Haryana & Ors. Vs. Jagdish  INSC 200 (22 March 2010)
SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 566
OF 2010 (Arising out of SLP (Crl.) No. 6638 of 2009) STATE OF HARYANA AND ORS.
Delay condoned. Leave granted.
This matter has come up before us upon reference having been made
by a Two-Judge Bench vide order dated 04.11.2009 upon noticing an inconsistency
in the views expressed by this Court in the case of State of Haryana & Ors.
v. Balwan AIR 1999 SC 3333 on one hand and in the cases of State of Haryana v.
Mahender Singh & Ors. (2007) 13 SCC 606; and State of Haryana v. Bhup Singh
AIR 2009 SC 1252, on the other hand. The inconsistency, which was pointed out
in the said order was noticed by taking into account the para 5 of the judgment
in Balwan (supra) which is as follows :- "........However, in order to see
that a life convict does not lose 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 views expressed in Mahender Singh (supra) and Bhup Singh
(supra) were as follows :- Mahender Singh (supra) "40. Whenever, thus, a
policy decision is made, persons must be treated equally in terms thereof. A'
fortiori the policy decision applicable in such cases would be which was
prevailing at the time of his conviction."
Singh (supra) "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 .......
.....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 case 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...."
The question that has been posed before us is as to whether the
policy which makes a provision for remission of sentence, should be that which
was existing on the date of the conviction of the accused or it should be the
policy that exists on the date of consideration of his case for pre-mature
release by the appropriate authority?
In the instant case, we find that the respondent, herein, has been
granted the relief by the Punjab and Haryana High Court for consideration of
his case for grant of clemency as per the policy prevailing on the date of his
conviction. The respondent was convicted and sentenced for life imprisonment
vide judgment and order dated 20.05.1999 and the policy which was in existence
at that point of time was dated 04.02.1993. The respondent, having served more
than 10 years imprisonment, approached the High Court that in spite of having
undergone the sentence as per the aforesaid policy dated 04.02.1993, his case
for pre-mature release was not being considered in view of the new policy of
short sentencing, introduced on 13.08.2008. The policy dated 13.8.2008 has been
brought on record, which expressly recites that the same was being issued in
exercise of the powers conferred by Sub-Section (1) of Section 432 read with
Section 433 of Criminal Procedure Code (hereinafter called Cr.P.C.), 1973. The
same 3 further recites that it is in supersession of the Government Memorandum
dated 12.04.2002 and all other earlier policies.
The respondent was involved in a case, the FIR whereof was
registered on 16.01.1995 and he was convicted vide judgment and order dated
20.5.1999 under Sections 302, 148 and 149 Indian Penal Code (hereinafter called
IPC), 1860. In the above background, the respondent filed a Criminal Misc.
Application before the High Court. The Court placing reliance on the judgments
of this Court in Mahender Singh (supra) and Bhup Singh (supra) came to the
conclusion that the case of the respondent for pre-mature release was to be
considered in the light of the short sentencing policy existing on the date of
his conviction and thus, a direction was issued to the State Authorities to
consider his case for pre- mature release in view of the policy dated 4.2.1993
existing on the date of his conviction i.e. 20th May, 1999 within a period of
one month from the date of receipt of the certified copy of the judgment.
Hence, this appeal. In view of the conflicting views in various judgments of
this Court, reference has been made to the larger Bench.
Heard Shri Gopal Subramanium, learned Solicitor General, Amicus
Curiae, Shri P.N. Mishra, learned senior counsel appearing for the State of
Haryana, Shri B.S. Malik, Senior Advocate, Shri Manoj Swarup, Shri D.P. Singh
and Shri Sanjay Jain, Advocates for respondents.
Shri P.N. Mishra, learned senior counsel appearing for the State
of Haryana has submitted that State has unfettered power to lay down a policy
in regard to remission of sentence. The short sentencing policies are merely
executive instructions having no statutory force, therefore, do not create any
legal/vested right in favour of the convict. Having regard to the provisions of
Sections 54, 55 IPC and Section 433-A Cr.P.C., no interference was required by
the High Court. Case of the respondent for pre-mature release would be
considered in view of the policy dated 13.8.2008. Thus, the judgment and order
of the High Court impugned herein, is liable to be set aside.
