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

Sohini Chowdhury
6 Jun 2022 4:38 AM GMT
Explainer : Which Is The Appropriate Government To Grant Suspension, Remission And Commutation Of Sentences Under Section 432/433 CrPC?
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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 -

  1. 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;
  2. 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 -

  1. 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
  2. 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 -

  1. to the matters with respect to which Parliament has power to make laws; and
  2. 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 mentioned in the Constitution or in any law made by the Parliament.

In this regard it would be relevant to have a look at Article 162 of the Constitution which contemplates the extent of executive power of the State. It reads as under -

Subject to the provisions of the Constitution, the executive power of the State shall extend to the matters with respect to which the Legislature of the State has power to make laws:

Provided that in any matter with respect to which the Legislature of a State and Parliament have power to make laws, the executive power of the State shall be subject to, and limited by, the executive power expressly conferred by this Constitution or by any law made by the Parliament upon the Union or authorities thereof.

Ascertaining the 'Appropriate Government' - Sriharan's Judgment

In order to determine whether the Union or the State Government would be the 'appropriate Government' to grant remission or commute sentence, what needs to be really looked at is the law under which the sentence was imposed [2].

  1. As per Section 432(7)(a), if the Parliament has the exclusive power to enact the law under which the sentence to be remitted/suspended/commuted is imposed, then the executive power of the Union would extend to it and the Central Government would be the appropriate Government;
  2. Barring the cases that fall under Section 432(7)(a), in all other cases where the convict is sentenced or the sentence order is passed within the territorial jurisdiction of the concerned State, then the State would be the appropriate Government. [3]

The specification with respect to the 'territorial jurisdiction of the concerned State' where the convict is sentenced aids in determining the appropriate State Government when the offence is committed in multiple States or in a different State than the one where the sentence is imposed on the accused.[4] For example: If offence is committed in State A and trial is held and sentence is passed in State B, then the Government of State B would be the appropriate Government.

When the power to legislate is co-extensive

If both the Parliament and the State Legislature have the power to enact the law under which sentence is imposed, and in terms of Article 73(1), the Constitution or any enactment of the Parliament expressly reserves the power to extend executive power in favour of the Union, then by virtue of Section 432(7)(a) CrPC the Central Government would be the appropriate Government;

The instances wherein the Central Government would have primacy -

  1. If the sentence was imposed under TADA or any other Central legislation, the executive power of the Union alone would apply and the Central Government would be the appropriate Government. [5]
  2. When the Constitution expressly reserved executive power in favour of the Union - For example G.V. Ramanaiah v. Superintendent of Central Jail, Rajahmudry and Ors.
    : The 'criminal court' imposed the sentence under Section 489(A) to 489(D) of the Indian Penal Code. The Code is covered by Entry 1 of List III (Concurrent List) of the Seventh Schedule of the Constitution. Therefore, both the Union and State Legislature are empowered to legislate. However, Section 489(A) to 489(D) deals with offences pertaining to currency notes and bank notes, which falls under the ambit of Entries 36 and 93 of the List I (Union List) of the Seventh Schedule. In view of the same, the power to grant remission was held to be exclusively within the competence of the Central Government. [6]

Interestingly, in G.V. Ramanaiah (supra), the Apex Court had held that though the Code falls under the ambit of the Concurrent list, the various provisions of the Code may relate to Union or the State lists of the Seventh Schedule. Accordingly, the appropriate Government would be identified under Section 432(7) CrPC.

