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Procedural check on arbitrary remissions:

62. There does not seem to be any decision of this Court detailing the procedure to be followed for the exercise of power under Section 432 of the Cr.P.C. But it does appear to us that sub-section (2) to sub-section (5) of Section 432 of the Cr.P.C. lay down the basic procedure, which is making an application to the appropriate Government for the suspension or remission of a sentence, either by the convict or someone on his behalf. In fact, this is what was suggested in Samjuben Gordhanbhai Koli v. State of Gujarat, (2010) 13 SCC 466 when it was observed that since remission can only be granted by the executive authorities, the appellant therein would be free to seek redress from the appropriate Government by making a representation in terms of Section 432 of the Cr.P.C.

63. It appears to us that an exercise of power by the appropriate Government under sub-section (1) of Section 432 of the Cr.P.C. cannot be suo motu for the simple reason that this sub-section 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. Sub-section (1) of Section 432 of the Cr.P.C. cannot be read to enable the appropriate Government to “further override” the judicial pronouncement over and above what is permitted by the Jail Manual or the statutory rules. The process of 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 en masse release of convicts on “festive” occasions since each release requires a case-by-case basis scrutiny.

72. On this issue, it was questioned in Godse whether there is any provision of law where under a sentence for life imprisonment, without any formal remission by the appropriate Government, can be automatically treated as one for a definite period. It was observed that no such provision is found in the Indian Penal Code, Code of Criminal Procedure or the Prisons Act. It was noted that though the Government of India stated before the Judicial Committee of the Privy Council in Kishori Lal v. Emperor, AIR 1945 PC 64 that, having regard to Section 57 of the IPC, twenty years imprisonment was equivalent to a sentence of transportation for life, the Judicial Committee did not express its final opinion on that question. However, in Godse the Constitution Bench addressed this in the light of the Bombay Rules governing the remission system and concluded that orders of the appropriate Government under Section 401 of the Criminal Procedure Code [now Section 432 of the Cr.P.C] are a pre-requisite for release. It was held that a prisoner sentenced to transportation for life has no indefeasible right to an unconditional release on the expiry of a particular term including remissions. “The rules under the Prisons Act do not substitute a lesser sentence for a sentence of transportation for life.”

76. In the case of a convict undergoing life imprisonment, he will be in custody for an indeterminate period. Therefore, remissions earned by or awarded to such a life convict are only notional. In his case, to reduce the period of incarceration, a specific order under Section 432 of the Cr.P.C. will have to be passed by the appropriate Government. However, the reduced period cannot be less than 14 years as per Section 433-A of the Cr.P.C.

77. Therefore, Section 432 of the Cr.P.C. 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.