Appeal against the legality of the conditions imposed while remitting the life sentence
2. The issue involved in this appeal is as regards the legality of the conditions imposed while remitting the life sentence of the appellant in the exercise of powers under subsection (1) of Section 432 of the Code of Criminal Procedure, 1973 (for short, ‘the CrPC’). There is an identical provision in the Bharatiya Nagarik Suraksha Sanhita, 2023 (for short, ‘the BNSS’) in the form of subsection (1) of Section 473.
Factual Aspects
Appellant convicted for murder and attained finality
3. The appellant was convicted for the offence punishable under Section 302 read with Sections 147 and 148 of the Indian Penal Code, 1860 (for short, ‘the IPC’) and was sentenced on 18th February 2008 to undergo life imprisonment. The conviction of the appellant has attained finality.
Appeal against rejection of application for grant of parole
4. The present appeal arises out of an order passed by the High Court of Gujarat on an application made by the appellant for grant of parole under Rule 19 of the Prisons (Bombay Furlough and Parole) Rules, 1959. As the prayer was rejected by the impugned order, this appeal was filed before this Court. While arguing the appeal before this Court, on 26th June 2023, a submission was made on behalf of the appellant that the application for remission made by the appellant under subsection (2) of Section 432 of the CrPC was not being considered by the State Government. Therefore, a notice was issued on 26th June 2023 on that limited aspect, and a direction was issued to expeditiously decide the pending application for grant of remission.
5. On 15th September 2023, the Home Department of the Government of Gujarat passed an order granting remission to the appellant. His remaining sentence was remitted. While granting remission by the order dated 15th September 2023, four conditions were imposed, which read thus:
“Conditions:
(1) After the release from jail the prisoner shall behave decently for 2 (Two) years. For this purpose he has to submit two Sureties of the respectable persons of the Society stating that the prisoner shall not breach the peace and harmony of the society and also shall not threaten the complainant and witnesses.
(2) If the prisoner after the release from the jail carries out any cognizable offence or inflict any serious injury to any citizen or property then he will be arrested again and he will have to serve the remaining period of sentence in jail.
(3) After being released from jail the prisoner shall mark his presence in the nearest police station for a period of 1 (one) year.
(4) The prisoner shall be released only after paying the unpaid fine amount if any.”
(emphasis added)
As the appellant was aggrieved by the first two conditions, we permitted him to amend the appeal and challenge conditions nos.1 and 2 instead of driving him to file a fresh writ petition before the High Court.
Consideration of submissions
Under section 432 Cr.P.C remission can be granted by the appropriate government either unconditionally or subject to certain conditions
9. Section 432 of the CrPC reads thus:
“section 432 Cr.P.C”
Under subsection (1) of Section 432 of the CrPC, the appropriate Government has the power to remit the whole or any part of the punishment of a convict. The remission can be granted either unconditionally or subject to certain conditions. As expressly provided under subsection (1) of Section 432, actual remission takes effect only after the convict accepts the conditions. Thus, there is no doubt that there exists a power in the appropriate Government to grant remission subject to compliance with conditions.
Judgements analysis
10. Insofar as the exercise of power under subsection (1) of Section 432 of the CrPC is concerned, the Constitution Bench in the case of V. Sriharan [(2016) 7 SCC 1]has approved the view taken by this Court in the case of Mohinder Singh v. State of Punjab [(2013) 3 SCC 294]. The view taken is that the decision to grant remission has to be well informed, reasonable and fair to all concerned.
Power to remit sentence is discretionary and antecedents of convict also relevant
11. It is no doubt true that the power to remit a sentence under Section 432(1) of the CrPC is discretionary. One of the considerations for the exercise of the discretion can be public interest. The gravity and nature of the offences committed by the convict are also factors to be considered. The antecedents of the convict are also relevant. Almost all the States have a written policy on the grant of remission under Section 432(1) of the CrPC. For example, the 1st respondent, the State of Gujarat, has a policy that forms part of the Government Resolution dated 23rd January 2014, which was amended from time to time. The said Government Resolution incorporates guidelines/policy for consideration of cases for grant of remission and premature release of prisoners. The existence of a rational policy is necessary to prevent the arbitrary exercise of power to grant a remission under Section 432(1) of the CrPC.
