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9. Sentencing is a judicial exercise of power. The act thereafter of executing the sentence awarded, however, is a purely executive function – which includes the grant of remission, commutation, pardon, reprieves, or suspension of sentence.6 This executive power is traceable to Article 72 and 161 of the Constitution of India, by which the President of India, and Governor of the State, respectively, are empowered to grant pardons and to suspend, remit or commute Sangeet v. State of Haryana [2012] 13 SCR 85.

By Act 45 of 1978, sec. 32 (w.e.f. 18.12.1978).

See Gopal Vinayak Godse v. State of Maharashtra [1961] 3 SCR 440; Maru Ram v. Union of India [1981] 1 SCR 1196; Sarat Chandra Rabha v. Khagendranath Nath [1961] 2 SCR 133; Kehar Singh v. Union of India [1988] Supp. 3 SCR 1102.

sentences in certain cases. Whilst the statutory (under Section 432 CrPC) and constitutional (under Articles 72 and 161 of the Constitution) powers are distinct- the former limited power, is still an imprint of the latter (much wider power), and must be understood as such and placed in this context. This framework of executive power and how it is to be exercised, is lucidly explained, in the judgment of State of Haryana v. Jagdish7:

“27. Nevertheless we may point out that the power of the sovereign to grant remission is within its exclusive domain and it is for this reason that our Constitution makers went on to incorporate the provisions of Article 72 and Article 161 of the Constitution of India. This responsibility was cast upon the executive through a constitutional mandate to ensure that some public purpose may require 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 433-A CrPC 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.”

See Rajan and Ram Chander (ibid).

[2015] 14 SCR 613 [hereafter referred to as ‘Sriharan’].

as a safeguard, much like the ones provided under Article 72 and 161 of the Constitution:

“141. […] Therefore, when in the course of exercise of larger constitutional powers of similar kind under Articles 72 and 161 of the Constitution it has been opined by this Court to be exercised with great care and caution, the one exercisable under a statute, namely, under Section 432(1)CrPC which is lesser in degree should necessarily be held to be exercisable in tune with the adjunct provision contained in the same section. Viewed in that respect, we find that the procedure to be followed whenever any application for remission is moved, the safeguard provided under Section 432(2)CrPC should be the sine qua non for the ultimate power to be exercised under Section 432(1)CrPC.