PATNA UNIVERSITY

P.G. DEPARTMENT OF LAW

Execution, Suspension,
Remission and Commutation of
Sentences
Third Semester Project Assignment 2017

Project submitted to:

Ms. Suruchi
Faculty, P.G. Department of Law
Patna University

Project submitted by:

Rakesh Roshan Singh
ROLL NO.- 19
SEMESTER- 3rd
SESSION- 2016-18

COURSE- LL.M.
 ACKNOWLEDGMENT

In this, third semester of LL.M. Course at PG Deptt. of Law, Patna University, I have got the
good fortune to study Execution, Suspension, Remission and Commutation of Sentences.
Here, the guidance of Ms. Suruchi, Faculty of law, made me able to understand the concept
and, thus, I greatly owe to him. He had given a proper direction to my study. His unfettered
support made me able to complete this project.

I am thankful to other faculty members of Patna University for their co-operation.

I am also thankful to the librarians of Patna University for their support.

I remain, of course, entirely responsible for any errors.

Rakesh Roshan Singh

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 RESEARCH METHODOLOGY
Doctrinal research asks what the law is on a particular issue. It is concerned with analysis of the legal
doctrine and how it has been developed and applied.

SOURCES
The sources used by the researcher in this project work are primary as well as secondary sources, details
of which are given as under:-
Primary sources: The primary sources used in this project work include Constitution of India, Cr.P.C. and
judicial precedents.
Secondary sources: As far as secondary sources are concerned books and commentaries have been
studied in the present work.

3
 TABLE OF CONTENTS

INTRODUCTION .......................................................................................................................... 5
EXECUTION OF SENTENCES .................................................................................................... 7
A. -Death sentences .................................................................................................................... 7
B. - Imprisonment ....................................................................................................................... 8
C. Levy of fine ...................................................................................................................... 10
D. General provisions regarding execution .......................................................................... 12
STATUTORY PROVISIONS FOR REMISSION ....................................................................... 14
CONSTITUTION AND STATUTORY PROVISIONS .............................................................. 16
SUSPENSION, REMISSION AND COMMUTATION OF SENTENCES ................................ 17
RESTRICTION ON POWERS OF REMISSION OR COMMUTATION IN CERTAIN CASES
....................................................................................................................................................... 21
CONCLUSION ............................................................................................................................. 24
BIBLIOGRAPHY ......................................................................................................................... 27

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 INTRODUCTION
Power to grant pardon is in essence an executive function to be exercised by the Head of the
State after taking into consideration of various matters which may not be germane for
consideration before a court of law. The executive's act of grace in showing mercy to an accused
or a convicted person takes several forms such as reprieve, pardon, respite, commutation,
remission etc.

The clemency power of the Executive is absolute and remains unfettered for the reason that
the provisions contained under Article 72 or 161 of the Constitution cannot be restricted by the
provisions of Sections 432, 433 and 433-A Cr. P.C. though the Authority has to meet the
requirements referred to hereinabove while exercising the clemency power. To say that clemency
power under Articles 72/161 of the Constitution cannot be exercised by the President or the
Governor, as the case may be, before a convict completes the incarceration period provided in
the short-sentencing policy, even in an exceptional case, would be mutually inconsistent with the
theory that clemency power is unfettered. The Constitution Bench of this Court in Maru Ram
clarified that not only the provisions of Section 433-A Cr. P.C. would apply prospectively but
any scheme for short sentencing framed by the State would also apply prospectively. Such a
view is in conformity with the provisions of Articles 20 (1) and 21 of the Constitution. The
expectancy of period of incarceration is determined soon after the conviction on the basis of
the applicable laws and the established practices of the State. When a short sentencing scheme is
referable to Article 161 of the Constitution, it cannot be held that the said scheme cannot be
pressed in service. Even if, a life convict does not satisfy the requirement of remission rules/short
sentencing schemes, there can be no prohibition for the President or the Governor of the State, as
the case may be, to exercise the power of clemency under the provisions of Article 72 and 161 of
the Constitution. Right of the convict is limited to the extent that his case be considered in
accordance with the relevant rules etc., he cannot claim pre-mature release as a matter of right.

