Explainer : Which Is The 'Appropriate Government' To Grant Suspension, Remission And Commutation Of Sentences Under Section 432/433 CrPC?

Recently, the Supreme Court reiterated that the Governor has the power under Article 161 to remit/commute/pardon sentences imposed under Section 320 of the Indian Penal Code, 1860. A three-judge Bench of the Apex Court was considering the issue appertain to remission of sentence, against the backdrop of the Tamil Nadu Governor forwarding the recommendation of the State Cabinet approving early release of A.G. Perarivalan, convict in the Rajiv Gandhi assignation case, to the President for his consideration. Therein the Court had largely deliberated on the Constitutional power conferred on the executive head of the State to grant remission. However, in order to defend the authority of the President as the 'appropriate authority' to decide Perarivalan's remission plea, the Additional Solicitor General had referred to the judgment of the five-judge Bench of the Apex Court in Union of India v. Sriharan @ Murugan And Ors., which extensively deal with the remission power of the 'appropriate Government' under the provisions of the Code of Criminal Procedure, 1973. It is apposite to mention herein that the judgment in Sriharan (supra) was with respect to the power of the Government to grant remission of sentence of the convicts in the Rajiv Gandhi assassination matter. One of the issues before the Constitution Bench was with respect to determination of the 'appropriate Government' for grant of remission. In this explainer, we would primarily focus on the power of remission vested in the 'appropriate Government' by the CrPC. In this regard, we would discuss the relevant provisions of the CrPC (Sections 432 to 435) and the judgment in Sriharan (supra) to ascertain the 'appropriate Government' to remit or commute sentences. Relevant Provisions Section 432 deals with power to suspend or remit sentences. The 'appropriate Government' has the power to unconditionally or by imposing conditions accepted by the convict, suspend execution of their sentence or remit the whole or any part of the punishment imposed on them. By way of Section 433 power is conferred on the 'appropriate Government' to commute sentences of death, life imprisonment, rigorous imprisonment and simple imprisonment. Sub-section (7) of Section 432 CrPC delineates the meaning of the expression, 'appropriate Government' applicable to both Sections 432 and 433, as under - in cases where the sentence is for an offence against, or the order referred to in sub-section (6)* is passed, any law relating to a matter to which the executive power of the Union extends, the Central Government; in other cases, the Government of the State within which the offender is sentenced or the said order is passed. [*Sub-section (6) of Section 432 - The provisions of the above sub-section 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.] In relation to commutation of sentence of death and life imprisonment, Section 55A of the Indian Penal Code, 1860 also defines 'appropriate Government'. The expression is defined as under - in cases where the sentence is a sentence of death or is for an offence against any law relating to a matter to which the executive power of the Union extends, the Central Government; and in cases where the sentence (whether of death or not) is for an offence against any law relating to a matter to which the executive power of the State extends, the Government of the State within which the offender is sentenced. Section 2(y) of the CrPC states that words and expressions used in the statute if not defined in CrPC, but defined in the IPC would have the same meaning as assigned to them in the Penal Code. Though Section 432(7) of the CrPC refers to the 'executive power of the Union', it does not explain how to ascertain the executive power of the Union. To understand the import of expression 'executive power of the Union' reference is to be made to Article 73(1) of the Constitution of India, 1950, [1] which deals with the extent of the executive power of the Union and reads as under - (1) Subject to the provisions of this Constitution, the executive power of the Union shall extend - to the matters with respect to which Parliament has power to make laws; and to the exercise of such rights, authority and justification as are exercisable by the Government of India by virtue of any treaty or agreement: Provided that the executive power referred to in sub-clause (a) shall not, save as expressly provided in this Constitution or in any law made by Parliament, extend in any State to matters with respect to which the Legislature of the State has also power to make laws. The proviso to Article 73(1) makes it clear that when both Parliament and the State Legislature have the power to make laws, executive power of the Union would extend to State matters only when the same is explicitly...

Explainer : Which Is The 'Appropriate Government' To Grant Suspension, Remission And Commutation Of Sentences Under Section 432/433 CrPC?

Sohini Chowdhury

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