On the contrary, learned counsel appearing for the respondent in
this appeal and other connected cases, which are being disposed of by separate
order, have contended that all remission schemes were issued making reference
to Article 161 of the Constitution of India (hereinafter called the
Constitution). The clemency power of the executive cannot be subjected to 5 any
law whatsoever and thus, a legal right stood crystallised in favour of the
convict, to be considered for pre-mature release in view of the scheme
prevailing on the date of his conviction. They have emphasised that such scheme
envisaged at least a promise and in view of the provisions of Articles 20(1)
and 21 of the Constitution, the conditions contained in subsequent policies
being more stringent cannot be enforced against the "lifer".
Provisions of the Prisons Act, 1894 (hereinafter called as `Act 1894') and
rules framed under it create legal right in favour of the convict.
rights cannot be taken away by presently prevailing policy dated 13.8.2008. No
policy can be framed in derogation of the statutory rules.
in case a lenient policy is enforced at subsequent stage, the same can be made
applicable and thus, the judgment and order of the High Court does not require
any interference. The appeal is liable to be dismissed.
Shri Gopal Subramanium, learned Solicitor General who appeared as
Amicus Curiae, has submitted that even if there is no vested right of the
convict to be considered for pre-mature release, in view of the policy prevailing
on the date of his conviction, at least a human element of expectation that the
convict would have remission as per the guidelines prevailing on the date of
his conviction cannot be ruled out. Even if the 6 convict does not satisfy the
requirement of presently existing remission policy dated 13.8.2008, his case
can always be considered for remission under the provisions of Article 72 or
161 of the Constitution and it will be for the President or the Governor, as
the case may be, to take a view in the matter in conformity with the decision
in Maru Ram v. Union of India (1981) 1 SCC 107.
We have considered the rival submissions made by learned counsel
for the parties and perused the record.
In the instant case, the respondent was convicted on 20th May,
1999 and sentenced for life imprisonment. Remission policy has been changed
from time to time and provided mainly as under:
Policy Minimum required sentence for pre-mature release 4th February, 1993 (a)
Convicts whose death sentence Their cases may be considered after has been
commuted to life completion of 14 years actual imprisonment and convicts who
have sentence including under trial period been imprisoned for life for having
and after earning at least 6 years committed a heinous crime such as:-
with wrongful confinement, for extortion/robbery; murder with rape; murder
while undergoing life imprisonment; murder with dacoity 7 .... ; murder of a
child under the age of 14 years; and murder on professional/hired basis....
life convicts who have Their cases may be considered after been imprisoned for
life but whose completion of 10 years of actual cases are not covered under (a)
sentence including under trial period, above and who have committed provided
that the total period of crime which are not considered such sentence including
remission heinous as mentioned in clause (a) is not less than 14 years. above,
or other life convicts imprisoned for life for offence for which death penalty
is not a punishment.
August, 2000 (a) Convicts whose death sentence Their cases may be considered
after has been commuted to life completion of 14 years actual imprisonment and
convicts who have sentence including under trial period been imprisoned for
life having provided that the total period of committed a heinous crime such
as:- such sentence including remission is not less than 20 years.
murder with wrongful confinement, for extortion/robbery;
murder with rape; (iii) murder while undergoing life imprisonment;
murder with dacoity .... ; (viii) murder of a child under the age of 14 years;
(ix) murder of woman; and (xi) murder on professional/hired basis.... (xvi)
convicts who have been awarded life imprisonment a second time under any
life convicts who have Their cases may be considered after been imprisoned for
life but whose completion of 10 years actual cases are not covered under (a)
sentence including under trial period above and who have committed provided
that the total period of crime which are not considered such sentence including
remission 8 heinous as mentioned in clause (a) is not less than 14 years.
October, 2001 (aa) Convicts whose death sentence Their cases may be considered
after has been commuted to life completion of 20 years actual imprisonment and
convicts who have sentence and 25 years total sentence been imprisoned for life
having with remissions.
a heinous crime such as:- (i) murder after rape repeated chained rape/unnatural
offences; (ii) murder with intention for the ransom; (iii) murder of more than
two persons; (iv) persons convicted for second time for murder; and (v)
sedition with murder.
