“Hate the sin and not the sinner”.
— Mahatma Gandhi
The Indian Penal Code, 1860 prescribes punishments for different crimes committed by individuals. The Criminal Procedure Code, 1973 not only lays down the procedure but also defines the humane side of the law holding out possibilities of remission, suspension or commutation of sentence of the deserving prisoners with or without their consent. While Sections 432 and 433 are enabling provisions, Section 433A was added to the Code of Criminal Procedure 1973 later imposing certain restrictions on the powers of remission or commutation by the appropriate government in certain circumstances and cases.
These sections read as follows:
Section 432:- 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 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.
(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-
(a) where such 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 433:- 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;
(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.
Restriction on powers of remission or Commutation in certain cases.
Section 433A:- Restriction on powers of remission or Commutation in certain cases. 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 fourteen years of imprisonment.
STATE SENTENCE REVIEW BOARD
Prior to 2001, the provincial governments in India followed different procedures particularly for suspensions and remission of sentences. The disparities and differing standards applied by the various states in deciding the premature release of prisoners serving custodial sentence, were examined by the National Human Rights Commission (NHRC). The Commission appointed a committee to evolve greater uniformity of standards in dealing with this matter. The Committee in turn, drafted guidelines and suggested constitution of Sentence Review Boards to deal with the cases of premature release. Suggestions from all the states and union territories were invited on the guidelines by NHRC by 30th September, 1999. On 20th October, 1999, the National Human Rights Commission issued amended guidelines for implementation by the states and union territories. The state governments were expected to amend inconsistent government orders and locally drafted rules with an aim to achieve uniformity in this regard throughout the country.
In nutshell, these guidelines led to the birth of the idea of State Sentence Review Board.
The State Sentence Review Boards have served the purpose admirably keeping in view the general principles of amnesty, remission of the sentence, welfare of the prisoners and society at large.
The National Human Rights Commission observed that the need for the State Sentence Review Board and a uniform procedure for premature release was necessitated by the complaints received from and on behalf of convicts undergoing life imprisonment without any sympathetic consideration for premature release or remission even after serving long sentences ranging from 10 to 20 years.
The eligibility criteria and the procedure prescribed for the State Sentence Review Board, therefore, considers only the cases of those convicts who have been sentenced to life imprisonment. In the light of these guidelines the scope of suspension and remission under section 432 of Code of Criminal Procedure 1973 has been limited only to these cases whereas the Criminal Procedure Code provides suspension and remission to any person who “has been sentenced to punishment for an offence” without laying down any length of punishment as eligibility criteria for consideration for premature release. It may be interesting to find data of post 2001 of all the convicts who have enjoyed premature release. None of them may belong to the category incarcerated for less than life imprisonment.
The National Human Rights Commission guidelines and procedure prescribed in para 6.3, 6.4 and 6.5 are perhaps in variance with what is prescribed by section 432(2). It is prescribed in section 432 (2) that the appropriate Government or the competent authority to grant premature release, “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”. In the NHRC guidelines there is no reference to this statutory provision of the Code of Criminal Procedure 1973.
The Apex Court in a few recent judgments has reinforced the mandatory observance of the procedure provided in section 432 (2) of Criminal Procedure Code 1973. In the case of Sangeet and others Vs. State of Haryana, (2013) 2 SCC 452, in para 77.7, the Supreme Court has observed:-
“Before actually exercising the power of remission under Section 432 Cr.P.C. the appropriate Government must obtain the opinion (with reasons) of the Presiding Judge of the convicting or confirming Court. Remission can, therefore, be given only a case-by-case basis and not in a wholesale manner.”
In another case pending before the Supreme Court of India, in an interim order the Apex Court has observed in the case of Union of India Vs. V. Sriharan @ Murugan and Others, (2016) 7 SCC 1, in para 52.6 of the judgment that:-
“No Suo Motu power of remission is exercisable under Section 432 (1) of Code of Criminal Procedure. It can only be initiated based on an application of the personal convicted as provided under section 432 (2) and that ultimate order of suspension or remission should be guided by the opinion to be rendered by the Presiding Officer of the Court concerned.”