Pardon and remission stand on different footings and give rise to different consequences.
Remission and suspension are also not the same. Suspension means a stay of the sentence of the
execution of the sentence. The effect of an order of remission is to entitle the prisoner to his
freedom on a certain date. Therefore, once that day arrives, he is entitled to be
released, and in the eye of law he is a free man from that moment.

5
Two contrary views have always prevailed on the issue of purpose of criminal justice and
punishment. The punishment, if taken to be remedial and for the benefit of the convict, remission
should be granted. If sentence is taken purely punitive in public interest to vindicate the authority
of law and to deter others, it should not be granted.

Legal maxim, Veniae facilitas incentivum est delinquendi, is a caveat to the exercise of
clemency powers, as it means - Facility of pardon is an incentive to crime. It may also prove to
be a grand farce, if granted arbitrarily, without any justification, to privileged class deviants.
Thus, no convict should be a favoured recipient of clemency.

At the time of considering the case of pre-mature release of a life convict, the authorities may
require to consider his case mainly taking into consideration whether the offence was an
individual act of crime without affecting the society at large; whether there was any chance of
future recurrence of committing a crime; whether the convict had lost his potentiality in
committing the crime; whether there was any fruitful purpose of confining the convict any more;
the socio-economic condition of the convicts family and other similar circumstances.

Considerations of public policy and humanitarian impulses supports the concept of executive
power of clemency. If clemency power exercised and sentence is remitted, it does not erase the
fact that an individual was convicted of a crime. It merely gives an opportunity to the convict
to reintegrate into the society. The modern penology with its correctional and rehabilitative basis
emphasis that exercise of such power be made as a means of infusing mercy into the justice
system. Power of clemency is required to be pressed in service in an appropriate case.
Exceptional circumstances, e.g. suffering of a convict from an incurable disease at last stage,
may warrant his release even at much early stage. Vana Est Illa Potentia Quae Nunquam Venit
In Actum means-vain is that power which never comes into play.

This project work deals with the Execution, Suspension, Remission and Commutation of
Sentences.

6
 EXECUTION OF SENTENCES

A. -Death sentences

When in a case submitted to the High Court for the confirmation of a sentence of death, the
Court of Session receives the order of confirmation or other order of the High Court thereon, it
shall cause such order to be carried into effect by issuing a warrant or taking such other steps as
may be necessary.1

When a sentence of death is passed by the High Court in appeal or in revision, the Court of
Session shall, on receiving the order of the High Court, cause the sentence to be carried into
effect by issuing a warrant.2

Postponement of execution of sentence of death in case of appeal to Supreme Court3

(1) Where a person is sentenced to death by the High Court and an appeal from its judgment
lies to the Supreme Court under sub-clause (a) or sub-clause (b) of clause (1) of Article
134 of the Constitution, the High Court shall order the execution of the sentence to be
postponed until the period allowed for preferring such appeal has expired, or if an appeal
is preferred within that period, until such appeal is disposed of.

(2) where a sentence of death is passed of confirm by the high court, and the person
sentenced makes an application to the High Court for the grant of a certificate under
Article 132 or under sub-clause (c) of clause (1) of article 134 of the Constitution, the
High Court shall order the execution of the sentence to be postponed until such
application is disposed of by the High Court, or if a certificate is granted on such
application until the period allowed for preferring an appeal to the Supreme Court on
such certificate has expired.

(3) Where a sentence of death is passed or confirmed by the High Court, and the High Court
is satisfied that the person sentenced intends to present a petition to the Supreme Court

1
S. 413 of the Code of Criminal Procedure
2
S. 414 of the Code of Criminal Procedure
3
S. 415 of the Code of Criminal Procedure

7
 for the grant of special leave to appeal under Article 136 of the Constitution, the High
Court shall order the execution of the sentence to be postponed for such period as it
considers sufficient to enable him to present such petition.

Postponement of capital sentence on pregnant woman

If a woman sentenced to death is found to be pregnant, the High Court shall order the execution
of the sentence to be postponed and may, if thinks fit commute the sentence to imprisonment for
life.4

B. - Imprisonment

Power to appoint place of imprisonment5

(1) Except when otherwise provided by any law for the time being in force, the State
Government may direct in what place any person liable to be imprisoned or
committed to custody under this Code shall be confined.

