could be treated Page 53 of 132 R/SCR.A/9089/2017 JUDGMENT as either 14 years or 20 years without there being a formal remission by the appropriate Government. The contention that having regard to the provisions of Section 57 of the Code of Criminal Procedure 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 following the decision in Gopal Vinayak Godse vs. State of Maharashtra [AIR 1961 SC 600].

20. In a more recent case, Swamy Shraddananda (2) vs. State of Karnataka [(2008) 13 SCC 767], this Court was called upon to consider as to what would constitute "life imprisonment" in a case where death sentence was commuted to life sentence. Swamy Shraddananda was convicted under Section 302 and 201 IPC and was sentenced to death for the offence under Section 302 IPC. In appeal the High Court affirmed the conviction and the death sentence awarded to the appellant by the learned 25th City Sessions Judge, Bangalore City and accepted the reference made by the trial Court without any modification in the conviction or sentence. The matter then travelled to this Court and again came up for disposal before a Bench of three Judges. While one of the learned Judges took the view that the appellant deserved nothing but death, the others made it clear that life imprisonment, rather than death, would serve the ends of justice. But the Hon'ble Judges also made it clear that the appellant would not be released from prison till the end of his life. Having examined various decisions on the point which have also been referred to hereinabove, the Hon'ble Judges 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 convict would not be released from prison for the rest of his life.

21. What ultimately emerges from all the aforesaid decisions is that life imprisonment is not to be interpreted as being imprisonment for the whole Page 54 of 132 R/SCR.A/9089/2017 JUDGMENT of a convict's natural life within the scope of Section 45 of the aforesaid Code. The decision in Swamy Shraddananda's (supra) was taken in the special facts of that case where on account of a very brutal murder, the appellant had been sentenced to death by the Trial Court and the reference had been accepted by the High Court. However, while agreeing with the conviction and confirming the same, the Hon'ble Judges were of the view that however heinous the crime may have been, it did not come within the definition of "rarest of rare cases" so as to merit a death sentence. Nevertheless, having regard to the nature of the offence, Their Lordships were of the view that in the facts of the case the claim of the petitioner for premature release after a minimum incarceration for a period of 14 years, as envisaged under Section 433A Cr.P.C., could not be acceded to, since the sentence of death had been stepped down to that of life imprisonment, which was a lesser punishment.

22. On a conjoint reading of Sections 45 and 47 of the Indian Penal Code and Sections 432, 433 and 433A Cr.P.C., it is now well established that a convict awarded life sentence has to undergo imprisonment for at least 14 years. While Sections 432 and 433 empowers the appropriate Government to suspend, remit or commute sentences, including a sentence of death and life imprisonment, a fetter has been imposed by the legislature on such powers by the introduction of Section 433A into the Code of Criminal Procedure by the Amending Act of 1978, which came into effect on and from 18th December, 1978. By virtue of the nonobstante clause used in Section 433A, the minimum term of imprisonment in respect of an offence where death is one of the punishments provided by laws or where a death sentence has been commuted to life sentence, has been prescribed as 14 years.

23. In the various decisions rendered after the decision in Godse's case (supra), "imprisonment for life" has been repeatedly held to mean Page 55 of 132 R/SCR.A/9089/2017 JUDGMENT 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 power 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 concerned authorities to determine the actual length of imprisonment having regard to the gravity and intensity of the offence."

35. The Supreme Court, in State of Uttar Pradesh vs. Sanjay Kumar [(2012) 8 SCC 537], held as under:

"The aforesaid judgments make it crystal clear that this Court has merely found out the via media, where considering the facts and circumstances of a particular case, by way of which it has come to the conclusion that it was not the 'rarest of rare cases', warranting death penalty, but a sentence of 14 years or 20 years, as referred to in the guidelines laid down by the States would be totally inadequate. The life imprisonment cannot be equivalent to imprisonment for 14 years or 20 years, rather it always meant as the whole natural life. This Court has always clarified that the punishment so awarded would be subject to any order passed in exercise of the clemency powers of the President of India or the Governor of the State, as the case may be. Pardons, reprieves and remissions are granted in exercise of prerogative power. There is no scope of judicial review of such orders except on very limited grounds, for example, nonapplication of mind while passing the order; nonconsideration of relevant material; or if the order suffers from arbitrariness. The power to grant pardons and to commute sentences is coupled with a duty to exercise the same fairly and reasonably. Administration of justice cannot be perverted by executive or political pressure. Of course, adoption of uniform standards may not be possible while exercising the power of pardon. Thus, such orders do not Page 56 of 132 R/SCR.A/9089/2017 JUDGMENT interfere with the sovereign power of the State. More so, not being in contravention of any statutory or constitutional provision, the orders, even if treated to have been passed under Article 142 of the Constitution do not deserve to be labelled as unwarranted. The aforesaid orders have been passed considering the gravity of the offences in those cases that the accused would not be entitled to be considered for premature release under the guidelines issued for that purpose i.e. under the Jail Manual, etc. or even under Section 433A of the Code of Criminal Procedure."

36. Every civilised country recognises, and has therefore provided for, the pardoning power to be exercised as an act of grace and humanity in proper cases. Without such a power of clemency, to be exercised by some department or functionary of a Government, a country would be most imperfect and deficient in its political morality, and in that attribute of deity whose judgments are always tempered with mercy. In England, this power has been exercised from time immemorial, and has always been regarded as a necessary attribute of sovereignty. The power is regarded as the royal prerogative of pardon exercised by the Sovereign, generally through the Home Secretary. It is a power which is capable of exercise on a variety of grounds, for reasons of State as well as the desire to safeguard against judicial error. It is an act of grace issuing from the Sovereign. In the United States, this power is extended to the President by the United States Constitution, and in the various States and territories it is either conferred by constitutional provision or organic act, or provided for by statute, the power usually being conferred upon the Governor or upon a board of which the Governor is a member. In some instances, however, the Governor's power is so limited as to render an arbitrary exercise impossible. However, after the founding of the Republic, a pardon by the President has been regarded not as a private act of grace but as a part of the constitutional scheme.

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R/SCR.A/9089/2017 JUDGMENT Thus, the power to pardon is a part of the constitutional scheme. It is so treated also in the Indian Republic. It has been reposed by the people, through the Constitution, in the Head of the State, and enjoys high status. It is a constitutional responsibility of great significance, to be exercised when occasion arises in accordance with the discretion contemplated by the context.

37. A pardon is not a private act of grace from an individual happening to possess power. It is a part of the constitutional scheme. When granted, it is the determination of the ultimate authority that the public welfare will be better served by inflicting less than what the judgment fixed. The pardoning power is founded on considerations of the public good, and is to be exercised on the ground that public welfare, which is the legitimate object of all punishment, will be as well promoted by a suspension as by an execution of the sentence. It may also be used to the end that justice be done by correcting injustice, as where after discovered facts convince the authority invested with the power that, there was no guilt or that other mistakes were made in the operation or enforcement of the criminal law. Executive clemency also exists to afford relief from undue harshness in the operation or enforcement of criminal law.

38. The object behind grant of pardon is two fold.

(1) Acts of leniency by pardon are administered by the executive branch of the Government in the interests of society and the discipline, education, and reformation of the person convicted.

(2) A pardon is granted on the theory that the convict has seen the error of his ways, that society will gain nothing by his further Page 58 of 132 R/SCR.A/9089/2017 JUDGMENT confinement and that he will conduct himself in the future as an upright, lawabiding citizen.

39. The object of imposing deterrent sentences is three fold: (1) to protect the community/society against callous criminals for a long time;

(2) to administer as clearly as possible to others tempted to follow them into lawlessness on a war scale if they are brought to and convicted, deterrent punishment will follows, and (3) to deter criminals who are forced to undergo longterm imprisonment from the point of view of reformative form of punishment.

40. Prolonged and indefinite detention is justified not only in the name of prevention but cure. The offender has been regarded in one sense as a patient to be discharged only when a response to the treatment can be regarded as safe. Long imprisonment could be regarded as the neat response to all the three requirements: it would put the miscreants behind bars for a long time; it would demonstrate that the game was not worth the candle for others. Maximum penalties, upper limits to the punishment, a Judge may impose for various kinds of crimes, are essential to any system which upholds the rule of law. Objections arise only when these penalties are illogical, inconsistent, at odds with people's sense of justice.

41. In India, the power to remit sentence is found in Section 433 of Code of Criminal Procedure. Therefore the said power is conferred on Page 59 of 132 R/SCR.A/9089/2017 JUDGMENT the State Government. The said power is also conferred on the Governor of the State under Article 161 of the Constitution of India. Section 433A controls the power of the State Government to remit sentence in cases where the accused is sentenced to death or sentenced for life. The said provision imposes embargo on the power of the State to grant remission in as much as in those two cases, the power of remission cannot be exercised by the State Government unless and until accused has completed 14 years of sentence. It is well settled law that such statutory provision cannot control the exercise of constitutional power by the constitutional authority. Therefore Section 433A cannot control the power vested in the Governor under Article 161 of the Constitution. Though the statutory power contained in Section 433A cannot control the constitutional power conferred on the constitutional authority under the Constitution, none the less, when the constitutional authority exercises this constitutional power, it has to be exercised to effectuate the rule of law. In other words, as a Rule, such constitutional power cannot be exercised to negate the intention of the Parliament which in turn represent the will of the people of the country. The Parliament has enacted Section 433A keeping in mind the public interest and after taking note of the way the power of pardon or remission of sentence as provided under Section 433 of the Code was misused and abused by successive Governments. Therefore, when a constitutional authority is exercising a constitutional power, it cannot ignore the society, public interest involved and the objects behind such legislation. If in spite of such legislative intent as evidenced in statutory provision the said power is to be exercised, it has to be exercised in rarest of rare cases or in exceptional cases. It follows that the reasons, which prompted the President or Governor to exercise the power contrary to the statutory provisions, should be discernible from the order granting such remission or pardon. Exercise of executive clemency is not a matter of privilege. It Page 60 of 132 R/SCR.A/9089/2017 JUDGMENT is a matter of performance of official duty. It is vested in the President or the Governor, not for the benefit of the convict only, but for the welfare of the people who may insist on the performance of the duty. This discretion, therefore, has to be exercised on public considerations alone. An undue exercise of this power is to be deplored. Every prerogative has to be subject to the Rule of Law. That rule cannot be compromised on the grounds of political expediency. To go by such considerations would be subversive of the fundamental principles of the Rule of Law and it would amount to setting a dangerous precedent. Therefore, the power of executive clemency is not only for the benefit of the convict, but while exercising such a power the President or the Governor, as the case may be, has to keep in mind the effect of his decision on the family of the victims, the society as a whole and the precedent it sets for the future.

42. It is now judicially recognised that prerogative power is as capable of abuse as any other power. The law has to find means of controlling it. The prerogative has many times been restricted both by judicial decision and by statute. It is for the Court to determine the legal limits of the prerogative. It includes the same requirement of reasonable and proper exercise as applies to statutory powers though with this difference, that it cannot be based upon the presumed intention of Parliament. Prerogative is the discretionary power to be exercised for the public good. It follows that its exercise can be examined by the Courts just as any other discretionary power which is vested in the executive. It is fairly well settled that the exercise or nonexercise of pardon power by the President or Governor, as the case may be is not immune from judicial review. Limited judicial review is available in certain cases. The function of determining whether the act of a constitutional or statutory functionary falls within the constitutional or legislative conferment of power, or is vitiated by selfdenial on an erroneous appreciation of the Page 61 of 132 R/SCR.A/9089/2017 JUDGMENT full amplitude of the power is a matter for the Court. If the power under Article 161 of the Constitution is exercised arbitrarily, mala fide or in absolute disregard of the finer canons of the constitutionalism, the by product order cannot get the approval of law and in such cases, the judicial hand must be stretched to it.