"...The Indian Penal Code is a compilation of penal laws, providing for offences relating to a variety of matters, which are referable to the various Entries in the different Lists of the 7th Schedule of the Constitution. Many of the offences in the Penal Code relate to matters, which are specifically covered by the Entries in the Union List. Examples of such offences are to be found in Chapter VII, offences relating to the Army, Navy and Air Force; Chapter IX-A, offences relating to Elections; Chapter XII, offences relating to coin and Government stamps; Chapter XIII, offences relating to Weights and Measures; and the bunch of sections 489-A to 489-E, offences relating to Currency-Notes and Bank-Notes, which are referable to Entries Nos. 4, 72, 36, 50 and 36, respectively, of List I of the Seventh Schedule…"

  1. Another instance is when the law is enacted by the Union in exercise of powers under Articles 248, 249, 250, 251 and 252 of the Constitution. Article 248 grants residuary power to the Parliament to make laws on subjects that were not mentioned in either the State List or the Concurrent List. Article 249 confers power to the Parliament to legislate with respect to a matter in the State List in the national interest. Article 250 deals with power of the Parliament to legislate with respect to subject matters in the State List when Proclamation of Emergency is in operation. Article 251 states that if the law made by the State is repugnant to the law made by the Parliament in exercise of Articles 249 and 250, the law made by the Parliament would prevail. Article 252 grants power to Parliament to legislate for two or more States by their consent and adoption of the same by any other State. Though the co-extensive power of the State to legislate is not taken away, if there is a specific conferment of executive power in favour of the Union in the legislations enacted in exercise of power under Articles 248 to 252, the Central Government would get primacy. [7]

Other than the instances mentioned above in all other cases, the State Government would be the appropriate Government. As enunciated by Dr. Ambedkar in the Constituent Assembly, generally the authority to execute laws which relate to what is called the Concurrent field, whether the law is passed by the Central Legislature or whether it is passed by the Provincial or State Legislature, shall ordinarily apply to the Province or the State. Execution of Concurrent law would be with the Centre only if Parliament passes a law and specifically retains the executive power of the Central Government with respect to it or if it is expressly provided in the Constitution. The intention of the framers of the Constitution found reiteration in Rai Sahib Ram Jawaya Kapur And Ors. v. State of Punjab.

"....Thus under this article the executive authority of the State is exclusive in respect to matters enumerated in List II of Seventh Schedule. The authority also extends to the Concurrent List except as provided in the Constitution itself or in any law passed by the Parliament. Similarly, Article 73 provides that the executive powers of the Union shall extend to matters with respect to which the Parliament has power to make laws and to the exercise of such rights, authority and jurisdiction as are exercisable by the Government of India by virtue of any treaty or any agreement. The proviso engrafted on clause (1) further lays down that although with regard to the matters in the Concurrent List the executive authority shall be ordinarily left to be State it would be open to the Parliament to provide that in exceptional cases the executive power of the Union shall extend to these matters also."

Prosecuting agency is the Central Government

In Sriharan (supra), the Solicitor General had argued that when the offence is dealt with by the prosecuting agency of the Central Government, in view of the proviso to Article 73(1) the appropriate Government would be the Central Government. It was argued that when the CBI or other Central agencies investigate an offence, the executive power of the Central Government is saved, as elucidated under the proviso to Article 73(1), by the statute which empowered the agencies to do so.[8] However, perusing the relevant provisions, the Court was of the opinion that in order to ascertain the 'appropriate Government', the power to enact the law under which the sentence is imposed would be of relevance and not the affiliation of the prosecuting agency.[9]

State Government to act after 'Consultation' with Central Government

Section 435(1) of the CrPC stipulates that in all the cases wherein the prosecuting agency is the CBI or any other Central agency; cases which involve misappropriation or destruction of, or damage to, any property belonging to the Central Government; cases which are committed by an employee of the Central Government during the course of their employment, the State Government ought to consult the Central Government before remitting or commuting the sentence. The five-judge Bench in Sriharan (supra) held that 'consultation' in this regard would necessarily amount to 'concurrence'.[10]

When an accused is convicted and sentenced for different offences, and some of the offences relate to the executive power of the Union and others to the executive power of the State, as per the concurring opinion authored by Justice U.U. Lalit in Sriharan (supra), since the executive power of State or Union is offence specific, both shall be the appropriate Government with respect to the respective offences to which the executive power of the respective Government extends.[11] This circumstance is covered by Section 435(2), which reads as under -

