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CASE NO.: Appeal (crl.)  948 of 2003

PETITIONER: State (Govt. of NCT of Delhi)                            

RESPONDENT: Vs. Prem Raj                                                                 

DATE OF JUDGMENT: 05/08/2003

BENCH: DORAISWAMY RAJU & ARIJIT PASAYAT.

JUDGMENT:

J U D G M E N T

(Arising Out of S.L.P. (Crl.) No.5659 of 2002  

ARIJIT PASAYAT,J.

Leave granted.

The only question raised in this appeal is whether the  High Court of Delhi acted within the framework of law in  exercising power available under Section 433 (c) of the Code  of Criminal Procedure, 1973 (for short ’Code’).  

Factual position giving rise to the appeal is as  follows:

Respondent (also described as ’accused’) was prosecuted  for alleged commission of offence punishable under Section  7, and Section(13)(1)(d) punishable in terms of Section 13  (2) of the Prevention of Corruption Act, 1988 (for short  ’the Act’).  The respondent was found guilty by Additional  Sessions Judge, Delhi and was sentenced to undergo rigorous  imprisonment for two years relating to offence under Section  7 with fine of Rs.500/-. He was further sentenced under  Section 13(2) to undergo imprisonment for 3 and ½ years with  fine of Rs.1,000/-.  Both the sentences were directed to run  concurrently. The matter was carried in appeal by the  respondent-accused before the High Court.  The order of  conviction was not challenged at the time of hearing.  What  was pressed before the High Court related to the quantum of  sentence. It was submitted that the appellant had faced  ordeal of trial for 11 years and was on the verge of  retirement as his date of superannuation was to be in March,  2002.  He was not a previous convict and the ends of justice  would be met if sentence of fine is enhanced in order to  commute the sentence of imprisonment and consequentially   recommend to the Government to consider the case under  Section 433 of the Code.  High Court noted that there was no  serious opposition by the investigating agency, the Central  Bureau of Investigation (for short ’CBI’) for a  recommendation.   

The learned Single Judge who heard the criminal appeal

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felt that no useful purpose would be served in requiring the  appellant to undergo sentence at the belated stage and it  would be appropriate if fine is enhanced to Rs.15,000/- in  commutation of sentence of imprisonment.  He further  directed that the case of the accused was to be considered  and regularized in accordance with Section 433 (c) of the  Code. A further direction was given that  on the deposit of  Rs.15,000/- as fine in commutation of sentence of  imprisonment within a stipulated period and intimation of  deposit being given to the appropriate Government, the State  Government may formalize the matter by passing an  appropriate order under Section 433 (c) of the Code.  The  sentence of imprisonment was directed to be suspended on  furnishing personal bond and furnishing surety to the  satisfaction of the Trial Court.

In support of the appeal the State (Govt. of NCT of  Delhi) submitted that the power of commutation is not  available to a Court and it is the exclusive domain of the  executive.  It was, therefore, submitted that the course  adopted by the High Court is unsustainable.   

Learned counsel for the respondent-accused submitted  that on the peculiar facts of this case no interference is  called for. Though strictly speaking the High Court had no  power of commutation, yet direction was given to the State  Government to formalize the order of commutation on deposit  of the enhanced fine and same cannot be faulted.

Section 432 of the Code corresponds to and reproduces  almost word for word Section 401 and sub-section (3) of  Section 402 of the Code of Criminal Procedure, 1889 (in  short old Code). Sub-sections (1) to (4) of Section 432   reproduce word for word sub-sections (1) to (4) of Section  401 of the old Code.  Sub-section (5) reproduces word for  work sub-section (6) of the old Section.  Sub-section (6)  similarly reproduces sub-section (4-A) of the old Section.   Sub-section (5) of old Section 401 had been omitted earlier  in 1950. Sub-section (7) corresponds to sub-section (3) of  Section 402 of the old Code.  The main paragraph and Clause  (a) reproduce the old provision word for word without any  change.  Clause (b) is slightly different, but without any  change of substance. That clause reads:

       "(b) in other cases, the State Government."