43. It is also equally well settled that wide as the power of pardon, commutation and release is, it cannot run riot. All public power, including constitutional power, shall never be exercisable arbitrarily or mala fide. Ordinarily, guidelines for fair and equal execution are guarantors of the valid play of power. All power belongs to the people, and it is entrusted by them to specified institutions and functionaries with the intention of working out, maintaining and operating a constitutional order. The power so entrusted is a power belonging to the people and reposed in the highest dignitary of the State. It has been reposed by the people through the Constitution in the Head of the State, and enjoys high status. It is a constitutional responsibility of great significance, to be exercised when occasion arises in accordance with the discretion contemplated by the context. A pardon obtained by fraud or granted by mistake or granted for improper reasons would invite judicial review. The constitutional justification for judicial review, and the vindication of the Rule of Law remain constant in all areas, but the mechanism for giving effect to that justification varies. In each case, the Courts have to ensure that the authority is used in a manner which is consistent with the Rule of law, which is the fundamental principle of good administration. In each case, the Rule of law should be the constitutional justification for judicial review. The jurisdiction of pardon under Article 161 of the Constitution of India cannot be circumscribed by the provisions contained in the Code namely Section 433A. They will certainly have due regard to the legislative intention of the Parliament Page 62 of 132 R/SCR.A/9089/2017 JUDGMENT evidenced by the said provision in the Code and would exercise the jurisdiction consistent with the provisions of the Code. The said constitutional power is to be exercised to effectuate the rule of law and not for abrogating it.

44. In the case of Maru Ram v. Union of India (supra), it is held as under:

"94. Doubtless, the President of India under Article 72 and the State Government under Article 161 have absolute and unfettered powers to grant pardon, reprieves, remissions, etc. This power can neither be altered, modified or interfered with by any statutory provision. But, the fact remains that higher the power, the more cautious would be its exercise. This is particularly so because the present enactment has been passed by the Parliament on being sponsored by the Central Government itself. It is, therefore, manifest that while exercising the powers under the aforesaid Articles of the Constitution neither the President, who acts on the advice of the Council of Ministers, nor the State Government is likely to overlook the object, spirit and philosophy of section 433A so as to create a conflict between the legislative intent and the executive power.' It cannot be doubted as a proposition of law that where a power is vested in a very high authority, it must be presumed that the said authority would act properly and carefully after an objective consideration of all the aspects of the matter."

45. In this context, when I look at the provisions contained in Sections 432 and 433 of the Code and Articles 72 and 161 of the Constitution of India, this power of pardon or remission of sentence applies to all kinds of sentence. In the aforesaid provisions no limitation is prescribed for exercise of such power. However, Section 433A of the Code puts restriction on exercise of such power by the appropriate Government in Page 63 of 132 R/SCR.A/9089/2017 JUDGMENT respect of a sentence of imprisonment for life or a sentence of death. The Parliament after taking note of the way the appropriate Governments exercised this power under Sections 432 and 433 of the Code, to prevent abuse of such power, put restriction on exercise of such power, as provided under Section 433A. After the Section became a part of the law of the land, the Government cannot exercise their power to commute sentence contrary to the aforesaid provision. If they do it, it is arbitrary, illegal. What they cannot do under the statute, they cannot advise the President or the Governor to do and thus get over the limitation imposed on them by the Parliament. Though a Governor while exercising power under Article 161 has to act, not on his own judgments, but in accordance with the aid and advise of the Ministers, the advice to be tendered by these ministers should be in accordance with law. All public power, including constitutional power, shall never be exercisable arbitrarily or mala fide. Ordinarily, guidelines for fair and equal execution are guarantors of the valid play of power. One such guideline is the law governing the subject. The power should be exercised in accordance with law and not contrary to law. If the Government/Ministers advises the Governor to commute sentence in cases which do not fall under Section 433A of the Code, probably there is no discretion left in the Governor except to act on the aid and advise of the said Ministers and the Government and give effect to their advise. But, the same cannot be said to be a case which is covered under Section 433A. If the advise given by the Ministers/Government is contrary to the Parliamentary mandate contained in the statute, which represents the will of the people, the Governor is not obliged to mechanically give effect to such advise and exercise the power of pardon. The Governor before exercise of the power conferred on him under Article 161 of the Constitution, is duty bound to apply his mind to the advise so given and the materials if any on the basis of which such advise is given. If on such Page 64 of 132 R/SCR.A/9089/2017 JUDGMENT application of mind, he finds that the advise tendered is contrary to law, violates a statutory provision, violates the will of the people, as reflected in the law enacted by the Parliament, he is duty bound to bring it to the notice of the Government/Ministers and give them an opportunity to retrace their steps and mould their advise in accordance with law. If the power to be exercised under Article 161 of the Constitution is to be understood in the sense that it is not open to the Governor to take independent decision or direct release or refuse release of any one of his choice, then he has no option except to put his seal to the order of the Government however illegal it is, or unconstitutional. But, that is not the legal position.

46. The Apex Court, in Maru Ram's case (AIR 1980 SC 2147), has categorically held that, the Governor must act not on his own judgment but in accordance with the aid and advice of the ministers. The constitutional conclusion is that the Governor is but a shorthand expression for the State Government. The State Government, whether the Governor likes it or not, can advice and act under Article 161, the Governor being bound by the advice. The action of commutation and release can thus be pursuant to a Governmental decision. While exercising power under Article 161, the Governor who acts on the advice of the Council of Ministers, nor the State Government can overlook the object, spirit and philosophy behind Section 433A, so as to create a conflict between the legislative intent and the executive power. In Kehar Singh's case (AIR 1989 SC 653), the Apex Court held that the power to pardon rests on the advice tendered by the Executive to the President, who subject to the provisions of Article 74(1) of the Constitution, must act in accordance with such advice. It is apparent that the power under Article 72 entitles the President to examine the record of evidence of the criminal case and to determine for himself whether the case is one Page 65 of 132 R/SCR.A/9089/2017 JUDGMENT deserving the grant of the relief falling within that power. They were of the opinion that the President is entitled to go into the merits of the case notwithstanding that it has been judicially concluded by the consideration given to it by the Supreme Court. In Swaran Singh's case (AIR 1998 SC 2026), the Apex Court held that, when the Governor was not posted with material facts such as those indicated above, the Governor was apparently deprived of the opportunity to exercise the powers in a fair and just manner. Conversely, the order impugned fringes on arbitrariness. Again, in Satpal's case (AIR 2000 SC 1702), the Apex Court held, the Governor had not applied his mind to the material on record and has mechanically passed the order just to allow the prisoner to overcome the conviction and sentence passed by the Court. When an accused is convicted of the heinous offence of murder and is sentenced to imprisonment for life, the authority who has been conferred with power to grant pardon and remission of sentence under Article 161 of the Constitution must be made aware of the period of sentence in fact undergone by the said convict as well as his conduct and behaviour while he has been undergoing the sentence which would all be germane considerations for exercise of the power. Again, in Dhananjoy Chatterjee's case (AIR 2004 SC 3454), the Apex Court held the Governor was deprived of the opportunity to exercise his power in a fair and just manner. It is true that the power under Article 161 of the Constitution is to be exercised by the Governor on the basis of the aid and advice given by the State Government. However, the material facts should have been placed before the Governor. Therefore, they directed the authorities to put up the mercy petition filed by the appellant on 22 1994 to the Governor again and bring all relevant facts to the notice of the Governor for an appropriate decision in the case. Again, in Epuru Sudhakar's case (AIR 2006 SC 3385), the Apex Court held, when the principles of law as noted above are considered in the factual Page 66 of 132 R/SCR.A/9089/2017 JUDGMENT background, it is clear that the irrelevant and extraneous materials entered into the decision making process, thereby vitiating it. The order granting remission which is impugned in the petitions is clearly unsustainable and is set aside. However, it is open to Respondents 1 to treat the petition as a pending one for the purpose of reconsideration. It shall be open to the Governor to take note of materials placed before him by the functionaries of the State, and also to make such enquiries as considered necessary and relevant for the purpose of ascertaining the relevant factors otherwise.

47. From the aforesaid judgments of the Apex Court, it is abundantly clear that though the Governor, while exercising the power under Article 161 of the Constitution, has to exercise the same on the aid and advice of the Government, he cannot mechanically pass an order granting pardon. After such advice is given he is under an obligation to apply his mind and then exercise the power in a fair and just manner. If the advice is contrary to law, if the advice is based on facts which are extraneous to the exercise of such power and would not constitute a sufficient justification for exercise of power under Article 161 of the Constitution, he owes a duty to bring it to the notice of the Government the illegality, impropriety in the advice given. While exercising power under Article 161 of the Constitution, the Governor who acts on the advice of the Council of Ministers, or the State Government, can overlook the object, spirit and philosophy behind Section 433A so as to create a conflict between the legislative intent and the executive power. Where a power is vested in a very high authority, it must be presumed that the said authority would act properly and carefully after an objective consideration of all aspects of the matter. The order of the Governor cannot be subjected to judicial review on its merits except within the strict limitations defined in Maru Ram's case (AIR 1980 SC 2147). The Page 67 of 132 R/SCR.A/9089/2017 JUDGMENT function of determining whether the act of a constitutional or statutory functionary falls within the constitutional or legislative conferment of power, or is vitiated by selfdenial on an erroneous appreciation of the full amplitude of the power is a matter for the Court. Therefore, the area of the Governor's power under Article 161 falls squarely within the judicial domain and can be examined by the Courts by way of judicial review. It is in this background we have to look into the facts of the case and decide whether the said power is properly exercised. [See: Ramakrishna s/o Honnegouda vs. Secretary, Home Dept. Vidhana Soudha (2012 Cr.L.J. 3044) for paras 28 to 39 ].

48. I should now look into the order passed by the Supreme Court dated 23rd July 2015 in Union of India vs. V. Sriharan alias Murugan and others [Writ Petition (Criminal) No.48 of 2014]. In the order passed by the Supreme Court dated 23rd July 2015 referred to above, there is a reference in the beginning of one order dated 9 th July 2014. The order dated 9th July 2014 is extracted hereunder:

"UPON hearing the counsel the Court made the following ORDER Having regard to the observations made in para 49 of the referal order, we are of the view that notice may be issued to all the State Governments.

Let notice be issued to all the State Governments through their standing counsel representing them in the Supreme Court.

Notice is made returnable on July 18, 2014.

List the matter before the Constitutional Bench on July 22, 2014.

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R/SCR.A/9089/2017 JUDGMENT In the meanwhile, the State Governments are restrained from exercising power of remission to life convicts."

49. The order passed by the Supreme Court dated 23rd July 2015 referred to above is extracted hereunder:

"1. Vide order dated 9th July, 2014, we had restrained the State Governments from exercising their powers of remission and commutation of sentence under Sections 432 and 433 of the Code of Criminal Procedure, 1973 to life convicts. The relevant paragraph of the order passed by this Court reads as under :

"In the meanwhile, the State Governments are restrained from exercising power of remission to life convicts".

2. We had issued notice to all the State Governments through their standing counsel.

3. After hearing the arguments advanced by learned counsel for the respective State Governments for some time, we are of the considered view that our order dated 09.07.2014 requires to be modified.

4. Accordingly, we modify our order dated 09.07.2014, whereby we had restrained the State Governments from exercising power of remission or commutation to life convicts. The said order dated 09.07.2014 shall only apply to cases :

1) where life sentence has been awarded specifying that Page 69 of 132 R/SCR.A/9089/2017 JUDGMENT

(a) the convict shall undergo life sentence till the end of his life without remission or commutation;

(b) the convict shall not be released by granting remission or commutation till he completes a fixed term such as 20 years or 25 years or like.

ii) where no application for remission or commutation was preferred, or considered suo motu by the concerned State Governments/ authorities.

Iii) where the investigation was not conducted by any Central Investigating Agency like the Central Bureau of Investigation.

iv) where the life sentence is under any central law or under Section 376 of the Indian Penal Code, 1860 or any other similar offence.

