IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Crl. Misc. Application No.41 of 2017 (U/s 482 Cr.P.C.) Savitri Devi ……. Petitioner Versus State of Uttarakhand & others ..…. Respondents Dated: January 12, 2017 Mr. Shobhit Saharia, Advocate, for the petitioner. Mr. P.S. Saun, Dy. Adv. General, for the State/respondents. Hon’ble Rajiv Sharma , J. The present petition has been filed by the petitioner-wife on behalf of her husband who was convicted under Sections 302/34 IPC and sentenced to undergo life imprisonment vide judgment and order dated 21.1.2010 rendered by learned Additional District Judge, Roorkee in S.T. No.195 of 1991 arising from Case Crime No.46/91. 2. Petitioner’s husband preferred Criminal Appeal bearing No.1418 of 2001 before this Court. It was dismissed by this Court. The Hon’ble Apex Court also dismissed the Criminal Appeal No.820 of 2010 vide its judgment dated 9.12.2014. 3. Petitioner’s husband was granted interim parole for 15 days by the respondent no.3 on 9.5.2013. It was extended by another 15 days vide order dated 29.5.2013. 4. On 26.5.2016, a Mercy Petition was preferred by the applicant for remission and commutation of 2 sentence and the same was registered as Mercy Petition No.89/2016. It is pending before His Excellency the Governor. Petitioner’s husband has now attained the age of 62 years. Petitioner’s daughter is 40 percent handicapped. She is 26 years old. Her marriage has been fixed on 28.1.2017. The ceremonies would last till 30.1.2017. Petitioner’s husband submitted an application on 7.11.2016 for grant of parole. However, no decision, till date, has been taken on the application by the Secretary (Home). 5. According to the averments made in the petition, there is no other elder male member in the family of the petitioner. Petitioner’s husband has not misused the earlier short paroles granted to him. The presence of her husband is very important to perform the marriage ceremonies. Petitioner has prayed for two months’ parole for her husband. It is also highlighted that the State of Uttarakhand, till date, has not framed any Special Rules/General Orders under Section 432(5) Cr.P.C. The State of Uttar Pradesh has framed the Rules called Uttar Pradesh (Suspension of Sentences of Prisoners) Rules, 2007. The Rules framed by the State of Uttar Pradesh have not been adopted by the State of Uttarakhand till date. It is in these circumstances the present petition has been filed seeking a direction to the Secretary (Home) to enlarge the petitioner’s husband on parole to attend the marriage of her daughter which is fixed on 28.1.2017. Petitioner has also sought a direction to the State Government for framing the Special Rules/General Orders under Section 432(5) of Cr.P.C. 3 6. Section 432(5) of the Code of Criminal Procedure reads as under: - “432(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.” 7. The State Government is required by general rules or special orders to give direction as to the suspension of sentences and the conditions on which the petitions should be presented and dealt with by prescribing the guideliens. 8. No rules or such orders have been framed by the State Government till date. According to the petitioner, there is arbitrariness in granting parole etc. to the prisoners. Petitioner has also highlighted the manner in which a person, convicted for the murder of M.L.A. has been granted parole for two months by the State Government in an arbitrary manner. Framing of 4 general rules and special orders would make the entire procedure transparent. 9. In (1985) 2 SCC Page 580, the Constitutional Bench of Hon. Apex Court has held that the equitable considerations must prevail while construing beneficent provisions especially in criminal law. Their Lordships have held as under: - “15. We have also already answered the last of the reasons given in Kartar Singh that the question is not whether the beneficent provision contained in Section 428 should be extended to life convicts on equitable considerations. We enter a most respectful caveat. Equity sustains law and the twain must meet. They cannot run in parallel streams. Equitable considerations must have an important place in the construction of beneficent provisions, particularly in the field of criminal law. To exclude such considerations is to denude law’s benevolence of its true and lasting content. Lastly, the view expressed by the Joint Committee in its Report does not yield to the inference that the “mischief sought to be remedied has no relevance where gravity of offence requires the imposition of imprisonment for life”. As we have indicated earlier, graver the crime, longer the sentence and, longer the sentence, greater the need for set-offs and remissions. Punishments are no longer retributory. They are reformative.” 