Summary
In a suo motu matter on remission of sentences, the Supreme Court held that where the appropriate Government has a remission policy, it must consider every convict as and when eligible under it, without any application by or for the convict. It directed States and Union Territories without a policy to frame one within two months, laid down the standards for conditions attached to remission, and required brief reasons, communication to the convict and a hearing before grant, refusal or cancellation of remission.
Issues
- Whether the appropriate Government can consider a convict for remission under Section 432 CrPC / Section 473 BNSS without an application by or on behalf of the convict.
- Whether the States must have a policy governing the exercise of the remission power.
- What kind of conditions may be imposed while granting remission.
- Whether remission can be cancelled automatically on breach of its conditions.
- Whether reasons must be recorded while granting or rejecting a prayer for permanent remission.
Provisions considered
- Section 432, Code of Criminal Procedure, 1973Read as empowering the appropriate Government to remit the whole or part of a sentence with or without conditions. Sub-section (2) contemplates an application, but where a policy exists all eligible convicts must be considered without one; the power must be exercised fairly, with brief reasons for grant or refusal read into the provision, and cancellation under sub-section (3) requires notice, hearing and reasons. (¶¶ 1, 2, 6, 8, 10, 11, 15, 16, 17, 21)
- Section 473, Bharatiya Nagarik Suraksha Sanhita, 2023Treated as substantially similar to Section 432 CrPC; every conclusion on applications, policy, conditions, cancellation and reasons was applied equally to it. (¶¶ 1, 6, 11, 16, 17, 21)
- Section 433-A, Code of Criminal Procedure, 1973Noted as an embargo on remission for life convicts in capital offences, or whose death sentence was commuted, until they have served at least fourteen years of actual imprisonment; it does not affect the constitutional powers under Articles 72 and 161. (¶ 3)
- Section 475, Bharatiya Nagarik Suraksha Sanhita, 2023Noted as the provision identical to Section 433-A CrPC, likewise not affecting the powers under Articles 72 and 161. (¶ 3)
- Section 433 CrPC / Section 474 BNSS, Code of Criminal Procedure, 1973 / Bharatiya Nagarik Suraksha Sanhita, 2023The power to commute sentences was noted as independent of the remission power and was not dealt with. (¶ 4)
- Articles 14 and 21, Constitution of IndiaRefusing to consider eligible convicts under a policy unless they apply was held discriminatory and arbitrary under Article 14; because remission and its cancellation affect liberty under Article 21, fairness, reasons and natural justice were read into the remission provisions. (¶¶ 8, 12, 16, 17)
- Rule 40 (Karnataka) and Rule 547 (Kerala), Karnataka Prison Rules, 1974 and Kerala Prison Rules, 1958Cited as examples of differing State provisions: Karnataka providing for unconditional remission that cannot be forfeited, and Kerala attaching conditions such as a bond and reporting to a Probation Officer. (¶ 11)
Held
- Following Sangeet and Mohinder Singh, the remission power under Section 432(1) is not exercised suo motu and ordinarily requires an application, which a relative may make. But where the appropriate Government has adopted a policy with eligibility conditions for premature release, it is bound to consider the case of every convict as and when eligible under the policy, and no specific application is needed; insisting on an application in such cases is arbitrary and violates Article 14. This applies equally where the policy is contained in a jail manual or departmental instruction. (¶¶ 6, 8, 21)
- To prevent arbitrary exercise of the remission power, States and Union Territories without an exhaustive policy must frame one within two months, either as a separate policy or within the prison manual. (¶¶ 10, 21)
- The appropriate Government may grant remission subject to conditions, but the conditions must be reasonable, must not be vague or oppressive, and must be capable of performance. In framing them it should consider factors such as the nature of and motive for the crime, criminal background, public safety and impact on society and victims, aiming to keep criminal tendencies in check and secure the convict's rehabilitation. (¶¶ 11, 12, 13, 21)
- Remission can be cancelled only for breach of the conditions on which it was granted, applying the test and procedure in Mafabhai Motibhai Sagar: show cause notice stating the grounds, opportunity to reply and be heard, and an order with brief reasons. Registration of a cognizable offence is not by itself a ground to cancel, and trifling breaches do not justify cancellation. (¶¶ 14, 15, 16, 21)
- Since remission affects liberty under Article 21, the requirement to record brief reasons for granting or rejecting permanent remission is read into Section 432 CrPC and Section 473 BNSS. The order must be communicated to the convict through the prison, who must be told of the right to challenge a rejection, and a copy sent to the District Legal Services Authority so that legal aid can be offered. (¶¶ 17, 18, 21)
- Under the NALSA SOP on premature release, prison superintendents must prepare and regularly forward lists of convicts becoming eligible; the SOP, including clause 4.3, must be implemented in letter and spirit, and NALSA was requested to provide for informing convicts of their right to challenge rejection. The Presiding Officer whose opinion is sought under sub-section (2) must give it at the earliest. (¶¶ 9, 19, 20)
Result
Directions issued: States/UTs without a remission policy to frame one within two months; reasons, communication and DLSA intimation required for remission orders; hearing and reasons required for cancellation; DLSAs to implement the NALSA SOP and monitor consideration of eligible convicts, with SLSAs to endeavour to create a real-time data portal; copy to NALSA for onward circulation; other issues to be heard on the fixed dates.