(Govt. of NCT of Delhi) Vs. Prem Raj  Insc 352 (5 August 2003)
Raju & Arijit Pasayat.
Out of S.L.P. (Crl.) No.5659 of 2002 ARIJIT PASAYAT,J.
only question raised in this appeal is whether the High Court of Delhi acted
within the framework of law in exercising power available under Section 433 (c)
of the Code of Criminal Procedure, 1973 (for short 'Code').
position giving rise to the appeal is as follows:
(also described as 'accused') was prosecuted for alleged commission of offence
punishable under Section 7, and Section(13)(1)(d) punishable in terms of
Section 13 (2) of the Prevention of Corruption Act, 1988 (for short 'the Act').
The respondent was found guilty by Additional Sessions Judge, Delhi and was
sentenced to undergo rigorous imprisonment for two years relating to offence
under Section 7 with fine of Rs.500/-. He was further sentenced under Section
13(2) to undergo imprisonment for 3 and ½ years with fine of Rs.1,000/-. Both
the sentences were directed to run concurrently. The matter was carried in
appeal by the respondent-accused before the High Court. The order of conviction
was not challenged at the time of hearing. What was pressed before the High
Court related to the quantum of sentence. It was submitted that the appellant
had faced ordeal of trial for 11 years and was on the verge of retirement as
his date of superannuation was to be in March, 2002. He was not a previous
convict and the ends of justice would be met if sentence of fine is enhanced in
order to commute the sentence of imprisonment and consequentially recommend to
the Government to consider the case under Section 433 of the Code. High Court
noted that there was no serious opposition by the investigating agency, the
Central Bureau of Investigation (for short 'CBI') for a recommendation.
learned Single Judge who heard the criminal appeal felt that no useful purpose
would be served in requiring the appellant to undergo sentence at the belated
stage and it would be appropriate if fine is enhanced to Rs.15,000/- in
commutation of sentence of imprisonment. He further directed that the case of
the accused was to be considered and regularized in accordance with Section 433
(c) of the Code. A further direction was given that on the deposit of Rs.15,000/-
as fine in commutation of sentence of imprisonment within a stipulated period
and intimation of deposit being given to the appropriate Government, the State
Government may formalize the matter by passing an appropriate order under
Section 433 (c) of the Code. The sentence of imprisonment was directed to be
suspended on furnishing personal bond and furnishing surety to the satisfaction
of the Trial Court.
support of the appeal the State (Govt. of NCT of Delhi) submitted that the
power of commutation is not available to a Court and it is the exclusive domain
of the executive. It was, therefore, submitted that the course adopted by the
High Court is unsustainable.
counsel for the respondent-accused submitted that on the peculiar facts of this
case no interference is called for. Though strictly speaking the High Court had
no power of commutation, yet direction was given to the State Government to
formalize the order of commutation on deposit of the enhanced fine and same
cannot be faulted.
432 of the Code corresponds to and reproduces almost word for word Section 401
and sub-section (3) of Section 402 of the Code of Criminal Procedure, 1889 (in
short old Code). Sub-sections (1) to (4) of Section 432 reproduce word for word
sub-sections (1) to (4) of Section 401 of the old Code. Sub-section (5)
reproduces word for work sub-section (6) of the old Section. Sub-section (6)
similarly reproduces sub-section (4-A) of the old Section.
(5) of old Section 401 had been omitted earlier in 1950. Sub-section (7)
corresponds to sub-section (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:
in other cases, the State Government." 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, Sections 432, 433 or 433-A 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.
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 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
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.
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 433-A of the Code and Article 161 of the Constitution odes 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.
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 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.
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.
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
commutation by the State authority. Consequences that follow from the provisions
of Section 433 do not affect Section 428.
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
sub-section (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 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 433-A 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.
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.
identical question regarding exercise of power in terms of Section 433 of the
Code was considered in Delhi Administration (Now NCT of Delhi) vs. 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):
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.
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." 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.
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:
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 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
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.
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
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.
Constitution has lumped together both these powers (i.e. those under Section
295 (1) and (2) of the Government of India Act, 1935) and placed them on 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.
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.
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.
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
Government should pass a general order and leave it to be applied to individual
cases by the prison authorities.
(1) of Section 402 enables the appropriate Government to commute sentences
without the consent of the person sentenced.
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.
"Clauses 441 to 444 – These clauses correspond to sections 401 and 402 and
sections 54, 55 and 55A of the IPC.
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 require 'concurrence'
of the Central Government instead of merely consultation with it.
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".
brought to our notice that the amount directed to be deposited has been so done
by the respondent-accused before the Trial Court.
aside the order of the High Court. We do not propose to restrict the right of
the accused to move the appropriate Government for such relief as is available
in law. It would be at sole discretion of the appropriate Government to
exercise the power conferred on it in accordance with law.
appeal is allowed to the extent indicated.