10. In (2013) 2 S.C.C. 452, Their Lordships of Hon. Apex Court in the case of ‘Sangeet & another v. State of Haryana’ have explained the nature, scope and manner of exercise of Power of remission under Section 432(1) Cr.P.C. Their Lordships have held as under: - 55. A reading of some recent decisions delivered by this Court seems to suggest that the remission power of the appropriate Government has effectively been nullified by awarding sentences of 20 years, 25 years and in some cases without any remission. Is this permissible? Can this Court (or any court for that matter) restrain the appropriate Government from granting remission of a sentence to a convict? What this Court has done in Swamy Shraddananda8 and several other cases, by giving a sentence in a capital offence of 20 years’ or 30 years’ imprisonment without remission, is to effectively injunct the appropriate Government from exercising its power of remission for the specified period. In our opinion, this issue needs further and greater discussion, but as at present advised, we are of the opinion that this is not permissible. The appropriate Government 5 cannot be told that it is prohibited from granting remission of a sentence. Similarly, a convict cannot be told that he cannot apply for a remission in his sentence, whatever be the reason. 56. It is true that a convict undergoing a sentence does not have the right to get a remission of sentence, but he certainly does have a right to have his case considered for the grant of remission, as held in State of Haryana v. Mahender Singh and State of Haryana v. Jagdish. 57. Swamy Shraddananda approached this issue from a particular perspective, namely, what could be the “good and sound legal basis” to give effect to the observations of this Court in Dalbir Singh v. State of Punjab that: (Swamy Shraddananda case, SCC pp. 791-92, para 56) “56. … ‘14. … we may suggest that life imprisonment which strictly means imprisonment for the whole of the man’s life but in practice amounts to incarceration for a period between 10 and 14 years may, at the option of the convicting court, be subject to the condition that the sentence of imprisonment shall last as long as life lasts, where there are exceptional indications of murderous recidivism and the community cannot run the risk of the convict being at large.’ (Dalbir Singh case, SCC p. 753, para 14)” (emphasis in original) 58. We look at the issue from a slightly different perspective. Section 45 IPC defines “life” as denoting the life of a human being, unless the contrary appears from the context. Therefore, when a punishment for murder is awarded under Section 302 IPC, it might be imprisonment for life, where life denotes the life of the convict or death. The term of sentence spanning the life of the convict can be curtailed by the appropriate Government for good and valid reasons in exercise of its powers under Section 432 CrPC. Broadly, this section statutorily empowers the appropriate Government to suspend the execution of a sentence or to remit the whole or any part of the punishment of a convict [sub-section (1)]. But, the statute provides some inherent procedural and substantive checks on the arbitrary exercise of this power. Procedural check on arbitrary remissions 59. There does not seem to be any decision of this Court detailing the procedure to be followed for the exercise of power under Section 432 CrPC. But it does appear to us that sub-section (2) to sub-section (5) of Section 432 CrPC lay down the basic procedure, which is making an application to the appropriate Government for the suspension or remission of a sentence, either by the convict or someone on his behalf. In fact, this is what was suggested in Samjuben Gordhanbhai Koli v. State of Gujarat25 when it was observed that since remission can only be granted by the executive authorities, the appellant therein would be free to seek redress from the appropriate Government by making a representation in terms of Section 432 CrPC. 60. Section 432 CrPC reads as follows: “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. 6 (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.” 61. It appears to us that an exercise of power by the appropriate Government under sub-section (1) of Section 432 CrPC cannot be suo motu for the simple reason that this sub-section is only an enabling provision. The appropriate Government is enabled to “override” a judicially pronounced sentence, subject to the fulfilment of certain conditions. Those conditions are found either in the Jail Manual or in statutory rules. Sub-section (1) of Section 432 CrPC cannot be read to enable the appropriate Government to “further override” the judicial pronouncement over and above what is permitted by the Jail Manual or the statutory rules. The process of granting “additional” remission under this section is set into motion in a case only through an application for remission by the convict or on his behalf. On such an application being made, the appropriate Government is required to 7 approach the Presiding Judge of the court before or by which the conviction was made or confirmed to opine (with reasons) whether the application should be granted or refused. Thereafter, the appropriate Government may take a decision on the remission application and pass orders granting remission subject to some conditions, or refusing remission. Apart from anything else, this statutory procedure seems quite reasonable inasmuch as there is an application of mind to the issue of grant of remission. It also eliminates “discretionary” or en masse release of convicts on “festive” occasions since each release requires a case-by-case basis scrutiny. 