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TMI Blog2010 (3) TMI 1210X X X X Extracts X X X X X X X X Extracts X X X X ..... P (Crl.) No.9268/2008, SLP (Crl.) No. . /2009 @Crl.M.P. No.12754, SLP (Crl.) No. /2009 Crl.M.P. No.13045, SLP (Crl.) No.6914/2009, SLP (Crl.) No.6913/2009, SLP (Crl.) No.8288/2009, SLP (Crl.) No.8290/2009, SLP (Crl.) No.8291/2009, SLP (Crl.) No.8292/2009, SLP (Crl.) No.8293/2009, SLP (Crl.) No.8294/2009, SLP (Crl.) No.8297/2009, SLP (Crl.) No.8298/2009, SLP (Crl.) No.8300/2009, SLP (Crl.) No.8301/2009, SLP (Crl.) No.8302/2009, SLP (Crl.) No . /2009 @Crl.M.P. No.18221, SLP (Crl.) No /2009 @Crl.M.P. No.18264, SLP (Crl.) No . /2009 @Crl.M.P. No. 18402, SLP (Crl.) No. 831/2009, SLP (Crl.) No. 832/2009, SLP (Crl.) No. 1026/2009, SLP (Crl.) No. 1097/2009, SLP (Crl.) No. 1615/2009, SLP (Crl.) No. 2101/2009, SLP (Crl.) No. 1861/2009, SLP (Crl.) No. 2216/2009, SLP (Crl.) No. 3475/2009, SLP (Crl.) No. 3035/2009, SLP (Crl.) No. 3042/2009, SLP (Crl.) No. 3032/2009, SLP (Crl.) No. 3044/2009, SLP (Crl.) No. 3040/2009, SLP (Crl.) No. 3123/2009, SLP (Crl.) No. 4125/2009, SLP (Crl.) No. 4076/2009, SLP (Crl.) No. 4077/2009, SLP (Crl.) No. 4815/2009, SLP (Crl.) No. 4882/2009, SLP (Crl.) No. 5117/2009, SLP (Crl.) No. 5173/2009, SLP (Crl.) No. 6787/2009, SLP (Crl.) No. 6272/2009, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7/2010, SLP (Crl.) No. 3118/2009, Balakrishnan K.G., Panchal J.M. And Chauhan B.S (Dr), JJ. JUDGMENT Dr. B.S. Chauhan, J 1. Delay condoned. Leave granted. 2. This matter has come up before us upon reference having been made by a Two-Judge Bench vide order dated 04.11.2009 upon noticing an inconsistency in the views expressed by this Court in the case of State of Haryana Ors. v. Balwan AIR 1999 SC 3333 on one hand and in the cases of State of Haryana v. Mahender Singh Ors. (2007) 13 SCC 606; and State of Haryana v. Bhup Singh AIR 2009 SC 1252, on the other hand. The inconsistency, which was pointed out in the said order was noticed by taking into account the para 5 of the judgment in Balwan (supra) which is as follows :- ..However, in order to see that a life convict does not lose any benefit available under the remission scheme which has to be regarded as the guideline, it would be just and proper to direct the State Government to treat the date on which his case is/was required to be put up before the Governor under Article 161 of the Constitution as the relevant date with reference to which their cases are to be considered 3. The vi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndent was involved in a case, the FIR whereof was registered on 16.01.1995 and he was convicted vide judgment and order dated 20.5.1999 under Sections 302, 148 and 149 Indian Penal Code (hereinafter called IPC), 1860. In the above background, the respondent filed a Criminal Misc. Application before the High Court. The Court placing reliance on the judgments of this Court in Mahender Singh (supra) and Bhup Singh (supra) came to the conclusion that the case of the respondent for pre-mature release was to be considered in the light of the short sentencing policy existing on the date of his conviction and thus, a direction was issued to the State Authorities to consider his case for premature release in view of the policy dated 4.2.1993 existing on the date of his conviction i.e. 20th May, 1999 within a period of one month from the date of receipt of the certified copy of the judgment. Hence, this appeal. In view of the conflicting views in various judgments of this Court, reference has been made to the larger Bench. 7. Heard Shri Gopal Subramanium, learned Solicitor General, Amicus Curiae, Shri P.N. Mishra, learned senior counsel appearing for the State of Haryana, Shri B.S. Ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the convict would have remission as per the guidelines prevailing on the date of his conviction cannot be ruled out. Even if the convict does not satisfy the requirement of presently existing remission policy dated 13.8.2008, his case can always be considered for remission under the provisions of Article 72 or 161 of the Constitution and it will be for the President or the Governor, as the case may be, to take a view in the matter in conformity with the decision in Maru Ram v. Union of India (1981) 1 SCC 107. 11. We have considered the rival submissions made by learned counsel for the parties and perused the record. 12. In the instant case, the respondent was convicted on 20th May, 1999 and sentenced for life imprisonment. Remission policy has been changed from time to time and provided mainly as under: Date of Policy Minimum required sentence for pre-mature release 4th February, 1993 (a) Convicts whose death sentence has been commuted to life imprisonment and convicts who have been imprisoned for life for having committed a heinous crime such as:- murder with wrongful confinement, for extortion/r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i) murder after rape repeated chained rape/unnatural offences; (ii) murder with intention for the ransom; (iii) murder of more than two persons; (iv) persons convicted for second time for murder; and (v) sedition with murder. (a) Convicts who have been imprisoned for life having committed a heinous crime such as:- (i) murder with wrongful confinement for extortion/robbery; (ii) murder while undergoing life sentence; murder with dacoity .. and (vii) murder of a child under the age of 14 years (b) Adult life convicts who have been