AI Structured Summary
Not yet generated for this judgment
No AI summary yet
Generate an eight-section analysis of this judgment — facts, issues, reasoning, ratio and a plain-language gist.
Judgment
394 paragraphs · 5,774 words,,,
Hemant Gupta, J",,,
The State and the writ petitioner before the High Court [Hereinafter referred to as the ‘prisoner’], are ag-grieved by an order passed by the",,,
learned Single Bench of the 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, inter alia, directing the State to consider the feasibility of drafting a fresh policy particularly in re-spect of",,,
exercise of powers conferred under Article 161 of the 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 sub-stantial number of identically situated prisoners. The Court",,,
fur-ther observed that till such time a decision is taken, the appropri-ate Government can exercise its powers under Sections 432 and 433 of the Code",,,
of Criminal Procedure, 1973 [For short, the ‘Code’] in terms of policy dated 13.8.2008, but while strictly adhering to the restrictions imposed",,,
under Section 433-A of the Code.,,,
The learned Single Bench has referred to certain policies circu-lated by the State Government. First policy referred to was circu-lated on 23.4.1987,,,
wherein the convicts on whom punishment of life imprisonment is imposed on conviction of an offence for which death is one of the punishments,,,
provided by law, or where the sentence of death imposed on a person had been commuted under Section 433 of the Code on or after 18.12.78, would",,,
be considered by the State Government for premature release after they have undergone 14 years of substantive sentence. There-after, policies dated",,,
28.9.1988, 19.11.1991, 8.8.2000 and 12.4.2002 were issued contemplating that case of premature re-lease would be considered on individual basis",,,
after review by the State Level Committee falling within the purview of Section 433 of the Code and cases thereafter shall be put up to the,,,
Hon’ble Governor. However, the policy dated 13.8.2008 did not contem-plate that the individual cases will have to be placed before the",,,
Hon’ble Governor.,,,
The relevant provisions of the Constitution and the Code read as thus:,,,
Constitution of India,,,
“Article 161 â€" Power of Governor to grant pardons etc., and to suspend, remit or commute sentences in certain cases. - The Governor of a",,,
State shall have the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any",,,
person convicted of any offence against any law relating to a matter to which the executive power of the State extends.,,,
Code of Criminal Procedure 1973,,,
Power to suspend or remit sentences. - (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) xxxx xxxx,,,
(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, andâ€"",,,
(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) xxxx xxxx,,,
(7) In this section and in Section 433, the expression “ap-propriate Government†meansâ€"",,,
(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 ex-tends, the Central Government;",,,
(b) in other cases, the Government of the State within which the offender is sentenced or the said order is passed.",,,
Power to commute sentence. - The appropriate Government may, without the consent of the person sentenced, commuteâ€"",,,
(a) a sentence of death, for any other punish-ment provided by the Indian Penal Code (45 of 1860);",,,
(b) a sentence of imprisonment for life, for im-prisonment for a term not exceeding fourteen years or for fine;",,,
(c) a sentence of rigorous imprisonment, for simple imprisonment for any term to which that person might have been sentenced, or for fine;",,,
(d) a sentence of simple imprisonment, for fine.",,,
433-A. Restriction on powers of remission or commutation in certain cases. - Notwithstanding anything contained in Section 432, where a",,,
sentence of imprisonment for life is imposed on conviction of a person for an offence for which death is one of the punishments provided by law, or",,,
where a sentence of death imposed on a person has been commuted under Section 433 into one of imprisonment for life, such person shall not be",,,
released from prison unless he had served at least fourteen years of imprisonment.â€,,,
The issue arising in the present appeals is regarding applicability of policy dated 12.4.2002 or the policy dated 13.8.2008 to the prisoner convicted on,,,
25.3.2010. This Court in State of Haryana & Ors. v. Jagdish (2010) 4 SCC 216 inter-alia held (para 52) that the policy dated 4.2.1993 refers to the,,,
