Section 432 of the CrPC, which corresponds to Section 473 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), deals with the government’s powers to suspend or commute sentences.

What is the remitting power of the government?

Section 432 of the CrPC says that the competent government, whether state or central, can at any time, with or without conditions, suspend the execution of a person’s sentence or commute/remit it.

The remission process begins with an application to the government for the suspension or remission of the sentence.

Next, the government can ask the president of the court that confirmed the conviction to provide his opinion on whether to accept or reject the request, together with the reasons for the decision.

Subsequently, this decision, supplemented with the accompanying reasons, must be sent together with a certified copy of the minutes.

However, if any condition attached to a suspended or remitted sentence is not met, the relevant government may revoke the suspension or remitted.

Once the suspension or remission is revoked, any police officer can arrest the convict without a warrant and recall him to serve the remainder of his sentence.

Finally, the competent government will “give directions as to the suspension of penalties and conditions” relating to the applications concerned, by general rules or special orders.

What was the case?

In that case, the State of Gujarat convicted the appellant, Mafabhai Motibhai Sagar, for murder and rioting under Sections 302 (murder), 147 (punishment for rioting) and 148 (rioting, armed with a deadly weapon) of the Indian Penal Code.

On February 18, 2008, the trial court sentenced him to life, and his sentence had reached its final stage.

However, the present plea before the high court challenged an order passed by the Gujarat High Court in September last year denying the convict parole. Before the HC, the appellant sought parole under Rule 19 of the Prisons (Bombay Furlough and Parole) Rules, 1959.

Rule 19 says that a prisoner may be granted parole for a period not exceeding 30 days at a time as directed by a competent authority.

Parole may be granted in cases of serious illness or death of a close relative such as a parent, sibling, child or spouse. It can also be granted in situations involving natural disasters such as a house collapse, flood or fire.

However, parole cannot be granted or extended without obtaining a police report in all cases, unless a close relative has died.

On September 15 last year, the Gujarat government’s Home Department passed an order granting Sagar remission, shortening his remaining sentence, but with four conditions.

The first condition of his release from prison was that he “behave decently” for two years. Second, if he commits any known crime or causes serious injury to a citizen or property after his release, he should be re-arrested and made to serve the remainder of his sentence.

The other two conditions were that he report to the nearest police station for a year after his release and pay any outstanding fines to qualify for release.

Aggrieved by the first two conditions, Sagar challenged the Gujarat government’s referral order before the Gujarat HC.

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What does the law say?

Under Section 432 (1) CrPC, the relevant government has the power to remit the whole or part of the sentence. This remission can be granted either unconditionally or with specific conditions. However, the actual remission takes effect only after the convict agrees to these conditions.

Before ruling on the matter, the court clarified that there is no doubt that the competent government has the power to grant remission, subject to conditions being fulfilled.

He cited a judgment of a five-judge bench of the Supreme Court in the case Union of India vs. V. Sriharan alias Murugan (2016), which supported an earlier view of the higher court in the case Mohinder Singh Vs. Punjab State (2013) to say that “the decision to grant remission must be well informed, reasonable and fair to all involved”.

Factors to consider when deciding whether to defer or suspend

The power to remit or suspend a sentence under Section 432(1) CrPC is discretionary but there are important considerations to bear in mind while exercising this power.

A key consideration is the public interest. Other factors that should be considered include the seriousness and nature of the offenses committed, as well as the convict’s history, including their record and any previous convictions.

Last August, a three-judge bench of the Supreme Court in the case Rajendra Mandal vs State of Bihar set forth important factors that governments must consider when granting commutations to convicts under Section 432.

These factors include the nature of the offense committed, the convict’s background and history, his role in the offence, his conduct after conviction and other relevant considerations such as age, health, family responsibilities and potential for reintegration into society.

Almost all states in the country have a written policy on granting remission under section 432(1) CrPC.

For example, Gujarat established a policy through its government resolution dated 23 January 2014. This resolution includes guidelines for assessing cases related to the remittal and premature release of prisoners. However, it has been amended periodically.