Article 72 of the Constitution of India, 1950 (in short  the Constitution) confers upon the President 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.  The power so conferred is without  prejudice to the similar power conferred on Court Martial or  the Governor of a State. Article 161 of the Constitution  confers upon the Governor of a State similar powers in  respect of any offence against any law relating to a matter  to which the executive power of the State extends.  The  power under Articles 72 and 161 of the Constitution is  absolute and cannot be fettered by any statutory provision  such as, Sections 432, 433 or 433-A of the Code or by any  Prison Rules. But the President or the Governor, as the case  may be, must act on the advice of the Council of Ministers.

A pardon is an act of grace, proceeding from the power  entrusted with the execution of the laws, which exempts the  individual on whom it is bestowed from the punishment the

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law inflicts for a crime he has committed. It affects both  the punishment prescribed for the offence and the guilt of  the offender; in other words, a full pardon may blot out the  guilt itself.  It does not amount to an acquittal unless the  Court otherwise directs.  Pardon is to be distinguished from  "amnesty" which is defined as "general pardon of political  prisoners; an act of oblivion."  As understood in common  parlance, the word "amnesty" is appropriate only where  political prisoners are released and not in cases where  those who have committed felonies and murders are pardoned.

Reprieve means a stay of execution of sentence, a  postponement of capital sentence.  Respite means awarding a  lesser sentence instead of the penalty prescribed in view of  the fact that the accused has had no previous conviction.   It is some thing like a release on probation of good conduct  under Section 360 of the Code.  Remission is reduction of  the amount of a sentence without changing its character. In  the case of a remission, the guilt of the offender is not  affected, nor is the sentence of the Court, except in the  sense that the person concerned does not suffer  incarceration for the entire period of the sentence, but is  relieved from serving out a part of it.  Commutation is a  change of a sentence to a lighter sentence of a different  kind (Section 433-A empowers the appropriate Government to  suspend or remit sentences). The expression "appropriate  Government" means the Central Government in cases where the  sentences or order relates to matter to which the executive  power of the Union extends, and the State Government in  other cases. The release of prisoners condemned to death in  exercise of powers conferred under Section 433-A of the Code  and Article 161 of the Constitution odes not amount to  interference with the due and proper course of justice, as  the power of the High Court to pronounce upon the validity,  propriety and correctness of the conviction and sentence  remains unaffected. Powers under Article 161 of the  Constitution can be exercised before, during or after trial.   By reducing the sentence, the authority concerned does not  thereby modify the judicial sentence.  The fact that the  sentence was remitted by the appropriate Government or that  on account of certain remissions which he earned under the  Jail Rules or under some order of general amnesty, the  person was released earlier, does not affect  disqualifications incurred, if any. Section 432 confines the  power of the Government to the suspension of the execution  of the sentence of the remission of the whole or any part of  the punishment.  The conviction under which the sentence is  imposed remains unaffected. The section gives no power to  the Government to revise judgment of the Court.  It only  provides with the power to remitting the sentence.   Remission of punishment assumes the correctness of the  conviction and only reduces the punishment in part or in  whole.  The word "remit" as used in Section 432 is not a  term of art.  Some of the meanings of the word "remit" are  "to pardon, to refrain from inflicting, to give up."  A  remission of sentence does not mean acquittal and an  aggrieved party has every right to vindicate himself or  herself.   

Section 428 contemplates a conviction by the court and  it operates at the time of the pronouncement of the sentence  by the Court, whereas Section 433 deals with commutation by  the State authority.  Consequences that follow from the  provisions of Section 433 do not affect Section 428.  Sections 432 and 433 appear under the heading "Suspension,

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Remission and Commutation of Sentences."  Under Section  432(1) there is power in the appropriate Government in the  case of any person, who has been sentenced to punishment for  an offence, to suspend the execution of his sentence or  remit the whole or any part of the punishment to which he  has been sentenced without conditions or upon any condition  which the person sentenced accepts.  Under sub-section (2)  it is provided that 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 made 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. Section 433 of the Code provides for a power of the  State Government to commute the sentence and Clause (b)  thereof provides that the appropriate Government may without  the consent of the person sentenced commute a sentence of  imprisonment for life, for imprisonment for a term not  exceeding 14 years or for fine.  It may be pointed out that  this provision is similar to the provision in Section 55 of  the Indian Penal Code, 1860 (in short the ’IPC’). The power  to commute a sentence of death is independent of Section  433-A. The restriction under Section 433-A comes into  operation only after the power under Section 433 is  exercised.  Clause (c) of Section 433 deals with commutation  of a sentence of rigorous imprisonment to simple  imprisonment for any term to which the person might have  been sentenced, or to fine.