(2) If any person liable to be imprisoned or committed to custody under this Code is
in confinement in a civil jail the Court of Magistrate ordering the imprisonment or
committal may direct that the person be removed to a criminal jail.

(3) When a person is removed to a criminal jail under sub-section (2), he shall, on
being released there from, be sent back to the civil jail, unless either-

(a) Three years have elapsed since he was removed to the criminal jail, in
which case he shall be deemed to have been released from the civil jail
under section 58 of the Code of Civil Procedure, 1908 (5 of 1908) or
section 23 of the provincial Insolvency Act, 1920 (5 of 1920), as the case
may be; or

(b) The court which ordered his imprisonment in the civil jail has certified to

4
S. 416 of the Code of Criminal Procedure
5
S. 417 of the Code of Criminal Procedure

8
 the officer-in-charge of the criminal jail that he is entitled to be released
under section 58 of the Code of Civil Procedure, 1908 (5 of 1908) or under
section 23 of the Provincial Insolvency Act, 1920 (5 of 1920), as the case
may be.

Execution of sentence of imprisonment6

(1) Where the accused is sentenced to imprisonment for life or to imprisonment for a
term in cases other than those provided for by section 413, the Court passing the
sentence shall forthwith forward a warrant to the jail or other place in which he is,
or is to be, confined, and, unless the accused is already confined in such jail or
other place, shall forward him to such jail or other place, with the warrant:

Provided that where the accused is sentenced to imprisonment till the rising of
the Court, it shall not be necessary to prepare or forward a warrant to a jail and the
accused may be confined in such place as the court may direct.

(2) Where the accused is not present in Court when he is sentenced to such
imprisonment as is mentioned in subsection (1), the court shall issue a warrant for
his arrest for the purpose of forwarding him to jail or other place in which he is to
be confined and in such case the sentence shall commence on the date of his
arrest.

Direction of warrant for execution. - Every warrant for the execution a sentence of
imprisonment shall be directed to the officer-in charge of the jail or of the place in which the
prisoner is, or is to be, confined.7

Warrant with whom to be lodged. - When the prisoner is to be confined in a jail, the warrant
shall be lodged with the jailor.8

6
S. 418 of the Code of Criminal Procedure
7
S. 419of the Code of Criminal Procedure
8
S. 420 of the Code of Criminal Procedure

9
C. Levy of fine

Section 421 : Warrant for levy of fine.

(1) When an offender has been sentenced to pay a the court passing the sentence
make action for the recovery of the fine in either or- both of the following ways,
that is to say, it may -

(a) Issue a warrant for the levy of the amount by attachment and sale of any
movable property belonging to the offender

(b) Issue a warrant to the Collector of the district, authorizing him to realize
the amount as arrears of land revenue from the movable or immovable
property, or both of the defaulters;

Provided that, if the sentence directs that in default of payment of the fine,
the offender shall be imprisoned, and if such offender has undergone the
whole of such imprisonment in default, no court shall issue such warrant
unless, for special reasons to be recorded in writing, it considers it
necessary so to do, or unless it has made an order for the payment of
expenses or compensation out of the fine under section 357.

(2) The State Government may make rules regulating the manner in which warrants
under clause (a) of sub-section (1) are to be executed, and for the summary
determination of any claims made by any person other than the offender in respect
of any property attached in execution of such warrant.

(3) Where the court issues a warrant to the Collector under clause (b) of sub-section
(1), the Collector shall realize the amount in accordance with the law relating to
recovery of arrears of' land revenue, as if such warrant were a certificate issued
under such law:

10
 Provided that no such warrant shall be executed by the arrest or detention in
prison of the offender.

Section 422: Effect of such warrant. -A warrant issued under clause (a) of sub-section (1) of
section 421 by any court may be executed within the local jurisdiction of such court, and
it shall authorise the attachment and sale of any such property outside such jurisdiction,
when it is endorsed by the District Magistrate within whose local Jurisdiction such
property is found.