5. However, we clarify that the President of India in exercise of his powers under Article 72 of the Constitution of India and the Governors of the States in exercise of their powers under Article 161 of the Constitution of India are not prevented from exercising their power(s), insofar as the cases referred to in Para 4 above are concerned.

6. We further make it clear that this order shall not be applicable to the respondents in Writ Petition (Crl.) No.48 of 2014.

7. It is also clarified that this order is subject to the final orders that may be passed by us while answering the Referral order.

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8. The order passed by us today shall be communicated by the Registry of this Court to all the State Governments and Union Territories.

9. Accordingly, Criminal Miscellaneous Petition Nos.21421 of 2014, 7510 of 2015 and 11179 of 2015 are disposed of."

50. The reference, ultimately, came to be answered by a Constitution Bench of the Supreme Court. The judgment is reported as Union of India vs. V. Sriharan alias Murugan and others [(2016) 7 SCC 1]. Justice Ibrahim Kalifulla (as His Lordship then was), speaking for the Constitution Bench, answered to the questions referred in seriatim as under:

"Question 52.1 Whether imprisonment for life in terms of Section 53 read with Section 45 of the Penal Code meant imprisonment for rest of the life of the prisoner or a convict undergoing life imprisonment has a right to claim remission and whether as per the principles enunciated in paras 91 to 93 of Swamy Shraddananda (AIR 2008 SC 3040), a special category of sentence may be made for the very few cases where the death penalty might be substituted by the punishment of imprisonment for life or imprisonment for a term in excess of fourteen years and to put that category beyond application of remission?

Answer

177. Imprisonment for life in terms of Section 53 read with Section 45 of the Penal Code only means imprisonment for rest of life of the convict. The right to claim remission, commutation, reprieve etc. as provided under Article 72 or Article 161 of the Constitution will always be available being Page 71 of 132 R/SCR.A/9089/2017 JUDGMENT Constitutional Remedies untouchable by the Court.

178. We hold that the ratio laid down in Swamy Shraddananda Shraddananda (2) v. State of Karnataka (2008) 13 SCC 767, that a special category of sentence; instead of death can be substituted by the punishment of imprisonment for life or for a term exceeding 14 years and put that category beyond application of remission is wellfounded and we answer the said question in the affirmative.

Question No.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

179. The exercise of power under Sections 432 and 433 of Code of Criminal Procedure 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.

Question Nos. 52.3, 52.4 and 52.5 52.3 Whether Section 432(7) of the Code clearly gives primacy to the Executive Power of the Union and excludes the Executive Power of the State where the power of the Union is coextensive?

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R/SCR.A/9089/2017 JUDGMENT 52.4 Whether the Union or the State has primacy over the subject matter enlisted in List III of the Seventh Schedule to the Constitution of India for exercise of power of remission?

52.5 Whether there can be two Appropriate Governments in a given case under Section 432(7) of the Code?

Answer

180. The status of Appropriate Government whether Union Government or the State Government will depend upon the order of sentence passed by the Criminal Court as has been stipulated in Section 432(6) and in the event of specific Executive Power conferred on the Centre under a law made by the Parliament or under the Constitution itself then in the event of the conviction and sentence covered by the said law of the Parliament or the provisions of the Constitution even if the Legislature of the State is also empowered to make a law on the same subject and coextensive, the Appropriate Government will be the Union Government having regard to the prescription contained in the proviso to Article 73(1)(a) of the Constitution. The principle stated in the decision in G.V. Ramanaiah v. Supdt. Of Central Jail (AIR 1974 SC 31) should be applied. In other words, cases which fall within the four corners of Section 432(7)(a) by virtue of specific Executive Power conferred on the Centre, the same will clothe the Union Government the primacy with the status of Appropriate Government. Barring cases falling under Section 432(7)(a), in all other cases where the offender is sentenced or the sentence order is passed within the territorial jurisdiction of the concerned State, the State Government would be the Appropriate Government.

Question 52.6 Whether suo motu exercise of power of remission under Section 432(1) is permissible in the scheme of the section, if Page 73 of 132 R/SCR.A/9089/2017 JUDGMENT yes, whether the procedure prescribed in subsection (2) of the same section is mandatory or not?

Answer

181. No suo motu power of remission is exercisable under Section 432(1) of Code of Criminal Procedure. It can only be initiated based on an application of the person convicted as provided under Section 432 (2) and that ultimate order of suspension or remission should be guided by the opinion to be rendered by the Presiding Officer of the concerned Court.

Question No.52.7 Whether the term "Consultation" stipulated in Section 435(1) of the Code implies "Concurrence"?

Answer

182. Having regard to the principles culled out in paragraph 160 (a) to

(n), it is imperative that it is always safe and appropriate to hold that in those situations covered by subclauses (a) to (c) of Section 435(1) falling within the jurisdiction of the Central Government it will assume primacy and consequently the process of ''Consultation'' in reality be held as the requirement of ''Concurrence''.

51. Honourable Justice Uday U. Lalit, by his separate, but concurring judgment, answered the questions referred as under:

"276. What is crucial to note is the specific empowerment under the Statute by which a prisoner could be denied early release or remissions.

277. Swamy Shraddananda (2) v. State of Karnataka (AIR 2008 SC 3040) does not proceed on the ground that upon interpretation of the concerned provision such as Section 302 of the IPC, such punishment is available for the court to impose. If that be so it would be available to even Page 74 of 132 R/SCR.A/9089/2017 JUDGMENT the first court i.e. Sessions Court to impose such sentence and put the matter beyond any remissions. In a given case the matter would not go before the superior court and it is possible that there may not be any further assessment by the superior court. If on the other hand one were to say that the power could be traceable to the power of confirmation in a death sentence which is available to the High Court under Chapter XXVIII of Cr.P.C., even the High Court while considering death reference could pass only such sentence as is available in law. Could the power then be traced to Article 142 of the Constitution?

278. In Prem Chand Garg and another v. Excise Commissioner, U.P. and others [AIR 1963 SC 996], Constitution Bench of this Court observed : "2....The powers of this Court are no doubt very wide and they are intended to be and will always be exercised in the interest of justice. But that is not to say that an order can be made by this Court which is inconsistent with the fundamental rights guaranteed by Part III of the Constitution. An order which this Court can make in order to do complete justice between the parties, must not only be consistent with the fundamental rights guaranteed by the Constitution, but it cannot even be inconsistent with the substantive provisions of the relevant statutory laws...."(Emphasis added)

279. In Supreme Court Bar Association v. Union of India and another 1998 (4) SCC 409 while dealing with exercise of powers under Article 142 of Constitution, it was observed : "47. The plenary powers of this Court under Article 142 of the Constitution are inherent in the Court and are complementary to Page 75 of 132 R/SCR.A/9089/2017 JUDGMENT those powers which are specifically conferred on the Court by various statutes though are not limited by those statutes. These powers also exist independent of the statutes with a view to do complete justice between the parties. These powers are of very wide amplitude and are in the nature of supplementary powers. This power exists as a separate and independent basis of jurisdiction apart from the statutes. It stands upon the foundation and the basis for its exercise may be put on a different and perhaps even wider footing, to prevent injustice in the process of litigation and to do complete justice between the parties. This plenary jurisdiction is, thus, the residual source of power which this Court may draw upon as necessary whenever it is just and equitable to do so and in particular to ensure the observance of the due process of law, to do complete justice between the parties, while administering justice according to law. There is no doubt that it is an indispensable adjunct to all other powers and is free from the restraint of jurisdiction and operates as a valuable weapon in the hands of the Court to prevent "clogging or obstruction of the stream of justice".

It, however, needs to be remembered that the powers conferred on the Court by Article 142 being curative in nature cannot be construed as powers which authorise the Court to ignore the substantive rights of a litigant while dealing with a cause pending before it. This power cannot be used to "supplant" substantive law applicable to the case or cause under consideration of the Court. Article 142, even with the width of its amplitude, cannot be used to build a new edifice where none existed earlier, by ignoring express statutory provisions dealing with a subject and thereby to achieve something indirectly which cannot be achieved directly. Punishing a contemner advocate, while dealing with a contempt of court case by suspending his licence to practice, a power otherwise statutorily available only to the Bar Council of India, on the ground that the contemner is also an advocate, is, therefore, not permissible in Page 76 of 132 R/SCR.A/9089/2017 JUDGMENT exercise of the jurisdiction under Article 142. The construction of Article 142 must be functionally informed by the salutary purposes of the article, viz., to do complete justice between the parties. It cannot be otherwise. As already noticed in a case of contempt of court, the contemner and the court cannot be said to be litigating parties."(emphasis added)

280. Further, in theory it is possible to say that even in cases where court were to find that the offence belonged to the category of "rarest of rare" and deserved death penalty, such death convicts can still be granted benefit under Section 432/433 of Cr.P.C. In fact, Section 433A contemplates such a situation. On the other hand, if the court were to find that the case did not belong to the "rarest of rare" category and were to put the matter beyond any remissions, the prisoner in the latter category would stand being denied the benefit which even the prisoner of the level of a death convict could possibly be granted under Section 432/433 of the Cr.P.C. The one who in the opinion of the Court deserved death sentence can thus get the benefit but the one whose case fell short to meet the criteria of "rarest of rare" and the Court was hesitant to grant death sentence, would languish in Jail for entirety of his life, without any remission. If absolute 'irrevocability of death sentence' weighs with the Court in not awarding death sentence, can the life imprisonment ordered in the alternative be so directed that the prospects of remissions on any count stand revoked for such prisoner. In our view, it cannot be so ordered.

281. We completely share the concern as expressed in Swamy Shraddananda (2) v. State of Karnataka [(2008) 13 SCC 767] that at times remissions are granted in extremely unsound manner but in our view that by itself would not and ought not to nudge a judge into endorsing a death penalty. If the offence in question falls in the category of the "rarest of rare" the consequence may be inevitable. But that cannot be Page 77 of 132 R/SCR.A/9089/2017 JUDGMENT a justification to create a new form of punishment putting the matter completely beyond remission. Parliament having stipulated mandatory minimum actual imprisonment at the level of 14 years, in law a prisoner would be entitled to apply for remission under the statute. If his case is made out, it is for the executive to consider and pass appropriate orders. Such orders would inter alia consider not only the gravity of the crime but also other circumstances including whether the prisoner has now been de sensitized and is ready to be assimilated in the society. It would not be proper to prohibit such consideration by the executive. While doing so and putting the matter beyond remissions, the court would in fact be creating a new punishment. This would mean though a model such a Section 32A was available before the Legislature and despite recommendation by Malimath Committee, no such punishment was brought on the Statute yet the Court would create such punishment and enforce it in an individual case. In our view, that would not be permissible.

282. In Pravasi Bhalai Sangathan v. Union of India and others 2014(11) SCC 477, while emphasizing that the court cannot rewrite, recast or reframe the legislation it was observed as under : "20. Thus, it is evident that the legislature had already provided sufficient and effective remedy for prosecution of the authors who indulge in such activities. In spite of the above, the petitioner sought reliefs which tantamount to legislation. This Court has persistently held that our Constitution clearly provides for separation of powers and the court merely applies the law that it gets from the legislature. Consequently, the Anglo Saxon legal tradition has insisted that the Judges should only reflect the law regardless of the anticipated consequences, considerations of fairness or public policy and the Judge is simply not authorised to legislate law. "If there is a law, Judges can certainly enforce it, but Page 78 of 132 R/SCR.A/9089/2017 JUDGMENT Judges cannot create a law and seek to enforce it." The court cannot rewrite, recast or reframe the legislation for the very good reason that it has no power to legislate. The very power to legislate has not been conferred on the courts. However, of lately, judicial activism of the superior courts in India has raised public eyebrows time and again."

283. Similarly in Sushil Kumar Sharma v. Union of India and others (2005) 6 SCC 281, it was observed that if the provision of law is misused and subjected to the abuse, it is for the legislation to amend modify or repeal it, if deemed necessary.