Convicts who have been Their cases may be considered after imprisoned for life
having committed completion of 14 years actual a heinous crime such as:-
sentence including under trial period provided that the total period of such
sentence including remissions (i) murder with wrongful is not less than 20
murder while undergoing life sentence; murder with dacoity.....
murder of a child under the age of 14 years......
life convicts who have Their cases may be considered after been imprisoned for
life but whose completion of 10 years actual cases are not covered under (aa)
and sentence including under trial period (a) above and who have committed
provided that the total period of crime which are not considered such sentence
including remissions heinous as mentioned in clause (aa) is not less than 14
August, 2008 (a) Convicts whose death sentence Their cases for pre-mature
release has been commuted to life may be considered after completion
imprisonment and convicts who have of 20 years actual sentence and 25 been
imprisoned for life having years total sentence with committed a heinous crime
such as:- remissions.
murder with rape/unnatural offences; (ii) murder with intention to collect
ransom/robbery/ kidnapping/abduction; (iii) murder of more than two persons;
(iv) persons convicted for second time for murder; (v) sedition; (vi) sedition
with murder; and (vii) murder while undergoing life sentence......
Convicts who have been Their cases for pre-mature release imprisoned for life
having committed may be considered after completion any crime which is defined
in IPC of 14 years actual sentence and/or NDPS Act as punishable with including
under trial period; provided death sentence. that the total period of such
sentence including remissions is not less than 20 years.
also be pertinent to mention here that all the aforesaid policies made a
clear-cut distinction and categorised the offence of murder in two separate
categories. Heinous crime means murder, i.e., (i) murder with wrongful
confinement, for extortion/robbery; (ii) murder with rape; (iii) murder
undergoing life imprisonment; (iv) murder with dacoity .... ; (v) 1 murder of a
child under 14 years; and (vi) murder on professional/hired basis etc. Murders
not mentioned in either of these above categories have been treated differently
for the purpose of grant of pre-mature release. In all the policies issued by
the Government except policy dated 13th August, 2008, the provisions of Article
161 of the Constitution have been referred to. All the said policies provided
that the cases of life convicts would be put to the Governor through the
Minister for Jails and the Chief Minister, Haryana with full background of the
prisoners and recommendations of the Committee alongwith the copy of the
judgment etc. for orders under Article 161 of the Constitution.
This Court in Gopal Vinayak Godse v. State of Maharashtra & Ors.
AIR 1961 SC 600 considered the provisions of Section 53-A IPC, Cr.P.C. and also
considered the Code of Criminal Procedure Amendment Act, 1955 which provided
that a person sentenced to transportation for life before the Amendment Act
would be considered as sentenced to rigorous imprisonment for life. The life
convict was bound to serve the remainder of sentence imprisoned. Unless the
sentence was commuted or remitted by the Competent Authority, such sentence
would not be equated with any fixed term. The benefit of remission or any short
sentencing policy in accordance 1 with the rules framed under the Act 1894, if
any, would be considered towards the end of the term and the said question was
within the exclusive domain of the appropriate Government. In the said case, in
spite of the fact that certain remissions had been made, the competent
authority did not remit the entire sentence. While deciding the said case, this
court placed reliance on the judgment of the Privy Council in Pt. Kishorilal v.
Emperor AIR 1946 P.C. 64.
In Dalbir Singh & Ors. v. State of Punjab AIR 1979 SC 1384,
this court came to the conclusion that `life imprisonment' means imprisonment
for the whole of the man's life. But in practice it amounts to incarceration
for a period between 10 to 14 years.
In State of Haryana v. Nauratta Singh & Ors. AIR 2000 SC 1179,
this Court clearly held that 14 years mentioned in Section 433-A Cr. P.C. is
the actual period of imprisonment undergone without including any period of
In Swamy Shraddananda@Murali Manohar Mishra v. State of Karnataka
AIR 2008 SC 3040, this Court had passed the order that the 1 appellant therein
would not be released from prison till the rest of his life.
punishment was considered necessary because this Court 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 said appellant
would not be released from prison for the rest of his life. Thus, the Court came
to the conclusion, on the facts of that case, that in such an eventuality the
pre-mature release after a minimum incarceration for a period of 14 years as
envisaged under Section 433-A Cr.P.C. would not be acceded to, since the
sentence of death had been stepped down to that of life imprisonment which was
definitely a lenient punishment.