"Pardon is one of the many prerogatives which have  been recognized since time immemorial as being vested in the  sovereign, wherever the sovereignty might life."  This  sovereign power to grant a pardon has been recognized in our  Constitution in Articles 72 and 161, and also in Sections  432 and 433 of the Code. Grant of pardon to an accomplice  under certain conditions as contemplated by Section 306 of  the Code is a variation of this very power. The grant of  pardon, whether it is under Article 161 or 72 of the  Constitution or under Sections 306, 432 and 433 is the  exercise of sovereign power.

An identical question regarding exercise of power in  terms of Section 433 of the Code was considered in Delhi  Administration (Now NCT of Delhi) vs. Madan Lal (2002 (6)  Supreme 77). The bench speaking through one of us  (Doraiswamy Raju, J) was of the view that exercise of power  under Section 433 was an executive discretion. The High  Court in exercise of its revisional jurisdiction had no  power conferred on it to commute the sentence imposed where  a minimum sentence    was  provided for offence.  In State  of Punjab    v. Kesar Singh (1996 (5) SCC 495) this Court  observed as follows (though it was in the context of Section  433 (b):

"The mandate of Section 433 Cr.PC enables  the Government in an appropriate case to  commute the sentence of a convict and to  prematurely order his release before expiry  of the sentence as imposed by the courts.  

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That apart, even if the High Court could  give such a direction, it could only direct  consideration of the case of premature  release by the Government and could not have  ordered the premature release of the  respondent itself.  The right to exercise  the power under Section 433 Cr.PC vests in  the Government and has to be exercised by  the Government in accordance with the rules  and established principles.  The impugned  order of the High Court cannot, therefore,  be sustained and is hereby set aside."

The powers conferred upon the appropriate Government  under Section 433 have to be exercised reasonably and  rationally keeping in view reasons germane and  relevant for  the purpose of law, mitigating circumstances and/or  commiserative facts necessitating the commutation and  factors like interest of the society and public interest.   "Commutation" is in essence the alteration of a sentence  of one kind into a sentence of less severe kind.  The powers  of commutation exclusively vest with the appropriate  Government.  The 41st report of the Law Commission throws  beacon light on the exercise of such power.  The report was  in respect of Sections 401 and 402 of the old Code which  reads as follows:   

"The provisions of this Chapter are ancillary  to the powers conferred on the President of  India and the Governors of the States by  article 72 and article 161, respectively, of  the Constitution.  Both these articles first  refer to the power to grant pardons,  reprieves, respites or remissions of  punishment, and then, to the power to  suspend, remit or commute the sentence of any  person convicted of any offence.  Section 401  contains detailed provisions in regard to the  suspensions and remissions of sentences,  while Section 402 deals with the commutation  of sentences.  Following article 72 (1) (c)  of the Constitution, Section 402A makes the  powers conferred by Sections 401 and 402 on  the State Governments in respect of State  field of offence exercisable also by the  Central Government.  

It is noteworthy that these sections do not  circumscribe in any way the power of the  President and Governors to grant pardons,  reprieves and respites, which is analogous to  sovereign’s prerogative of mercy in England.

As mentioned earlier, articles 72 and 161 of  the Constitution first refer to the power to  grant pardons, reprieves, respites or  remissions of punishments, and then to the  power to suspend, remit or commute, of any  person convicted of any offence.  "Reprieve"  means to take back or withdraw a sentence for  a time, the effect being simply to suspend  the sentence.  It is no more than a temporary

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postponement and, in England, is used as the  first step in commuting a death sentence.   The term "respite" means delaying the  punishment, specially in the case of a death  sentence, and means much the same as  reprieve.  It would seem that granting a  respite or reprieve of punishment is  practically indistinguishable from suspending  the execution of the sentence awarded by a  Court for a temporary period.  "Remission"  originally meant a pardon under the great  seal and release but latterly it came to mean  the same as a reduction of the quantum of  punishment (e.g. amount of the fine imposed  or term of imprisonment awarded) without  changing its character.  "Commutation" means  the alteration of a sentence of one kind into  a sentence of a less severe kind, as  indicated in Section 402 of the Code.