284. The power under Section 432/433 Cr.P.C. and the one exercisable under Articles 72 and 161 of the Constitution, as laid down in Maru Ram v. Union of India (AIR 1980 SC 2147) are streams flowing in the same bed. Both seek to achieve salutary purpose. As observed in Kehar Singh v. Union of India (AIR 1989 SC 653) in Clemency jurisdiction it is permissible to examine whether the case deserves the grant of relief and cut short the sentence in exercise of executive power which abridges the enforcement of a judgment. Clemency jurisdiction would normally be exercised in the exigencies of the case and fact situation as obtaining when the occasion to exercise the power arises. Any order putting the punishment beyond remission will prohibit exercise of statutory power designed to achieve same purpose under Section 432/433 Cr.P.C.. In our view Courts cannot and ought not deny to a prisoner the benefit to be considered for remission of sentence. By doing so, the prisoner would be condemned to live in the prison till the last breath without there being even a ray of hope to come out. This stark reality will not be conducive to reformation of the person and will in fact push him into a dark hole without there being semblance of the light at the end of the tunnel.

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285. As stated in Prem Chand Garg v. Excise Commissioner (AIR 1963 SC 996) an order in exercise of power under Article 142 of the Constitution of India must not only be consistent with the fundamental rights guaranteed by the Constitution, but it cannot even be inconsistent with the substantive provisions of the relevant statutory laws. In A.R. Antulay v. R.S. Naik (1988) 2 SCC 602, a direction by which the petitioner was denied a statutory right of appeal was recalled. A fortiorari, a statutory right of approaching the authority under Section 432/433 Cr.P.C. which authority can, as laid down in Kehar Singh (AIR 1989 SC

653) (supra) and Epuru Sudhakar v. State of A.P. (AIR 2006 SC 3385) eliminate the effect of conviction, cannot be denied under the orders of the Court.

286. The law on the point of life imprisonment as laid down in Gopal Vinayak Godse v. State of Maharashtra (AIR 1961 SC 600) is clear that life imprisonment means till the end of one's life and that by very nature the sentence is indeterminable. Any fixed term sentence characterized as minimum which must be undergone before any remission could be considered, cannot affect the character of life imprisonment but such direction goes and restricts the exercise of power of remission before the expiry of such stipulated period. In essence, any such direction would increase or expand the statutory period prescribed under Section 433A of Cr.P.C. Any such stipulation of mandatory minimum period inconsistent with the one in Section 433A, in our view, would not be within the powers of the Court.

Our answer to SubQuestion (b) of Question in Paragraph 52.1 of the Referral Order SubQuestion (b): Whether as per the principles enunciated in Page 80 of 132 R/SCR.A/9089/2017 JUDGMENT paragraphs 91 to 93 of Swamy Shraddananda(2)6 (AIR 2008 SC 3040), a special category of sentence may be made for the very few cases where the death penalty might be substituted by the punishment for imprisonment for life or imprisonment for a term in excess of fourteen years and to put that category beyond application of remission?

Answer.

287. In our view, it would not be open to the Court to make any special category of sentence in substitution of death penalty and put that category beyond application of remission, nor would it be permissible to stipulate any mandatory period of actual imprisonment inconsistent with the one prescribed under Section 433A of Cr. P.C.

288. Reference answered accordingly.

W. P. (CRL.) Nos.185, 150, 66 of 2014 and Crl. Appeal No.1215 of 2011

289. These Writ Petitions and Criminal Appeal are disposed of in terms of the decision in Writ Petition (Criminal) No. 48 of 2014.

290. Our conclusions in respect of Questions referred in the Referral Order, except in respect of subquestion (b) of Question in Paragraph 52.1 of the Referral Order, are in conformity with those in the draft judgment of Hon'ble Kalifulla J. Since our view in respect of subquestion

(b) of Question in Para 52.1 of the Referral Order is not in agreement with that of Hon'ble Kalifulla J., while placing our view we have dealt with other questions as well."

52. Thus, what can be deduced from the above noted Constitution Bench decision on the subject is summarised as under:

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R/SCR.A/9089/2017 JUDGMENT [1] The imprisonment for life in terms of Section 53 read with Section 45 of the Penal Code means the imprisonment for the rest of the life of the convict.

[2] The right to claim remission, commutation, reprieve, etc., as provided under the constitutional remedies, cannot be touched by the Court.

[3] The exercise of power under Sections 432 and 433 of the Criminal Procedure Code is 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.

[4] So far as the application of Article 32 of the Constitution of India by the Supreme Court is concerned, it has been held that the power under Sections 432 and 433 of the Cr.P.C. are to be exercised by the appropriate Government statutorily and it is not for the Court to exercise the said power and it is always left to be decided by the appropriate Government.

[5] The status of appropriate Government whether the Union Government or the State Government will depend upon the order of sentence passed by the Criminal Court, as has been stipulated in Section 432(6), and in the event of specific Executive Power conferred on the centre under a law made by Parliament or under the Constitution itself, then in the event of the conviction and sentence covered by the said law of Parliament or the provisions of the Constitution, even if the Legislature of the State is also empowered to make a law on the same subject and coextensive, Page 82 of 132 R/SCR.A/9089/2017 JUDGMENT the appropriate Government will be the Union Government having regard to the prescription contained under the proviso to Article 73(1)(a) of the Constitution.

[6] No suo motu power of remission is exercisable under Section 432(1) of the Criminal Procedure Code. It can only be initiated upon an application of the person convicted as provided under Section 432(2) and the ultimate order of suspension or remission should be guided by the opinion to be rendered by the Presiding Officer of the Court concerned.

[7] The power under Sections 432 / 433 Cr.P.C. and the one exercisable under Articles 72 and 161 of the Constitution are streams flowing in the same bed. Both seek to achieve the salutary purpose. Any order putting the punishment beyond remission will amount to prohibiting exercise of the statutory power designed to achieve the same purpose under Sections 432/433 Cr.P.C.

[8] The Courts cannot and should not deny to a prisoner the benefit to be considered for remission of sentence. By doing so, the prisoner would be condemned to live in the prisoner till the last breath without there being even a ray of hope to come out.

53. Let me now look into the Government Resolution dated 23rd January 2014 issued by the Home Department of the Government of Gujarat as regards grant of remission and premature release of the prisoners. The entire resolution is extracted hereunder:

"GOVERNMENT OF GUJARAT HOME DEPARTMENT Page 83 of 132 R/SCR.A/9089/2017 JUDGMENT Resolution No.JLK/822012/1859/J Block No.2, Sardar Bhavan, Sachivalay, Gandhinagar.

Dated: 23rd January, 2014.

Resolution:

The State Government has constituted a committee headed by the Additional Chief Secretary (Home) for considering the policy and guidelines to be followed for the purpose of the State Remission and Premature Release of prisoners. The Secretary, Legal Department and the Secretary, Legislative and Parliamentary Affairs Department were also one of the members of the said committee. The proceedings of the meeting and the opinion of the Legal Department in this regard, had been under consideration of Government of Gujarat.

2. After careful consideration, Government issues the following guidelines] policy for considering the cases of the State Remission and Premature Release of Prisoners.

(A) State Remission of Prisoners:

(i) The powers of the State Remission, Pardon and Commutation rest with H.E. the Governor under the Article 161 of the Constitution of India. Only convicted prisoners are eligible for the state remission. Therefore, the remission under Article 161 of the Constitution of India shall not be applicable to the under trial prisoners.

(ii) Whenever, the remission orders are issued, the birth date of prisoners shall be verified by the concerned Jail Authorities with the authentic original documents e.g. the original Birth certificate / the school leaving certificate / Passport or other document as may be recognized by the Government. The Jail Authorities will get the said documents from the Page 84 of 132 R/SCR.A/9089/2017 JUDGMENT prisoners of the various Prisons of the State.

The Director General of Police, Gujarat State will issue necessary guidelines for registering the actual birth date of the accused while filing the charge sheet in the court on the basis of authentic document of Birth Date.

(iii) The Prisoners who are convicted for the crimes as mentioned in AnnexureI shall not consider those cases where the Appropriate Authority for granting remission of Prisoners is the Central Government.

(B) Premature Release of Prisoners:

Government for good and valid reasons can suspend the execution of a sentence or remit the whole or any part of the punishment of a convict in exercise of its powers under Section 432 of the Code of Criminal Procedure, 1973. Recently the Hon. Supreme Court in its judgment dated 20/11/2012 in Criminal Appeal(s) No.490491 of 2011 has observed that the said section statutorily empowers the Appropriate Government with some inherent procedural and substantive checks on the arbitrary exercise of this power. Further the Supreme Court has observed in the said judgment as under:

(i) Para 63 An exercise of power by the appropriate Government under subsection 91) of Section 432 of the Code of Criminal Procedure, 1973 cannot be suo motu for the simple reason that this subsection is only an enabling provision. The appropriate Government is enabled to "override" a judicially pronounced sentence, subject to the fulfillment of certain conditions. Those conditions are found either in the Jail Manual or in statutory rules. Subsection (1) of Section 432 of the Code of Criminal Procedure, 1973 cannot be read to enable the appropriate Government to "further override" the judicial pronouncement over and above what is permitted by the Jail Manual of the statutory rules. The process of Page 85 of 132 R/SCR.A/9089/2017 JUDGMENT granting "additional" remission under this section is set into motion in a case only through an application for remission by the convict or on his behalf. On such an application being made, the appropriate Government is required to approach the presiding judge of the Court before or by which the conviction was made or confirmed to opine (with reasons) whether the application should be granted or refused. Thereafter, the appropriate Government may take a decision on the remission application and pass orders granting remission subject to some conditions, or refusing remission. Apart from anything else, this statutory procedure seems quite reasonable in as much as there is an application of mind to the issue of grant of remission. It also eliminates "discretionary" or enmasse release convicts on "festive" occasions since each release requires a casebycase basis scrutiny.

(ii) Para 65 For exercising the power of remission to a life convict, the Code of Criminal Procedure, 1973 places not only a procedure check as mentioned above, but also a substantive check. This check is through Section 433A of the Code of Criminal Procedure, 1973 which provides that when the remission of a sentence is granted in a capital offence, the convict must serve at least fourteen years of imprisonment.

(iii) Para 74 There is a misconception that a prisoner serving a life sentence has an indefeasible right to release on completion of either fourteen years or twenty years imprisonment. The prisoner has no such right. A convict undergoing life imprisonment is expected to remain custody till the end of his life, subject to any remission granted by the appropriate Government under Section 432 of the Code of Criminal Procedure, 1973 which in turn is subject to the procedural checks in that section and the substantive check in Section 433A of the Code of Criminal Procedure, 1973.

(iv) Para 75 In a sense, therefore, the application of Section 432 of the Page 86 of 132 R/SCR.A/9089/2017 JUDGMENT Code of Criminal Procedure, 1973 for a convict is limited. A convict serving a definite term of imprisonment is entitled to earn a period of remission or even be awarded a period of remission under a statutory rule framed by the appropriate Government or under the Jail Manual. This period is then offset against the term of punishment given to him. In such an event, if he has undergone the requisite period of incarceration, his release is automatic and Section 432 of the Code of Criminal Procedure, 1973 will not even come into play. This Section will come into play only if the convict is to be given an "additional" period of remission for his release, that is, a period in addition to what he has earned or has been awarded under the Jail Manual or the statutory rules.

(v) Para - 77. Therefore, Section 432 of the Code of Criminal Procedure, 1973 has application only in two situations: (1) Where a convict is to be given "additional" remission or remission for a period over and above the period that he is entitled to or he is awarded under a statutory rule framed by the appropriate Government or under the Jail Manual. (2) Where a convict is sentenced to life imprisonment, which is for an indefinite period, subject to procedural and substantive checks.

At present, the procedures and checks regarding remission by the appropriate Government are given in the Jail Manual. However, it requires certain changes to comply the observations of the Hon. Supreme Court, it requires changing the formation of the Jail Manual Committee and also the procedure to be followed by the Advisory Committee.