62. It must be remembered in this context that it was held in State of Haryana v. Mohinder Singh26 that the power of remission cannot be exercised arbitrarily. The decision to grant remission has to be well informed, reasonable and fair to all concerned. The statutory procedure laid down in Section 432 CrPC does provide this check on the possible misuse of power by the appropriate Government. Substantive check on arbitrary remissions 63. For exercising the power of remission to a life convict, CrPC places not only a procedural check as mentioned above, but also a substantive check. This check is through Section 433-A CrPC which provides that when the remission of a sentence is granted in a capital offence, the convict must serve at least fourteen years of imprisonment. Of course, the requirement of a minimum of fourteen years’ incarceration may perhaps be relaxed in exercising power under Article 72 and Article 161 of the Constitution and Section 433 CrPC but, as mentioned above, we are presently not concerned with these provisions and say nothing in this regard, one way or the other. 71. Under the circumstances, it appears to us that there is a misconception that a prisoner serving a life sentence has an indefeasible right to release on completion of either fourteen years’ or twenty years’ imprisonment. The prisoner has no such right. A convict undergoing life imprisonment is expected to remain in custody till the end of his life, subject to any remission granted by the appropriate Government under Section 432 CrPC which in turn is subject to the procedural checks in that section and the substantive check in Section 433-A CrPC. 72. In a sense, therefore, the application of Section 432 CrPC to a convict is limited. A convict serving a definite term of imprisonment is entitled to earn a period of remission or even be awarded a period of remission under a statutory rule framed by the appropriate Government or under the Jail Manual. This period is then offset against the term of punishment given to him. In such an event, if he has undergone the requisite period of incarceration, his release is automatic and Section 432 CrPC will not even come into play. This section will come into play only if the convict is to be given an “additional” period of remission for his release, that is, a period in addition to what he has earned or has been awarded under the Jail Manual or the statutory rules. 73. In the case of a convict undergoing life imprisonment, he will be in custody for an indeterminate period. Therefore, remissions earned by or awarded to such a life convict are only notional. In his case, to reduce the period of incarceration, a specific order under Section 432 CrPC will have to be passed by the appropriate Government. However, the reduced period cannot be less than 14 years as per Section 433-A CrPC. 74. Therefore, Section 432 CrPC has application only in two situations: 8 (1) Where a convict is to be given “additional” remission or remission for a period over and above the period that he is entitled to or he is awarded under a statutory rule framed by the appropriate Government or under the Jail Manual. (2) Where a convict is sentenced to life imprisonment, which is for an indefinite period, subject to procedural and substantive checks. 75. What Section 302 IPC provides for is only two punishments — life imprisonment and death penalty. In several cases, this Court has proceeded on the postulate that life imprisonment means fourteen years of incarceration, after remissions. The calculation of fourteen years of incarceration is based on another postulate, articulated in Swamy Shraddananda8, namely, that a sentence of life imprisonment is first commuted (or deemed converted) to a fixed term of twenty years on the basis of the Karnataka Prison Rules, 1974 and a similar letter issued by the Government of Bihar. Apparently, rules of this nature exist in other States as well. Thereafter, remissions earned or awarded to a convict are applied to the commuted sentence to work out the period of incarceration to fourteen years. 