Full Judgment Text
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CASE NO.:
Appeal (crl.) 948 of 2003
PETITIONER:
State (Govt. of NCT of Delhi)
RESPONDENT:
Vs.
Prem Raj
DATE OF JUDGMENT: 05/08/2003
BENCH:
DORAISWAMY RAJU & ARIJIT PASAYAT.
JUDGMENT:
J U D G M E N T
(Arising Out of S.L.P. (Crl.) No.5659 of 2002
ARIJIT PASAYAT,J.
Leave granted.
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
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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
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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,
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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.
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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
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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
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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 â\200\223 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
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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.