THE STATE OF HARYANA vs. RAJ KUMAR @ BITTU

REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 721 OF 2021 (ARISING OUT OF SLP (CRIMINAL) NO. 4407 OF 2020)

W I T H CRIMINAL APPEAL NO. 722 OF 2021 (ARISING OUT OF SLP (CRIMINAL) NO. 4634 OF 2020) A N D CRIMINAL APPEAL NO. 723 OF 2021 (ARISING OUT OF SLP (CRIMINAL) NO. 2350 OF 2021) J U D G M E N T HEMANT GUPTA, J. 1 1. The State and the writ petitioner before the High Court, are ag- grieved by an order passed by the learned Single Bench of the High Court of Punjab & Haryana at Chandigarh on 12.5.2020 whereby the policies of the State Government to grant remission Signature Not Verified Digitally signed by Neelam Gulati Date: 2021.08.03 16:36:10 IST Reason: to the prisoners were decided, inter alia, directing the State to consider the feasibility of drafting a fresh policy particularly in re- 1 Hereinafter referred to as the ‘prisoner’ 1 spect of exercise of powers conferred under Article 161 of the Constitution. It was also held that the State may also consider the feasibility of having a policy with retrospective operation, provided the same does not lead to discrimination amongst sub- stantial number of identically situated prisoners. The Court fur- ther observed that till such time a decision is taken, the appropri- ate Government can exercise its powers under Sections 432 and 2 433 of the Code of Criminal Procedure, 1973 in terms of policy dated 13.8.2008, but while strictly adhering to the restrictions imposed under Section 433-A of the Code. 2. The learned Single Bench has referred to certain policies circu- lated by the State Government. First policy referred to was circu- lated on 23.4.1987 wherein the convicts on whom punishment of life imprisonment is imposed on conviction of an offence for which death is one of the punishments provided by law, or where the sentence of death imposed on a person had been commuted under Section 433 of the Code on or after 18.12.78, would be considered by the State Government for premature release after they have undergone 14 years of substantive sentence. There- after, policies dated 28.9.1988, 19.11.1991, 8.8.2000 and 12.4.2002 were issued contemplating that case of premature re- lease would be considered on individual basis after review by the State Level Committee falling within the purview of Section 433 of the Code and cases thereafter shall be put up to the Hon’ble Governor. However, the policy dated 13.8.2008 did not contem- 2 For short, the ‘Code’ 2 plate that the individual cases will have to be placed before the Hon’ble Governor. 3. The relevant provisions of the Constitution and the Code read as thus: Constitution of India

Code of Criminal Procedure 1973 432. Power to suspend or remit sentences. - (1) When any person has been sentenced to punishment for an offence, the appropriate Government may, at any time, without conditions or upon any conditions which 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.

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433. Power to commute sentence. - The appropriate Government may, without the consent of the person sentenced, commute— (a) a sentence of death, for any other punish- ment provided by the Indian Penal Code (45 of 1860); (b) a sentence of imprisonment for life, for im- prisonment for a term not exceeding fourteen years or for fine; (c) a sentence of rigorous imprisonment, for simple imprisonment for any term to which that person might have been sentenced, or for fine; (d) a sentence of simple imprisonment, for fine.

4. The issue arising in the present appeals is regarding applicability of policy dated 12.4.2002 or the policy dated 13.8.2008 to the prisoner convicted on 25.3.2010. This Court in State of 4 3 Haryana & Ors. v. Jagdish inter-alia held (para 52) that the policy dated 4.2.1993 refers to the exercise of powers under Article 161 of the Constitution whereas the policy dated 13.8.2008 is in exercise of the powers conferred under Section 432 read with Sections 433 and 433-A of the Code. The said policy is a rule of procedure, thus, subordinate to the Constitution. The power exercised under Article 161 is a mandate of the Constitution, therefore, the policy dated 13.8.2008 cannot override the policy dated 4.2.1993. It is the said finding which is required to be examined in the present appeals, though in the context of similar later policy dated 12.4.2002. The two polices are reproduced hereinbelow before the case of premature release can be considered. The two polices in juxtaposition read as thus: 3 (2010) 4 SCC 216 5