In Ramraj @ Nanhoo @ Bihnu v. State of Chhattisgarh AIR 2010 SC
420, this Court held as under:
the various decisions rendered after the decision in Godse case, "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 powers 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 authorities concerned to determine the actual length of imprisonment having
regard to the gravity and intensity of the offence."
In Mohd. Munna v. Union of India (2005) 7 SCC 417, this Court came
to the conclusion 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. There was no provision
either in the IPC or Cr.P.C.
life imprisonment could be treated as either 14 years or 20 years incarceration
without there being a formal remission by the Appropriate Government. The
contention that having regard to the provisions of Section 57 IPC, 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
Before we proceed to consider the exercise of powers with regard
to remission, as provided for either under the Constitution, the IPC or the
Cr.P.C., it would be worth reiterating what has already been traversed and laid
down by this Court right from the case of Maru Ram (supra) to the decision in
the case of Ram Raj (supra).
In Maru Ram (supra), this Court elaborately dealt with the issue
of validity of Section 433-A Cr.P.C. and the remission/short sentencing
policies and held as under:
The major submissions which deserve high consideration may now be taken up.
They are three and important in their outcome in the prisoners' freedom from
behind bars. The first turns on the `prospectivity' (loosely so called) or
otherwise of Section 433-A. We have already held that Article 20(1) is not
violated but the present point is whether, on a correct construction, those who
have been convicted prior to the coming into force of Section 433-A are bound
by the mandatory limit.
convicts are out of its coils their cases must be considered under the
remission schemes and `short- sentencing' laws. The second plea, revolves round
`pardon jurisprudence', if we may coarsely call it that way, enshrined
impregnably in Articles 72 and 161 and the effect of Section 433-A thereon. The
power to remit is a constitutional power and any legislation must fail which
seeks to curtail its scope and emasculate its mechanics. Thirdly, the exercise
of this plenary power cannot be left to the fancy, frolic or frown of
Government, State or Central, but must embrace reason, relevance and
reformation, as all public power in a republic must. On this basis, we will
have to scrutinize and screen the survival value of the various remission
schemes and short-sentencing projects, not to test their supremacy over Section
433-A, but to train the wide and beneficent power to remit life sentences
without the hardship of fourteen fettered years.
xx xx xx
these go to prove that the length of imprisonment is not regenerative of the
goodness within and may be proof of the reverse -- a calamity which may be
averted 1 by exercise of power under Article 161...... In short, the rules of
remission may be effective guidelines of a recommendatory nature, helpful to
Government to release the prisoner by remitting the remaining term.
xx xx xx
72(7) We declare that Section 433-A, in both its limbs (i.e. both types of life
imprisonment specified in it), is prospective in effect...... It follows, by
the same logic, that short-sentencing legislations, if any, will entitle a
prisoner to claim release there under if his conviction by the court of first
instance was before Section 433-A was brought into effect.
xx xx xx
72(10) Although the remission rules or short-sentencing provisions proprio
vigore may not apply as against Section 433-A, they will override Section 433-A
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 433-A is
itself treated as a guideline for exercise of Articles 72/161.
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."
Thus, the Court held that the amendment would apply prospectively.
convicts who had been sentenced prior to 18.12.1978 i.e. date of enforcement of
amendment would not come within the purview of the provisions of Section 433-A
Cr.P.C. and short sentencing policy would also apply prospectively. Remission
rules/short sentencing policies could be taken as guidelines for exercise of power
under Articles 72 or 161 of the Constitution and in such eventuality, remission
rules will override Section 433-A Cr.P.C.
In State of Punjab v. Joginder Singh AIR 1990 SC 1396 this Court
held that remission cannot detract from the quantum and quality of judicial
sentence except to the extent permitted by Section 433 Cr.P.C. subject of
course, to Section 433-A or where the clemency power under the Constitution is
invoked. But while exercising the constitutional power under Articles 72/161 of
the Constitution, the President or the Governor, as the case may be, can
exercise an absolute power which cannot be fettered by any statutory provision
such as Sections 432, 433 and 433-A Cr.P.C. This power cannot be altered,
modified or interfered with in any manner whatsoever by any statutory
provisions or Prison Rules.
