In Re: Policy Strategy For Grant of Bail vs .

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2025 Supreme(SC) 361

SUPREME COURT OF INDIA
Abhay S. Oka, Ujjal Bhuyan, JJ.
In Re: Policy Strategy For Grant of Bail
Suo Motu Writ Petition (Crl. No. 4 of 2021 With Special Leave Petition (Crl. No. 529 of 2021
Decided On : 18-02-2025

Advocates appeared:
For the Parties : By Courts Motion Ms. Liz Mathew, Sr. Adv. (A.C.) Mr. Navneet R., AOR Ms. Mallika Agarwal, Adv. Ms. Bagavathy Vennimalai, Adv. Mr. Togin M. Babichen, Adv. Mr. Omkar Hemanth, Adv. Ms. Alankrita Sinha, Adv. Mrs. Prerna Dhall, Adv. Mr. Shivam Ganeshia, Adv. Mr. M N Gopinadh, Adv. Ms. Karishma Rajput, Adv. Mr. Prashant Singh, AOR Ms. Akanksha Singh, Adv. Mr. V Balachandran, Adv. Mr. Siddharth Naidu, Adv. For M/S. KSN & Co., AOR Mr. K.M. Nataraj, A.S.G. Mr. Piyush Beriwal, Adv. Mr. B.K. Satija, Adv. Ms. Mrinal Elkar Mazumdar, Adv. Mr. Mukesh Kr. Verma, Adv. Mr. Neeraj Kr. Sharma, Adv. Ms. Indira Bhakar, Adv. Mr. Kanu Agrawal, Adv. Mr. Varun Chugh, Adv. Mr. Bhuvan Kapoor, Adv. Mr. Vatsal Joshi, Adv. Mr. Shreekant Neelappa Terdal, AOR Mr. Krishna Kant Dubey, Adv. Mr. Guntur Pramod Kumar, AOR Ms. Prerna Singh, Adv. Mr. Samarth Krishan Luthra, Adv. Mr. Dhruv Yadav, Adv. Mr. Amit Sharma, A.A.G. Mr. Pashupathi Nath Razdan, AOR Mr. Sarthak Raizada, Adv. Mr. Rajan K. Choursia, Adv. Mr. Sahil Tagotra, AOR Mr. Sujay Jain, Adv. Mr. Ashok Kumar Panda, Sr. Adv. Mr. Chanchal Kumar Ganguli, Adv. Mr. Soumitra G. Chaudhuri, Adv. Mr. Samir Ali Khan, AOR Ms. K. Enatoli Sema, AOR Mr. Amit Kumar Singh, Adv. Ms. Chubalemla Chang, Adv. Mr. Prang Newmai, Adv. Mr. Milind Kumar, AOR For M/S. Arputham Aruna And Co, AOR Mr. Arunabh Chowdhury, Sr. A.A.G. Mr. Vishnu Sharma, Standing Counsel, Adv. Ms. Madhusmita Bora, AOR Mr. Pawan Kishore Singh, Adv. Mr. Dipankar Singh, Adv. Mr. Anando Mukherjee, AOR Mr. Aravindh S., AOR Mr. Akshay Gupta, Adv. Mr. Aadithya Aravindh, Adv. Mr. Gopal Jha, AOR Mr. Shreyash Bhardwaj, Adv. Mr. Umesh Kumar Yadav, Adv. Ms. Vishakha, AOR Mr. Abhimanyu Tewari, AOR Ms. Eliza Bar, Adv. Mr. Mrigank Prabhakar, AOR Ms. Medha Deo, Adv. Mr. Siddharth Sahu, Adv. Mr. Dhirendra Kumar Mishra, Adv. Mr. Md. Sheikh Khalid Saifullah, Adv. Mr. Rameshwar Prasad Goyal, AOR Mr. Amol Chitravanshi, AOR Mr. Prashant Shrikant Kenjale, AOR Ms. Srishty Pandey, Adv. Ms. S. Soorya Gayathry, Adv. Mr. P.V. Surendranath, Sr. Adv. Mr. Harshad V. Hameed, AOR Mr. Dileep Poolakkot, Adv. Mrs. Ashly Harshad, Adv. Mr. Sawan Kumar Shukla, Adv. Ms. Lekha Sudhakaran, Adv. Ms. Sindoora Vnl, AOR Ms. Mridula Ray Bharadwaj, AOR Mr. Kanhaiya Singhal, AOR Mr. Kanhaiya Singhal, Adv. Ms. Vani Singhal, Adv. Mr. Prasanna, Adv. Mr. Ajay Kumar, Adv. Mr. Debojit Borkakati, AOR Mr. Pai Amit, AOR Ms. Pankhuri Bhardwaj, Adv. Mr. Kushal Dube, Adv. Ms. Nidhi Mittal, AOR Mr. Sabarish Subramanian, AOR Mr. Mukesh K. Giri, AOR Mr. Mandaar Mukesh Giri, Adv. Mr. Shovan Mishra, AOR Ms. Swati Ghildiyal, AOR Ms. Deepanwita Priyanka, Adv. Ms. Devyani