ABHAY S. OKA, UJJAL BHUYAN
In Re: Policy Strategy For Grant of Bail – Appellant
Versus
. – Respondent
Based on the provided legal document, here are the key points regarding the policy for the grant of bail and remission of sentences:
1. Power of Appropriate Government and Embargo * The power of the appropriate Government to remit the whole or part of a sentence under Section 432 of the CrPC and Section 473 of the BNSS is circumscribed by Section 433A of the CrPC and Section 475 of the BNSS, which imposes an embargo on granting remission to life convicts unless they have served at least 14 years of actual imprisonment (!) . * This embargo does not affect the power of the President of India under Article 72 or the Governor under Article 161 to grant pardon, commute, or remit sentences (!) . * The power to commute a sentence under Section 433 of the CrPC/Section 474 of the BNSS is independent of the power to remit a sentence (!) .
2. Consideration Without Application * Where the appropriate Government has formulated a policy for the consideration of cases for permanent remission, it is the obligation of the Government to consider the case of every eligible convict in terms of that policy (!) . * It is not necessary for a convict or their relatives to make a specific application for the grant of permanent remission if a policy exists (!) . * Granting relief only to those who apply would be discriminatory, arbitrary, and a violation of Article 14 of the Constitution (!) . * The prison superintendents must regularly forward a list of all life convicts and other convicts entitled to be considered for premature release to the appropriate Government (!) .
3. Requirement of Policy * To ensure the power is not exercised arbitrarily, all States and Union Territories that do not have an exhaustive policy on the grant of remission must formulate one within two months of the judgment (!) . * This policy can be a separate document or incorporated into prison manuals (!) .
4. Conditions for Remission * The appropriate Government has the power to grant remission either without conditions or subject to certain conditions (!) . * Conditions imposed must be reasonable, capable of being complied with, and not vague or oppressive (!) . * Factors to consider while fixing terms include the motive for the crime, criminal background, public safety, impact on society, and victims (!) . * Conditions must ensure that the criminal tendency of the convict remains in check and that they are rehabilitated in society (!) .
5. Revocation of Remission * The power to revoke remission is drastic and cannot be exercised without following the principles of natural justice (!) . * A show cause notice must be served on the convict containing the grounds for cancellation, giving them an opportunity to file a reply and be heard (!) . * The authority must pass an order stating reasons in brief (!) . * Registration of a cognizable offence against a convict, per se, is not a ground to cancel remission; allegations of breach cannot be taken at face value (!) . * Minor or trifling breaches cannot be grounds for cancellation; there must be material to substantiate allegations, and action depends on the seriousness of the breach (!) .
6. Recording Reasons and Communication * The requirement of recording reasons must be read into the provisions of Section 432 CrPC and Section 473 BNSS for both granting and rejecting prayers for permanent remission (!) . * Brief reasons must be recorded to enable the convict to understand why a prayer was rejected (!) . * The order must be communicated to the convict, and if refused, the convict must be informed of their right to challenge the order (!) . * A copy of the order rejecting a prayer must be immediately provided to the Secretary of the District Legal Services Authority to facilitate legal aid (!) .
7. Duties of Authorities * The Presiding Officer must submit their opinion at the earliest when sought, considering the issue of liberty involved (!) . * District Legal Services Authorities must implement the NALSA SOP in its true spirit and monitor the implementation of the directions regarding the consideration of eligible convicts (!) . * State Legal Services Authorities are directed to create a portal for real-time data upload regarding eligible convicts (!) .
| Table of Content |
|---|
| 1. power of remission (Para 1) |
| 2. power to remit (Para 2) |
| 3. embargo on power (Para 3 , 4) |
| 4. first issue (Para 5) |
| 5. application requirement (Para 6 , 7 , 8 , 9 , 10 , 11 , 12 , 13 , 14 , 15 , 16 , 18) |
| 6. recording reasons (Para 17) |
| 7. sop of nalsa (Para 19) |
| 8. presiding officer's duty (Para 20) |
| 9. conclusions (Para 21 , 22 , 23) |
| 10. appreciation (Para 24) |
JUDGMENT :
1. We are dealing with the power of the appropriate Government to remit the whole or a part of the sentence of the convicts. A detailed note on the subject has been submitted by Ms. Liz Mathew, learned senior counsel appointed as amicus curiae, duly assisted by learned counsel Shri Navneet R. We have heard the submissions of the learned amicus. As far as the remission of the sentence of the convicts is concerned, there are provisions under Section 432 of the Code of Criminal Procedure, 1973 (for short, ‘the CrPC’) and Section 473 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (for short, ‘the BNSS’). Section 432 of the CrPC reads thus:
2. Thus, the power conferred on the appropriate Government is of remitting the whole or part of the punishment to which an accused has been sentenced with or without conditions. Th
Sangeet and Anr. v. State of Haryana
Mohinder Singh v. State of Punjab
Rashidul Jafar v. State of Uttar Pradesh (2024) 6 SCC 561 [Para 8]
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