Governor Can Exercise Pardon Power Even If Prisoner Has Not Undergone 14 Years Imprisonment : Supreme Court

The Supreme Court hass observed that the power of Governor under Article 161 of the Constitution to commute sentence or to pardon will override the restrictions imposed under Section 433-A of the Criminal Procedure Code.Even 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, the bench comprising Justices Hemant Gupta and AS Bopanna observed. The court held that 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.The court was considering an appeal filed by the State against the Punjab and Haryana High Court order which directed it to consider fresh policies in respect of exercise of powers conferred under Article 161 of the Constitution. The issue in appeal was about the applicability of policy dated 12.4.2002 or the policy dated 13.8.2008 to the prisoner convicted on 25.3.2010.Referring to various judgments, including that of the Constitution bench in Union of India v. V. Sriharan , the court said that the remission under Article 161 of the Constitution will override Section 433-A of the Code."11. 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."The court noted that 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 Governor to commute sentence or to pardon is independent of any such restriction or limitation, the bench noted."13.....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.", it said.The court also observed that the policy prevalent at the time of conviction shall be taken into consideration for considering the premature release of a prisoner. Referring to Section 433A CrPC, the bench further observed:"17. 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 bench said that 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...

Governor Can Exercise Pardon Power Even If Prisoner Has Not Undergone 14 Years Imprisonment : Supreme Court

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Governor's powers under Article 161 of the Constitution are not restricted by Section 433A CrPC.

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