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TMI Blog2003 (8) TMI 563X X X X Extracts X X X X X X X X Extracts X X X X ..... 000/-. Both the sentences were directed to run concurrently. The matter was carried in appeal by the respondent-accused before the High Court. The order of conviction was not challenged at the time of hearing. What was pressed before the High Court related to the quantum of sentence. It was submitted that the appellant had faced ordeal of trial for 11 years and was on the verge of retirement as his date of superannuation was to be in March, 2002. He was not a previous convict and the ends of justice would be met if sentence of fine is enhanced in order to commute the sentence of imprisonment and consequentially recommend to the Government to consider the case under Section 433 of the Code. High Court noted that there was no serious opposition by the investigating agency, the Central Bureau of Investigation (for short 'CBI') for a recommendation. The learned Single Judge who heard the criminal appeal felt that no useful purpose would be served in requiring the appellant to undergo sentence at the belated stage and it would be appropriate if fine is enhanced to ₹ 15,000/- in commutation of sentence of imprisonment. He further directed that the case of the accused was t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Constitution confers upon the Governor of a State similar powers in respect of any offence against any law relating to a matter to which the executive power of the State extends. The power under Articles 72 and 161 of the Constitution is absolute and cannot be fettered by any statutory provision such as, Sections 432, 433 or 433-A of the Code or by any Prison Rules. But the President or the Governor, as the case may be, must act on the advice of the Council of Ministers. A pardon is an act of grace, proceeding from the power entrusted with the execution of the laws, which exempts the individual on whom it is bestowed from the punishment the law inflicts for a crime he has committed. It affects both the punishment prescribed for the offence and the guilt of the offender; in other words, a full pardon may blot out the guilt itself. It does not amount to an acquittal unless the Court otherwise directs. Pardon is to be distinguished from "amnesty" which is defined as "general pardon of political prisoners; an act of oblivion." As understood in common parlance, the word "amnesty" is appropriate only where political prisoners are released and not in cases ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the punishment in part or in whole. The word "remit" as used in Section 432 is not a term of art. Some of the meanings of the word "remit" are "to pardon, to refrain from inflicting, to give up." A remission of sentence does not mean acquittal and an aggrieved party has every right to vindicate himself or herself. Section 428 contemplates a conviction by the court and it operates at the time of the pronouncement of the sentence by the Court, whereas Section 433 deals with commutation by the State authority. Consequences that follow from the provisions of Section 433 do not affect Section 428. Sections 432 and 433 appear under the heading "Suspension, Remission and Commutation of Sentences." Under Section 432(1) there is power in the appropriate Government in the case of any person, who has been sentenced to punishment for an offence, to suspend the execution of his sentence or remit the whole or any part of the punishment to which he has been sentenced without conditions or upon any condition which the person sentenced accepts. Under sub-section (2) it is provided that whenever an application is made to the appropriate Government for the su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... C 495) this Court observed as follows (though it was in the context of Section 433 (b): "The mandate of Section 433 Cr.PC enables the Government in an appropriate case to commute the sentence of a convict and to prematurely order his release before expiry of the sentence as imposed by the courts. That apart, even if the High Court could give such a direction, it could only direct consideration of the case of premature release by the Government and could not have ordered the premature release of the respondent itself. The right to exercise the power under Section 433 Cr.PC vests in the Government and has to be exercised by the Government in accordance with the rules and established principles. The impugned order of the High Court cannot, therefore, be sustained and is hereby set aside." The powers conferred upon the appropriate Government under Section 433 have to be exercised reasonably and rationally keeping in view reasons germane and relevant for the purpose of law, mitigating circumstances and/or commiserative facts necessitating the commutation and factors like interest of the society and public interest. "Commutation" is in essence the alteration of a sen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er. "Commutation" means the alteration of a sentence of one kind into a sentence of a less severe kind, as indicated in Section 402 of the Code. The Constitution has lumped together both these powers (i.e. those under Section 295 (1) and (2) of the Government of India Act, 1935) and placed them on the same footing. The overlap that obviously exists does not harm. There is, however, no need to enlarge the scope of Section 401 of the Code so as to cover expressly pardons, reprieves and respites besides suspension and remissions. The question of inserting in the Code a provision on the lines of S.69 of the Criminal Justice Act, 1948, was raised during the discussion before us. It was suggested for example that if a person who was sentenced to imprisonment for a term by the Court and a part of this sentence was remitted by the State Government or the sentence was commuted to one of fine, the convicted person should be deemed to have been sentenced to the shorter term of imprisonment, or, as the case may be, to fine only by the Court. This could be of practical importance because many Acts provide for collateral disqualification in the case of a person convicted for an offenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gated by the Central Bureau of Investigation or involving misappropriation or destruction or damage to Central Government property and offences committed by Central Government servants in the discharge of their official duties, remission or commutation of sentences should be granted by the State Government only after consultation with the Central Government. It is considered better to require 'concurrence' of the Central Government instead of merely consultation with it. Where persons are prosecuted for offences, some under laws in the State field and some in the Union field and sentenced to separate terms of imprisonment to run concurrently, State Governments sometime remit the whole sentence without a reference to the Central Government, although legally the Central Government has to order remission in relation of offences in the Union field. A provision is being added requiring specifically that the person cannot be released unless the Central Government also remits the part of the sentence relating to an offence in the Union field". It is brought to our notice that the amount directed to be deposited has been so done by the respondent-accused before the Trial Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X
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