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7 5. In Jagdish , this Court did not approve the judgment of this Court 4 in Sadhu Singh & Ors. v. State of Punjab wherein it was held that these policies are executive instructions. Instead, this Court approved the judgment of this Court reported as State of 5 Haryana v. Mahender Singh & Ors. wherein it was held that these policies of remission are in exercise of the powers conferred under Section 59(5) of the Prisons Act, 1894, contemplating “for the award of marks and the shortening of sentences” and thus, they are statutory rules. Sections 401 and 402 of the Code were not empowering the appropriate Government to issue general or special orders and the conditions on which petitions for premature release should be presented and dealt with. The Sections 432 and 433 of the Code had corresponding provisions in Sections 401 and 402 of the Code but sub-section (5) of Section 432 empowers an appropriate Government to issue general or special orders. Therefore, after the commencement of the Code on 1.4.1974, the power to issue general or special orders allowing remissions is traceable to Section 432 of the Code. Hence, the policies issued thereafter are statutory in nature, having being framed in exercise of powers conferred on appropriate Government under Section 432 of the Code. 6. None of the policies framed after 1974, except the one which 4 (1984) 2 SCC 310 5 (2007) 13 SCC 606 8 was published in the State Government Gazette on 13.8.2008, referred to any provision of law under which such decisions have been communicated to the Director General of Prisons. The Constitution Bench judgment of this Court reported as L. Hazari Mal Kuthiala v. Income Tax Officer, Special Circle, Ambala 6 Cantt. held that exercise of powers will be referrable to a jurisdiction which confers validity upon it and not to a jurisdiction under which it will be nugatory. This Court held as under:

7. Such principle of law was reiterated in a three-Judge Bench judgment of this Court reported as N. Mani v. Sangeetha 7 Theatre & Ors. wherein it was held as under:

8. Therefore, even if there is no specific reference to the statutory power under which such policies have been issued or even if a 6 AIR 1961 SC 200 7 (2004) 12 SCC 278 9 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. 8 9. In Maru Ram v. Union of India & Ors. , a Constitution Bench considering the scope of Article 161 of the Constitution and the provisions of the Code held as under: “54. …. 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 sentence without the hardship of fourteen fettered years. xxx xxx xxx 57. We now move on to the second contention which deals with the power of remission under the Constitution and the fruits of its exercise vis-à-vis Section 433-A. Nobody has a case – indeed can be heard to contend – that Article 72 and 161 must yield to Section 433- A…………………... xxx xxx xxx 59. It is apparent that superficially viewed, the two powers, one constitutional and the other statutory, are coextensive. But two things may be similar but not the same. That is precisely the difference. We cannot agree that the power which is the creature of the Code can be equated with a high prerogative vested by the 8 (1981) 1 SCC 107 10 Constitution in the highest functionaries of the Union and the States. The source is different, the substance is different, the strength is different, although the stream may be flowing along the same bed. We see the two powers as far from being identical, and, obviously, the constitutional power is ‘untouchable’ and ‘unapproachable’ and cannot suffer the vicissitudes of simple legislative processes. Therefore, Section 433-A cannot be invalidated as indirectly violative of Articles 72 and 161. What the Code gives, it can take, and so, an embargo on Sections 432 and 433(a) is within the legislative power of Parliament. 60. Even so, we must remember the constitutional status of Articles 72 and 161 and it is common ground that Section 433-A does not stand and cannot affect even a wee bit the pardon power of the Governor or the President. The necessary sequel to this logic is that notwithstanding Section 433-A the President and the Governor continue to exercise the power of commutation and release under the aforesaid articles.

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72. We conclude by formulating our findings:

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10. The Constitution Bench in Union of India v. V. Sriharan & 9 Ors. inter alia examined the provisions of Articles 161 and 162 of the Constitution. It was held as under: “22. Therefore, the resultant position would be that the Executive Power of the Union and its authorities in relation to grant of remission, commutation, etc. are available and can be exercised by virtue of the implication of Article 73(1)(a) read along with its proviso and the exercise of 9 (2016) 7 SCC 1 13 such power by the State would be controlled and limited as stipulated in the proviso to Article 162 to the extent to which such control and limitations are prescribed in the Criminal Procedure Code.” 11. 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. No separate order for each individual case is necessary but any general order made must be clear enough to identify the group of cases and indicate the application of mind to the whole group. 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. 10 12. In State of Haryana v. Nauratta Singh & Ors. , this Court referred to Maru Ram’s case holding that period of 14 years as specified in Section 433-A of the Code is the actual period of imprisonment undergone by the prisoner without including any period of remission. This Court was examining the case where the accused was acquitted by the trial court but was convicted by the High Court. He was on bail during the pendency of the appeal before the High Court. The claim of the prisoner was that 10 (2000) 3 SCC 514 14 the period of bail in terms of the order of the High Court has to be included in the period of 14 years of imprisonment. The Court held as under: “5. We may point out that Section 433-A of the Code was introduced in the statute-book on 8-12-1978 by which the power of a State Government to release a person (who has been convicted and sentenced to life imprisonment of any offence punishable with death or imprisonment for life) has been curtailed by introducing the rider that such convicted person should have served at least 14 years of imprisonment. A Constitutional Bench of this Court has held in Maru Ram v. Union of India that the period of 14 years envisaged in the new provision is the actual period of imprisonment undergone by the prisoner without including any period of remission.” 9. In Jagdish , t he question raised was as to whether the policy which makes a provision for remission of sentence should be the one which was existing on the date of the conviction of the accused or the one which existed on the date of consideration of his case for premature release by the appropriate authority. The Court held that the amendment inserting Section 433-A in the Code would apply prospectively. The life 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