“The existence of a rational policy is necessary to prevent arbitrary exercise of the power to grant remission under Section 432(1) CrPC,” the court said in its October 21 judgment.

Is remission a matter of law?

No, a convicted person cannot ask for pardon by right. However, he has the right to have his case considered for remission under the law.

The power under Section 432(1) CrPC must be exercised in a fair and reasonable manner, the court reiterated in its judgment.

The court also pointed out that the conditions imposed by governments while exercising the power of remission or suspension under Section 432 must be “reasonable” and withstand the test of scrutiny under Article 14 of the Constitution (equality before law).

“If the conditions imposed are arbitrary, the conditions will be vitiated due to violation of Article 14. Such arbitrary conditions may also violate the convict’s rights under Article 21 of the Constitution,” the court said.

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The legality of the conditions in this case

Regarding the legality of the conditions imposed by the Gujarat government in Sagar’s case, the court held that the first condition required the convict to “behave decently” for two years after release.

However, the court held that the words “decent” or “decent” are not defined in the CrPC or other related legislation.

“Each human being’s concept of decency is likely to be different. The idea of ​​decency keeps changing with time. As the term ‘decency’ is not defined in CrPC or any other related legislation, each person or authority may interpret the same thing differently. Therefore, such a condition at the time of grant of remission becomes too subjective,” the court observed.

It added that “such a vague condition” could become a tool in the hands of the executive to cancel the remission on a “whim”.

The court also added that such a condition was “arbitrary” and defeated the purpose of the statutory provision, finding it unsustainable and striking it down.

The second condition, which said the convict would be rearrested and made to serve the remainder of his sentence if he committed any cognizable offense or caused serious injury to a citizen or property, was clarified by the court in its order.

Citing the Supreme Court’s 1977 judgment in his case Shaikh Abdul Azees vs State of Karnatakawhere the commutation was granted after the convict had served 15.5 years of a life sentence, the court pointed out that “upon breach of any condition of the commutation”, there would be no “automatic revival” of the sentence.

Instead, it would be up to the government to cancel the remission or not.

What is the procedure to cancel someone’s referral?

The court said the “drastic power” to revoke someone’s remission, and therefore their liberty, cannot be exercised without following the principles of natural justice.

It clarified that the state government has to serve a show cause notice to the convict withdrawing or canceling his remission.

“The show-cause notice must contain the grounds on which action is proposed under sub-section (3) of Section 432 of the CrPC or sub-section (3) of Section 473 of the BNSS,” it added.

The court also said that the authority can cancel the remission only after giving the convict an opportunity to be heard and submit a reply. The cancellation order must include detailed reasons for the decision.

However, the court clarified that any breach of the terms of the surrender “cannot invite cancellation” of the surrender order. The government must assess the nature of the violation, and minor violations cannot be grounds for revocation of remission.

Finally, the court added that the referral order “cannot be revoked on the ground of breach of conditions without following the principles of natural justice”.

What is the principle of natural justice?

The principle of natural justice is well established in the common law. In India, a seven-judge bench of the Supreme Court addressed this principle in Maneka Gandhi vs Union of India (1978) while ruling on the case involving detention of Gandhi’s passport.

In that case, the court ruled that “a fair opportunity to be heard following the order of confiscation of the passport would satisfy the mandate of natural justice.”

He was referring to the 1971 ruling Wiseman vs. Borneman by a court in Great Britain, which stated that natural justice is a humanizing principle intended to invest the law with equity and certain justice. Over the years, the principle has become a widely accepted rule, influencing many areas of administrative action.

The two most frequently cited principles of natural justice are hear alteram partem and we do not judge in his caseLatin legal maxims meaning “let the other side be heard” and “no man can be judge in his own cause” respectively.

In case Madhyamam Broadcasting Limited vs Union of India in April last year, the Supreme Court held that the concept of natural justice “cannot be straitjacketed”, adding that it has no set definition.

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