"No order of suspension, remission or commutation of sentences passed by the State government in relation to a person, who has been convicted of offences, some of which relate to matters to which the executive power of the Union extends, and who has been sentenced to separate terms of imprisonment which are to run concurrently, shall have effect unless an order for the suspension, remission or communion, as the case may be, of such sentences has also been made by the Central Government in relation to the offences committed by such person with regard to matters to which the executive power of the Union extends."

Determination of Appropriate Government in the Perarivalan judgment restricted to sentence imposed under Section 302 IPC

In A.G. Perarivalan v. State, Through Superintendent of Police CBI/SIT/MMDA, Chennai, Tamil Nadu And Anr. the Apex Court had referred to the proviso of Article 73(1) and in absence of any specific conferment of executive power upon the Centre in the Indian Penal Code, it held that it is the executive power of the State that extends with respect to Section 302 IPC. The Court deliberately, did not consider the issue whether Section 302 would fall under the Concurrent List or the State List, but assumed that even if it is in the Concurrent List, without specific conferment in favour of the Union, the executive power of the State Government would extend to Section 302 making it the 'appropriate Government'. However, in Sriharan (supra), the concurring opinion (two-judges) accepted the submission of the State Government that Section 302 IPC is directly related to "public order" under Entry 1 of List II (State List) of the Seventh Schedule and the State Government has the exclusive power to make law in that regard.[12]

It is pertinent to note, that the Trial Court had convicted and sentenced 26 persons including Perarivalan for offences punishable under Terrorist and Disruptive Activities (Prevention) Act, 1987, Indian Penal Code (IPC for short), Explosive Substances Act, 1908, Arms Act, 1959, Passport Act, 1967, Foreigners Act, 1946 and the Indian Wireless Telegraphy Act, 1933. Later, on appeal, the Supreme Court had set aside the conviction under TADA. But, both, in Sriharan (supra) and A.G. Perarivalan (supra), the discussion was limited to Section 302 IPC because the punishments under the various Central Acts, which were for a lesser term, had already been undergone by the convicts. In fact, in Sriharan (supra) the Solicitor General himself had pointed out that the convicts had already served out the punishment imposed under the Central Acts and submitted that in that regard Section 435(1) could not be invoked.[13] Nonetheless, the Union Government had argued that the decision of the State Government was subject to the consultation in terms of Section 435 (1) with the Central Government, but, as CBI was the prosecuting agency. In A.G. Perarivalan (supra), the State Government emphasised that the terms of sentences under the Central Acts had been undergone; what was remaining was the life imprisonment imposed under Section 302 IPC, and the same was accepted by the Apex Court.

Reference

[1] Union of India v. Sriharan @ Murugan And Ors., Paragraph 125 at pg. 127-128.

[2] Id, Paragraph 126 at pg. 131.

[3] Id, Paragraph 128 at pg. 133.

[4] Id, Paragraph No. 23 at pg. 204-205. [Minority Opinion (concurring)]

[5] Id, Paragraph No. 130 at pg. 134-135

[6] Id, Paragraph No. 131 at pg. 135-136

[7] Id, Paragraph No. 132 at pg. 136

[8] Id, Paragraph No. 121 at pg. 122

[9] Id, Paragraph No. 132 at pg. 136

[10] Id, Paragraph No. 144-161 at pg. 144-174 [Majority Opinion]; Paragraph No. 35-40 at pg. 219-225 [Minority Opinion (concurring)]

[11] Id, Paragraph No. 24 at pg. 205-206 [Minority Opinion (concurring)]

[12] Id, Paragraph No. 28-29 at pg. 209-211 [Minority Opinion (concurring)]

[13] Id, Paragraph No. 145 at pg. 147




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