ing policies could be taken as guidelines for exercise of powers

tuality, remission rules would override Section 433-A of the Code. T his Court held that Section 433-A of the Code cannot and does not in any way affect the constitutional power conferred on 15 the President/Governor under Articles 72/161 of the Constitution. It was held as under: “ 26. This Court in Ashok Kumar [(1991) 3 SCC 498 : 1991 SCC (Cri) 845 : AIR 1991 SC 1792] considered the matter elaborately taking into consideration a large number of its earlier judgments including Maru Ram [(1981) 1 SCC 107 : 1981 SCC (Cri) 112] , Bhagirath v. Delhi Admn. [(1985) 2 SCC 580 : 1985 SCC (Cri) 280 : AIR 1985 SC 1050] ; Kehar Singh v. Union of India [(1989) 1 SCC 204 : 1989 SCC (Cri) 86 : AIR 1989 SC 653] and came to the following conclusions:

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13. Thus, a prisoner has to undergo a minimum period of imprisonment of 14 years without remission in the case of an offence, the conviction of which carries death sentence, to take benefit of policy of remission framed by an appropriate government under Section 432 of the Code in view of the overriding provision of Section 433-A of the Code. However, the power of the Hon’ble Governor to commute sentence or to pardon is independent of any such restriction or limitation. The State Government can frame a policy of grant of remissions either under Section 432 of the Code or under Article 161 of the Constitution. The Governor continues to exercise the power of commutation and release under Article 161 of the Constitution, notwithstanding Section 433-A of the Code. The action of commutation and release can thus be pursuant to a governmental decision and the order may be issued even without the Governor's approval. However, under the Rules of Business and as a matter of constitutional courtesy, it may seek approval of the Governor, if such release is under Article 161 of the Constitution. 17 14. Still further, it is the consistent view of this Court that the policy prevalent at the time of conviction shall be taken into consideration for considering the premature release of a prisoner. In Jagdish, while determining the policy which would be applicable for the remission of sentence, this Court held as under: “27. In Mahender Singh, 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 following ground: (SCC p. 619, para 38) 38. 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 thereunder.” 15. The policy of premature release dated 13.8.2008 was issued in the name of the Governor and was published in the official Gazette. Such notification is said to have been issued in exercise of the powers conferred under sub-section (1) of Sections 432 and 433 of the Code. Keeping in view the principles of law enunciated above, such policy is in exercise of the powers conferred on the appropriate Government in terms of the provisions of the Code and is thus statutory in nature. The other policy dated 12.4.2002 is in fact a memo issued by the Financial Commissioner and Secretary to Government, Haryana, Jails Department, Chandigarh to the Director General of Prisons, 18 Haryana, Chandigarh. Such policy of premature release would again be traceable to the provisions of the Code. 16. Mr. Nikhil Goel, learned Additional Advocate General for the State of Haryana, submitted that different policies have been issued from time to time and the later policy has superseded the earlier one, so there was no hiatus when a policy of premature release was not in operation or at any given point of time, the two polices were operational. The argument of Mr. Goel merit acceptance inasmuch as the policy dated 12.4.2002 is in supersession of earlier policy circulated on 8.8.2000 substituted later on 23.2.2001. The policy dated 13.8.2008 has substituted the earlier policy dated 12.4.2002 and such policy has been published on behalf of the Governor of the State. The policy dated 13.8.2008 has been issued in exercise of powers conferred by sub-section (1) of Section 432 read with Section 433 of the Code and in supersession of Government Memorandum dated 12.4.2002 and all other policies. The policy dated 13.8.2008 is a statutory policy. The said policy cannot and has not tried to take over the discretion vested in the Hon’ble Governor to grant pardons, remissions or commute sentence in exercise of powers conferred under Article 161 of the Constitution but it is the policy issued under a Statute and therefore, such policy has a statutory force. The policy dated 12.4.2002 is again a statutory policy and cannot be put at a higher pedestal than the policy dated 13.8.2008 for the reason that it seeks approval from the Hon’ble 19 Governor. Such policy has been specifically superseded on 13.8.2008, ceases to be operative for the convicts who are convicted after 13.8.2008. 