Section 423: Warrant for levy of fine issued by a court in any territory to which this Code
does not extend. - Notwithstanding anything contained in this Code or in any other law
for the time being in force, when an offender has been sentenced to pay a fine by a
Criminal Court in any territory to which this Code does not extend and the Court passing
the sentence issues a warrant to the Collector of a district in the territories to which this
Code extends, authorizing him to realize the amount as if it were an arrear of land
revenue, such warrant shall be deemed to be a warrant issued under clause (b) of
subsection (1) of section 421 by a court in the territories to which this Code extends, and
the provisions of sub-section (3) of the said section as to the execution of such warrant
shall apply accordingly.

Suspension of execution of sentence of imprisonments9

(1) When an offender has been sentenced to fine only and to imprisonment in default
of payment of the fine and the fine is not paid forthwith, the court may-

(a) Order that the fine shall be payable either in fully on or before a date not more
than thirty days from the date of the order, or in two or three installments, of
which the first shall be payable on or before a date not more than thirty days from
the date of the order and the other or others at an interval or at intervals, as the
case may be, of not more than thirty days;

(b) Suspend the execution of the sentence of imprisonment and release the offender,

9
S. 424 of the Code of Criminal Procedure

11
 on the execution by the offender of a bond, with or without sureties, as the court
thinks fit, on conditioned for his appearance before the court on the date or dates
on or before which payment of the fine or the installment thereof, as the case may
be, is to be made; and if the amount of the fine or of any installment, as the case
may be, is not realised on or before the latest date on which it is payable under the
order, the court may direct the sentence of imprisonment to be carried into
execution at once.

(2) The provisions of sub-section (1) shall be applicable also in any case in which an
order for the payment of money has been made on non-recovery of which impris-
onment may be awarded and the money is not paid forthwith; and, if the person
against whom the order has been made, on being required to enter into a bond
such as is referred to in that sub-section, fails to do so, the court may at once pass
sentence of imprisonment.

D. General provisions regarding execution

Who may issue warrant: -Every warrant for the execution of a sentence may be issued either by
the Judge or Magistrate who passed the sentence, or by his successor in-officer.

Sentence on escaped convict when to take effect.

(1) When a sentence of death, imprisonment for life or fine is passed under this Code on an
escaped convict, such sentence shall, subject to the provisions hereinbefore contained,
take effect immediately.
(2) When a sentence of imprisonment for a term is passed under this Code on an escaped
convict, -

(a) If such sentence is severer in kind than the sentence, which such convict was undergoing
when he escaped, the new sentence shall take effect immediately;
(b) If such sentence is not severer in kind than the sentence, which such convict was
undergoing when he escaped, the new sentence shall take effect after he has suffered
imprisonment for a further period equal to that, which, at the time of his escape, remained

12
 unexpired of his former sentence.

(3) For the purposes of sub-section (2), a sentence of rigorous imprisonment shall be deemed
to be severer in kind than a sentence of simple imprisonment.

Sentence on offender already sentenced for another offence.

(1) When a person already undergoing a sentence of imprisonment is sentenced on a subsequent

conviction to imprisonment or imprisonment for life, such imprisonment or imprisonment for
life shall commence at the expiration of the imprisonment to which he has been previously
sentenced, unless the court directs that the subsequent sentence shall run concurrently with
such previous sentence:
Provided that where a person who has been sentenced to imprisonment by an order under
section 122 in default of furnishing security sentenced to imprisonment for an offence
committed prior to the making of such order, the latter sentence shall commence
immediately.

(2) When a person already undergoing a sentence of imprisonment for life is sentenced on a
subsequent conviction to imprisonment for a term or imprisonment for life, the subsequent
sentence shall run concurrently with such previous sentence.

Period of detention undergone by the accused to be set off against the sentence of
imprisonment.

Where an accused person has, on conviction, been sentenced to imprisonment, for a term not
being imprisonment in default of payment of fine, the period of detention, if any, undergone by
him during the investigation, inquiry or trial of the same case and before the date of such
conviction shall be set off against the term of imprisonment imposed on him on such conviction,
and the liability of such person to undergo imprisonment on such conviction shall be restricted to
the remainder, if any, of the term of imprisonment imposed on him.

Return of warrant on execution of sentence. -When a sentence has been fully executed, the
officer executing it shall return the warrant to the court from which it is issued, with an
endorsement under his hand certifying the manner in which the sentence has been executed.

