State (Govt. Of Nct Of Delhi) vs Prem Raj

The 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').

Factual position giving rise to the appeal is as

follows:

Respondent (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.

The 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.

In 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.

Learned 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.

Section 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.

Sub-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:

"(b) 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.

A 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 pardoned.

Reprieve 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.

It is 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.

By 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.

Remission 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.

Section 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.

Sections 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.

"Pardon 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.

An 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):

"The 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.

That 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.

"Commutation" 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:

"The 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

Central Government.

It is 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.

As 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 sentence.

The 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.

The 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 same footing.

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.

The 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.

In any 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.

Another 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.

Sub-section (1) of Section 402 enables the

appropriate Government to commute sentences

without the consent of the person sentenced.

The 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.

(ii) "Clauses 441 to 444 – These clauses

correspond to sections 401 and 402 and

sections 54, 55 and 55A of the IPC.

The 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.

Where 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".

It is brought to our notice that the amount directed to

be deposited has been so done by the respondent-accused

before the Trial Court.

We set 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.

The appeal is allowed to the extent indicated.