In Sadhu Singh v. State of Punjab AIR 1984 SC 739, this Court
examined the nature of the provisions contained in para 516-B of the Punjab
Jail Manual which provided for remissions etc. and executive instructions
issued by the Punjab Government from time to time and came to the conclusion
that the Jail Manual contained merely executive instructions having no
statutory force. Thus, it was always open to the State Government to alter,
amend or withdraw the executive instructions or supersede the same by issuing
fresh instructions. But the Court observed as under:
existing executive instruction could be substituted by issuing fresh executive
instructions for processing the cases of lifers for pre-mature release but once
issued these must be uniformly and invariably apply to all cases of
A similar view has been re-iterated by this Court in Balwan
Laxman Naskar v. Union of India & Ors. (2000) 2 SCC 595.
In Ashok Kumar @ Golu v. Union of India & Ors. AIR 1991 SC
1792 this Court considered the scope and relevancy of Rajasthan Prisons
(Shortening of Sentences) Rules, 1958 qua the provisions of Section 433-A
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 1
be considered for pre-mature 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 pre-mature release had not
been considered by the Concerned Authorities in view of the provisions of
Section 433-A Cr.P.C. This Court considered the matter elaborately taking into
consideration large number of its earlier judgments including Maru Ram (supra),
Bhagirath v. Delhi Administration AIR 1985 SC 1050; Kehar Singh & Anr. v.
Union of India & Anr. AIR 1989 SC 653, and came to the following
Section 433-A Cr.P.C. denied pre-mature release before completion of actual 14
years of incarceration to only those limited convicts convicted of a capital
offence i.e. exceptionally heinous crime;
Section 433-A 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
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 1 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.
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.
In Mahender Singh (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
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 there under."
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 fulfillment 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.
the exercise of such power under Article 161 of the Constitution or under
Section 433-A 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.
In Epuru Sudhakar & Another v. Govt. of A.P. & Ors. AIR
2006 SC 3385 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
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........
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.......
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
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."
There is no dispute to the settled legal proposition that the
power exercised under Articles 72/161 could be the subject matter of limited
judicial review. (vide Kehar Singh (supra); Ashok Kumar (supra);
Singh v. State of U.P. AIR 1998 SC 2026; Satpal & Anr. v. State of Haryana
& Ors. AIR 2000 SC 1702; and Bikas Chatterjee v. Union of India (2004) 7
SCC 634). In Epuru Sudhakar (supra) this Court held that the orders under
Articles 72/161 could be challenged on the following grounds:
the order has been passed without application of mind;
the order is mala fide;
the order has been passed on extraneous or wholly irrelevant considerations;
relevant materials have been kept out of consideration;
the order suffers from arbitrariness.
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.
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"
Sections 54 and 55 IPC provide for punishment. However, the
provisions of Sections 432 and 433-A 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 433-A 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 punishment 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.
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 2 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.
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).
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 & J. Bhoomaiah v.
State of Andhra Pradesh & Ors. (1976) 1 SCC 157)
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
short-sentencing policy is totally inflexible, whether it amounts to
transgression on the clemency power of the State which is 2 understood as
unfettered? The court considered the issue at length and came to the conclusion
the policy must not be so rigid that it does not allow for the exceptional case
which requires a departure from the policy, otherwise it could result in
fettering of the discretion which would be unlawful....
inconsistent with the very flexibility which must have been intended by the
Parliament in giving such a wide and untrammeled 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).
was held therein that the clemency power remains unfettered and in exceptional
circumstances, variation from the policy is permissible.
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 433-A Cr. P.C. though the Authority has
to meet the requirements referred to hereinabove while exercising the clemency
2 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 short- sentencing
policy, even in an exceptional case, would be mutually inconsistent with the
theory that clemency power is unfettered.
Constitution Bench of this Court in Maru Ram (supra) clarified that not only
the provisions of Section 433-A 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 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 Article 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 pre-mature release as
a matter of right.
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.
