2021 Supreme(SC) 421

SUPREME COURT OF INDIA
HEMANT GUPTA, A.S. BOPANNA, JJ.
THE STATE OF HARYANA AND OTHERS — APPELLANT
VERSUS
RAJ KUMAR @ BITTU — RESPONDENT
CRIMINAL APPEAL NO. 721 OF 2021 (ARISING OUT OF SLP (CRIMINAL) NO. 4407 OF 2020) WITH CRIMINAL APPEAL NO. 722 OF 2021 (ARISING OUT OF SLP (CRIMINAL) NO. 4634 OF 2020) AND CRIMINAL APPEAL NO. 723 OF 2021 (ARISING OUT OF SLP (CRIMINAL) NO. 2350 OF 2021)
DECIDED ON : 03-08-2021

IMPORTANT POINTS
(1) Power under Article 161 of Constitution can be exercised by State Governments, not by Governor on his own. Advice of appropriate Government binds Head of State.
(2) Policy prevalent at the time of conviction shall be taken into consideration for considering premature release of a prisoner.
(3) There is nothing illegal or improper to seek approval of Governor in all cases but in cases where prisoner has not undergone 14 years of actual imprisonment falling within scope of Section 433-A of Code, it is for Governor to exercise power conferred under Article 161 of Constitution, though on aid and advice of State Government.

Headnote:

(A) Criminal Procedure Code, 1973 – Sections 432, 433 and 433-A – Constitution of India – Article 72/161 – Remission in sentence and premature release of prison – Even if there is no specific reference to statutory power under which such policies have been issued or even if a wrong provision is mentioned, policy instructions would continue to be statutory instructions framed either under Prisons Act, 1894 or under Section 432 of Code – Power under Article 161 of Constitution can be exercised by State Governments, not by Governor on his own – Advice of appropriate Government binds Head of State – No separate order for each individual case is necessary but any general order made must be clear enough to identify group of cases and indicate application of mind to whole group – Policies of State Government are composite policies encompassing both situations under Article 161 of Constitution and Sections 432, 433 and 433-A of Code – Remission under Article 161 of Constitution will override Section 433-A of Code, if State Government decides to be governed of its constitutional power. (Paras 8 and 11)

(B) Constitution of India – Article 161 – Criminal Procedure Code, 1973 – Sections 432, 433 and 433-A – Commutation of sentence – A prisoner has to undergo a minimum period of imprisonment of 14 years without remission in case of an offence, conviction of which carries death sentence, to take benefit of policy of remission framed by an appropriate government under Section 432 of Code in view of overriding provision of Section 433-A of Code – However, power of Governor to commute sentence or to pardon is independent of any such restriction or limitation – State Government can frame a policy of grant of remissions either under Section 432 of Code or under Article 161 of Constitution – Governor continues to exercise power of commutation and release under Article 161 of Constitution, notwithstanding Section 433-A of Code – Action of commutation and release can be pursuant to a governmental decision and order may be issued even without Governor's approval – However, under Rules of Business and as a matter of constitutional courtesy, it may seek approval of Governor, if such release is under Article 161 of Constitution – Policy prevalent at the time of conviction shall be taken into consideration for considering premature release of a prisoner. (Paras 13 and 14)

(C) Criminal Procedure Code, 1973 – Sections 432, 433 and 433-A – Constitution of India – Article 72/161 – Remission in sentence and premature release of prison – Policy of premature release dated 13.8.2008 was issued in name of Governor and was published in official Gazette. Such notification is said to have been issued in exercise of powers conferred under sub-section (1) of Sections 432 and 433 of Code – Such policy is in exercise of powers conferred on appropriate Government in terms of provisions of Code and is statutory in nature – Other policy dated 12.4.2002 is in fact a memo issued by Financial Commissioner and Secretary to Government, Haryana, Jails Department, Chandigarh to Director General of Prisons, Haryana, Chandigarh – Such policy of premature release would again be traceable to provisions of Code – If a prisoner has undergone more than 14 years of actual imprisonment, State Government, as an appropriate Government, is competent to pass an order of premature release, but if prisoner has not undergone 14 years or more of actual imprisonment, Governor has a power to grant pardons, reprieves, respites and remissions of punishment or to suspend, remit or commute sentence of any person de hors restrictions imposed under Section 433-A of Constitution – Such power is in exercise of power of sovereign, though Governor is bound to act on aid and advice of State Government. (Paras 15 and 17)

(D) Criminal Procedure Code, 1973 – Sections 432, 433 and 433-A – Constitution of India – Article 72/161 – Remission in sentence and premature release of prison – Policy of 12.4.2002 is applicable in cases of prisoners who have undergone actual sentence of 14 years of imprisonment and also prisoners who have not completed 14 years of actual imprisonment – Cases of prisoners who have completed 14 years of actual imprisonment can be decided by State Government in terms of Sections 432 and 433 of Code unless State Government chooses to seek approval of Governor – There is nothing illegal or improper to seek approval of Governor in all cases but in cases where prisoner has not undergone 14 years of actual imprisonment falling within scope of Section 433-A of Code, it is for Governor to exercise power conferred under Article 161 of Constitution, though on aid and advice of State Government – Clause (b) of policy dated 12.4.2002 provided for cases of prisoners to be considered after completion of 10 years of actual sentence including undertrial period provided total period of such sentence including remission is not less than 14 years – Remissions not contemplated by Section 433-A of Code, power to remit or commute sentence can be exercised by Governor in exercise of power conferred under Article 161 of Constitution – Directions issued by High Court are not sustainable for reason that policies have to be read keeping in view period of imprisonment undergone by a prisoner – Directions issued by Single Bench are not sustainable and set aside. (Paras 18, 21 and 22)

Facts of the case:

State and the writ petitioner before the High Court, are aggrieved by an order passed by Single Bench of High Court of Punjab & Haryana at Chandigarh on 12.5.2020 whereby the policies of the State Government to grant remission to the prisoners were decided, directing the State to consider the feasibility of drafting a fresh policy particularly in respect of exercise of powers conferred under Article 161 of 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 substantial number of identically situated prisoners. The Court further observed that till such time a decision is taken, the appropriate Government can exercise its powers under Sections 432 and 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. Issue arising in the present appeals is regarding applicability of policy dated 12.4.2002 or the policy dated 13.8.2008 to prisoner convicted on 25.3.2010.

Findings of Court:

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 policy of State Government dated 13.8.2008, 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 prisoner in question for premature release after undergoing imprisonment for less than 14 years only under Article 161 of Constitution.

Result : Appeals disposed of.