imprisoned for life but whose cases are not covered under (aa) and (a) above and who have committed crime which are not considered heinous as mentioned in clause (aa) (a) above. Their cases may be considered after completion of 20 years actual sentence and 25 years total sentence with remissions. Their cases may be considered after completion of 14 years actual sentence including under trial period provided that the total period of such sentence including remissions is not less than 20 years. Their cases may be considered after completion ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yak Godse v. State of Maharashtra Ors. AIR 1961 SC 600 considered the provisions of Section 53-A IPC, Cr.P.C. and also considered the Code of Criminal Procedure Amendment Act, 1955 which provided that a person sentenced to transportation for life before the Amendment Act would be considered as sentenced to rigorous imprisonment for life. The life convict was bound to serve the remainder of sentence imprisoned. Unless the sentence was commuted or remitted by the Competent Authority, such sentence would not be equated with any fixed term. The benefit of remission or any short sentencing policy in accordance with the rules framed under the Act 1894, if any, would be considered towards the end of the term and the said question was within the exclusive domain of the appropriate Government. In the said case, in spite of the fact that certain remissions had been made, the competent authority did not remit the entire sentence. While deciding the said case, this court placed reliance on the judgment of the Privy Council in Pt. Kishorilal v. Emperor AIR 1946 P.C. 64. 14. In Dalbir Singh Ors. v. State of Punjab AIR 1979 SC 1384, this court came to the conclusion that life impriso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provision either in the IPC or Cr.P.C. whereby life imprisonment could be treated as either 14 years or 20 years incarceration without there being a formal remission by the Appropriate Government. The contention that having regard to the provisions of Section 57 IPC, a prisoner was entitled to be released on completing 20 years of imprisonment under the West Bengal Correctional Services Act, 1992 and the West Bengal Jail Code, was rejected. 19. Before we proceed to consider the exercise of powers with regard to remission, as provided for either under the Constitution, the IPC or the Cr.P.C., it would be worth reiterating what has already been traversed and laid down by this Court right from the case of Maru Ram (supra) to the decision in the case of Ram Raj (supra). 20. In Maru Ram (supra), this Court elaborately dealt with the issue of validity of Section 433-A Cr.P.C. and the remission/short sentencing policies and held as under: 54. The major submissions which deserve high consideration may now be taken up. They are three and important in their outcome in the prisoners freedom from behind bars. The first turns on the prospectivity (loosely so called) or otherwi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted penological thinking-a desirable step, in our view-the present remission and release schemes may usefully be taken as guidelines under Articles 72/161 and orders for release passed. We cannot fault the Government, if in some intractably savage delinquents, Section 433-A is itself treated as a guideline for exercise of Articles 72/161. These observations of ours are recommendatory to avoid a hiatus, but it is for Government, Central or State, to decide whether and why the current Remission Rules should not survive until replaced by a more wholesome scheme. 21. Thus, the Court held that the amendment would apply prospectively. The life convicts who had been sentenced prior to 18.12.1978 i.e. date of enforcement of amendment would not come within the purview of the provisions of Section 433-A Cr.P.C. and short sentencing policy would also apply prospectively. Remission rules/short sentencing policies could be taken as guidelines for exercise of power under Articles 72 or 161 of the Constitution and in such eventuality, remission rules will override Section 433-A Cr.P.C. 22. In State of Punjab v. Joginder Singh AIR 1990 SC 1396 this Court held that remission cannot detr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bhagirath v. Delhi Administration AIR 1985 SC 1050; Kehar Singh Anr. v. Union of India Anr . AIR 1989 SC 653, and came to the following conclusions: (i) Section 433-A Cr.P.C. denied pre-mature release before completion of actual 14 years of incarceration to only those limited convicts convicted of a capital offence i.e. exceptionally heinous crime; (ii) Section 433-A Cr.P.C. cannot and does not in any way affect the constitutional power conferred on the President/Governor under Article 72/161 of the Constitution; (iii) Remission Rules have a limited scope and in case of a convict undergoing sentence for life imprisonment, it acquires significance only if the sentence is commuted or remitted subject to Section 433-A Cr.P.C. or in exercise of constitutional power under Article 72/161 of the Constitution; and (iv) Case of a convict can be considered under Articles 72 and 161 of the Constitution treating the 1958 Rules as guidelines. The aforesaid case was disposed of by this Court observing that in case the clemency petition of the petitioner therein was pending despite of the directive of the High Court, it would be open to the said petitioner to approach the High C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e