exercise of powers under Article 161 of the Constitution whereas the policy dated 13.8.2008 is in exercise of the powers conferred under Section 432,,,
read with Sections 433 and 433-A of the Code. The said policy is a rule of procedure, thus, subordinate to the Constitution. The power exercised",,,
under Article 161 is a mandate of the Constitution, therefore, the policy dated 13.8.2008 cannot override the policy dated 4.2.1993. It is the said finding",,,
12th April, 2002
In supersession of Haryana Government Memo No
36/135/91-1JJ(II), dated 8- 8-2000 which was further
substituted bearing same number and date on 23- 2-
2001, the Government have decided to revise the
policy regarding premature release of life convicts as
follows:",,"13th August, 2008
.No. 36/135/91-1JJ(II)- In exercise of the power
conferred by Sub-section (1) of Section 432 read with
Section 433 of the Code of Criminal Procedure, 197
(Act 2 of 1974) and in supersession of Haryana
Government Memo No. 36/135/91-1JJ(II), dated the
12 th April, 2002 and all other earlier policies, the
Governor of Haryana hereby frames the following
policy regarding premature release of life convicts,
namely:",
( a a ) Convicts whose
Death sentence has been
Commuted to life
imprisonment and convicts
who have been imprisoned
for life Having committed
a heinous crime such asâ€
( i) Murder after rape
repeated/chained
rape/unnatural offences.","Their cases may be
considered after
completion of 20 years
actual sentence and 25
years total sentence with
remissions.","(a) Convicts whose death
sentence has been
commuted to life
imprisonment and convicts
who have been imprisoned
for life having committed a
heinous crime such as:
( i ) Murder with
rape/unnatural offences.","Their cases for pre-mature
release may considered
after completion of 20
years actual sentence and
25 years total sentence
with remissions.
xxx xxx xxx,,xxx xxx xxx,
(a) Convicts who have
been imprisoned for life
having committed a
heinous actual crime such
as:
(i) Murder with wrongful
confinement for
extortion/robbery.
(b) Adult life convicts who
have been imprisoned for
life but whose cases are
not covered under (aa) and
(a) above and who have
committed crime which are
not considered heinous as
mentioned in clause (aa) &
(a) above.","Their cases may be
considered after
completion of 14 years
sentence including
undertrial period provided
that the total period of such
sentence including
remissions is not less than
20 years.
Their cases may be
considered after
completion of 10 years
actual sentence including
undertrial period provided
that the total period of such
s e n t e n c e including
remissions is not less than
14 years.","b) Convicts who have been
imprisoned for life having
committed any crime
which is defined in IPC
and/or NDPS Act a
punishable with death
sentence.
(c) Convicts who have
been imprisoned for life
having committed a crime
which is defined in IPC as
punishable with life
imprisonment but not with
death sentence.","Their cases for pre-mature
release may be considered
after completion of 14
years actual sentence
sincluding Undertrial period;
provided that the total
period of such sentence
including remissions is not
less than 20 years.
Their cases may be
considered after
completion of 10 years
actual sentence including
undertrial period; provided
that the total period of such
sentence Including
remissions is not less than
14 years.
xxx xxx xxx,,xxx xxx xxx,
The Director General of Prisons, Haryana shall pu
up all such premature release cases to the State Leve
Committee for consideration. The Committee wil
meet once in three months according to the
convenience of the Minister for jails, Haryana so that
cases of review under this policy are not delayed. The
Director General of Prisons, Haryana further wil
forward a copy of the decision taken by the
Committee alongwith the roll of each of the life
convict to the State Government within one week for
further action. Such cases will be put up to the
Governor through the Minister for Jails and the Chief
Minister, Haryana with full background of the prisoner
and recommendations of the committee alongwith the
copy of judgment etc. for orders under Article 161 of
the Constitution of India.","t8. The Director General of Prisons, Haryana shall pu
lup all such premature release cases to the State Leve
lCommittee for consideration. The Committee will
meet once in three months, so that cases of review
under this policy are not delayed. The Director
General of Prisons, Haryana will forward a copy o
lthe decision taken by the Committee along with the
commutation roll of each of the life convict to the
State Government within one week for further action.