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 STATUTORY PROVISIONS FOR REMISSION
Indian legal mechanism provides pardoning power sourcing from both
statuary and constitutional authorities. By virtue of article 72 and 161 of the Constitution of
India, the President and Governor can grant pardon, to suspend,
remit or commute a sentences passed by the courts.

In addition to the above constitutional provisions the Criminal

Procedure Code, 1973 (Cr.P.C) provides for Suspension, remission and
commutation of sentences. Sections 432, 433, 433A, 434 and 435, empower the
government to suspend or remit sentence. When a person has been sentenced to
punishment for an offence, the Government may at any time and with or
without conditions, suspend the execution of a sentence or remit the whole or
part of the punishment under this section. Further, Sections 54 and 55 of the
Indian Penal Code (IPC) confer power on the appropriate government to
commute sentence of death or sentence of imprisonment for life as provided
therein. Section 54 of the Indian Penal Code 1860 empowers the appropriate
Government i.e. the Central Government in the case of an offence committed in
the Union Territories, and State Government in case of an offence committed
in the States, to commute i.e. to change a punishment to one of a different type
than the originally awarded the sentence of death to any other punishment
provided under the Code. The powers vested under Section 55 can be exercised
by the Government on its own initiative with no prayer to that effect by the
accused in question. The framers of the Code explained the object of such a
provision in the following words: It is evidently fit that the Government
should be empowered to commute the sentence of death for any other
punishment provided by the Code. Many circumstances of which the executive
authorities ought to be accurately informed, but which more often be unknown to the ablest
judges, may, at particular times render it highly inconvenient to
carry a sentence into effect.

In fact the provisions under sections 54 and 55 of Indian Penal Code

have become redundant in view of the similar provisions contained under

14
Section 432 to 434 of the Code of Criminal Procedure 1973 which empowers
to the appropriate Government (Central or State) to commute or remit or to
suspend the sentence passed by the courts.

It is important to note that the matter of commutation falls beyond the

jurisdiction of the courts since the prerogatives of the executive to alter the
sentence once it is accorded by the court of law. Thus, it is only the
Government concerned that it is competent to commute the sentence of death
under section 54 of the IPC read with Section 433 of Cr. P.C. 1973
Thus, the aforesaid provisions exhaust the powers of the President, the
Governor and the appropriate Government in the matter of exercise of
clemency in regard to the convicted person.

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 CONSTITUTION AND STATUTORY PROVISIONS

The power of the President or Governor to remit sentence awarded by

the court is absolute and cannot be fettered by any statutory provision such as
Sections 432, 433, 433A of Criminal Procedure code, 1973. This power cannot
be altered or modified or interfered with in any manner by any statutory
provision or Prison rules.

The authority of the Government to grant remission or to suspend

sentence under Section 432 of Cr.P.C is independent of the power conferred on
the Governor under Article 161 of the Constitution, no matter both the
Government and the Governor have concurrent powers in regard to suspension,
remission and commutation of sentence.

It seems that superficially the two powers, one constitutional viz.,

Article 72 and 161 and the other statutory viz., Section 433A of Cr.P.C. are coextensive. But two
things may be similar but not the same. That is precisely the
difference. The power which is the creature of the Code cannot 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, and the
strength is different, although the stream may be flowing along the same bed.
Higher the power the more cautious would be its exercise. This is particularly
so because Section 433-A has been passed by the Parliament on being
sponsored by the Central Government itself. The Parliament introduced Section
433-A by the Code of Criminal Procedure (Amendment) Act, 1978. It is
therefore, evident that while exercising the powers under Article 72 and 161 of
the Constitution neither the President, who acts on the advice of the Council of
ministers, nor the State Government is likely to overlook the object, spirit and
philosophy of Section 433A so as to create a conflict between the legislative
intent and the executive power.

