Benefit of remission case referred to larger bench

The Supreme Court on Friday (July 17) referred to a larger bench the question of whether the benefit of remission can be granted by the Executive without placing the facts of the cases before the Governor. 

A three judge bench of Justices U. U. Lalit, Mohan Shantanagoudar and Vineet Saran asked the Registry to place the matter before the Chief Justice for the constitution of bench of appropriate strength to consider the issues raised in the present matter. 

The decision to place the matter before a larger bench was taken since the judgment relied on by the advocate Shikhil Suri appearing on behalf of the Supreme Court Legal Services Committee was passed by a Constitution Bench of the apex court.

The appellant in the present case was convicted under Section 302 read with Section 34 of the Indian Penal Code and sentenced to life imprisonment and to other punishments including fine and default sentence under certain other offences. 

The apex court, in 2017, had rejected his prayer of bail, while granting Special Leave to appeal. Another application for bail was preferred and when the application came up for consideration, the court was informed that after having completed 8 years of actual sentence and the appellant being aged above 75 years, was prematurely released in 2019 in accordance with the existing policy of the State Government. 

The appellant got a premature release even before completion of his actual sentence. 

The court, therefore, asked the state to file an affidavit indicating 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.

The state government in its response stated that on the occasion of Independence Day, on August 15, 2019, in exercise of the powers conferred by Article 161 of the Constitution of India, the Governor of Haryana had granted special remission to certain categories of prisoners. The government informed the court about the policy that granted special remission to prisoners undergoing sentence as a result of their conviction by the Courts of Criminal Jurisdiction in the State of Haryana. 

The policy also stated the category of prisoners who would be eligible to get the special remission along with the conditions. The convict was eligible for release: 

• If the age of the convict was above 75 years in case of a male and above 65 years in case of a female;

• If the convict had completed 8 years or 6 years of actual sentence, respectively;

• 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; and

• If the convict did not come within any of the exceptions laid down in para (2) of the Policy.

The judgment in Maru Ram vs Union of India and others, passed by the Constitution Bench of the Apex Court was cited in the present case. The majority judgment had considered the validity of Section 433-A of the Code of Criminal Procedure. 

The judgment did not approve the exercise of power under Article 161 of the Constitution by the Governor while issuing its order but emphasized the propriety of making rules by the Government “for its own guidance”. It also cautioned that mere length of imprisonment may not by itself regenerate goodness in a convict and stated that the rules of remission may be effective guidelines of a recommendatory nature. 

Another case cited was Swaran Singh vs. State of U.P. and others , where 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 three-judge Bench of the Supreme Court. 

The Court also took note of the judgment in case of State of Haryana and others vs. Jagdish where a three-judge Bench had observed that while considering the case of premature release of a life convict, the authorities should consider his case mainly taking into consideration whether the offence was an individual act of crime without affecting the society at large. 

In the present case, the Court noted that according to the policy, 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.

According to the Bench, the question that arises in this case is whether in exercise of power under Article 161 of the Constitution, a policy could be laid down setting out certain norms or postulates, on the satisfaction of which the benefit could thereafter be conferred upon the convicts by the executive without even placing the individual facts and material pertaining to the case of the convict, before the Governor. 

In majority judgment of Maru Ram it was observed that no separate order for each individual case would be necessary but a general order must be clear enough to identify the group of cases and indicate the application of mind to the whole group. Since the judgement was passed by a Constitution Bench the Court found it fit to be referred to a larger Bench.

Read the judgment here;

– India Legal Bureau