17. Section 433-A of the Code starts with a non-obstante clause restricting the right of the appropriate Government, to suspend the sentence of imprisonment for life imposed on conviction of a person for an offence for which death is one of the punishments provided by law, that such person shall not be released from prison unless he has served at least 14 years of imprisonment. 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. Such power is in exercise of the power of the sovereign, though the Governor is bound to act on the aid and advice of the State Government. 20 18. The policy of 12.4.2002 is applicable in the cases of the prisoners who have undergone actual sentence of 14 years of imprisonment and also the prisoners who have not completed 14 years of actual imprisonment. Therefore, the cases of the prisoners who have completed 14 years of actual imprisonment can be decided by the State Government in terms of Sections 432 and 433 of the Code unless the State Government choses to seek the approval of the Hon’ble Governor. There is nothing illegal or improper to seek approval of the Hon’ble Governor in all cases but in the cases where the prisoner has not undergone 14 years of actual imprisonment falling within scope of Section 433-A of the Code, it is for the Hon’ble Governor to exercise the power conferred under Article 161 of the Constitution, though on the aid and advice of the State Government. We find that clause (b) of the policy dated 12.4.2002 provided for the cases of the prisoners to be considered after completion of 10 years of actual sentence including undertrial period provided the total period of such sentence including remission is not less than 14 years. The remissions not contemplated by Section 433-A of the Code, the power to remit or commute sentence can be exercised by the Governor in exercise of the power conferred under Article 161 of the Constitution. This explains the last line in the policy that such cases will be put up before the Governor with full background of the prisoner and recommendation of the Committee including copy of the judgment for orders under 21 Article 161 of the Constitution. 19. The Notification dated 13.8.2008 published in exercise of the powers conferred upon an appropriate Government under Section 432(5) of the Code, provides that the appropriate Government may, by general rules or special orders, give directions as to the suspension of sentences and the conditions on which petitions should be presented and dealt with . Therefore, all the polices issued from time to time are under Section 432 of the Code, though no reference is made to such provisions in any of the policies except the last one dated 13.8.2008. The source of power to frame guidelines or the policies for remission etc. was earlier in Section 59(5) of the Prisons Act, 1894 and now in terms of Section 432(5) of the Code. Therefore, such policies are statutory in nature, framed in exercise of power conferred upon appropriate government under Section 432(5) of the Code. 20. The clause 2(c) of the policy dated 13.8.2008 deals with the convicts who have been imprisoned for life having committed a crime which is defined in the Indian Penal Code, 1860 (IPC) as punishable for life imprisonment but not with death sentence. The cases of such prisoners can be considered after completion of 10 years of actual sentence including undertrial period provided the total period of such sentence including remission is not less than 14 years. The distinction is that in such cases, the remission is taken into consideration whereas, the remissions 22 earned by a prisoner convicted for an offence under Section 302 IPC, an offence punishable with death, cannot be considered for premature release. If such a prisoner is to be considered for premature release in the cases of life imprisonment for an offence under IPC, the bar under Section 433-A of the Code would not apply. The judgment in Jagdish has to be read in the light of the distinction which we have drawn between the power exercised by the Hon’ble Governor and the power to be exercised by the State Government. 21. 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. 22. Consequently, the directions issued by the learned Single Bench are not sustainable and are hereby set aside. 23 23. The prisoner herein has completed 12 years and 25 days as on 6.7.2021 as per the custody certificate produced by the State. The case for premature release of the prisoner in terms of the policy of the State Government dated 13.8.2008, the policy which was applicable on the date of his conviction, can be considered only after he completes 14 years of actual imprisonment. However, the State Government can consider the prisoner in question for premature release after undergoing imprisonment for less than 14 years only under Article 161 of the Constitution. 24. The appeals are disposed of accordingly. .............................................J. (HEMANT GUPTA) .............................................J. (A.S. BOPANNA) NEW DELHI; AUGUST 03, 2021. 24