A convict cannot seek remission as a matter of right but he has right to say his case ought to be considered in accordance with law
12. A convict cannot seek remission as a matter of right. However, he has a right to say that his case for the grant of remission ought to be considered in accordance with the law. The power under subsection (1) of Section 432 of the CrPC has to be exercised in a fair and reasonable manner. Therefore, conditions imposed while exercising the power under subsection (1) of Section 432 must be reasonable. The conditions must stand the test of scrutiny of Article 14 of the Constitution of India. If the conditions imposed are arbitrary, the conditions will stand vitiated due to violation of Article 14. Such arbitrary conditions may also violate the convict’s rights under Article 21 of the Constitution.
Conditions imposed while granting remission must be capable of being complied with and enforced
13. Now, we come to condition no.1. The first part of this condition requires the convict to behave decently for a period of two years after release from jail. The convict must submit two respectable sureties to ensure that he does not commit the breach of peace and harmony of the society and does not threaten the complainant and the witnesses. The words ‘decent’ or ‘decently’ are not defined in the CrPC or any other cognate legislation. The concept of decency of each human being is likely to be different. The idea of decency keeps on changing with time. As the term ‘decency’ is not defined in the CrPC or any other cognate legislation, every person or authority may interpret the same differently. Therefore, such a condition while granting remission becomes too subjective. Putting such a vague condition while exercising the power under subsection (1) of Section 432 of the CrPC will give a tool in the hands of the executive to cancel the remission at its whims and fancies. Therefore, such a condition is arbitrary and will be hit by Article 14 of the Constitution of India. Such a condition cannot be imposed as it will defeat the very object of remitting the sentence in the exercise of powers under subsection (1) of Section 432 of the CrPC. Therefore, condition no.1 cannot be sustained. If a condition imposed is unclear or ambiguous, it can have different meanings. Consequently, it becomes very difficult to enforce such conditions. Thus, the condition imposed while granting remission must be such that it is capable of being complied with and enforced.
14. Now, we come to condition no.2, which provides that if the appellant, after his release from jail, commits any cognizable offence or inflicts any serious injury to any citizen or property, he will be arrested again and will have to serve the remaining period of the sentence in jail. Thus, this condition authorises the appropriate Government to arrest the convict and revoke the benefit of remission. This clause provides for automatic cancellation of the order remitting the sentence. In this respect, it is necessary to consider the decision of this Court in the case of Shaikh Abdul Azees [(1977) 2 SCC 485]. It was a case where remission was earned by the appellant therein after undergoing a life sentence for fifteen and a half years. The High Court held that Section 303 of the IPC was applicable, and this was a case of conditional remission under Section 401 of the CrPC of 1898. Section 401 of the CrPC of 1898 has been quoted in paragraph 13 of the said decision, which reads thus:
“13. We are, however, clearly of opinion that for the purpose of Section 303 IPC it does not make any difference whether the remission under Section 401 CrPC is with or without conditions. This is clear from a perusal of subsection (3) of Section 401 CrPC which reads as follows:
“401(3) If any condition on which a sentence has been suspended or remitted, is, in the opinion of the appropriate Government, not fulfilled, the appropriate Government may cancel the suspension or remission and thereupon the person in whose favour the sentence has been suspended or remitted, may, if at large, be arrested by any police officer without warrant and remanded to undergo the unexpired portion of the sentence.”
An identical provision is found in subsection (3) of Section 432 of the CrPC and subsection (3) of Section 473 of BNSS. Ultimately, in paragraph 14 of the said decision, while dealing with subsection (3) of Section 401 of the CrPC of 1898, this Court held thus:
“14. It is manifest from the above provision that on breach of any condition of the remission there is not an automatic revival of the sentence. It will certainly be open to the Government in a particular case to cancel the remission but it may not. The Government is not under a legal obligation to cancel the remission. It is only when the Government chooses to pass an order of cancellation of the remission of sentence that the convict is arrested and is required to serve the unexpired portion of the sentence. During the interregnum the accused who is released cannot be said to be under a sentence of imprisonment for life. While he is in enjoyment of the freedom on account of remission, that period is not even reckoned under Section 401 CrPC for the purpose of calculation of the sentence to be served in the eventuality.” (emphasis added)
Procedure to revoke the remission granted explained
15. The effect of remitting the sentence is the restoration of the liberty of a convict. If the order granting remission is to be cancelled or revoked, it will naturally affect the convict’s liberty. The reason is that when an action is taken under subsection (3) of Section 432 of the CrPC or subsection (3) of Section 473 of the BNSS, it results in the convict being taken to prison for undergoing the remaining part of the sentence. Thus, the benefit of remission stands withdrawn. Therefore, this drastic power cannot be exercised without following the principles of natural justice. A show cause notice must be served on the convict before taking action to withdraw/cancel remission. The show cause notice must contain the grounds on which action under subsection (3) of Section 432 of the CrPC or subsection (3) of Section 473 of the BNSS is proposed to be taken. The concerned authority must give the convict an opportunity to file a reply and of being heard. After that, the authority must pass an order stating brief reasons. The principles of natural justice must be read into subsection (3) of Section 432 and subsection (3) of Section 473 of the BNSS. The convict whose remission has been cancelled can always adopt a remedy under Article 226 of the Constitution of India.