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. Whereas 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 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 overlooked 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."
in his book Jurisprudence (Fifth Edition- 1985) observed as under :- 2
"The easing of laws and penalties on anti-social conduct may conceivably
result in less freedom and safety for the law-abiding. 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 law-abiding 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 liberty-minded philanthropists seem inclined to allow......"
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.
Liberty is one of the most precious and cherished possessions of a
human being and he would resist forcefully any attempt to diminish it.
rehabilitation and social reconstruction of life convict, as objective of
punishment become of paramount importance in a welfare state.
without crime is a utopian theory". The State has to achieve the goal of
protecting the society from convict and also to rehabilitate the 2 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. 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.
At the time of considering the case of pre-mature 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 3
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 socio-economic condition of the convict's family and
other similar circumstances.
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 emphasis 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' means-vain is that power which never
comes into play.
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.
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.
This Court in Mahender Singh (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
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 3 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
the aforesaid rules are applicable in Haryana in view of the State
Re-organisation 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.
not be out of place to mention here that while deciding the case in Sadhu Singh
(supra), provisions of the aforesaid Act 1894 and Rules referred to
hereinabove, had not been brought to the notice of this Court.
so, consistent past practice adopted by the State can furnish grounds for
legitimate expectation (vide Official Liquidator v. Dayanand & Ors. (2008)
10 SCC 1).
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
powers under Section 432 read with Sections 433 and 433-A of Cr. P.C.
restriction under Section 433-A is only to the extent of the powers to be
exercised in respect of offences as referred to under Section 432 Cr.P.C.
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.
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.
evident from a bare perusal of the recitals contained in the policies 3 prior
to the year 2008, which are referable to Article 161 of the Constitution.
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. 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 pre-mature 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
pre-mature release, he should be given benefit thereof.
As per the information furnished by the appellant-State of
Haryana, the respondent Jagdish has served more than 14 years (actual) on
12.2.2009 i.e. prior to the date of judgment impugned herein dated 17.2.2009.
By now, 3 the respondent has served (actual) for more than 15 years. Respondent
falls in category 3 of the prisoners as he did not indulge in any organised
Accordingly, for the reasons given hereinabove, we find no reason
to interfere with the judgment of the High Court, which is hereby affirmed.
appeal is dismissed accordingly, subject to the direction that the
appellant-State Government shall proceed to calculate the sentence for the
purpose of consideration of remission in the case of the respondent as per the
policy dated 04.02.1993.
.......................................J. (J.M. PANCHAL)
.......................................J. (Dr. B.S. CHAUHAN)
March 22, 2010
REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION
SPECIAL LEAVE PETITION (CRL.) NO. 5842 OF 2009 State of Haryana &Ors.
...Appellants Versus Harpal ...Respondent WITH SLP (Crl.) No.6385/2009 SLP
(Crl.) No.6442/2009 SLP (Crl.) No.6441/2009 SLP (Crl.) No.6444/2009 SLP (Crl.)
No.5768/2009 SLP (Crl.) No.7629/2009 SLP (Crl.) No.7579/2009 SLP (Crl.)
No.7580/2009 SLP (Crl.) No.7581/2009 SLP (Crl.) No.7582/2009 SLP (Crl.)
No.8140/2009 SLP (Crl.) No.7631/2009 SLP (Crl.) No.7630/2009 SLP (Crl.)
No.7628/2009 SLP (Crl.) No.7622/2009 SLP (Crl.) No.7623/2009 3 SLP (Crl.)
No.7625/2009 SLP (Crl.) No.7619/2009 SLP (Crl.) No.7621/2009 SLP (Crl.)
No.7659/2009 SLP (Crl.) No.7654/2009 SLP (Crl.) No.7656/2009 SLP (Crl.)
No.7657/2009 SLP (Crl.) No.7652/2009 SLP (Crl.) No.7655/2009 SLP (Crl.)
No.7661/2009 SLP (Crl.) No.7653/2009 SLP (Crl.) No.7651/2009 SLP (Crl.)
No.7660/2009 SLP (Crl.) No.7649/2009 SLP (Crl.) No.7658/2009 SLP (Crl.) No.........
/2009 @Crl.M.P. No.13253 SLP (Crl.) No.7974/2008 SLP (Crl.) No.9330/2008 SLP
(Crl.) No.9234/2008 SLP (Crl.) No.9268/2008 SLP (Crl.) No. ................