Bhatt, Adv. Ms. Neha Singh, Adv. Ms. Asmita Singh, AOR Mr. Abheet Mangleek, Adv. Mr. Tushar Nair, Adv. Mr. Punishk Handa, Adv. Mr. Anirudh Anand, Adv. Mr. Kunal Mimani, AOR Mr. Partha Sil, AOR Ms. Sayani Bhattacharya, Adv. Mr. Srijit Datta, Adv. Mr. Bharat Bagla, Adv. Mr. Siddharth Dharmadhikari, Adv. Mr. Aaditya Aniruddha Pande, AOR Mr. Ahanthem Henry, Adv. Mr. Ahanthem Rohen Singh, Adv. Mr. Mohan Singh, Adv. Mr. Aniket Rajput, Adv. Ms. Khoisnam Nirmala Devi, Adv. Mr. Kumar Mihir, AOR Mr. Kartikeya Rastogi, Adv. Mr. Inderdeep Singh, Adv. Ms. Tamanna Kavdia, Adv. Mr. Akshay Girish Ringe, AOR Ms. Anurag Rana, Adv. Ms. Madhuravalli, Adv. Mr. Pushpinder Singh, AOR Mr. Divyakant Lahoti, AOR Ms. Madhur Jhavar, Adv. Ms. Praveena Bisht, Adv. Ms. Vindhya Mehra, Adv. Mr. Kartik Lahoti, Adv. Mr. Rahul Maheshwari, Adv. Ms. Shivangi Malhotra, Adv. Mr. Kumar Vinayakam Gupta, Adv. Mr. Adith Menon, Adv. Ms. Samridhi Bhatt, Adv. Ms. Shreya Gokel, Adv. Ms. Anushka Awasthi, Adv. Mr. Siddharth Tripathi, Adv. Ms. Akanksha Soni, Adv. Mr. Pukhrambam Ramesh Kumar, AOR Mr. Karun Sharma, Adv. Ms. Anupama Ngangom, Adv. Ms. Rajkumari Divyasana, Adv. Mr. Tapesh Kumar Singh, Sr. Adv. Mr. Ashwarya Sinha, AOR Mr. Aditya Malhotra, Adv. Ms. Surbhi Kumari, Adv. Mr. Shivansh Bharatkumar Pandya , AOR Ms. Bhavana Duhoon , AOR Mr. P. I. Jose, AOR Mr. Amit Kumar, Adv. General, Sr. Adv. Mr. Avijit Mani Tripathi, AOR Mr. T.K. Nayak, Adv. Mr. Vikas Bansal, Adv. Ms. Rekha Bakshi, Adv. Ms. Rashmi Nandakumar, AOR Ms. Yashmita Pandey, Adv. Mrs. Prerna Dhall, Adv. Mr. Shivam Ganeshia, Adv. Mr. M N Gopinadh, Adv. Ms. Karishma Rajput, Adv. Mr. Prashant Singh, AOR Ms. Akanksha Singh, Adv. Mr. Mahfooz Ahsan Nazki, AOR Mr. Kedar Nath Tripathy, AOR Mr. Sameer Abhyankar, AOR Mr. Aakash Thakur, Adv. Mr. Rahul Kumar, Adv. Mr. Aryan Srivastava, Adv. Mr. Krishna Rastogi, Adv. Mrs. Ayushi Bansal, Adv. Mr. Apoorv Shukla, AOR Mr. Karan Sharma, AOR Ms. Rooh-e-hina Dua, AOR Mr. Gurmeet Singh Makker, AOR Mr. Amit Sharma, AOR Mr. Dipesh Sinha, Adv. Ms. Pallavi Barua, Adv. Ms. Aparna Singh, Adv. Mr. Anirudh Singh, Adv. Mr. Shekhar Raj Sharma, D.A.G. Mr. Akshay Amritanshu, AOR Ms. Nidhi Narwal, Adv. Ms. Drishti Saraf, Adv. Ms. Pragya Upadhyay, Adv. Mr. D.L. Chidananda, AOR Ms. Vanshaja Shukla, AOR Ms. Ankeeta Appanna, Adv. Mr. Siddhant Yadav, Adv. Mr. K M Nataraj, A.S.G. Mr. Mukesh Kumar Maroria, AOR Mr. Piyush Beriwal, Adv. Mr. B K Satija, Adv. Mr. Raghav Sharma, Adv. Mr. Anuj Srinivas Udupa, Adv. Mr. Sarthak Karol, Adv. Mr. Shuvodeep Roy, AOR Mr. Saurabh Tripathi, Adv. Mr. Deepayan Dutta, Adv. Mr. Sachin Patil, AOR Mr. Sanjai Kumar Pathak, AOR Mrs. Shashi Pathak, Adv. Mr. Arvind Kumar Tripathi, Adv. Mr. Shibashish Misra, AOR Mr. Amit Sharma, A.A.G. Mr. Sarad Kumar Singhania, AOR Mr. Amit Sharma, Adv. Mr. Pradeep Misra, AOR Mr. V. K. Biju, AOR Ms. Enakshi Mukhopadhyay Siddhanta, AOR Mr. Ravi Kumar S., Adv. Mr. P.S. Sridhar Raj, Adv. Ms. Devina Sehgal, AOR Mr. Yatharth Kansal, Adv. Mr. D. Kumanan, AOR