In view of the proceedings of the committee mentioned hereinabove in para1 and the aforesaid judgment of the Hon. Supreme Court, it has been decided to form a revised Jail Advisory Committee and also the revised procedure to be followed by the said Advisory Committee as under

superseding the previous all the provisions made in this regard.

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R/SCR.A/9089/2017 JUDGMENT Formation of the Jail Advisory Committee:

District Magistrate (only in district area) or Chairman Chief Metropolitan Magistrate The District Sessions Judge Member The Superintendent of Police or Commissioner Member of Police of the District / City District Social Welfare Officer Member Two Local Members Member The concerned Jail Superintendent Member Secretary Note:

(I) It is observed by the Supreme Court in Criminal Appeal No.490 491/2011that the appropriate Government is required to approach the Presiding Judge of the Court before or by which the conviction was made or confirmed to opine (with reasons) whether the application for remission should be granted or refused. Therefore, the opinion of the Sessions Judge or equivalent Court with reasons is compulsory.

(ii) If the conviction is made or confirmed by the Hon. High Court / Hon. Supreme Court (appellant Court), the opinion of the appellant court is compulsory.

(iii) Government will appoint two local members for three years in the jail Advisory Committee.

Procedure to be followed by the Jail Advisory Committee:

The Jail Advisory Committee will follow the guidelines as stated here under:

(i) The quorum of the Jail Advisory Committee shall be minimum of 2/3rd members.

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(ii) The presence of the District Magistrate as Chairman and also the District Sessions Judge or Chief Metropolitan Magistrate as Chairman is compulsory.

(iii) The District Magistrate or Chief Metropolitan Magistrate will be the Chairman and concerned Jail Superintendent will be the Member Secretary of the Jail Advisory Committee.

(iv) The meeting of the Jail Advisory Committee shall be convened in every six month.

(v) The Jail Advisory Committee will consider the cases of prisoners convicted for life imprisonment after the completion of fourteen years of imprisonment only.

(vi) The process of granting "additional" remission under Section 432 of the Code of Criminal Procedure, 1973 is set into motion in case only through an application for remission by the convict or on his behalf. The convict can apply before completing 14 years. On such an application being made, the concerned Jail Superintendent is required to approach the Presiding Judge of the Court or any equivalent Court and Appellant Courts by which the conviction was made or confirmed to opine (with reasons) whether the application should be granted or refused. Such opinion may be obtained before the prisoner completes fourteen years of imprisonment but after receiving an application from the convict. It is also required to obtain the opinion of the concerned District Magistrate and also the concerned Police Authorities (with detailed reasons) in advance after receiving an application from the convict.

(vii) The Jail Advisory Committee shall consider the seriousness of crime, the conduct in the jail, the status of coaccused, the period of absconding of Page 89 of 132 R/SCR.A/9089/2017 JUDGMENT the prisoner and the sentences in the jail and also other cognizable offences during the period of parole / furlough and also period of absconding.

(viii) The Jail Advisory Committee will also consider the following guidelines issued by the Hon'ble Supreme Court in the case of Laxman Naskar v/s State of Bengal reported in AIR 2000 SC 2762,

(a) Whether offence is an individual act of crime without affecting the society at large?

(b) Whether there is any fruitful purpose of confining of this convict any more?

(c) Whether there is any chance of future reoccurence of committing crime?

(d) Whether the convict has lost his potential in committing crime?

(e) Socioeconomic condition of the convict family?

(ix) The Jail Authority Committee will also consider if there is any threat to the state or the National Security at large. In such cases the Jail Advisory Committee will give negative opinion with detailed reasons taking into account the Constitutional right.

(x) The Jail Advisory Committee will consider the opinion of the Judge as mentioned above. The committee will also consider the opinion of the District Magistrate and the Police Authorities. Both are the members of the Advisory Committee, therefore, both should stick to their earlier opinion. If the District Magistrate and also the Police Authorities want to change their earlier opinion, in the meeting of Advisory Committee, in such cases the detailed reasons / justification must be noted in the proceedings.

(xi) If the Government rejects the proposal for the premature release, in Page 90 of 132 R/SCR.A/9089/2017 JUDGMENT such cases the proposal will be reconsidered only after one year taking into account all the factors stated herein above.

(xii) In addition to above, the class of prisoners as shown at AnnexureI shall not be considered for the premature release by the Jail Advisory Committee.

(xiii) The Jail Advisory Committee will take into account every point mentioned above and give its recommendations with detailed reasons. The Inspector General of Prisons will send the proposal of premature release of the prisoners after receiving the recommendations of the Jail Advisory Committee only in the prescribed Check list as per AnneuxreII to the Government.

(C) Premature Release in case of Prisoners transferred to other State:

In the case of a prisoner who is transferred from the State of Gujarat to other State, (under the provisions of Transfer of Prisoners Act, 1900), the decision of premature release will be taken by the Government of Gujarat according to the provisions of Section 432 of Criminal Procedure Code (2 of 1974) as the power to remit sentence under Section 432 of the Code of Criminal Procedure is conferred upon the appropriate Government.

By order and in the name of the Governor of Gujarat.

sd/ (Dilip G. Soni) Deputy Secretary to Government Home Department"

"ANNEXURE - I The following class of prisoners SHALL NOT be granted State Remission as well as for Premature Release.

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(I)     Such prisoners who have been convicted for a crime

(a) which was investigated by Delhi Special Police Establishment constituted under Delhi Special Police Establishment Act, 1946 (No.25 of 1946)

(b) which involved the misappropriation of or destruction of or damage to any property belonging to the Central Government.

(c) which was committed by a person in the Service of Central Government while acting or purporting to act in the discharge of his official duties.

(II) Such prisoners

(a) who have been categorized as habitual offenders under the prevailing rules by the competent authority.

(b) who have been ordered by a Magistrate to furnish security and are undergoing imprisonment for not furnishing such security.

(c) who are undergoing sentence in default of payment of fine.

(III) The Prisoners who are convicted for any offence under the following Acts: (1) The Drugs & Cosmetics Act, 1940 (No.23 of 1940) (2) The Foreign Exchange Regulation Act, 19473 (No.46 of 1973) (3) The Employees Provident Funds and Miscellaneous Provisions Act, 1952 (No.19 of 1952) (4) The Prevention of Food Adulteration Act, 1954 (No.57 of 1954) (5) The Essential Commodities Act, 1955 (No.10 of 1955).

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R/SCR.A/9089/2017 JUDGMENT (6) The Protection of Civil Rights Act, 1955 (No.22 of 1955) (7) The Customs Act, 1962 (No.52 of 1962) (8) The Excise Act, 1955.

(9) The Narcotic Drugs and Psychotropic Substances Act, 1985 (No.61 of 1985).

(10) The Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (No.52 of 1974) (11) The Representation of the Peoples Act, 1951 (No.43 of 1951).

(12) The Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1980 (No.46 of 1980).

(13) The National Security Act, 1980 (No.65 of 1980).

(IV) (a) A prisoner or prisoners sentenced for group murder of two or more persons.

(b) Absconders, including those who are absconding from Parole/furlough, bail / interim bail, police custody or jail and those who have late surrendered in jail from Parole / Furlough, interim bail after three days of the stipulated period.

(c) Life Imprisonment prisoners convicted under TADA or POTA.

(d) Prisoners convicted for murder with rape or gang rape.

(e) Prisoners sentenced under Section 489 of the IPC.

(f) Such prisoners who have been convicted for life imprisonment under Section 302 IPC in connection with Dowry/cruelty cases i.e. offences under Section 306, 304B, 498A etc. of IPC.

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(g) Prisoners convicted for any offence against any law relating to a matter to which the executive power of the State does not extend.

(h) Prisoners sentenced to two or more sentences of life imprisonment for two or more separate cases of murder.

(i) Prisoners undergoing life sentence, who are having any other criminal case (s) pending against them either with the police for investigation or in the Court for trial.

(V)(a) The prisoners who hare notorious, dangerous and involved in gang wars or interstate crime or offences having international ramification,

(b) The prisoners who are involved in the offences falling under Section 392 to 402 of the Indian Penal Code,

(c) The prisoners who are involved in the serious offences under the Arms Act, 1959, the Explosive Substances Act, 1908, or under the Unlawful Activities (Prevention) Amendment Act, 2008.

(d) The prisoners who are involved in activities of spying or escaping from Jail.

(e) The prisoners belonging to banned organizations.

(VI) Wherever, the Appropriate Authority is Central Government, in those cases, the State Government will not consider for granting the State Remission and Premature Release of the convict Prisoners."

54. I take notice of the fact that, the State Government, by its resolution dated 23rd January 2014 referred to above, has taken a policy decision that any convict undergoing imprisonment for life for the offence of rape or gang rape would not be entitled to the grant of any benefit of remission or premature release.

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55. The Supreme Court, in Gopal Vinayak Godse v. State of Maharashtra [(1961) 3 SCR 440 : AIR 1961 SC 600 : (1961 (1) Cri LJ 736)] and in Maru Ram's case, had observed that by earning remissions a life convict does not acquire a right to release, but release would follow only upon an order made under the Criminal Procedure Code by the appropriate Government or on a clemency order in exercise of power under Article 72 or 161 of the Constitution. The Supreme Court observed in Maru Ram [AIR 1980 SC 2147 : (1980 Cri LJ 1440)] as under:

"Even if the remissions earned have totalled up to 20 years, still the State Government may or may not release the prisoner and until such a release order remitting the remaining part of the life sentence is passed, the prisoner cannot claim his liberty. The reason is that life sentence is nothing less than lifelong imprisonment. Moreover, the penalty then and now is the same life term. And remission vests no right to release when the sentence is life imprisonment. ... Nor is any vested right to remission cancelled by compulsory 14years jail life once we realise the truism that a life sentence is a sentence for a whole life."

Thus, the Supreme Court, in clear terms, has laid down that by earning remissions a life convict does not acquire a right to be released prematurely. But, if the Government has framed any rules or made a scheme for early release of such convicts then those rules or schemes will have to be treated as guidelines for exercising its power under Article 161 of the Constitution.

56. The Supreme Court in State of Haryana vs. Balwan, Somnath, Ramchander, Raj Kumar [(1999) 7 SCC 355] held as under:

"If this is the correct legal position then no life convict can validly contend Page 95 of 132 R/SCR.A/9089/2017 JUDGMENT that his case for premature release should be considered according to the Government policy/instructions that were in force on the date on which he came to be convicted as he acquired a right to get remissions as declared and to be released accordingly. If according to the Government policy/instructions in force at the relevant time the life convict has already undergone the sentence for a period mentioned in the policy decision/instructions, then the only right which he can be said to have acquired is the right to have his case put up by the prison authorities in time before the authorities concerned for considering exercise of power under Article 161 of the Constitution. Ordinarily, when an authority is called upon to exercise its powers that will have to be done consistently with the legal position and the Government decision/instructions prevalent at that time. However, in order to see that a life convict does not loose 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. The direction given by the High Court is not consistent with the decision of this Court in Maru Ram, AIR 1980 SC 2147 : (1980 Cri LJ 1440), and the view which we are now taking and, therefore, it has to be set aside."

57. Thus, in the above referred decision of the Supreme Court, the view taken was that the case for premature release should be considered according to the Government policy / instructions in force on the date when the case of the convict for premature release is taken up for consideration.

58. However, the Supreme Court in State of Haryana vs. Bhup Singh and others [(2009) 2 SCC 268] dissented from its earlier decision in Page 96 of 132 R/SCR.A/9089/2017 JUDGMENT the case of State of Haryana vs. Balwan (supra) and took the view that the right to ask for remission of sentence by a life convict would be in the law or policy, as was prevailing on the date on which the judgement of conviction and sentence was passed. I may quote the relevant observations of the Supreme Court as under:

"8. The State in exercise of its power under the Prison Rules is entitled to lay down the guidelines. It may change its policy from time to time. From a recent decision of this Court in State of Haryana v. Mahender Singh and Ors. [(2007) 12 SCALE 669], it appears that such policy decisions had been taken by the State on 28.11.1987, 19.11.1991 and again on 12.4.2002 (impugned notification). This Court held that the said policy decision would, however, be subject to the statutory rules framed by the State in terms of the Prison Act. While upholding the right of the State to lay down a policy decision as regards classification of prisoners, it was opined :

"46. We are, therefore, of the opinion that the High Court might not be correct in holding that the State has no power to make any classification at all. A classification validly made would not offend Article 14 of the Constitution of India."