The Constitution has lumped together both  these powers (i.e. those under Section 295  (1) and (2) of the Government of India Act,  1935) and placed them on the same footing.   The overlap that obviously exists does not  harm.  There is, however, no need to enlarge  the scope of Section 401 of  the Code so as  to cover expressly pardons, reprieves and  respites besides suspension and remissions.

The question of inserting in the Code a  provision on the lines of S.69 of the  Criminal Justice Act, 1948, was raised during  the discussion before us.  It was suggested  for example that if a person who was  sentenced to imprisonment for a term by the  Court and a part of this sentence was  remitted by the State Government or the  sentence was commuted to one of fine, the  convicted person should be deemed to have  been sentenced to the shorter term of  imprisonment, or, as the case may be, to fine  only by the Court.  This could be of  practical importance because many Acts  provide for collateral disqualification in  the case of a person convicted for an offence  and sentenced to imprisonment for a specified  minimum term.  We have, however, come to the  conclusion that the gravity of the offence  for which the law provides for such  disqualification should depend on the  sentence awarded by the Court and not on the  view which the State Government may take  while remitting or commuting the sentence.   In any event, this is essentially a question  of policy and if such an amendment is  considered desirable in the context of a  particular special law, it may more  appropriately be made in that view.

Another suggestion was that there should be  provision for "general amnesty" which would  relieve the appropriate Government from the  necessity of passing separate orders of  remission and release in every case.  In our

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opinion an amendment of the Code for this  purpose is not necessary.  Once the policy of  granting a "general amnesty" for certain  categories of convicted prisoners is decided  upon by the Government, it is hardly  desirable that the Government should pass a  general order and leave it to be applied to  individual cases by the prison authorities.

Sub-section (1) of Section 402 enables the  appropriate Government to commute sentences  without the consent of the person sentenced.   The general provision has, however, to be  read with Section 54 and Section 55 of the  I.P.C. which contains special provision in  regard to commutation of sentences of death  and of imprisonment for life.  The definition  of "appropriate Government" in Section  402(3) is substantially the same as that  contained in Section 55A of the I.P.C.  It  would obviously be desirable to remove this  duplication and to state the law in one  place. In the present definition of  "appropriate Government" in Section 402(3),  the reference to State Government is somewhat  ambiguous.  It will be noticed that clause  (b) of Section 55A of the Indian Penal Code  specifies the particular State Government  which is competent to order commutation as  "the Government of the State within which the  offender is sentenced."

We, therefore, propose that Sections 54, 55  and 55A may be omitted from the IPC and their  substance incorporated in S.402 Criminal  Procedure Code.

(ii) "Clauses 441 to 444 â\200\223 These clauses  correspond to sections 401 and 402 and  sections 54, 55 and 55A of the IPC.  

The Commission has recommended that in  respect of cases investigated by the Central  Bureau of Investigation or involving  misappropriation or destruction or damage to  Central Government property and offences  committed by Central Government servants in  the discharge of their official duties,  remission or commutation of sentences should  be granted by the State Government only after  consultation with the Central Government.  It  is considered better to require ’concurrence’  of the Central Government instead of merely  consultation with it.

Where persons are prosecuted for offences,  some under laws in the State field and some  in the Union field and sentenced to separate  terms of imprisonment to run concurrently,  State Governments sometime remit the whole  sentence without a reference to the Central

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Government, although legally the Central  Government has to order remission in relation  of offences in the Union field.  A provision  is being added requiring specifically that  the person cannot be released unless the  Central Government also remits the part of  the sentence relating to an offence in the  Union field".

It is brought to our notice that the amount directed to  be deposited has been so done by the respondent-accused  before the Trial Court.   

We set aside the order of the High Court.  We do not  propose to restrict the right of the accused to move the  appropriate Government for such relief as is available in  law.  It would be at sole discretion of the appropriate  Government to exercise the power conferred on it in  accordance with law.  

The appeal is allowed to the extent indicated.