Such cases will be put up to the Chief Minister
Haryana along with full background of the convicts
and recommendations of the Committee and a copy of
the Court judgement etc. for orders under Section 432
Cr.P.C. It is reiterated that no convict has
fundamental right of remission or shortening of
sentence. The State Government in exercise of its
executive discretionary power of remission is to
consider each individual case keeping in view all the
relevant factors. This policy is issued in exercise of the
power of the State in such a way that no
discrimination is made while considering the case of
life convicts for premature release. This policy shall be
applicable to all premature release cases of life
convicts with effect from date of notification
irrespective of their date of conviction.
The date for consideration of premature release of a
convict would be the date of completion of his
requisite sentence in the policy.",,
xxx xxx xxx,,,
We now move on to the second contention which deals with the power of remission under the Constitution and the fruits of its exercise vis-Ã -vis,,,
Section 433-A. Nobody has a case â€" indeed can be heard to contend â€" that Article 72 and 161 must yield to Section 433-A…………………...,,,
xxx xxx xxx,,,
It is apparent that superficially viewed, the two powers, one constitutional and the other statutory, are coextensive. But two things may be similar",,,
but not the same. That is precisely the difference. We cannot agree that the power which is the creature of the Code can be equated with a high,,,
prerogative vested by the Constitution in the highest functionaries of the Union and the States. The source is different, the substance is different, the",,,
strength is different, although the stream may be flowing along the same bed. We see the two powers as far from being identical, and, obviously, the",,,
constitutional power is ‘untouchable’ and ‘unapproachable’ and cannot suffer the vicissitudes of simple legislative processes. Therefore,",,,
Section 433-A cannot be invalidated as indirectly violative of Articles 72 and 161. What the Code gives, it can take, and so, an embargo on Sections",,,
432 and 433(a) is within the legislative power of Parliament.,,,
Even so, we must remember the constitutional status of Articles 72 and 161 and it is common ground that Section 433-A does not stand and",,,
cannot affect even a wee bit the pardon power of the Governor or the President. The necessary sequel to this logic is that notwithstanding Section,,,
433-A the President and the Governor continue to exercise the power of commutation and release under the aforesaid articles.,,,
… The upshot is that the State Government, whether the Governor likes it or not, can advice and act under Article 161, the Governor being bound",,,
by that advice. The action of commutation and release can thus be pursuant to a governmental decision and the order may issue even without the,,,
Governor's approval although, under the Rules of Business and as a matter of constitutional courtesy, it is obligatory that the signature of the Governor",,,
should authorise the pardon, commutation or release…………....The Governor vis-à -vis his Cabinet is no higher than the President save in a",,,
narrow area which does not include Article 161. The constitutional conclusion is that the Governor is but a shorthand expression for the State,,,
Government and the President is an abbreviation for the Central Government.,,,
xxx xxx xxx,,,
…. We have no hesitation to reject the notion that Articles 72/161 should remain uncanalised. We have to direct the provisional acceptance of the,,,
remission and short-sentencing schemes as good guide-lines for exercise of pardon power â€" a jurisdiction meant to be used as often and as,,,
systematically as possible and not to be abused, much as the temptation so to do may press upon the pen of power.",,,
The learned Solicitor-General is right that these Rules are plainly made under the Prisons Act and not under the constitutional power, the former",,,
fail under the pressure of Section 433-A. But that, by no means, precludes the States from adopting as working rules the same remission schemes",,,
which seem to us to be fairly reasonable. After all, the government cannot meticulously study each prisoner and the present praxis of marks, until a",,,
more advanced and expertly advised scheme is evolved, may work. Section 433-A cannot forbid this method because it is immunized by Article 161.",,,
We strongly suggest that, without break, the same rules and schemes of remission be continued as a transmigration of soul into Article 161, as it were,",,,
and benefits extended to all who fall within their benign orbit â€" save, of course, in special cases which may require other relevant consideration. The",,,
wide power of executive clemency cannot be bound down even by self-created rules.,,,
xxx xxx xxx,,,