Registration of a cognizable offence against the convict, per se, is not a ground to cancel the remission
16. In view of the legal position stated above, condition no.2 cannot be interpreted to mean that every allegation of a breach thereof would automatically result in the cancellation of the order of remission. Registration of a cognizable offence against the convict, per se, is not a ground to cancel the remission order. The allegations of breach of condition cannot be taken at their face value, and whether a case for cancellation of remission is made out will have to be decided in the facts of each case. Every case of breach cannot invite cancellation of the order of remission. The appropriate Government will have to consider the nature of the breach alleged against the convict. A minor or a trifling breach cannot be a ground to cancel remission. There must be some material to substantiate the allegations of breach. Depending upon the seriousness and gravity thereof, action can be taken under subsection (3) of Section 432 of the CrPC or subsection (3) of Section 473 of the BNSS of cancellation of the order remitting sentence.
Hon’ble Supreme Court established the procedure to remit and cancel remission by the appropriate government
17. Our conclusions can be summarised as under:
(i) Under subsection (1) of Section 432 of the CrPC or subsection (1) of Section 473 of the BNSS, the appropriate Government has the power to remit the whole or any part of the punishment of a convict. The remission can be granted either unconditionally or subject to certain conditions;
(ii) The decision to grant or not to grant remission has to be well informed, reasonable and fair to all concerned;
(iii) A convict cannot seek remission as a matter of right. However, he has a right to claim that his case for the grant of remission ought to be considered in accordance with the law and/or applicable policy adopted by the appropriate Government;
(iv) Conditions imposed while exercising the power under subsection (1) of Section 432 or subsection (1) of Section 473 of the BNSS must be reasonable. If the conditions imposed are arbitrary, the conditions will stand vitiated due to violation of Article 14. Such arbitrary conditions may violate the convict’s rights under Article 21 of the Constitution;
(v) The effect of remitting the sentence, in part or full, results in the restoration of liberty of a convict. If the order granting remission is to be cancelled or revoked, it will naturally affect the liberty of the convict. The reason is that when action is taken under subsection (3) of Section 432 of the CrPC or subsection (3) of Section 473 of the BNSS, it results in the convict being taken to prison for undergoing the remaining part of the sentence. Therefore, this drastic power cannot be exercised without following the principles of natural justice. A show cause notice must be served on the convict before taking action to withdraw/cancel remission. The show cause notice must contain the grounds on which action under subsection (3) of Section 432 of the CrPC or subsection (3) of Section 473 of BNNS is sought to be taken. The concerned authority must give the convict an opportunity to file a reply and of being heard. After that, the authority must pass an order stating the reasons in brief. The convict can always challenge the order of cancellation of remission by adopting a remedy under Article 226 of the Constitution of India.; and
(vi) Registration of a cognizable offence against the convict, per se, is not a ground to cancel the remission order. The allegations of breach of condition cannot be taken at their face value, and whether a case for cancellation of remission is made out will have to be decided in the facts of each case. Every case of breach cannot invite cancellation of the order of remission. The appropriate Government will have to consider the nature of the breach alleged against the convict. A minor or a trifling breach cannot be a ground to cancel remission. There must be some material to substantiate the allegations of breach. Depending upon the seriousness and gravity thereof, action can be taken under subsection (3) of Section 432 of the CrPC or subsection (3) of Section 473 of the BNSS of cancellation of the order remitting sentence.
18. Therefore, we pass the following order:
a. The first part of condition no.1 regarding behaving decently, being manifestly arbitrary, is struck down. Therefore, the undertaking given by the appellant and the surety bonds submitted by him stand cancelled only to that extent;
b. Condition no.2 stands clarified in terms of this judgment;
c. The order of remission shall not be revoked on the ground of breaches of conditions without compliance with the principles of natural justice as provided in paragraph 17(v) above; and
d. The Appeal is partly allowed on the above terms.
Party
Mafabhai Motibhai Sagar … Appellant versus State of Gujarat & Ors. … Respondents – CRIMINAL APPEAL NO.4307 OF 2024 (Arising out of Special Leave Petition (Crl.) No.6166 of 2023) – 2024 INSC 806 – October 21, 2024