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 SUSPENSION, REMISSION AND COMMUTATION OF SENTENCES
Section 432 of Cr.P.C 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. Whenever the 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 had 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 trial or of such record thereof as exists.
3. If any condition on which a sentence has been suspended or remitted is,
in the opinion of the appropriate Government, not fulfilled, the
appropriate Government may cancel the suspension or remission, and
thereupon the person in whose favour the sentence has been suspended
or remitted may, if at large, be arrested by any police officer, without
warrant and remanded to undergo the unexpired portion of the sentence.
4. The condition on which a sentence is suspended or remitted under this
section may be one to be fulfilled by the person in whose favour the
sentence is suspended or remitted, or one independent of his will.
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, and

17
 (a) Where such a 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. The provisions of the above sub-sections 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.
7. In this section and in section 433, the expression "appropriate
Government" means,
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
extends, the Central Government;
b) In other cases the Government of the State within which the
offender is sentenced or the said order is passed.

Section 432 incorporates the provisions of section 401 and 402(3) of the Old
code. There is no change in substance of the old law. This section does not give
any power to the Government to reverse the judgment of the Court, but
provides the power of remitting the sentence. The minimum sentence
awardable under Section 302 of Indian Penal Code, being life imprisonment no
reduction is possible. This power is executive in nature. While Article 161 of
the Constitution speaks of grant of reprieves, pardons and remissions etc., it
does not speak of imposition of conditions for the grant, whereas section 432 of
Criminal Procedure Code speaks of remission or suspension with any
condition. Section 432(3) specifically provides for consequences of the
conditions, which are contemplated by Section 432(1) of Criminal Procedure
Code not being fulfilled. Section 432 (3) contemplates remanding the person so
subjected to remission to jail once again. Section 432 of Criminal Procedure
Code is not manifestation of Articles 72 and 161 of the Constitution but a
separate, though similar provision.

18
In cases of murder, the Judge may report any extenuating circumstances
calling for a mitigation of punishment to the Government and the Government
may thereupon take such action under this section as it thinks fit. 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, and to give up. There is
therefore, no obstacle in the way of the Governor in remitting a sentence of
death. When the concerned Court feels sympathetic towards the accused, owing to some reasons
such as the wife of the accused is a cancer patient with
six children or the accused is a boy of tender years or accused is a young lady
who committed murder under the influence of others but legally constrained
to show mercy, then it recommends such cases to the Government, because the
power of granting mercy is vest with the executive but not with the judiciary.
An order passed under Section 432 Cr.P.C. is justiciable on any of the
following grounds:

a) That the authority exercising the power had no jurisdiction.

b) That the impugned order goes beyond the extent of power conferred by
law.
c) That the order has been obtained on the ground of fraud or that it has
been passed taking into account the extraneous considerations not
germane to the exercise of the power or in other words, is a result of
malafide exercise of power.

The brother of the murdered person is considered to one of the most aggrieved
parties and has the locus standi to challenge the order of remission of
punishment. While the State Government is not legally obliged to give reasons
for remitting sentence, it is duty bound to reply to allegations made in petition
challenging the remission. The State Government is not bound to produce the
records under writ of certiorari. The initial onus is on the petitioner to give
prima facie evidence to show that the power has been exercised malafide.
Reference under sub-section (2) of Section 432 Criminal Procedure Code is not mandatory and
therefore non-compliance of the said provision does not make

19
the impugned order without jurisdiction. Even though the sentence Revising
Board is not required to give detailed reasons; nevertheless the administrative
orders are subject to judicial review.

Section 433 of Cr.P.C- Power to commute sentence:

The appropriate Government may, without the consent of the person sentenced
commute

a) a sentence of death, for any other punishment provided by the

Indian Penal Code (45 of 1860);
b) a sentence of imprisonment for life, for imprisonment 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.

The Supreme Court upheld validity of Section 433, Government cannot reduce
or commute sentence to less than 14 years for weighty reasons as the crime was
serious.

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 RESTRICTION ON POWERS OF REMISSION OR COMMUTATION IN
CERTAIN CASES
As per Section 433-A of the Code of Criminal Procedure,
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 14 years of imprisonment.

A life convict covered by Section 433-A cannot invoke for his

premature release under Sections 432 and 433 if he has not completed 14 years
of actual imprisonment without any remission. The right to ask for remission of
sentence by a life convict would be under the law as was prevailing on the date
on which the judgment of conviction and sentence was passed.
To read down or interpret section 433A of the Code with the aid of the
changes proposed by the Indian Penal Code (Amendment) Bill would
tantamount to hearing the provisions of the said bill as forming part of the
Indian Penal Code which is clearly impermissible. To put such an interpretation
with the aid of such extrinsic material would result in violence to the plain
language of section 433A of the Code.