We conclude by formulating our findings:,,,
(1) xxx xxx,,,
(2) We affirm the current supremacy of Section 433-A over the Remission Rules and short-sentencing statutes made by the various States.,,,
(3) xxx xxx,,,
(4) We hold that Section 432 and Section 433 are not a manifestation of Articles 72 and 161 of the Constitution but a separate, though similar power,",,,
and Section 433-A, by nullifying wholly or partially these prior provisions does not violate or detract from the full operation of the constitutional power",,,
to pardon, commute and the like.",,,
(5) xxx xxx,,,
(6) We follow Godse case to hold that imprisonment for life lasts until the last breath, and whatever the length of remissions earned, the prisoner can",,,
claim release only if the remaining sentence is remitted by government.,,,
(7) xxx xxx,,,
(8) The power under Articles 72 and 161 of the Constitution can be exercised by the Central and State Governments, not by the President or",,,
Governor on their own. The advice of the appropriate Government binds the Head of the State. No separate order for each individual case is,,,
necessary but any general order made must be clear enough to identify the group of cases and indicate the application of mind to the whole group.,,,
(9) xxx xxx,,,
(10) Although the remission rules or short- sentencing provisions proprio vigore may not apply as against Section 433-A, they will override Section",,,
433-A if the government, Central or State, guides itself by the self-same rules or schemes in the exercise of its constitutional power. We regard it as",,,
fair that until fresh rules are made in keeping with experience gathered, current social conditions and accepted penological thinking â€" a desirable",,,
step, in our view â€" the present remission and release schemes may usefully be taken as guide-lines under Articles 72/161 and orders for release",,,
passed. We cannot fault the government, if in some intractably savage delinquents, Section 433-A is itself treated as a guide-line for exercise of",,,
Articles 72/161. These observations of ours are recommendatory to avoid a hiatus, but it is for Government, Central or State, to decide whether and",,,
why the current Remission Rules should not survive until replaced by a more wholesome scheme.,,,
(11) The U.P. Prisoners’ Release on Probation Act, 1938, enabling limited enlargement under licence will be effective as legislatively sanctioned",,,
imprisonment of a loose and liberal type and such licensed enlargement will be reckoned for the purpose of the 14-year duration. Similar other statutes,,,
and rules will enjoy similar efficacy.,,,
xxx xxxâ€,,,
The Constitution Bench in Union of India v. V. Sriharan & Ors. (2016) 7 SCC 1 inter alia examined the provisions of Articles 161 and 162 of the,,,
Constitution. It was held as under:,,,
“22. Therefore, the resultant position would be that the Executive Power of the Union and its authorities in relation to grant of remission,",,,
commutation, etc. are available and can be exercised by virtue of the implication of Article 73(1)(a) read along with its proviso and the exercise of",,,
such power by the State would be controlled and limited as stipulated in the proviso to Article 162 to the extent to which such control and limitations,,,
are prescribed in the Criminal Procedure Code.â€,,,
Thus, the power under Article 161 of the Constitution can be exercised by the State Governments, not by the Governor on his own. The advice of",,,
the appropriate Government binds the Head of the State. No separate order for each individual case is necessary but any general order made must be,,,
clear enough to identify the group of cases and indicate the application of mind to the whole group. Therefore, the policies of the State Government",,,
are composite policies encompassing both situations under Article 161 of the Constitution and Sections 432, 433 and 433-A of the Code. The remission",,,
under Article 161 of the Constitution will override Section 433-A of the Code, if the State Government decides to be governed of its constitutional",,,
power.,,,
In State of Haryana v. Nauratta Singh & Ors. (2000) 3 SCC 514, this Court referred to Maru Ram’s case holding that period of 14 years as",,,
specified in Section 433-A of the Code is the actual period of imprisonment undergone by the prisoner without including any period of remission. This,,,
Court was examining the case where the accused was acquitted by the trial court but was convicted by the High Court. He was on bail during the,,,
pendency of the appeal before the High Court. The claim of the prisoner was that the period of bail in terms of the order of the High Court has to be,,,
included in the period of 14 years of imprisonment. The Court held as under:,,,
“5. We may point out that Section 433-A of the Code was introduced in the statute-book on 8-12-1978 by which the power of a State Government,,,