/2009 @Crl.M.P. No.12754 SLP (Crl.) No. .................. /2009 Crl.M.P.
No.13045 SLP (Crl.) No.6914/2009 SLP (Crl.) No.6913/2009 SLP (Crl.)
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No.8297/2009 SLP (Crl.) No.8298/2009 SLP (Crl.) No.8300/2009 SLP (Crl.)
No.8301/2009 SLP (Crl.) No.8302/2009 SLP (Crl.) No................ /2009
@Crl.M.P. No.18221 SLP (Crl.) No.............../2009 @Crl.M.P. No.18264 SLP
(Crl.) No............. /2009 @Crl.M.P. No. 18402 SLP (Crl.) No. 831/2009 SLP
(Crl.) No. 832/2009 3 SLP (Crl.) No. 1026/2009 SLP (Crl.) No. 1097/2009 SLP
(Crl.) No. 1615/2009 SLP (Crl.) No. 2101/2009 SLP (Crl.) No. 1861/2009 SLP
(Crl.) No. 2216/2009 SLP (Crl.) No. 3475/2009 SLP (Crl.) No. 3035/2009 SLP
(Crl.) No. 3042/2009 SLP (Crl.) No. 3032/2009 SLP (Crl.) No. 3044/2009 SLP
(Crl.) No. 3040/2009 SLP (Crl.) No. 3123/2009 SLP (Crl.) No. 4125/2009 SLP
(Crl.) No. 4076/2009 SLP (Crl.) No. 4077/2009 SLP (Crl.) No. 4815/2009 SLP
(Crl.) No. 4882/2009 SLP (Crl.) No. 5117/2009 SLP (Crl.) No. 5173/2009 SLP (Crl.)
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6468/2009 SLP (Crl.) No. 6985/2009 SLP (Crl.) No. 6637/2009 SLP (Crl.) No.
6986/2009 SLP (Crl.) No. 6647/2009 SLP (Crl.) No. 6766/2009 SLP (Crl.) No.
6767/2009 SLP (Crl.) No. 6776/2009 SLP (Crl.) No. 6777/2009 SLP (Crl.) No.
7147/2009 SLP (Crl.) No. 8392/2009 SLP (Crl.) No. 4789/2009 SLP (Crl.) No.
6485/2009 SLP (Crl.) No. 4802/2009 3 SLP (Crl.) No. 4803/2009 SLP (Crl.) No.
4909/2009 SLP (Crl.) No. 6487/2009 SLP (Crl.) No. 4933/2009 SLP (Crl.) No.
4934/2009 SLP (Crl.) No. 4943/2009 SLP (Crl.) No. 4956/2009 SLP (Crl.) No.
6488/2009 SLP (Crl.) No. 5115/2009 SLP (Crl.) No. 5118/2009 SLP (Crl.) No.
5166/2009 SLP (Crl.) No. 5170/2009 SLP (Crl.) No. 5174/2009 SLP (Crl.) No.
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9392/2009 SLP (Crl.) No. 9379/2009 SLP (Crl.) No. 9376/2009 SLP (Crl.) No.
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9358/2009 SLP (Crl.) No. 9367/2009 SLP (Crl.) No. 9369/2009 SLP (Crl.) No.
9370/2009 SLP (Crl.) No. 9380/2009 SLP (Crl.) No. 10237/2009 SLP (Crl.) No.
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9386/2009 SLP (Crl.) No. 10119/2009 SLP (Crl.) No. 10122/2009 SLP (Crl.) No.
10121/2009 SLP (Crl.) No. 10123/2009 SLP (Crl.) No. 10120/2009 SLP (Crl.) No.
200/2010 SLP (Crl.) No. 211/2010 SLP (Crl.) No. 210/2010 SLP (Crl.) No.
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of our judgment pronounced today in Criminal Appeal No............of 2010 @
SLP(Crl.) No. 6638 of 2009 (State of Haryana & Ors. v. Jagdish), these
Special Leave Petitions are dismissed.
.......................................J. (J.M. PANCHAL)
.......................................J. (Dr. B.S. CHAUHAN)
March 22, 2010 .