State
of Haryana & Anr Vs. Jai Singh [2003] Insc
91 (17 February 2003)
N Santosh Hegde & B P Singh. Santosh Hegde,
J.
In
this appeal the State of Haryana is challenging the judgment of the
High Court of Punjab & Haryana at Chandigarh rendered in Crl. Misc. No.2176-M/2000 dated 26.4.2001.
Brief
facts necessary for disposal of this appeal are that while the respondent was
serving a sentence of 7 years' RI for having committed an offence of rape
punishable under Section 376 IPC, the Government of Haryana, on the eve of the
Independence Day, issued a notification dated 14.8.1995 in exercise of its
power vested under Section 432 of the Code, granting remission of prison
sentence to all convicts except those excluded in the said notification. The
said notification excluded such convicts who had been convicted for the
offences of rape, dowry death, abduction and murder of a child below 14 years,
unnatural offences, robbery, persons sentenced under the Narcotic Drugs and
Psychotropic Substances Act (NDPS), TADA, the Foreigners' Act, Passport Act,
the persons detained under the detention laws, the persons sentenced under
Sections 2 and 3 of the Criminal Laws Amendment Act, the persons convicted
under Sections 121 and 130 of the IPC, and the convicts found guilty of violation
of Jail Manual.
Because
of the above exclusion of certain offences from the benefit of remission under
the notification, the respondent became ineligible for such remission,
therefore, he questioned the classification of offences for the purpose of
denying remission in a petition filed before the High Court alleging that the
said classification amounts to discrimination, thus, being violative of Article
14 of the Constitution of India. The High Court accepting the said argument and
following an earlier judgment of the same court made in Crl. Misc. No.21746-M
of 1998 - Suresh Kumar v. State of Haryana - came to the conclusion that it is
not open to the State Government while granting general remission to carve out
special exceptions in cases which, according to it, could be termed as heinous
offences and deny the benefit of remission to such class of convicts,
therefore, while allowing the petition, it directed the State Government to
grant the benefit of remission to the respondent also.
It is
necessary to note herein that the High Court in the previous petition, namely,
that of Suresh Kumar v. State of Haryana (supra) following a Division Bench judgment of the Andhra Pradesh High
Court in the case of Jagaram & Ors. v. State of Andhra Pradesh & Ors. (1986 Crl.L.J. 1424) had
come to the conclusion that the State had no power to place a restriction on
the grant of remission because such power of restriction has already been
exercised by the Parliament while amending Section 433A of the Code. It also held
that the classification of convicts based on the nature of offences committed
by them for the purpose of granting remission is impermissible and violative of
Article 14 of the Constitution.
Though
the State of Haryana had preferred an appeal to this Court as against the said
judgment of the High Court in Suresh Kumar (supra), the said appeal [Crl. A.
No.726 of 2000] came to be dismissed by this Court on a concession made by the
learned counsel for the parties, without going into the question of classification.
In
this appeal, learned counsel appearing for the State contended that the High
Court was in error in coming to the conclusion that the classification of
convicts based solely on their criminal acts is violative of Article 14 of the
Constitution.
He
contended that for the purpose of granting remission, such classification would
be a reasonable classification while Mr. Anil Hooda, learned counsel appearing
for the respondent as an amicus curiae, contended that Section 432 of the Code
being an enabling provision, the State Government while exercising the said
power, cannot create a classification so as to deny a class of convicts the
benefit of such remission while the said benefit was made available to another
class of convicts. He also contended that if the gravity of offence is the sole
criteria then by the impugned notification, the State had extended the benefit
to many convicts who had been held guilty of offences involving more serious
charges than those excluded from the benefit of remission. He further contended
that as had been held by the High Court in the case of Suresh Kumar (supra),
apart from the ground of arbitrary classification, the notification is also bad
for want of statutory authority to create a restriction on the right of some convicts
to get the benefit of remission. In this regard, learned counsel points out
that the Parliament having exercised the power of imposing restriction in
granting remission under Section 433A, the State Government as a delegatee,
does not have the power to further impose any restriction beyond what has been
restricted under Section 433A of the Code.
We
will first take up for consideration the argument accepted by the High Court in
the impugned judgment that the impugned classification is arbitrary, unreasonable
and violative of Article 14 of the Constitution. While considering the
challenge based on Article 14 as to the arbitrariness in the impugned
classification, the court has to examine whether the impugned classification
satisfies certain constitutional mandates or not. They are
(i) that
the classification must be founded on an intelligible differentia which
distinguishes persons or things that are grouped together from others left out
of the group;
(ii) that
the differentia must have a rational relationship with the objects sought to be
achieved by the Act. (See Kathi Raning Rawat v. The State of Saurashtra [1952 SCR 435]).
In the
instant case, the State Government under the impugned notification granted the
benefit of remission to all convicts except those excluded in the said
notification. Though the notification in question does not give any specific
reason for exclusion of such convicts, from the pleadings of the State
Government, it is clear that this exclusion was done based on the nature of
offence committed by the said convicts and taking into consideration the effect
of such offence on the society as also the integrity of the State. The question
then is whether such classification of convicts based on the nature of offence
committed by them, would be an arbitrary classification having no nexus with
the object of the Code.
The
answer to the said question, in our opinion, should be in the negative. This
Court in a catena of decisions has recognised that the gravity of an offence
and the quantum of sentence prescribed in the Code could be a reasonable basis
for a classification. This Court in State of Haryana & Ors. v. Mohinder
Singh etc. (2000 (3) SCC 394) held : "Prisoners have no absolute right for
remission of their sentence unless except what is prescribed by law and the
circular issued thereunder.