It was furthermore held :

"Furthermore, if the Punjab Rules are applicable in the State of Haryana in view of the State Reorganisation Act, no executive instruction would prevail over the Statutory Rules. The Rules having defined 'convicts' in terms whereof a 'life convict' was entitled to have his case considered within the parameters laid down therein, the same cannot be taken away by reason of an executive instruction by redefining the term 'life convict'. It is one thing to say that the 'life convict' has no right to obtain remission Page 97 of 132 R/SCR.A/9089/2017 JUDGMENT but it is another thing to say that they do not have any right to be considered at all. Right to be considered emanates from the State's own executive instructions as also the Statutory. Rules."

9. This Court issued a limited notice as to why the State shall not be of Mahender Singh (supra). In view of the limited notice issued by this Court, Mr. Naseem, although was not permitted to raise the contention that the date specified by this Court in Balwan Singh (supra) should be considered to be the cutoff date, we may only observe that the directions contained therein cannot be held to be declaration of law within the meaning Article 141 of the Constitution of India. This Court therein did not have any occasion to consider the legality and/or validity of the policy decision of the State visavis the Prison Rules.

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. If the executive instructions cannot be given a retrospective effect being not in consonance with the Prisoner's Rules framed under the Prison Act, we fail to understand as to how the said decision constitutes a binding precedent. A decision as is well known is an authority for what it decides and not what can logically be deduced therefrom.

11. We, therefore, are of the opinion that keeping in view the decision of this Court in Mahender Singh (supra), the impugned judgment should be modified directing the appellant to consider the cases of the respondents. 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's case (supra) 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."

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59. Later, a threeJudge Bench of the Supreme Court considered both its earlier decisions referred to above in the case of State of Haryana and others vs. Jagdish [(2010) 4 SCC 216] and took the view that the State should exercise its power of remission in accordance with its policy existing on the date of conviction of the convict. I may quote the relevant observations as under:

"25. In Ashok Kumar @ Golu v. Union of India and Ors., AIR 1991 SC 1792 : (1991 AIR SCW 1826) this Court considered the scope and relevancy of Rajasthan Prisons (Shortening of Sentences) Rules, 1958 qua the provisions of Section 433A, 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 be considered for premature 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 premature release had not been considered by the Concerned Authorities in view of the provisions of Section 433A Cr.P.C.

26. This Court considered the matter elaborately taking into consideration large number of its earlier judgments including Maru Ram, (AIR 1980 SC 2147) (supra), Bhagirath v. Delhi Administration AIR 1985 SC 1050; Kehar Singh and Anr. v. Union of India and Anr. AIR 1989 SC 653, and came to the following conclusions :

(i) Section 433A Cr.P.C. denied premature release before completion of actual 14 years of incarceration to only those limited convicts convicted of a capital offence i.e. exceptionally heinous crime;

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(ii) Section 433A 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 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.

27. In State of Haryana v. Mahender Singh (2007 AIR SCW 6988) (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."

28. 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 Page 100 of 132 R/SCR.A/9089/2017 JUDGMENT 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 fulfilment 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 433A, 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.

29. In Epuru Sudhakar and Another v. Govt. of A.P. and Ors. AIR 2006 SC 3385 : (2006 AIR SCW 5089) 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 :

"62. 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.

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65. 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.......

66. 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...........

67. 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."

30. There is no dispute to the settled legal proposition that the power exercised under Articles 72/161 could be the subjectmatter of limited judicial review, (vide Kehar Singh, (AIR 1989 SC 653) (supra); Ashok Kumar (AIR 1991 SC 1792 : 1991 AIR SCW 1826) (supra); Swaran Singh v. State of U.P. AIR 1998 SC 2026 : (1998 AIR SCW 1880); Satpal and Anr. v. State of Haryana and Ors. AIR 2000 SC 1702 :

(2000 AIR SCW 1575); and Bikas Chatterjee v. Union of India (2004) 7 SCC 634).

31. In Epuru Sudhakar, (AIR 2006 SC 3385 : 2006 AIR SCW 5089) (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;

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(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.

32. 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."

33. Sections 54 and 55 IPC provide for punishment. However, the provisions of Sections 432 and 433A 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 433A 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 punishments 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."

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34. 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 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.

35. 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).

36. 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 and J. Bhoomaiah v. State of Andhra Pradesh and Ors. (1976) 1 SCC 157)

37. 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 shortsentencing policy is totally inflexible, whether it amounts to transgression on the clemency power of the State which is 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, Page 104 of 132 R/SCR.A/9089/2017 JUDGMENT 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 untrammelled 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.

38. 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 433A Cr. P.C. though the Authority has to meet the requirements referred to hereinabove while exercising the clemency power. 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 shortsentencing policy, even in an exceptional case, would be mutually inconsistent with the theory that clemency power is unfettered.

39. The Constitution Bench of this Court in Maru Ram v. Union of India, (1981) 1 SCC 107 : (AIR 1980 SC 2147) (supra) clarified that not only the provisions of Section 433A 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 Page 105 of 132 R/SCR.A/9089/2017 JUDGMENT 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 Articles 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 premature release as a matter of right.

40. 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.

41. In Salmond on Jurisprudence, 12th 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. Where as 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 Page 106 of 132 R/SCR.A/9089/2017 JUDGMENT 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 over looked 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."

42. R.M.V.Dias, in his book Jurisprudence (Fifth Edition 1985) observed as under :

"The easing of laws and penalties on antisocial conduct may conceivably result in less freedom and safety for the lawabiding. 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 lawabiding 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 libertyminded philanthropists seem inclined to allow......"

43. 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.

44. Liberty is one of the most precious and cherished possessions of a human being and he would resist forcefully any attempt to diminish it.

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R/SCR.A/9089/2017 JUDGMENT 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 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.

45. 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.

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 socioeconomic condition of the convict's family and other similar circumstances.

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47. 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 emphasises 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' meansvain is that power which never comes into play.

48. 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.

49. This Court in State of Haryana v. Mahender Singh (2007) 13 SCC 606 : (2007 AIR SCW 6988) (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 Page 109 of 132 R/SCR.A/9089/2017 JUDGMENT 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 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.

50. Undoubtedly, the aforesaid Rules are applicable in Haryana in view of the State Reorganisation 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.

51. It may not be out of place to mention here that while deciding the case in Sadhu Singh v. State of Punjab (1984) 2 SCC 310 : (AIR 1984 SC

739) (supra), provisions of the aforesaid Act 1894 and Rules referred to hereinabove, had not been brought to the notice of this Court. More so, consistent past practice adopted by the State can furnish grounds for legitimate expectation (vide Official Liquidator v. Dayanand and Ors. (2008) 10 SCC 1) : (AIR 2008 SC (Supp) 1177).

52. 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 Page 110 of 132 R/SCR.A/9089/2017 JUDGMENT powers under Section 432 read with Sections 433 and 433A of Cr. P.C. The restriction under Section 433A 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.

53. 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 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.

54. 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 premature 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 premature release, he should be given benefit thereof."

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60. It goes without saying that the Government can frame its own policy and can also undertake classification of convict prisoners for the purpose of considering the grant of benefit of remission. It is open for the Government to say that, any convict of a case of gang rape would not be entitled to claim benefit of remission.

61. In the aforesaid context, I may refer to a decision of the Supreme Court in the case of Government of Andhra Pradesh vs. M.T. Khan [(2004) 1 SCC 616]. The relevant observations, as contained in paras 8, 9 and 10, are extracted hereunder:

"8. The Governor, in terms of the dicta laid in the last noted case has to act on the advice of the Council of Ministers. It is inconceivable that a Council of Ministers of the State of Andhra Pradesh can render any appropriate advice in respect of accused persons convicted by Courts of Madhya Pradesh and Maharashtra or that it would be competent to do so. The Prisoners Act does not throw any light on the controversy as wrongly held by the High Court. It only enables transfer of prisoners from one State to another. It does not purport to confer jurisdiction on the transferee State the power of remission in respect of transferred prisoners. In Sanaboina Satyanarayan v. Government of Andhra Pradesh and others, (2003 (5) Supreme 343), it was held that the grant of remission as well as the conditions formed a compendious single common pattern or scheme of concession by way of remission, pregnated with a policy designed in public interest and safety and interests of the society. There is no scope for judicial modification or modulating the same so as to extend the concession in excess of the very objective of the maker of the order which seems to have been guided by considerations of State policy. The scheme of remission cannot be modified or extended to the category of prisoners to which it was specifically excluded.

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9. Section 432 of the Code corresponds to and reproduces almost word for word Section 401 and subsection (3) of Section 402 of the old Code. Sub sections (1) to (4) of Section 432 of the Code reproduce word for word subsections (1) to (4) of Section 401 of the old Code. Subsection (5) reproduces word for word subsection (6) of the old Section. Subsection (6) similarly reproduces subsection (4A) of the old Section. Subsection (5) of old Section 401 had been omitted earlier in 1950. Subsection (7) corresponds to subsection (3) of Section 402 of the old Code. The main paragraph and clause (a) reproduce the old provision word for word without any change. Clause (b) is slightly different, but without any change of substance. That clause reads :

"(b) in other cases, the State Government".

10. According to us, in view of the legal position delineated by the ratio in Ratan Singh's case (supra) which has full application to the case on hand, the High Court was not justified in obliterating a part of the G. O. and extending the benefits to the concerned prisoners. It amounts to the Court remaking the policy and redoing the G. O. itself. The High Court's judgment to that extent is erroneous and needs to be set aside which we direct. But after serving the requisite sentence, the appropriate Government which according to us in the present case are States of Madhya Pradesh and Maharashtra respectively, their cases shall be considered by those two State Governments who shall take necessary decision as to whether their release is permissible and desirable. The appeals are allowed to the aforesaid extent. Order accordingly."

62. I may also refer to and rely upon the observations of the Supreme Court in the case of Kuljeet Singh alias Ranga v. Union of India [AIR 1981 SC 1572]. I am referring to a very wellknown judgment in the case of commonly known as the Billa Ranga's case. Chief Justice Page 113 of 132 R/SCR.A/9089/2017 JUDGMENT Chandrachud (as his Lordship then was) observed that:

"The death of the Chopra children was caused by the petitioner and his companion Billa after a savage planning which bears a professional stamp. The murder was most certainly not committed on the spur of the moment as a result of some irresistible impulse which can be said to have overtaken the accused at the crucial moment. In other words, there was a planned motivation behind the crime though the accused had no personal motive to commit the murder of these two children."

Further it was observed as under:

"The survival of an orderly society demands the extinction of the life of persons like Ranga and Billa who are a menace to social order and security. They are professional murderers and deserve no sympathy even in terms of the evolving standards of decency of a maturing society."