Headnote:
(1) Criminal P. C., 1973 -- Ss. 432, 433 and 433A -- Nagarik Suraksha Sanhita, 2023 -- Ss. 475 and 474 -- Constitution of India -- Arts. 72 and 161 -- power of appropriate Government to remit sentence -- power u/s. 432 of CrPC is circumscribed by S. 433A -- there is an embargo on power of appropriate Government -- power of President of India under Art. 72 of Constitution and power of Governor under Art. 161 of Constitution to grant pardon, commute sentence or remit sentence, remains unaffected by S. 433A of CrPC or S. 475 of BNSS -- power to commute sentence is independent of power to remit sentence. [Paras 3 & 4
(2) Criminal P. C., 1973 -- S. 432 -- Nagarik Suraksha Sanhita, 2023 -- S. 473 -- power of appropriate Government to remit sentence in absence of application -- held -- where there is policy for consideration of cases for permanent remission, it is the obligation of appropriate Government to consider case of every eligible convict in terms of policy -- not necessary for convict or his relatives to make specific application for grant of permanent remission -- granting relief only to those who apply will be discriminatory and arbitrary and will amount to violation of Art. 14 of Constitution -- power u/s. 432(1) must be exercised in fair and reasonable manner -- list of all life convicts and other convicts entitled to be considered for premature release, must be regularly forwarded by prison superintendents to appropriate Government for consideration -- to ensure that power is not exercised in arbitrary manner, all States that do not have an exhaustive policy on this aspect must come up with an exhaustive policy within two months from today -- it can be either a separate policy or it can be incorporated into prison manuals. (2013) 2 SCC 452 and (2013) 3 SCC 294 discussed. (2024) 6 SCC 561 relied on. Special Leave Petitions (Criminal) No. 4358 and 4359 of 2021 referred to. [Paras 8 to 10, 21(a) & 21(b)
(3) Criminal P. C., 1973 -- S. 432 -- Nagarik Suraksha Sanhita, 2023 -- S. 473 -- power to grant conditional remission -- appropriate Government has power to grant remission without imposing any condition or subject to certain conditions -- there cannot be any doubt that conditional order can be passed. [Para 11
(4) Criminal P. C., 1973 -- S. 432 -- Nagarik Suraksha Sanhita, 2023 -- S. 473 -- nature of conditions imposed while granting remission -- reasonable conditions can be imposed --they must be capable of being complied with -- cannot be vague -- cannot be oppressive -- to fix terms and conditions, it is necessary to ascertain motive for committing crime -- considerations -- criminal background, public safety, impact on society and victims -- conditions must ensure that criminal tendency of convicts remains in check, they do not indulge in commission of crimes, and are rehabilitated in society. 2024 SCC Online SC 2982 relied on. [Paras 13 & 21(c)
(5) Criminal P. C., 1973 -- S. 432(3) -- Nagarik Suraksha Sanhita, 2023 -- S. 473(3) -- Constitution of India -- Art. 226 -- revocation of remission -- this drastic power cannot be exercised without following principles of natural justice -- show cause notice must be served on convict before taking action to withdraw/cancel remission -- must contain grounds on which action u/s. 432(3) of CrPC or 473(3) of BNNS is sought to be taken -- convict must be given opportunity to file reply and of being heard -- authority must pass order stating reasons in brief -- convict can always challenge order of cancellation of remission under Art. 226 of Constitution. 2024 SCC Online SC 2982 relied on. [Paras 14, 16 & 21(d)
(6) Criminal P. C., 1973 -- S. 432(3) -- Nagarik Suraksha Sanhita, 2023 -- S. 473(3) -- Constitution of India -- Art. 226 -- revocation of remission -- registration of cognizable offence against convict, per se, not a ground to cancel remission order -- allegations of breach of condition cannot be taken at face value -- whether case for cancellation of remission is made out will have to be decided in facts of each case -- every case of breach cannot invite cancellation -- appropriate Government will have to consider nature of breach -- minor or trifling breach cannot be a ground to cancel remission -- there must be some material to substantiate allegations of breach -- depending upon seriousness and gravity thereof, action can be taken for cancellation of order remitting sentence. 2024 SCC Online SC 2982 relied on. [Paras 14 & 15
(7) Criminal P. C., 1973 -- S. 432 -- Nagarik Suraksha Sanhita, 2023 -- S. 473 -- requirement of recording reasons -- held -- requirement of recording reasons either for granting or rejecting prayer for permanent remission will have to be read into provisions of S. 432 of CrPC and S. 473 of BNSS -- principles of natural justice must be read into the provisions -- brief reasons must be recorded, which are sufficient to enable convict to understand why his prayer for remission has been rejected -- this enables him to challenge order of rejection. 2024 SCC Online SC 2982 and (2024) 5 SCC 481 relied on. [Paras 17, 21(d) & 21(e)
(8) Criminal P. C., 1973 -- S. 432 -- Nagarik Suraksha Sanhita, 2023 -- S. 473 -- requirement of communication of order granting or rejecting prayer for remission -- held -- order must be communicated to convict -- if prayer is refused, while providing copy of order to convict, he must be informed that he has right to challenge order -- copy of order rejecting prayer must be immediately provided to Secretary of District Legal Services Authority so that legal aid can be offered to prisoner to challenge order. [Paras 18 & 21(d)
(9) Criminal P. C., 1973 -- S. 432 -- Nagarik Suraksha Sanhita, 2023 -- S. 473 -- duty of Presiding Officer -- Presiding Officer's opinion sought -- he must submit opinion at earliest, considering that issue of liberty of convict is involved. [Para 20
(10) Criminal P. C., 1973 -- S. 432 -- Nagarik Suraksha Sanhita, 2023 -- S. 473 -- directions issued to District Legal Services Authorities. [Paras 21(f) & 21(g)