From the forgoing it becomes absolutely clear that in the eyes of the Apex Court, the most material opinion is that of the Presiding Judge of the convicting or the confirming court that is why the Court in its judgment has replaced the word “may” as in Section 432 (2) of Criminal Procedure Code with “must” and “should”. Secondly, in none of the judgment of the Apex Court the Court has made any mention about the procedure prescribed by the National Human Rights Commission. Hence, it is a matter of legal debate whether the directions of the Apex Court as given in the judgment of the above two cases have to be followed or the NHRC guidelines which do not facilitate observance of the procedure prescribed in the Cr.P.C.
It has been experienced that the State Sentence Review Boards decide cases of premature release in wholesale manner in one sitting. The applications received from the convicts seeking premature release are allowed to pile up till the State Sentence Review Board meets. The National Human Rights Commission guideline for a quarterly meeting is followed more in breach. There are instances when the State Sentence Review Board meetings have not taken place for more than a year. Section 432 of Cr PC very clearly states that the appropriate government is to take a decision “whenever an application is made”. In Sangeet and others Vs. State of Haryana, (2013) 2 SCC 452, in para 77.7, the Apex Court has pronounced the following,
“Remission can, therefore, be given only on case-by-case basis not in wholesale manner.”
In view of this judgment of 2013, does it not become incumbent on “the appropriate government” to process the cases as and when these are received? Do the State Sentence Review Boards remain relevant after the Apex Court’s pronouncement in the case of Sangeet & others vs. State of Haryana (2013)?
The question of premature release among other issue is under the consideration of the Supreme Court of India in Writ Petition Sr. No. 48 of 2014 of Union of India Vs. V. Sriharan @ Murugan and Others. In its order dated 09.07.2014 the Apex Court had restrained the state governments from exercising their powers of remission and commutation of sentence under Section 432 and 433 of Code of Criminal Procedure 1973 to life convicts. The Supreme Court reviewed its order on 23.07.2015 and restricted the 09.07.2014 order only in the four following conditions or cases:-
(i) Where life sentence has been awarded specifying that-
(a) the convict shall undergo life sentence till the end of his life without remission or commutation;
(b) the convict shall not be released by granting remission or commutation till he completes a fixed term such as 20 years or 25 years or like.
(ii) Where no application for remission or commutation was preferred, or considered suo motu by the concerned State Government/authorities.
(iii) Where the investigation was conducted by any Central Investigation Agency like the Central Bureau of Investigation.
(iv) Where the life sentence is under any central law or under Section 376 of the Indian Penal Code, 1860 or any other similar offence.
The order of the Apex Court in para 4 (iv) continues to restrain the state governments from exercising the powers of remission and commutation, “where the life sentence is under any central law or under section 376 of Indian Penal Code, 1860 or any other similar offence”. Life sentence is provided to the best of knowledge of the writer, only under the Central laws barring the State of Jammu and Kashmir which has its own Penal Code. By insertion of this Sub Para to Para-4, the States continue to be restrained from the exercising the powers enjoyed by them under Section 432 and 433.
WHAT ABOUT THE VICTIM
The rights of the victim generally comprise the following four ingredients.
a) Access to justice & fair treatment,
b) Restitution,
c) Compensation &
d) Assistance.
More and more judicial pronouncements and legal pro-activism are expanding the scope of the rights of the victim in India.
The provisions in the Criminal Procedure Code particularly in Section 432 (2) were made with a view to consider the gravity of offence damage or loss caused to the victim herself and to the family, legal heir(s) and the society at large. It is perhaps keeping in mind the interest of the victim, that the lawmakers provided for the opinion of the convicting or confirming judge before deciding on premature release by the appropriate Government. Naturally it is the convicting or the convicting judge only who is tried the case and inflicted life sentence after weighing all pros and cons and the gravity of the offence and its impact on the society at large. The impression formed by the convicting or confirming judge and supported by the material and circumstantial evidence should rightly be the guiding light for the appropriate government and not the opinions of some armchair bureaucrats, correctional authorities and others. The State Sentence Review Board guidelines issued by the NHRC are completely silent on the aspect of representation of the interest of the victims. Should victim’s voice be heard in the process leading to suspension or remission of sentence?
In the light of the above, the writer wants to raise issue of relevance of the State Sentence Review Board in its present form. The State Sentence Review Board guidelines need to be revisited in view of the emerging case law and concern of the rights of the victims.
