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Can a policy framed under article 161 override the requirements of section 433(A)of CrPC? Referred t

Pyare Lal.V. State of Haryana., CRIMINAL APPEAL NO.1003/2017 – 17 July 2020.

The bench encompassing Justice Uday Umesh Lalit, Justice Mohan M. Shantanagoudar, and Justice Vineet Saran collectively pronounced judgment on the consistent line of cases which has laid down that the principles of Section 433-A of the Code of Criminal Procedure do not and cannot apply to the exercise of constitutional power either under Article 72 or under Article 161 of the Constitution. It has always been accepted that no limitation can be read into the exercise of such constitutional power and that the sovereign power would not be bound by restrictions emanating from Section 433-A of the Code.

Every convict who came within the stipulations laid down by the Policy, that is to say (i) if the age of the convict was above 75 years in case of a male and above 65 years in case of a female, (ii) and, if the convict had completed 8 years or 6 years of actual sentence respectively, (iii) and, if the conduct of the convict in jail was satisfactory, in that the convict had not committed any major jail offence in the last two years, (iv) and the convict did not come within any of the exceptions laid down in para (2) of the Policy; the said convict was to be released forthwith.

In the instant case, the Appellant stands convicted under Section 302 read with Section 34 of the Indian Penal Code and sentenced to suffer life imprisonment and to other punishments including fine and default sentence under certain other offences. In the year 2017, the Hon’ble Supreme Court rejected the prayer for his bail. Another application for bail was thereafter preferred and when the application came up for consideration, it was reported that after having completed 8 years of actual sentence and the Appellant being aged above 75 years, in accordance with the existing policy of the State Government, he was prematurely released in 2019.

The issue for consideration is, “whether the policy permitted premature release even before completion of actual sentence of 14 years in connection with an offence punishable under Section 302 IPC?” However, the response filed on behalf of the State Government indicates that on the occasion of the Independence Day i.e., 15th August, 2019, in exercise of powers conferred by Article 161 of the Constitution of India, the Governor of Haryana was pleased to grant special remission to certain categories of prisoners and I that light the Appellant was prematurely released.

Learned Counsel, Shikhil Suri, appeared for the Appellant on behalf of the Supreme Court Legal Services Committee and Learned Additional Advocate General, Amit Kumar, appeared for the state.

The Hon’ble Court relied on the decisions in the below-mentioned cases and made the following observations:

  1. In Maru Ram vs. Union of India and others, the Constitution Bench of this Court considered the validity of Section 433-A of the Criminal Procedure Code, 1973. The supremacy of Section 433-A over the Remission Rules and short-sentencing statutes made by the various States was affirmed in that decision.

  2. Section 433-A does not forbid parole or other release within the 14-year span.

  3. The difference between the powers of commutation and remission of sentences exercisable under the provisions of the Code or other statutes on one hand and the constitutional powers under Articles 72 and 161 of the Constitution on the other hand.

  4. The constitutional conclusion is that the Governor is but a shorthand expression for the State Government and the President is an abbreviation for the Central Government.

  5. The majority judgment did not approve of the exercise of power under Article 161 of the Constitution by the Governor while issuing Order dated 18.07.1978 but emphasized the propriety of making rules by the Government “for its own guidance”

  6. Mere length of imprisonment may not by itself regenerate goodness in a convict. The rules of remission may be effective guidelines of a recommendatory nature.

  7. In Swaran Singh vs. State of U.P. and others, the order passed by the Governor under Article 161 of the Constitution granting remission to the person convicted of an offence of murder, even before the convict had completed two years’ of actual sentence, was set aside by a Bench of three Judges of this Hon’ble Court.

  8. In Satpal State of Haryana, it was observed that the power of granting pardon under Article 161 is very wide and does not contain any limitation as to the time at which and the occasion on which and the circumstances in which the said powers could be exercised.

  9. The decisions in Epuru Sudhakar vs. Govt. of A.P and State of Haryana and others vs. Jagdish were also considered.

  10. In Devender Pal Singh Bhullar v. State (NCT of Delhi), it was concluded that the power vested in the President under Article 72 and the Governor under Article 161 of the Constitution is a manifestation of prerogative of the State. It is neither a matter of grace nor a matter of privilege, but is an important constitutional responsibility to be discharged by the highest executive keeping in view the considerations of larger public interest and welfare of the people.

  11. In any case, the President or the Governor, as the case may be, has to take cognizance of the relevant facts and then decide whether a case is made out for exercise of power under Article 72 or 161 of the Constitution.

  12. The entirety of the matter must be before the Governor for exercise of power under Article 161 of the Constitution and that all the relevant aspects including seriousness of the crime and the manner in which the crime was committed must also be part of the consideration.

The Hon’ble Court accepted that no individual facts or material pertaining to any of the cases were placed before the Governor and that the benefit in each of the cases was conferred by the Executive itself in terms of the Policy. The Governor, thus, did not have the occasion to look into the issues such as severity of the crime or the manner in which the crime was committed or the impact of the crime on the Society or how the matter was seen and considered by the concerned courts while holding or upholding that the concerned convicts were found guilty of the offences in question. This questions the formulation of policy without incorporating the above-said issue.

The Hon’ble Court further concluded that the decisions of this Court were rendered since Maru Ram and some of them being decisions of the Benches of three Judges of this Court, do show that the relevant material must be placed before the Governor in order to enable him to exercise the power under Article 161 of the Constitution and failure on that count could result in quashing of the concerned orders of remission issued under Article 161 of the Constitution.

The Hon’ble Court framed the following questions for consideration:

“Whether in exercise of power conferred under Article 161 of the Constitution a policy can be framed, whereunder certain norms or postulates are laid down, on the satisfaction of which the benefit of remission can thereafter be granted by the Executive without placing the facts or material with respect to any of the cases before the Governor ?whether such exercise can override the requirements under Section 433-A of the Code?”

After considering all the above-said factors, the Court pronounced the following:

“The modalities adopted in the present matter, however, unmistakably, show that the individual facts and circumstances of the case were not even placed before the Governor. The basic facts and circumstances of the case were not even looked into. The correctness and propriety of such exercise is the matter in issue. We, therefore, direct the Registry to place the matter before the Hon’ble the Chief Justice for constituting a Bench of appropriate strength to consider the issues raised in the present matter.”

– Jumanah Kader

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