By reason of the powers conferred on Government by statute and on

the President or Governor by the Constitution for remission of sentences, a life
convict is not entitled, as of right to contend that his life imprisonment ought to
be construed as imprisonment for twenty years and that the remissions earned
by him in prison ought to be necessarily taken into consideration and he should
be prematurely released from prison even if the sentences awarded to him is one of
imprisonment for life. Unless the Government specifically grants
remission of sentence and orders release prematurely a life convict cannot ask
for release on the grounds that he has put in 20 years of sentence in jail with or
without remissions.

21
The mandate of Section 433 Cr.P.C. 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 was imposed by courts. Clause (b) of
Section 433 Cr.P.C. provides that the sentence of imprisonment for life may be
commuted for imprisonment for a term not exceeding 14 years or fine.
The High Court can direct consideration of premature release by the
Govt. which has to exercise the power under Section 433 Cr.P.C. in accordance
with the rules and established principles.

In Gopal Vinayak Godse v. State of Maharashtra10 the Constitutional

bench of the Supreme Court held that a sentence of transportation for life or
imprisonment for life must be treated as transportation or imprisonment for
whole of the remaining period of the convicts normal life, unless the said
sentence is commuted or remitted by the appropriate Government. Dealing
with the Rules framed under the Prisons Act, 1894 it held that even though they
were statutory in Character they did not confer an indefeasible right on a
prisoner sentenced to transportation for life to an unconditional release on the
expiry of a particular term including remissions. it is further held that the rules
framed under the Prisons Act enabled a prisoner to earn remissions- ordinary, special and State -
the said remissions were to be given credit towards his term
of imprisonment and for the purpose of working out the remissions the
sentence of transportation for life was equated with a definite period, but it is
only for that particular purpose and not for any other purpose. Lastly it
observed that the question of remission was exclusively within the province of
the appropriate Government.

The Code of Criminal Procedure does confer wide powers of

remission and commutation of sentences; it emphatically intends to carve out
extreme category from the broad generosity of such executive Section 432.and
the whole mandate of the rest of the section of Sec.433A to a serious
restriction. This embargo directs that commutation in such cases shall not

10
AIR 1961 SC 600.Para 5

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reduce the actual duration of imprisonment below 14years.
The State has the power to make rules on Remission Systems and
many States have for long made and worked such rules. They are intra-vires,
since even new legislations on remissions and rewards are good under Entry 4
of List II. These vintage schemes do not vanish with the enactment of the
Constitution but suffer a partial eclipse if they conflict with and become
repugnant to a Central law like the Procedure Code. If Section.433A by sheer
repugnancy, forces a permanent holiday on the prison remission laws of the
States vis -a- vis certain classes of lifers the former must prevail in situations of
irreconcilability. Assuming that Rules under the Prisons Act are valid and
cannot be dismissed as State Law, a harmonious reading of Section 433-A and
the Prison Rules must be the way out. Otherwise the later law must prevail or
implied repeal may be inferred. The notwithstanding clauses in Section 433-A
the Remission Rules and like Provisions stand excluded so far as lifers
punished for capital offenses are concerned.

Even so, we must remember the constitutional status of Articles 72

and 161 and it is common ground that section 433-A does not and cannot affect
even a wee-bit the pardon power of the Government 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.

is therefore, clear from the aforesaid observations that unless the

sentence for life imprisonment is commuted or remitted as stated earlier by the
appropriate authority under the provisions of the relevant law, a convict is
bound in law to serve the entire life term in prison the rules framed under the
Prisons Act or like statute may enable such a convict to earn remissions but
such remissions wilt not entitle him to release before he has completed 14 years
of incarceration in view of section 433A of the code unless of course power has
been exercised under Article 72 and161 of the Constitution.

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 CONCLUSION
The power or pardoning and remission are the noblest prerogative of sovereignty. If the laws are
too severe, the power of pardoning is a necessary corrective: but that corrective is itself an evil.
Make good laws, and there will be no need of a power to annul them. If the punishment is
necessary, it ought not to be remitted: if it is not necessary, the convict should not be sentenced
to undergo it. Even though there are statutory rules for remission, the authorities are not
implementing these guidelines properly. Various cases that came before the several High Courts
and Supreme Court have revealed this fact. Frequently the equality clause of the Indian
Constitution is violated by the prison authorities. Therefore, it is required that strict rules have to
be framed for granting remission.