to release a person (who has been convicted and sentenced to life imprisonment of any offence punishable with death or imprisonment for life) has,,,
been curtailed by introducing the rider that such convicted person should have served at least 14 years of imprisonment. A Constitutional Bench of this,,,
Court has held in Maru Ram v. Union of India that the period of 14 years envisaged in the new provision is the actual period of imprisonment,,,
undergone by the prisoner without including any period of remission.â€,,,
In Jagdish, the question raised was as to whether the policy which makes a provision for remission of sentence should be the one which was",,,
existing on the date of the conviction of the accused or the one which existed on the date of consideration of his case for premature release by the,,,
appropriate authority. The Court held that the amendment inserting Section 433-A in the Code would apply prospectively. The life convicts who had,,,
been sentenced prior to 18.12.1978 i.e., date of enforcement of amendment would not come within the purview of the provisions of Section 433-A of",,,
the Code. The remission rules/short-sentenc-ing policies could be taken as guidelines for exercise of powers under Article 72 or 161 of the,,,
Constitution and in such an even-tuality, remission rules would override Section 433-A of the Code. This Court held that Section 433-A of the Code",,,
cannot and does not in any way affect the constitutional power conferred on the President/Governor under Articles 72/161 of the Constitution.,,,
It was held as under:,,,
“26. This Court in Ashok Kumar [(1991) 3 SCC 498 : 1991 SCC (Cri) 845 : AIR 1991 SC 1792] considered the matter elaborately taking into,,,
consideration a large number of its earlier judgments including Maru Ram [(1981) 1 SCC 107 : 1981 SCC (Cri) 112] , Bhagirath v. Delhi Admn.",,,
[(1985) 2 SCC 580 : 1985 SCC (Cri) 280 : AIR 1985 SC 1050] ; Kehar Singh v. Union of India [(1989) 1 SCC 204 : 1989 SCC (Cri) 86 : AIR 1989,,,
SC 653] and came to the following conclusions:,,,
(i) Section 433-A CrPC denied premature release before completion of actual 14 years of incarcera-tion to only those limited convicts convicted of a,,,
capital offence i.e. exceptionally heinous crime;,,,
(ii) Section 433-A CrPC cannot and does not in any way affect the constitutional power conferred on the President/Governor under Articles 72/161 of,,,
the Constitution;,,,
(iii) Remission Rules have a limited scope and in case of a convict undergoing sentence for life im-prisonment, it acquires significance only if the sen-",,,
tence is commuted or remitted subject to Section 433-A CrPC or in exercise of constitutional power under Article 72/161 of the Constitution; and,,,
(iv) Case of a convict can be considered under Arti-cles 72 and 161 of the Constitution treating the 1958 Rules.,,,
xx xx xx,,,
Nevertheless, we may point out that the power of the sovereign to grant remission is within its exclusive domain and it is for this reason that our",,,
Constitution makers went on to incorporate the provisions of Article 72 and Article 161 of the Constitution of India. This re-sponsibility was cast upon,,,
the executive through a constitutional mandate to ensure that some public purpose may require fulfilment by grant of remission in appropriate cases.,,,
This power was never intended to be used or utilised by the executive as an unbridled power of reprieve. Power of clemency is to be exer-cised,,,
cautiously and in appropriate cases, which in ef-fect, mitigates the sentence of punishment awarded and which does not, in any way, wipe out the",,,
convic-tion. It is a power which the sovereign exercises against its own judicial mandate. The act of remission of the State does not undo what has,,,
been done judi-cially. The punishment awarded through a judgment is not overruled but the convict gets benefit of a liber-alised policy of State pardon.,,,
However, the exercise of such power under Article 161 of the Constitution or un-der Section 433-A CrPC may have a different flavour in the",,,
statutory provisions, as short-sentencing policy brings about a mere reduction in the period of impris-onment whereas an act of clemency under Article",,,
161 of the Constitution commutes the sentence itself. as guidelines.â€,,,
Thus, a prisoner has to undergo a minimum period of imprisonment of 14 years without remission in the case of an offence, the conviction of",,,
which carries death sentence, to take benefit of policy of remission framed by an appropriate government under Section 432 of the Code in view of",,,
the overriding provision of Section 433-A of the Code. However, the power of the Hon’ble Governor to commute sentence or to pardon is",,,
independent of any such restriction or limitation. The State Government can frame a policy of grant of remissions either under Section 432 of the Code,,,
