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Report No. 41

29.8. Provision for general amnesty not necessary.-

Another suggestion was that there should be a provision for "general amnesty" which would relieve the appropriate Government from the necessity of passing separate orders of remission and release in every individual 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 authori ties.

29.9. Section 401(4A).-

Su.-section (4A) was inserted in section 401 by the Amendment Act of 1923 "to make it clear that the power to remit sentences conferred by section 401 can be exercised in the case of orders of a penal nature, e.g., under section 565 of the Code."1 It covers also sentences passed by tribunals constituted under regulations and ordinances.2 Though a literal or strict application of the provisions of su.-sections (1) to (4) to the cases mentioned in su.-section (4A) may not always be satisfactory, it has not created any practical difficulty. We do not think any clarificatory amendment of su.-section (4A) is required.

We find that an Uttar Pradesh amendment of 1948 has added the words "or other authority" after the words "criminal court" in su.-section (4A) in order to confer power on the State Government to modify orders passed by quas.-judicial or executive authorities under other laws. In our opinion, however, the Code is not the proper place to make such a provision. It would be more appropriate to provide for it in the special law under which the other authority can pass orders restraining the liberty of a person or imposing a liability on him.

1. Statement of Objects and Reasons, dated 16th February, 1921.

2. Report of the Select Committee, dated 26th June, 1922.

29.10. Power to commute sentences.-

Su.-section (1) of section 402 enables the appropriate Government to commute sentences without the consent of the person sentenced. This general provision has, however, to be read with sections 54 and 55 of the Indian Penal Code which contain special provisions in regard to commutation of sentences of death and of imprisonment for life. The definition of "appropriate Government" contained in su.-section (3) of section 402 is substantially the same as that contained in section 55A of the Indian Penal Code.

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 the 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".

29.11. Section 402 revised: sections 54, 55 and 55A of I.P.C. to be omitted.-

We, therefore, propose that sections 54, 55 and 55A may be omitted from the Indian Penal Code and their substance incorporated in section 402 of the Criminal Procedure Code. This section may be revised as follows.-

"402. Power to commute sentence.- (1) The appropriate Government may, without the consent of the person sentenced.-

(a) commute a sentence of death, for any other punishment provided by the Indian Penal Code;

(b) commute a sentence of imprisonment for life, for imprisonment of either description for a term, not exceeding fourteen years or for fine;

(c) commute a sentence of rigorous imprisonment, for simple imprisonment for any term to which that person might have been sentenced or for fine;

(d) commute a sentence of simple imprisonment, for fine.

(2) In this section and in section 401, the expression "appropriate Government" mean.-

(a) in cases where the sentence is for an offence against, or the order referred to in su.-section (4A) of section 401 is passed under, any law relating to a matter to which the executive power of the Union extends, the Central Government; and

(b) in other cases, the Government of the State within which the offender is sentenced or the said order is passed."

29.12. The power to suspend or remit sentences under section 401 and the power to commute sentences under section 402 are thus divided between the Central Government and the State Government on the constitutional lines indicated in Articles 72 and 161. If, for instance, a person is convicted at the same trial for an offence punishable under the Arms Act or the Explosives Act and for an offence punishable under the Indian Penal Code and sentenced to different terms of imprisonment but running concurrently, both Governments will have to pass orders before the sentences are effectively suspended, remitted or commuted.

Cases may occur where the State Government's order simply mentions the nature of the sentence remitted or commuted and is treated as sufficient warrant by the prison authorities though strictly under the law, a corresponding order of the Central Government is required in regard to the sentence for the offence falling within the Union List. The legal provisions are, however, clear on the point and we do not consider that any clarification is required.

29.13. It has been suggested that there are a few types of cases in which the Central Government is vitally concerned though the offence is against a law relating to a matter to which the executive power of the State Government extends and as such the authority to suspend, remit or commute the sentence is the State Government. Important instances are offences investigated by the Delhi Special Police Establishment, offences involving misappropriation or destruction of, or damage to, Central Government property and offences committed by Central Government servants in the discharge of their official duties.

If a State Government chooses to take a lax view of these offences and to exercise its powers of remission and commutation unduly liberally, it is bound to create difficulties of administration for the Central Government. We feel it desirable that in such cases where the Central Government is obviously concerned in the proper enforcement of the penal provisions, including the execution of sentences awarded by Court, the State Government should be required to exercise its powers of remission and commutation only in consultation with the Central Government.

29.14. We, therefore, propose that a new section 402B may be added. in this Chapter.

"402B. Central Government to be consulted in case of certain sentences.- The powers conferred by sections 401 and 402 upon the State Government to remit or commute a sentence shall, in any case where the sentence is for an offence

(i) which was investigated by the Delhi Special Police Establishment constituted under the Delhi Special Police Establishment Act, 1946, or

(ii) which involved the misappropriation or destruction of, or damage to, any property belonging to the Central Government, or

(iii) which was committed by a person in the service of the Central Government while acting or purporting to act in the discharge of his official duty, be exercised by the State Government only in consultation with the Central Government."

Code of Criminal Procedure, 1898 Back

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