63. After dismissal of Appeal by the Supreme Court and the mercy petition by the President, a petition under Article 32 was moved before the Supreme Court. It was contended that the power conferred by Article 72 of the Constitution was a power coupled with duty which had to be exercised fairly and reasonably. In Kuljeet Singh alias Ranga v. Lt. Governor, Delhi [AIR 1981 SC 2239], Rule Nisi was issued. The execution of death penalty in all cases was stayed. However, finally the case was disposed of with the following observations reported in AIR 1982 SC 774:

"But the question as to whether the case is appropriate for the exercise of the power conferred by Art. 72 depends upon the facts and circumstances of each particular case. The necessity or the justification for exercising that Page 114 of 132 R/SCR.A/9089/2017 JUDGMENT power has therefore to be judged from case to case . In fact, we do not see what useful purpose will be achieved by the petitioner by ensuring the imposition of any severe, judicially evolved constraints on the wholesome power of the President to use it as the justice of a case may require. After all, the power conferred by Art. 72 can be used only for the purpose of reducing the sentence, not for enhancing it. We need not however, go into that question elaborately because in so far as this case is concerned, we are quite clear that not even the most liberal use of his mercy jurisdiction could have persuaded the President to interfere with the sentence of death imposed upon the petitioner, in view particularly of the considerations mentioned by us in our judgment in Kuljeet Singh alias Ranga v. Union of India (1981 (3) SCR 512: AIR 1981 SC 1572: (1981 Cri LJ 1045). We may recall what we said in that judgment that "the death of the Chopra children was caused by the petitioner and his companion Billa after a savage planning which bears a professional stamp", that the "survival of an orderly society demands the extinction of the life of persons like Ranga and Billa who are a menace to social order and security", and that "they are professional murderers and deserve no sympathy even in terms of the evolving standards of decency of a mature society."

2. The petition is accordingly dismissed."

64. The perusal of the above would show that, while exercising power under Articles 72 and 161 of the Constitution of India, the facts and circumstances of each case can be taken into consideration. The heinousness of the crime, which would be perpetrated by Billa and Ranga, had persuaded the Supreme Court to hold that even the most liberal use of mercy jurisdiction could not have persuaded the President of India to interfere with the sentence of death. Apparently the heinousness of crime and the 'intractable savagery' of the delinquent are Page 115 of 132 R/SCR.A/9089/2017 JUDGMENT factors, which have been considered to be relevant for the exercise of power under Articles 72 and 161 of the Constitution. Even otherwise, whatever is relevant for the Court, while awarding punishment, can by no process of law or logic become irrelevant or extraneous for the Government while considering the question of premature release.

65. While exercising powers under Articles 72 and 161 of the Constitution, the appropriate authority is competent to examine the record of the criminal case. It is also competent to take into consideration such evidence as may have come into its possession besides the evidence on the file of the Court. Nothing considered in this regard can be dubbed as extraneous. Just as in the case of Billa and Ranga, the gravity of the offence persuaded the Court to hold that the President could not have awarded a punishment less than death sentence, the executive authority can, in all the cases, examine various factors including the heinousness or gravity of the offence to decide as to whether or not the premature release of a convict is desirable. The conflict between individual's freedom and social order has to be reasonably balanced on a comprehensive consideration of all the relevant factors. Heinousness or gravity of the offence are not irrelevant to that consideration.

66. I am also of the view that all the convicts cannot be classified as one homogeneous class. They can be classified on the basis of different considerations. Heinousness or gravity of the offence committed by a convict can be one of the basis for such classification. Billa and Ranga can in a given situation be treated as a class apart from an ordinary convict, who may have committed murder in an entirely different situation. While it may not be open to the executive to make the classification on the basis of wholly arbitrary or extraneous, criteria, I Page 116 of 132 R/SCR.A/9089/2017 JUDGMENT entertain no doubt that, in principle, the classification can be founded on the gravity of the offence.

67. In Epuru Sudhakar (supra), the Supreme opined as follows:

"65. 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. This discretion, therefore, has to be exercised on public consideration alone. The President and the Governor are the sole Judges of the sufficiency of facts and of the appropriating of granting the pardons and reprieves. However, this power is an enumerated power in the Constitution and its limitations, if any, must be found in the Constitution itself. Therefore, the principle of Exclusive Cognizance would not apply when and if the decision impugned is in derogation of a Constitutional provision. This is the basic working test to be applied while granting pardons, reprieves, remissions and commutation.

66. Granting of pardon is in no sense an overturning of a judgment of conviction, but rather it is an Executive action that mitigates or set aside the punishment for a crime. It eliminates the effect of conviction without addressing the defendants guilt or innocence. The controlling factor in determining whether the exercise of prerogative power is subject to judicial review is not its source but its subjectmatter. It can no longer be said that prerogative power is ipso facto immune from judicial review. An undue exercise of this power is to be deplored. Considerations of religion, caste or political loyalty are irrelevant and fraught with discrimination. These are prohibited grounds. Rule of Law is the basis for evaluation of all decisions. The supreme quality of the Rule of Law is fairness and legal certainty. The Page 117 of 132 R/SCR.A/9089/2017 JUDGMENT principle of legality occupies a central plan in the Rule of Law. Every prerogative has to be the subject to the Rule of Law. That rule cannot be compromised on the grounds of political expediency. To go by such considerations would be subversive of the fundamental principles of the Rule of Law and it would amount to setting a dangerous precedent. The Rule of Law principle comprises a requirement of "Government according to law". The ethos of "Government according to law" requires the prerogative to be exercised in a manner which is consistent with the basic principle of fairness and certainty. Therefore, the power of executive clemency is not only for the benefit of the convict, but while exercising such a power the President or the Governor, as the case may be, has to keep in mind the effect of his decision on the family of the victims, the society as a whole and the precedent it sets for the future.

67. 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. The exercise of power depends upon the facts and circumstances of each case and the necessity or justification for exercise of that power has to be judged from case to case. It is important to bear in mind that every aspect of the exercise of the power under Article 72 as also under Article 161 does not fall in the judicial domain. In certain cases, a particular aspect may not be justiciable. However, even in such cases there has to exist requisite material on the basis of which the power is exercised under Article 72 or under Article 161 of the Constitution, as the case may be. In the circumstances, one cannot draw the guidelines for regulating the exercise of the power."

● SCOPE OF JUDICIAL REVIEW OF EXERCISE OF POWER OF GRANT OF REMISSION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA:

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68. The power of granting pardon under Article 161 is very wide and do not certain any limitation as to the time on which and the occasion on which and the circumstances in which the said power could be exercised. But the said power, being a constitutional power, conferred upon the Governor by the Constitution is amenable to judicial review on certain limited grounds. The Court, therefore, would be justified in interfering with an order passed by the Governor in exercise of power under Article 161 of the Constitution if the Governor is found to have exercised the power himself without being advised by the Government or if the Governor transgresses the jurisdiction in exercising the same or it is established that the Government has passed the order without application of mind or the order in question is a mala fide one or the Governor has passed the order on some extraneous consideration. The extent of judicial review in relation to an order of the President under Article 72 of the Constitution of India was a subjectmatter of consideration before the Supreme Court in Kehar Singh's case (supra), where the Constitution Bench had observed "it appears to us clear that the question as to the area of the President's power under Article 72 of the Constitution falls squarely within the judicial domain and can be examined by the Court by way of judicial review". The Supreme Court had further indicated that "as regards the considerations to be applied by the President to the petition, we need say nothing more as the law in this behalf have already been laid down by the Supreme Court in Maru Ram's case (supra). What has been stated in relation to the President's power under Article 72 equally applies to the power of Governor under Articles 161 of the Constitution. In Maru Ram's case (supra), the Supreme Court came to the conclusion that the power under Articles 72 and 161 of the Constitution can be exercised by the Central and State Governments, and not by the President or Governor on their own. The advice of the appropriate Government binds the head of the State. The Page 119 of 132 R/SCR.A/9089/2017 JUDGMENT Supreme Court also came to be conclusion that the consideration for exercise of power under Article 72 or Article 161 may be myriad and their occasions protean, and are left to the appropriate Government, but no consideration nor occasion can be wholly irrelevant, irrational, discriminatory or mala fide.

69. In the case of State of Haryana vs. Bhup Singh and others reported in 2009 Cri.L.J. 1134, the Supreme Court has explained the policy of premature release and the power of the Court in paras 10 and 11:

"10. This Court therein did not have any occasion to consider the legality and/or validity of the policy decision of the State visavis the Prison Rules. 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. If the executive instructions cannot be given a retrospective effect being not in consonance with the Prisoner's Rules framed under the Prison Act, we fail to understand as to how the said decision constitutes a binding precedent. A decision as is well known is an authority for what it decides and not what can logically be deduced therefrom.

11. We, therefore, are of the opinion that keeping in view the decision of this Court in Mahender Singh (supra), the impugned judgment should be modified directing the appellant to consider the cases of the respondents. 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's case (supra) 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."

70. In Ramraj vs. State of Chhatisgarh reported in 2010 Cri.L.J. Page 120 of 132 R/SCR.A/9089/2017 JUDGMENT 2062, the issue of remission relating to the prisoners undergoing life imprisonment was being taken into consideration. After referring to and acknowledging of the earlier decisions including Gopal Vinayak Godse (supra), the Supreme Court concluded the issue in the manner as observed under:

"15. What ultimately emerges from all the aforesaid decisions is that life imprisonment is not to be interpreted as being imprisonment for the whole of a convict's natural life within the scope of Section 45 of the aforesaid Code. The decision in Swamy Shraddananda's case (supra) was taken in the special facts of that case where on account of a very brutal murder, the appellant had been sentenced to death by the Trial Court and the reference had been accepted by the High Court. However', while agreeing with the conviction and confirming the same, the Hon'ble Judges were of the view that however heinous the crime may have been, it did not come within the definition of "rarest of rare cases" so as to merit a death sentence Nevertheless, having regard to the nature of the offence, Their Lordships were of the view that in the facts of the case the claim of the petitioner for premature release after a minimum incarceration for a period of 14 years, as envisaged under Section 433A, Cr.P.C., could not be acceded to, since the sentence of death had been stepped down to that of life imprisonment, which was a lesser punishment.

16. On a conjoint reading of Sections 45 and 47 of the Indian Penal Code and Sections 432, 433 and 433A, Cr.P.C., it is now well established that a convict awarded life sentence has to undergo imprisonment for at least 14 years. While Sections 432 and 433 empowers the appropriate Government to suspend, remit or commute sentences, including a sentence of death and life imprisonment, a fetter has been imposed by the legislature on such powers by the introduction of Section 433A into the Code of Criminal Procedure by the Amending Act of 1978, which came into effect on and Page 121 of 132 R/SCR.A/9089/2017 JUDGMENT from 18th December, 1978. By virtue of the nonobstante clause used in Section 433A, the minimum term of imprisonment in respect of an offence where death is one of the punishments provided by laws or where a death sentence has been commuted to life sentence, has been prescribed as 14 years. In the various decisions rendered after the decision in Godse's case (supra), "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 power 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 concerned authorities to determine the actual length of imprisonment having regard to the gravity and intensity of the offence. Section 433 A, Cr.P.C., which is relevant for the purpose of this case, reads as follows : "433A. Restriction on powers of remission or commutation in certain cases. Notwithstanding anything contained in Section 432, 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 laws 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 had served at least fourteen, years of imprisonment."

17. In the present case, the facts are such that the petitioner is fortunate to have escaped the death penalty. We do not think that this is a fit case where the petitioner should be released on completion of 14 years imprisonment. The petitioner's case for premature release may be taken up by the concerned authorities after he completes 20 years imprisonment, including remissions earned."

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71. In State of U.P. vs. Sanjay Kumar [(2012) 8 SCC 537], the scope of exercise of power at the end of State in granting remission has been explained as under:

"21. Sentencing policy is a way to guide judicial discretion in accomplishing particular sentencing. Generally, two criteria, that is, the seriousness of the crime and the criminal history of the accused, are used to prescribe punishment. By introducing more uniformity and consistency into the sentencing process, the objective of the policy, is to make it easier to predict sentencing outcomes. Sentencing policies are needed to address concerns in relation to unfettered judicial discretion and lack of uniform and equal treatment of similarly situated convicts. The principle of proportionality, as followed in various judgments of this Court, prescribes that, the punishments should reflect the gravity of the offence and also the criminal background of the convict. Thus the graver the offence and the longer the criminal record, the more severe is the punishment to be awarded. By laying emphasis on individualised justice, and shaping the result of the crime to the circumstances of the offender and the needs of the victim and community, restorative justice eschews uniformity of sentencing. Undue sympathy to impose inadequate sentence would do more harm to the public system to undermine the public confidence in the efficacy of law and society could not long endure under serious threats.