or under Article 161 of the Constitution. The Governor continues to exercise the power of commutation and release under Article 161 of the,,,
Constitution, notwithstanding Section 433-A of the Code. The action of commutation and release can thus be pursuant to a governmental decision and",,,
the order may be issued even without the Governor's approval. However, under the Rules of Business and as a matter of constitutional courtesy, it",,,
may seek approval of the Governor, if such release is under Article 161 of the Constitution.",,,
Still further, it is the consistent view of this Court that the policy prevalent at the time of conviction shall be taken into consideration for considering",,,
the premature release of a prisoner. In Jagdish, while determining the policy which would be applicable for the remission of sentence, this Court held",,,
as under:,,,
“27. In Mahender Singh, this Court as referred to hereinabove held that the policy decision applicable in such cases would be which was prevailing",,,
at the time of his conviction. This conclusion was arrived on the following ground: (SCC p. 619, para 38)",,,
A right to be considered for remission, keeping in view the constitutional safeguards of a convict under Articles 20 and 21 of the Constitution of",,,
India, must be held to be a legal one. Such a legal right emanates from not only the Prisons Act but also from the Rules framed thereunder.â€",,,
The policy of premature release dated 13.8.2008 was issued in the name of the Governor and was published in the official Gazette. Such,,,
notification is said to have been issued in exercise of the powers conferred under sub-section (1) of Sections 432 and 433 of the Code. Keeping in,,,
view the principles of law enunciated above, such policy is in exercise of the powers conferred on the appropriate Government in terms of the",,,
provisions of the Code and is thus statutory in nature. The other policy dated 12.4.2002 is in fact a memo issued by the Financial Commissioner and,,,
Secretary to Government, Haryana, Jails Department, Chandigarh to the Director General of Prisons, Haryana, Chandigarh. Such policy of premature",,,
release would again be traceable to the provisions of the Code.,,,
Mr. Nikhil Goel, learned Additional Advocate General for the State of Haryana, submitted that different policies have been issued from time to",,,
time and the later policy has superseded the earlier one, so there was no hiatus when a policy of premature release was not in operation or at any",,,
given point of time, the two polices were operational. The argument of Mr. Goel merit acceptance inasmuch as the policy dated 12.4.2002 is in",,,
supersession of earlier policy circulated on 8.8.2000 substituted later on 23.2.2001. The policy dated 13.8.2008 has substituted the earlier policy dated,,,
12.4.2002 and such policy has been published on behalf of the Governor of the State. The policy dated 13.8.2008 has been issued in exercise of,,,
powers conferred by sub-section (1) of Section 432 read with Section 433 of the Code and in supersession of Government Memorandum dated,,,
12.4.2002 and all other policies. The policy dated 13.8.2008 is a statutory policy. The said policy cannot and has not tried to take over the discretion,,,
vested in the Hon’ble Governor to grant pardons, remissions or commute sentence in exercise of powers conferred under Article 161 of the",,,
Constitution but it is the policy issued under a Statute and therefore, such policy has a statutory force. The policy dated 12.4.2002 is again a statutory",,,
policy and cannot be put at a higher pedestal than the policy dated 13.8.2008 for the reason that it seeks approval from the Hon’ble Governor.,,,
Such policy has been specifically superseded on 13.8.2008, ceases to be operative for the convicts who are convicted after 13.8.2008.",,,
Section 433-A of the Code starts with a non-obstante clause restricting the right of the appropriate Government, to suspend the sentence of",,,
imprisonment for life imposed on conviction of a person for an offence for which death is one of the punishments provided by law, that such person",,,
shall not be released from prison unless he has served at least 14 years of imprisonment. Therefore, the power of the appropriate Government to",,,
release a prisoner after serving 14 years of actual imprisonment is vested with the State Government. On the other hand, the power conferred on the",,,
Governor, though exercised on the aid and advice of the State, is without any restriction of the actual period of imprisonment undergone by the",,,
prisoner. Thus, if a prisoner has undergone more than 14 years of actual imprisonment, the State Government, as an appropriate Government, is",,,
competent to pass an order of premature release, but if the prisoner has not undergone 14 years or more of actual imprisonment, the Governor has a",,,
