Remission of sentence under Section 433A CrPC and Article 161 of the Constitution: What the Supreme Court held

The Supreme Court on Tuesday held that the state government is empowered to grant remission of sentence to a prisoner only if he has undergone 14 years of actual imprisonment. If the imprisonment is less than 14 years, premature release can exclusively be granted by the Governor, on the aid and advice of the state (State of Haryana v. Raj Kumar)..While doing so, a Bench of Justices Hemant Gupta and AS Bopanna set aside an order of the Punjab & Haryana High Court directing the State to consider the feasibility of drafting a fresh policy for remission of sentences, particularly in respect of exercise of powers under Article 161 of the Constitution..The Court also made a distinction between remission under Article 161 and Section 433A of the Code of Criminal Procedure (CrPC), stating,"Therefore, the power of the appropriate Government to release a prisoner after serving 14 years of actual imprisonment is vested with the State Government. On the other hand, the power conferred on the Governor, though exercised on the aid and advice of the State, is without any restriction of the actual period of imprisonment undergone by the prisoner. Thus, if a prisoner has undergone more than 14 years of actual imprisonment, the State Government, as an appropriate Government, is competent to pass an order of premature release, but if the prisoner has not undergone 14 years or more of actual imprisonment, the Governor has a power to grant pardons, reprieves, respites and remissions of punishment or to suspend, remit or commute the sentence of any person de hors the restrictions imposed under Section 433-A of the Constitution.".Article 161 grants the Governor the power to grant pardons, etc, and to suspend, remit or commute sentences. It reads thus:.Section 433A CrPC reads:.The issue before the Court was whether a policy on remission framed by the Haryana government dated April 12, 2002 or the policy dated August 13, 2008 would apply to a prisoner convicted in 2010..As per observations made by the High Court in State of Haryana & Ors. v. Jagdish, the 2008 policy was in exercise of the powers under Section 432 of the read with Sections 433 and 433-A of the Code of Criminal Procedure, and was thus subordinate to a 1993 policy similar to the 2002 policy, which was done in exercise of powers under Article 161..The Court noted that none of the policies framed after the inception of the CrPC, except the 2008 policy, referred to any provision of law under which such decisions were taken. The Bench referred to a number of decisions to hold,"Therefore, even if there is no specific reference to the statutory power under which such policies have been issued or even if a wrong provision is mentioned, the policy instructions would continue to be statutory instructions framed either under the Prisons Act, 1894 or under Section 432 of the Code.".On the interplay between Article 161 and 433A, the Court held,"Thus, the power under Article 161 of the Constitution can be exercised by the State Governments, not by the Governor on his own. The advice of the appropriate Government binds the Head of the State...Therefore, the policies of the State Government are composite policies encompassing both situations under Article 161 of the Constitution and Sections 432, 433 and 433-A of the Code. The remission under Article 161 of the Constitution will override Section 433-A of the Code, if the State Government decides to be governed of its constitutional power.".It further observed that the state government can frame a policy of grant of remission either under Section 432 of the Code or under Article 161 of the Constitution. On the other hand, the Governor continues to exercise the power of commutation and release under Article 161 of the Constitution, notwithstanding Section 433-A of the Code..Coming back to the case at hand, the Court cited decisions in which it was consistently held that the policy prevalent at the time of conviction shall be taken into consideration for considering the premature release of a prisoner..It was observed that the prisoner in this case had only completed 12 years and 25 days in custody. Therefore, his case for premature release under the 2008 policy could only be considered after he completes 14 years of actual imprisonment. In this light, the Court held,"Therefore, we find that the directions issued by the High Court are not sustainable for the reason that the policies have to be read keeping in view the period of imprisonment undergone by a prisoner. The power of remission is to be exercised by the State Government, as an appropriate Government, if the prisoner has undergone 14 years of actual imprisonment in the cases falling within the scope of Section 433-A of the Code and in case the imprisonment is less than 14 years, the power of premature release can be exercised by the Hon’ble Governor though on the aid and advice of the State Government.".[Read Order Here]