22. Ultimately, it becomes the duty of the Courts to award proper sentence, having regard to the nature of the offence and the manner in which it was executed or committed etc. The Courts should impose a punishment befitting the crime so that the Courts are able to accurately reflect public abhorrence of the crime. It is the nature and gravity of the crime, and not the criminal, which are germane for consideration of appropriate punishment in a criminal trial. Imposition of sentence without considering its effect on social order in many cases may be in reality, a Page 123 of 132 R/SCR.A/9089/2017 JUDGMENT futile exercise.

23. The survival of an orderly society demands the extinction of the life of a person who is proved to be a menace to social order and security. Thus, the Courts for the purpose of deciding just and appropriate sentence to be awarded for an offence, have to delicately balance the aggravating and mitigating factors and circumstances in which a crime has been committed, in a dispassionate manner. In the absence of any foolproof formula which may provide a basis for reasonable criteria to correctly assess various circumstances germane for the consideration of gravity of crime, discretionary judgment, in relation to the facts of each case, is the only way in which such judgment may be equitably distinguished. The Court has primarily dissected the principles into two different compartments one being, the 'aggravating circumstances' and the other being, the 'mitigating circumstance'. To balance the two is the primary duty of the Court. The principle of proportionality between the crime and the punishment is the principle of 'just deserts' that serves as the foundation of every criminal sentence that is justifiable. In other words, the 'doctrine of proportionality' has valuable application to the sentencing policy under Indian criminal jurisprudence. While determining the quantum of punishment the court always records sufficient reasons. (Vide:

Sevaka Perumal etc. v. State of Tamil Nadu, AIR 1991 SC 1463 : (1991 AIR SCW 1368); Ravji v. State of Rajasthan, AIR 1996 SC 787 : (1996 AIR SCW 132); State of Madhya Pradesh v. Ghanshyam Singh AIR 2003 SC 3191 : (2003 AIR SCW 4547); Dhananjay Chatterjee alias Dhana v. State of W.B., AIR 2004 SC 3454 : (2004 AIR SCW 3051); Rajendra Pralhadrao Wasnik v. The State of Maharashtra, AIR 2012 SC 1377 : (2012 AIR SCW 1939); and Brajendra Singh v.

State of Madhya Pradesh, AIR 2012 SC 1552 : (2012 AIR SCW 1865).

24. In view of the above, we reach the inescapable conclusion that the submissions advanced by learned counsel for the State are unfounded. The Page 124 of 132 R/SCR.A/9089/2017 JUDGMENT aforesaid judgments make it crystal clear that this Court has merely found out the via media, where considering the facts and circumstances of a particular case, by way of which it has come to the conclusion that it was not the 'rarest of rare cases', warranting death penalty, but a sentence of 14 years or 20 years, as referred to in the guidelines laid down by the States would be totally inadequate. Life imprisonment cannot be equivalent to imprisonment for 14 years or 20 years, rather it always meant as the whole natural life. This Court has always clarified that the punishment so awarded would be subject to any order passed in exercise of the clemency powers of the President of India or Governor of State, as the case may be. Pardons, reprieves and remissions are granted in exercise of prerogative power. There is no scope of judicial review of such orders except on very limited grounds for example nonapplication of mind while passing the order; nonconsideration of relevant material; or if the order suffers from arbitrariness. The power to grant pardons and to commute sentences is coupled with a duty to exercise the same fairly and reasonably. Administration of justice cannot be perverted by executive or political pressure. Of course, adoption of uniform standards may not be possible while exercising the power of pardon. Thus, such orders do not interfere with the sovereign power of the State. More so, not being in contravention of any statutory or constitutional provision, the orders, even if treated to have been passed under Article 142 of the Constitution do not deserve to be labelled as unwarranted. The aforesaid orders have been passed considering the gravity of the offences in those cases that the accused would not be entitled to be considered for premature release under the guidelines issued for that purpose i.e. under Jail Manual etc. or even under Section 433A Cr.P.C."

72. Considerations of public policy and humanitarian impulses supports the concept of executive power of clemency. If clemency power is 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 Page 125 of 132 R/SCR.A/9089/2017 JUDGMENT the convict to reintegrate into the society. The modern penology with its correctional and rehabilitative basis emphasises 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 the last stage, may warrant his release even at a much early stage. Vana est illa potentia quae nun quam venit in actum meansPower is vain if never put into action.

73. Judicial decisions, legal text books, reports of Law Commission, academic writings and statements of administrators and people in public life reveal that the following considerations have been regarded as relevant and legitimate for the exercise of the power of pardon.

Some of the illustrative considerations are:

(a) interest of society and the convict;

(b) the period of imprisonment undergone and the remaining period;

(c) seriousness and relative recentness of the offence;

(d) the age of the prisoner and the reasonable expectation of his longevity;

(e) the health of the prisoner especially any serious illness from which he may be suffering;

(f) good prison record;

(g) post conviction conduct, character and reputation;

(h) remorse and atonement;

(i) deference to public opinion.

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74. It has occasionally been felt right to commute the sentence in deference to a widely spread or strong local expression of public opinion, on the ground that it would do more harm than good to carry out the sentence if the result was to arouse sympathy for the offender and hostility to the law.

75. It is necessary to keep in mind the salutary principle as quoted in Burghess, J.C. in (1897), U.B.R. 330 (334) that:

"To shut up a man in prison longer than really necessary is not only bad for the man himself, but also it is a useless piece of cruelty, economically wasteful and a source of loss to the community."

76. The 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 premature release would be considered after serving the sentence, prescribed in the shortsentencing 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.

77. In Life Convict Bangal @ Khoka @ Prasanta Sen vs. B.K. Srivastava and others reported in (2013) 3 SCC 425, while dealing with a contempt matter on account of refusal of State Government to grant remission and dealing with the earlier decisions, held under para 18 as follows:

"18. It is clear that neither Section 57 IPC nor the Explanation to Section 61 of the W.B. Act lay down that a life imprisonment prisoner has to be released after completion of 20 years. 20 years mentioned in the Explanation to Section 61 of the W.B. Act is only for the purpose of Page 127 of 132 R/SCR.A/9089/2017 JUDGMENT ordering remission. If the State Government taking into consideration various aspects refused to grant remission of the whole period then the petitioner cannot take advantage of the above. Explanation and even Section 57 IPC and seek for premature release. Further, the question of remission of the entire sentence or a part of it lies within the exclusive domain of the appropriate Government under Section 57 IPC nor any rules or local Acts (in the case on hand, the W.B. Act) can stultify the effect of the sentence of life imprisonment given by the Court under IPC. To put it clear, once a person is sentenced to undergo life imprisonment unless imprisonment for life is commuted by the competent authority, he has to undergo imprisonment for the whole of his life. It is equally well settled that Section 57 IPC does not, in any way, limit the punishment of imprisonment for life to a term of 20 years."

78. Let me now summarise the aforesaid discussion:

[1] The imprisonment for life in terms of Section 53 read with Section 45 of the Penal Code means "the imprisonment for the rest of the life of the convict". To put it in other words, till the convict breathes his last.

[2] The grant of remission is a matter of policy and it is for the Executive Branch of the Government to decide as to when, to what extent and in what manner, remission is to be granted.

[3] The policy decision may be based on so many factors, like the prevailing general law and order situation, the impact of remission on the social life and social security at the relevant time and the type of the prisoners to be covered by it. Further, if the reformative imprisonments are already underway in the prisons themselves, perhaps, the immediate release may not be desirable Page 128 of 132 R/SCR.A/9089/2017 JUDGMENT or beneficial and thus, remission may have to be turned down accordingly.

[4] It is not for the judiciary to enter into this arena. Indeed, where the judicial function ends by awarding conviction and imposing sentence, it is there that the executive function begins and it is then for the latter to consider the question of suspension, remission and commutation of sentences.

[5] The Courts should not issue any direction in the matter of policy, which is purely within the executive domain of the Government. If the Government decides to categorise the prisoners for the grant of remission and the classification is rational and intelligible and it is not discriminate between the same class of prisoners, the Court is not competent to say that such classification should not be made or that the same yardstick of remission be made applicable to each class.

[6] The Executive Wing of the State in its discretion on consideration of the cry and aspiration of the society for imposition of the deterrent punishment on certain type of offenders may decline to grant the benefit of remission. For example, an offence punishable under Section 376 I.P.C. is not only an offence against a singular individual, but against the collective as it offends the dignity of a woman and creates a terror trodden atmosphere in the society, because a rapist is a menace in the civilised society. Sometime, liberal delineation with a convict of this nature decreases the faith in the system and a feeling of insensitivity prevails. Offences for dowry death and cruel treatment for demand of dowry have their own social impact, as the said offences corrode the essential social fabric and slowly denude it of stability affecting the age of old Page 129 of 132 R/SCR.A/9089/2017 JUDGMENT established institutions.

[7] Remissions are granted under the special circumstances by the State and also with the object of reforming the prisoners, after ensuring that there is no possibility of repeating the offences.

[8] The right to be released seeking the benefit of remission is neither a fundamental right nor a common law right, but is a statutory right and flows from the Act and Rules framed in this behalf. By earning remissions, a life convict does not acquire a right to be released prematurely. But, if the Government has framed any rules or made a scheme for the early release of such convicts, then those rules or schemes will have to be treated as guidelines for exercising its power under Article 161 of the Constitution.

[9] Considerations of public policy and humanitarian impulses supports the concept of executive power of clemency. If the clemency power is exercised and the 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.

[10] All the convicts cannot be classified as one homogeneous class.

They can be classified on the basis of different considerations. Heinousness or gravity of the offence committed by a convict can be one of the basis for such classification.

[11] Ordinarily, when any application or representation is received from the convict as regards grant of remission, the authorities concerned should not keep it pending for an unduly long time. It is a matter of great concern to a prisoner as to when he will regain Page 130 of 132 R/SCR.A/9089/2017 JUDGMENT his freedom from jail specifically when the sentence imposed is a life imprisonment. Therefore, without keeping such applications pending for a long time, those should be taken up for consideration within a reasonable period of time and the outcome should be communicated to the prisoner.

[12] The order passed under Article 161 of the Constitution granting remission in favour of a convict undergoing life imprisonment can be challenged before the High Court under Article 226 of the Constitution of India by any person aggrieved, if such aggrieved person is able to show that the power had been exercised taking into account the extraneous consideration, not germane to the exercise of the power conferred, or in other words, that the order is a result of mala fide exercise of power. However, it needs to be clarified that the exercise of power in this regard cannot be questioned on the ground of adequacy or inadequacy of the reasons, which resulted into the passing of the order. The court is not entitled to investigate the matter on merits, but can certainly go into the question whether the power given has been exercised mala fide or not.

[13] It is completely a different matter that a person aggrieved, say for example, kith and kin of the victim or deceased may fail to prove or make good his case that the power was exercised taking into account the extraneous consideration or had been exercised mala fide, but, to say that no such person has locus standi to challenge an order issued under Article 161 of the Constitution of India, will not be the correct position of law. Though, no legal right of any kith and kin of the victim or deceased could be said to have been infringed by the grant of remission, but, such person has certainly Page 131 of 132 R/SCR.A/9089/2017 JUDGMENT got a personal or modified right, as he would be the real person, who felt aggrieved because of the criminal acts done by the convict. [See: Godde Venkateswara Rao vs. Government of Andhra Pradesh (AIR 1966 SC 828)].

[14] The policy, which was prevailing on the date of conviction, shall be made applicable for the purpose of grant of remission.

79. Bearing the above in mind, the State is directed to decide the issue with regard to the benefit of commutation or remission, as prayed for, by the writ applicant within a period of two months from the date of receipt of this order. The outcome or decision shall be communicated to the writ applicant in writing.

(J.B. PARDIWALA, J.) CHANDRESH/ MOINUDDIN Page 132 of 132

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