Judgement Key Points

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 :

ABHAY S. OKA, J.

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:

(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.

(2) 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 had 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.

(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.

(4) The condition on which a sentence is suspended or remitted under this section may be one to be fulfilled by the person in whose favour the sentence is suspended or remitted, or one independent of his will.

(5) 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:

Provided that in the case of any sentence (other than a sentence of fine) passed on a male person above the age of eighteen years, no such petition by the person sentenced or by any other person on his behalf shall be entertained, unless the person sentenced is in jail, and—

(a) where such petition is made by the person sentenced, it is presented through the officer in charge of the jail; or

(b) where such petition is made by any other person, it contains a declaration that the person sentenced is in jail.

(6) The provisions of the above sub-sections shall also apply to any order passed by a Criminal Court under any section of this Code or of any other law which restricts the liberty of any person or imposes any liability upon him or his property.

(7) In this section and in Section 433, the expression “appropriate Government” means,—

(a) in cases where the sentence is for an offence against, or the order referred to in sub-section (6) is passed under, any law relating to a matter to which the executive power of the Union extends, the Central Government;

(b) in other cases, the Government of the State within which the offender is sentenced or the said order is passed.”

The corresponding provision under the BNSS is Section 473. It is substantially similar to Section 432 of th

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2025 Supreme(SC) 361

SUPREME COURT OF INDIAAbhay S. Oka, Ujjal Bhuyan, JJ.In Re: Policy Strategy For Grant of BailSuo Motu Writ Petition (Crl. No. 4 of 2021 With Special Leave Petition (Crl. No. 529 of 2021Decided On : 18-02-2025

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SUPREME COURT OF INDIA
Abhay S. Oka, Ujjal Bhuyan, JJ.
In Re: Policy Strategy For Grant of Bail
Suo Motu Writ Petition (Crl. No. 4 of 2021 With Special Leave Petition (Crl. No. 529 of 2021
Decided On : 18-02-2025