determination of the ultimate authority that public welfare will be better served by inflicting less than what the judgment has fixed .. Exercise of Executive clemency is a matter of discretion and yet subject to certain standards. It is not a matter of privilege. It is a matter of performance of official duty. It is vested in the President or the Governor, as the case may be, not for the benefit of the convict only, but for the welfare of the people who may insist on the performance of the duty . Granting of pardon is in no sense an overturning of a judgment of conviction, but rather it is an Executive action that mitigates or sets aside the punishment for a crime .. The power under Article 72 as also under Article 161 of the Constitution is of the widest amplitude and envisages myriad kinds and categories of cases with facts and situations varying from case to case. 29. There is no dispute to the settled legal proposition that the power exercised under Articles 72/161 could be the subject matter of limited judicial review. (vide Kehar Singh (supra); Ashok Kumar (supra); Swaran Singh v. State of U.P . AIR 1998 SC 2026 ; Satpal Anr. v. State of Haryana Ors. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and conclude peace, the power to legislate and the power to adjudicate upon all kinds of disputes etc. The rule of law, in contradiction to the rule of man, includes within its wide connotation the absence of arbitrary power, submission to the ordinary law of the land, and the equal protection of the laws. As a result of the historical process aforesaid, the absolute and arbitrary power of the monarch came to be canalised into three distinct wings of the Government, (Vide K.M. Nanavati v. State of Bombay AIR 1961 SC 112). 33. Articles 72 and 161 of the Constitution provide for a residuary sovereign power, thus, there can be nothing to debar the concerned authority to exercise such power, even after rejection of one clemency petition, if the changed circumstances so warrant. (Vide G. Krishta Goud J. Bhoomaiah v. State of Andhra Pradesh Ors . (1976) 1 SCC 157) 34. In Regina v. The Secretary of State for the Home Department (1996) EWCA Civ 555, the question came for consideration, before the Court that if the short-sentencing policy is totally inflexible, whether it amounts to transgression on the clemency power of the State which is understood as unfettered? The court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 36. 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. In Salmond on Jurisprudence, 12th Edition by P.J. Fitzgerald, the author in Chapter 15 dealt with the purpose of criminal justice/punishment as under :- Deterrence acts on the motives of the offender, actual or potential; disablement consists primarily in physical restraint. Reformation, by contrast, seeks to bring about a change in the offender s character it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... attack upon the convict from others. Punishment enables the convict to expiate his crime and assist his rehabilitation. The Remission policy manifests a process of reshaping a person who, under certain circumstances, has indulged in criminal activity and is required to be rehabilitated. Objectives of the punishment are wholly or predominantly reformative and preventive. The basic principle of punishment that guilty must pay for his crime should not be extended to the extent that punishment becomes brutal. The matter is required to be examined keeping in view modern reformative concept of punishment. The concept of Savage Justice is not to be applied at all. The sentence softening schemes have to be viewed from a more human and social science oriented approach. Punishment should not be regarded as the end but as only the means to an end. The object of punishment must not be to wreak vengeance but to reform and rehabilitate the criminal. More so, relevancy of the circumstances of the offence and the state of mind of the convict, when the offence was committed, are the factors, to be taken note of. 38. At the time of considering the case of pre-mature release of a life convict ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4 enables the Government to frame rules for award of marks and shortening of sentence . Rules define prisoner including a person committed to prison in default of furnishing security to keep peace or be of good behaviour. Rules further provide for classification of prisoners according to the intensity and gravity of the offence. According to the classification of prisoners, Class 1 prisoners are those who had committed heinous organized crimes or specially dangerous criminals. Class 2 prisoners include dacoits or persons who commit heinous organized crimes. Class 3 prisoners are those who do not fall within Class 1 or Class 2. Rule 20 thereof provides that life convict being a Class 1 prisoner if earned such remission as entitles him to release, the Superintendent shall report accordingly to the Local Government with a view to the passing of orders under Section 401 Cr.P.C. Rule 21 provides that save as provided by Rule 20, when a prisoner has earned such remission as entitles him to release, the Superintendent shall release him. Instant case falls in Class 3, not being a case of organized crime or by professionals or hereditary or specially dangerous criminals. Undoubtedly, th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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