Indian Kanoon - Search engine for Indian Law

28. At that juncture, the issue arose with regard to the interpretation of Section 433-A CrPC. In that context, the majority opined:-

“In this context, the submission of the learned Solicitor General on the interpretation of Section 433-A CrPC assumes significance. His contention was that under Section 433-A CrPC what is prescribed is only the minimum and, therefore, there is no restriction to fix it at any period beyond 14 years and up to the end of one’s lifespan. We find substance in the said submission. When we refer to Section 433-A, we find that the expression used in the said section for the purpose of grant of remission relating to a person convicted and directed to undergo life imprisonment, it stipulates that “such person shall not be released from prison unless he had served at least fourteen years of imprisonment” (emphasis supplied). Therefore, when the minimum imprisonment is prescribed under the statute, there will be every justification for the court which considers the nature of offence for which conviction is imposed on the offender for which offence the extent of punishment either death or life imprisonment is provided for, it should be held that there will be every justification and authority for the court to ensure in the interest of the public at large and the society, that such person should undergo imprisonment for a specified period even beyond 14 years without any scope for remission. In fact, going by the caption of the said Section 433-A, it imposes a restriction on powers of remission or commutation in certain cases. For a statutory authority competent to consider a case for remission after the imposition of punishment by court of law it can be held so, then a judicial forum which has got a wider scope for considering the nature of offence and the conduct of the offender including his mens rea to bestow its judicial sense and direct that such offender does not deserve to be released early and required to be kept in confinement for a longer period, it should be held that there will be no dearth in the authority for exercising such power in the matter of imposition of the appropriate sentence befitting the criminal act committed by the convict.” (Emphasis Supplied)

“In Maru Ram (supra) the constitutional validity of Section 433-A CrPC which had been brought in the statute book in the year 1978 was called in question. Section 433-A CrPC imposed restrictions on powers of remission or commutation in certain cases. It stipulates that 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 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 has served at least fourteen years of imprisonment. The majority in Maru Ram (supra) upheld the constitutional validity of the provision. The Court distinguished the statutory exercise of power of remission and exercise of AIR 2016 SC 3197 : 2016 (6) SCALE 105 power by the constitutional authorities under the Constitution, that is, Articles 72 and 161. In that context, the Court observed that the power which is the creature of the Code cannot be equated with a high prerogative vested by the Constitution in the highest functionaries of the Union and the States, for the source is different and the substance is different. The Court observed that Section 433-A CrPC cannot be invalidated as indirectly violative of Articles 72 and 161 of the Constitution. Elaborating further, the majority spoke to the following effect:-

“36. It is clear that in Swamy Shraddananda, this Court noted the observations made by this Court in Jagmohan Singh v. State of U.P. and five years after the judgment in Jagmohan case, Section (2002) 6 SCC 686 (2003) 8 SCC 461 (2009) 15 SCC 551 (2010) 1 SCC 573 (2012) 5 SCC 766 (2012) 6 SCC 107 433-A was inserted in the Code imposing a restriction on the power of remission or commutation in certain cases. After the introduction of Section 433-A another Constitution Bench of this Court in Bachan Singh v. State of Punjab, with reference to power with regard to Section 433-A which restricts the power of remission and commutation conferred on the appropriate Government, noted various provisions of the Prisons Act, Jail Manual, etc. and concluded that reasonable and proper course would be to expand the option between 14 years' imprisonment and death. The larger Bench has also emphasised that: [Swamy Shraddananda (2) case, SCC p. 805, para 92] “92. … the Court would take recourse to the expanded option primarily because in the facts of the case, the sentence of 14 years' imprisonment would amount to no punishment at all.” In the light of the detailed discussion by the larger Bench, we are of the view that the observations made in Sangeet case42 are not warranted. Even otherwise, the above principles, as enunciated in Swamy Shraddananda are applicable only when death sentence is commuted to life imprisonment and not in all cases where the Court imposes sentence for life.”

51. The next submission that is put forth is that the decision in V. Sriharan (supra) runs counter to the principles stated in A.R. Antulay (supra). Explicating the said stand, it is argued that in the said case the Constitution Bench had directed that the case of the petitioner should be tried by the learned Judge of the High Court as he was tried for the offence under the Prevention of Corruption Act, 1988. The Bench of seven-Judges recalled that order on three counts, namely, a trial under the Prevention of Corruption Act, 1988 has to be held by a special Judge appointed under the said Act and this Court has no jurisdiction to direct the trial to be held by a High Court Judge; that the statutory right of the petitioner for filing an appeal to the High Court could not be taken away by this Court; and that the earlier direction abridged the right of the petitioner therein under Articles 14 and 21 of the Constitution. Drawing an analogy it is contended that V. Sriharan (supra) takes away the statutory right of the convict to apply for commutation/remission under Sections 432 and 433 CrPC, and also affects the right under Article 21 of the Constitution. Learned senior counsel for the appellants would contend that the principles stated in A.R. Antulay (supra) have not been kept in view in V. Sriharan (supra) and, therefore, it is not a binding precedent and a two-Judge Bench should either say that it is per incuriam or refer it to a larger Bench. With regard to declaring a larger Bench judgment per incuriam, learned senior counsel for the appellants have drawn inspiration from the authority in Fibre Boards Private Limited, Bangalore v. Commissioner of Income-Tax, Bangalore45. In that case, the two-Judge Bench referred to Mamleshwar Prasad v. Kanhaiya Lal46 and State of U.P. and another v. Synthetics and Chemicals Ltd. and another47 and took note of the earlier Constitution Bench judgment in State of Orissa v. M.A. Tulloch and Co.48, and held thus:-