power to grant pardons, reprieves, respites and remissions of punishment or to suspend, remit or commute the sentence of any person de hors the",,,
restrictions imposed under Section 433-A of the Constitution. Such power is in exercise of the power of the sovereign, though the Governor is bound",,,
to act on the aid and advice of the State Government.,,,
The policy of 12.4.2002 is applicable in the cases of the prisoners who have undergone actual sentence of 14 years of imprisonment and also the,,,
prisoners who have not completed 14 years of actual imprisonment. Therefore, the cases of the prisoners who have completed 14 years of actual",,,
imprisonment can be decided by the State Government in terms of Sections 432 and 433 of the Code unless the State Government choses to seek the,,,
approval of the Hon’ble Governor. There is nothing illegal or improper to seek approval of the Hon’ble Governor in all cases but in the cases,,,
where the prisoner has not undergone 14 years of actual imprisonment falling within scope of Section 433-A of the Code, it is for the Hon’ble",,,
Governor to exercise the power conferred under Article 161 of the Constitution, though on the aid and advice of the State Government. We find that",,,
clause (b) of the policy dated 12.4.2002 provided for the cases of the prisoners to be considered after completion of 10 years of actual sentence,,,
including undertrial period provided the total period of such sentence including remission is not less than 14 years. The remissions not contemplated by,,,
Section 433-A of the Code, the power to remit or commute sentence can be exercised by the Governor in exercise of the power conferred under",,,
Article 161 of the Constitution. This explains the last line in the policy that such cases will be put up before the Governor with full background of the,,,
prisoner and recommendation of the Committee including copy of the judgment for orders under Article 161 of the Constitution.,,,
The Notification dated 13.8.2008 published in exercise of the powers conferred upon an appropriate Government under Section 432(5) of the,,,
Code, provides that 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. Therefore, all the polices issued from time to time are under Section 432 of the Code,",,,
though no reference is made to such provisions in any of the policies except the last one dated 13.8.2008. The source of power to frame guidelines or,,,
the policies for remission etc. was earlier in Section 59(5) of the Prisons Act, 1894 and now in terms of Section 432(5) of the Code. Therefore, such",,,
policies are statutory in nature, framed in exercise of power conferred upon appropriate government under Section 432(5) of the Code.",,,
The clause 2(c) of the policy dated 13.8.2008 deals with the convicts who have been imprisoned for life having committed a crime which is,,,
defined in the Indian Penal Code, 1860 (IPC) as punishable for life imprisonment but not with death sentence. The cases of such prisoners can be",,,
considered after completion of 10 years of actual sentence including undertrial period provided the total period of such sentence including remission is,,,
not less than 14 years. The distinction is that in such cases, the remission is taken into consideration whereas, the remissions earned by a prisoner",,,
convicted for an offence under Section 302 IPC, an offence punishable with death, cannot be considered for premature release. If such a prisoner is",,,
to be considered for premature release in the cases of life imprisonment for an offence under IPC, the bar under Section 433-A of the Code would not",,,
apply. The judgment in Jagdish has to be read in the light of the distinction which we have drawn between the power exercised by the Hon’ble,,,
Governor and the power to be exercised by the State Government.,,,
Therefore, we find that the directions issued by the High Court are not sustainable for the reason that the policies have to be read keeping in view",,,
the period of imprisonment undergone by a prisoner. The power of remission is to be exercised by the State Government, as an appropriate",,,
Government, if the prisoner has undergone 14 years of actual imprisonment in the cases falling within the scope of Section 433-A of the Code and in",,,
case the imprisonment is less than 14 years, the power of premature release can be exercised by the Hon’ble Governor though on the aid and",,,
advice of the State Government.,,,
Consequently, the directions issued by the learned Single Bench are not sustainable and are hereby set aside.",,,
The 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 the policy of the State Government dated 13.8.2008, the 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 the prisoner in",,,
question for premature release after undergoing imprisonment for less than 14 years only under Article 161 of the Constitution.,,,
The appeals are disposed of accordingly.,,,