Legal provisions regarding power to suspension or remission by the appropriate Government

under section 432 of the Code of Criminal Procedure, 1973.

Section 432 of the Code of Criminal Procedure provides the following provisions relating the
power to suspension or remission by an appropriate Government:

(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) 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 had 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.
(3) If any condition on which a sentence has been suspended or remitted is, in the opinion of the
appropriate Government, not fulfilled, the appropriate Government may cancel the suspension or
remission, and thereupon the person in whose favour the sentence has been suspended or
remitted, may, if at large, be arrested by any police officer, without warrant and remanded to
undergo the unexpired portion of the sentence.

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(4) The condition on which a sentence is suspended or remitted under Section 432 may be one to
be fulfilled by the person in whose favour the sentence is suspended or remitted, or one
independent of his will.
(5) The appropriate Government may, by general rules or special orders, give directions as to the
suspension of sentences and the conditions on which persons should be presented and dealt with.
However, 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, and;
(a) Where such petition is made by that 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) The provisions of the above sub-sections 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 imposed any liability upon him or his property.
(7) In Sections 432 and 433, the expression appropriate Government means;
(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
extends, the Central Government;
(b) In other cases, the Government of the State within which the offender is sentenced or the said
order is passed.
The powers conferred on the President of India and the Governors of States by Articles 72 and
161 of the Constitution of India to suspend, remit or commute any sentence is ordinarily called
mercy jurisdiction. The judiciary has no such mercy jurisdiction.

Pardon and remission stand on different footings. The difference between a pardon and a
remission of sentence lies in the fact that in the case of pardon it affects both the punishment
prescribed for the offence and the guilt of the offender, in other words, a fall pardon may blot out
the guilt itself; in the case of remission, the guilt of the offender is not affected nor is the
sentence of the Court affected, except in the sense that the person concerned does not suffer
incarceration for the entire period of the sentence, but is believed from serving out a part of it.

25
The power to grant pardon is in essence an executive function to be exercised by the Head of the
State after taking into consideration various matters which may not be germane for consideration
before a Court of law inquiring into the offence.

The Government of India and State Governments must dispose of the petitions under Sections
432 and 433 of the Code as expeditiously as possible and a self imposed rule should be followed
by the authorities rigorously that every such application shall be disposed of within the period of
three months from the date on which it is received.

The law governing suspension, remission and commutation of sentence is both statutory and
constitutional. The stage for the exercise of this power generally speaking is post-judicial. The
grant of remission is a matter of policy and it is for the executive branch of Government to
decide as to when, to what extent and in what manner remission is to be granted.

The Courts cannot give any direction in the matter of policy which is purely within the executive
domain of the Government. It is not the duty of the Government to give reasons in its order of
remission. The remission of sentence depends on the concept of mercy and it is not a prisoners
right.

The sentence will not automatically be revived when there is a breach of any condition of
suspension or remission. It is only when the Government chooses to pass an order of cancellation
of the suspension or remission that the convict is arrested and is required to serve the unexpired
portion of the sentence.

Section 389 of Cr. P.C. empowers the Court to suspend the sentence and even the conviction but
if there is no such suspension, the Competent Authority or the Governments powers under
Section 432, Cr. P.C. are not curtailed in any manner nor there is an embargo on its powers
merely because the appeal against the conviction is pending. But when the sentence is suspended
and the convict is ordered to be released on bail, such an order prevails over the powers of the
Government under Section 432, Cr. P.C.

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 BIBLIOGRAPHY

1. Kelkar R.V., Criminal Procedure, Fifth Edition 2008, Reprint 2011, Eastern Book Company,
Lucknow
2. Seervai, H.M. Constitutional Law of India vol. I, 3rd Edn; Universal Law Publishing Co.
Pvt. Ltd.
3. Singh, Mahendra P.; V.N. Shukla's Constitution of India, 11th Edition, 2008, EBC
4. The Code Of Criminal Procedure, 1973

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