76. This re-engineered calculation can be made only after the appropriate Government artificially determines the period of incarceration. The procedure apparently being followed by the appropriate Government is that life imprisonment is artificially considered to be imprisonment for a period of twenty years. It is this arbitrary reckoning that has been prohibited in Ratan Singh31. A failure to implement Ratan Singh has led this Court in some cases to carve out a special category in which sentences of twenty years or more are awarded, even after accounting for remissions. If the law is applied as we understand it, meaning thereby that life imprisonment is imprisonment for the lifespan of the convict, with procedural and substantive checks laid down in CrPC for his early release, we would reach a legally satisfactory result on the issue of remissions. This makes an order for incarceration for a minimum period of 20 or 25 or 30 years unnecessary. Conclusion 77. The broad result of our discussion is that a relook is needed at some conclusions that have been taken for granted and we need to continue the development of the law on the basis of experience gained over the years and views expressed in various decisions of this Court. To be more specific, we conclude: 77.1. This Court has not endorsed the approach of aggravating and mitigating circumstances in Bachan Singh. However, this approach has been adopted in several decisions. This needs a fresh look. In any event, there is little or no uniformity in the application of this approach. 77.2. Aggravating circumstances relate to the crime while mitigating circumstances relate to the criminal. A balance sheet cannot be drawn up for comparing the two. The considerations for both are distinct and unrelated. The use of the mantra of aggravating and mitigating circumstances needs a review. 77.3. In the sentencing process, both the crime and the criminal are equally important. We have, unfortunately, not taken the sentencing process as seriously as it should be with the result that in capital offences, it has become Judge-centric sentencing rather than principled sentencing. 9 77.4. The Constitution Bench of this Court has not encouraged standardisation and categorisation of crimes and even otherwise it is not possible to standardise and categorise all crimes. 77.5. The grant of remissions is statutory. However, to prevent its arbitrary exercise, the legislature has built in some procedural and substantive checks in the statute. These need to be faithfully enforced. 77.6. Remission can be granted under Section 432 CrPC in the case of a definite term of sentence. The power under this section is available only for granting “additional” remission, that is, for a period over and above the remission granted or awarded to a convict under the Jail Manual or other statutory rules. If the term of sentence is indefinite (as in life imprisonment), the power under Section 432 CrPC can certainly be exercised but not on the basis that life imprisonment is an arbitrary or notional figure of twenty years of imprisonment. 77.7. Before actually exercising the power of remission under Section 432 CrPC the appropriate Government must obtain the opinion (with reasons) of the Presiding Judge of the convicting or confirming Court. Remissions can, therefore, be given only on a case- by-case basis and not in a wholesale manner.” 11. Accordingly, in view of the definite law laid down by the Hon. Apex Court, the present petition is allowed. The following mandatory directions are issued: - A. The State of Uttarakhand is directed to frame the general rules/special orders to govern the suspension of sentences and the conditions on which the petition can be presented and dealt with, within a period of four weeks from today under Section 432(5) of the Code of Criminal Procedure, 1973. B. The State Government, while framing the general rules/special orders, shall take into consideration the illness of prisoner’s parents, husband or wife, son, daughter, brother or sister; for sowing or harvesting of agricultural crops on his own land; for essential repairs of the house; the conditions of suspension of sentence, punishment for violation of conditions of suspension of sentence. C. The application preferred by the petitioner seeking parole of her husband (Annexure No.1) is 10 directed to be decided by the Principal Secretary, Department of Home, State of Uttarakhand (respondent no.2) within a period of two weeks from today, as a special case. D. In the larger public interest, the State Government is directed to have a re-look on the circumstances in which the parole of two months was granted to the convict Lakkar Pala who has been sentenced to go life imprisonment for the murder of an M.L.A. Mahendra Singh Bhati on 23.12.2016, and if necessary, to revoke the same after assigning the reasons. 12. However, it is made clear by way of abundant precaution that till the general rules/special orders are not framed by the State Government under Section 432(5) Cr.P.C., the State Government shall not suspend or remit the sentence of any convict. (Rajiv Sharma, J.) Rdang