That
special remission shall not apply to a prisoner convicted of a particular
offence can certainly be a relevant consideration for the State Government not
to exercise power of remission in that case." (emphasis supplied) In Maru
Ram etc. etc. v. Union of India & Anr. (1981 (1) SCR
1196), this Court while repelling an argument of discrimination in regard to
the sentence to be imposed in murder cases, held :
"The
logic is lucid although its wisdom, in the light of penological thought, is
open to doubt. We have earlier stated the parameters of judicial restraint and,
as at present advised, we are not satisfied that the classification is based on
an irrational differentia unrelated to the punitive end of social defence.
Suffice it to say here, the classification, if due respect to Parliament's
choice is given, cannot be castigated as a capricious enough to attract the
lethal consequence of Art. 13 read with Art. 14." In Sunil Batra v. Delhi Administration & Ors. (AIR 1978
SC 1675), this Court upheld the validity of a classification based on the
gravity of the offence.
From
the above observations of this Court, it is clear that the gravity of the
offence can form the basis of a valid classification if the object of such
classification is to grant or not to grant remission.
Having
come to the conclusion that the gravity of the offence can be the basis for a
valid classification, we will now consider whether the offences excluded from
the impugned notification can be said to be such offences which have been
wrongly excluded from the benefit of remission. We notice that the convicts who
have been excluded from the benefit of said notification, are those convicts
who have been sentenced for offences of rape, dowry death, abduction and murder
of a child below 14 years, offences coming under Sections 121 to 130 IPC, dacoity,
robbery, etc. These are the offences for which the Code has prescribed the
sentence of rigorous imprisonment extending up to life, therefore, from the
very nature of the sentence which the offence entails, the said offences can be
categorised as grave offences, therefore, they can be aptly classified as grave
offences, which classification will be a valid classification for the purpose of
deciding whether the persons who have committed such offences should be granted
remission or not. On this basis, we are of the opinion that the State
Government having decided not to grant remission to these offenders/offences
which carry life imprisonment, should not be granted remission, is justified in
doing so.
Similarly,
the offences under the NDPS and the TADA Acts, apart from carrying heavy penal
sentences are offences which could be termed as offences having serious adverse
effect on the society, cognisance of which is required to be taken by the State
while granting remission, therefore, they can also be classified as offences
which should be kept out of the purview of remission.
The
offences enumerated in Sections 121 to 130 IPC are the offences against the
State, though some of them may not be punishable with life imprisonment, still
taking into consideration the nature of offence which undermines the security
of the State, in our opinion, can be classified for exclusion from the benefit
of remission.
Again
the offences under the Foreigners Act, Passport Act, Official Secrets Act also
being offences against the State, they can be classified as offences which will
not be entitled to the benefit of remission. The persons who have indulged in
the breach of mandate of the Jail Manual can also be classified as the
offenders who should not be granted the incentive of remission because of their
conduct during the period of their conviction. Therefore, we are of the opinion
that the offences excluded from the benefit of remission under the impugned
notification have been properly classified which classification, in our
opinion, is a valid classification for the purpose of making them ineligible
for the grant of remission.
Learned
counsel for the respondent, as stated above, relying on the judgment of the
High Court in Suresh Kumar's case (supra), has argued that the State Government
did not have the power to create a further restriction than what is provided in
Section 433A of the Code in view of the Parliamentary enactment of the said
Section in the Code. We notice that the legislature by enacting Section 432 in
the Code has given wide powers of suspension, remission and commutation to
appropriate Government which can utilise the said power at any time with or
without condition. Such power can be exercised by the appropriate Government
either with reference to a single convict or with reference to a class of
convicts so long as such classification is a valid classification. However, by
enacting Section 433A in the Code, the Parliament has only restricted the power
of the appropriate Government to grant remission to the convicts mentioned in
that Section. It does not do anything more. To grant or not to grant is the
power vested in the appropriate Government under Section 432 which the said
Government can exercise either by granting remission to all convicts except
those mentioned in Section 433A or by restricting the remission to a class of
convicts provided such classification is valid. The High Court in the case of
Suresh Kumar (supra) erred in holding that the Andhra Pradesh High Court in Jagaram's
case (supra) has held that the power of the appropriate Government to restrict
the remission to any class of convicts stands excluded by virtue of the introduction
of Section 433A of the Code. This understanding of the judgment in Jagaram's
case (supra) by the Punjab & Haryana High Court is wholly erroneous. A
reading of the judgment of A.P.High Court in Jagaram's case (supra) at para 7
clearly shows an argument addressed in that case as to the curtailment of the
power of the appropriate Government by virtue of the introduction of Section
433A of the Code was specifically rejected which the Punjab & Haryana High
Court in Suresh Kumar's case (supra) misread as having upheld the said
argument. Be that as it may, we are of the opinion that by introduction of
Section 433A of the Code, the Parliament has not excluded or denuded the power
of the appropriate Government to restrict the grant of remission to a class of prisoners
only or exclude a class of prisoners from such benefit of remission.
Before
we conclude, we must note that the notification in question was valid only for
the year 1995 and the respondent herein having been given the benefit of
remission by the High Court as far back as on 20.10.2001, we do not think the
interest of justice requires us to interfere with that benefit given to the
respondent. We, however, as stated above, uphold the classification made by the
State Government in the impugned notification.
We
place on record our appreciation for the services rendered by Mr. Anil Hooda,
learned counsel, as an amicus curiae in this case.
For
the reasons stated above, this appeal succeeds to the extent indicated
hereinabove, and is thus disposed of.
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