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Whether suo motu exercise of the power of remission under Section 432(1) is permissible in the scheme of the Section, if yes, whether the procedure prescribed in subsection (2) of the same section is mandatory or not?”
Section 432(1) and (2) reads as under:
“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.”
Sub-section (1) of Section 432 empowers the Appropriate Government either to suspend the execution of a sentence or remit the whole or any part of the punishment to which he has been sentenced. While passing such orders, it can impose any conditions or without any condition. In the event of imposing any condition, such condition must be acceptable to the person convicted. Such order can be passed at any time.
Sub-section (2) of Section 432 pertains to the opinion to be secured from the presiding Judge of the Court who convicted the person and imposed the sentence or the Court which ultimately confirmed such conviction. Whenever any application is made to the
Appropriate Government for suspension or remission of sentence, such opinion to be rendered must say whether the prayer made in the application should be granted or refused. It should also contain reasons along with the opinion, certified copy of the record of the trial or such other record which exists should also be forwarded.
The Supreme Court relied on certain observation of the Constitution Bench of the Apex court in Maru Ram in the context of the power exercisable under Articles 72 and 161 of the Constitution needs to be noted.
“Such observations relating to the Constitutional power of the President and Governor, of course with the aid and advice of the Council of Ministers, is on a higher plane and are stated to be ‘untouchable’ and ‘unapproachable’. It was also held that the Constitutional power, as compared to the power exercisable under Sections 432 and 433 looks similar but not the same, in the sense that the statutory power under Sections 432 and 433 is different in source, substance and strength and it is not as that of the Constitutional power. Such statement of law was made by the Constitution Bench to hold that notwithstanding Sections 433A which provides for minimum of 14 years incarnation for a lifer to get the benefit of remission, etc., the President and the Governor can continue to exercise the power of Constitution and release without the requirement of the minimum period of imprisonment. But the significant aspect of the ruling is a word of caution even to such exercise of higher Constitutional power with high amount of circumspection and is always susceptible to be interfered with by judicial forum in the event of any such exercise being demonstrated to be fraught with arbitrariness or mala fide and should act in trust to our Great Master, the Rule of Law. In fact, the Bench quoted certain examples like the Chief Minister of a State releasing everyone in the prison in his State on his birthday or because a son was born to him and went to the extent of stating that it would be an outrage on the Constitution to let such madness to survive.”
The apex court held that
“Such observations and legal principles stated in the context of Articles 72 and 161 of the Constitution will have greater force and application when we examine the scope and ambit of the power exercisable by the Appropriate Government under Section 432(1) and (2) of Code of Criminal Procedure. The power to suspend or remit any sentence will have to be considered and ordered with much more care and caution, in particular, the interest of the public at large.”
Section 432(1) refers to the nature of power available to the Appropriate Government as regards the suspension of sentence or remission to be granted at any length. The extent of power is one thing and the procedure to be followed for the exercise of the power is a different thing. There is no indication in Section 432(1) that such power can be exercised based on any application.
What is not prescribed in the statute cannot be imagined or inferred. Therefore, when there is no reference to any application being made by the offender, cannot be taken to mean that such power can be exercised by the authority concerned on its own. More so, when a detailed procedure to be followed is clearly set out in Section 432(2). It can never be held that such power being exercised suo motu any great development act would be the result. After all such exercise of the power of suspension or remission is only going to grant some relief to the offender who has been found to have committed either a heinous crime or at least a crime affecting the society at large. Therefore, when in the course of exercise of larger Constitutional powers of similar kind under Articles 72 and 161 of the Constitution it has been opined by this Court to be exercised with great care and caution, the one exercisable under a statute, namely, under Section 432(1) which is lesser in degree should necessarily be held to be exercisable in tune with the adjunct provision contained in the same section. Viewed in that respect, the court found that the procedure to be followed whenever any application for remission is moved, the safeguard provided under Section 432(2) should be the sine-quo-non for the ultimate power to be exercised under Section 432 (1).
By the procedure prescribed under Section 432(2), the action of the Appropriate Government is bound to survive and stand the scrutiny of all concerned including judicial forum. It must be remembered, barring minor offences, in cases involving heinous crimes like murder, kidnapping, rape robbery, dacoity, etc., and such other offences of such magnitude, the verdict of the trial Court is invariably dealt with and considered by the High Court and in many cases by the Supreme Court. Thus, having regard to the nature of opinion to be rendered by the presiding officer of the concerned Court will throw much light on the nature of crime committed, the record of the convict himself, his background and other relevant factors which will enable the Appropriate Government to take the right decision as to whether or not suspension or remission of sentence should be granted. It must also be borne in mind that while for the exercise of the Constitutional power under Articles 72 and 161, the Executive Head will have the benefit of act and advice of the Council of Ministers, for the exercise of power under Section 432(1), the Appropriate Government will get the valuable opinion of the judicial forum, which will definitely throw much light on the issue relating to grant of suspension or remission.
Therefore, the court held that the exercise of power under Section 432(1) should always be based on an application of the person concerned as provided under Section 432(2) and after duly following the procedure prescribed under Section 432(2).
The power of Appropriate Government under Section 432(1) Code of Criminal Procedure cannot be suo motu for the simple reason that this Section is only an enabling provision. Such a procedure to be followed under Section 432(2) is mandatory. The manner in which the opinion is to be rendered by the Presiding Officer can always be regulated and settled by the concerned High Court and the Supreme Court by stipulating the required procedure to be followed as and when any such application is forwarded by the Appropriate Government. We, therefore, answer the said question to the effect that the suo motu power of remission cannot be exercised under Section 432(1), that it can only be initiated based on an application of the persons 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 concerned Court.
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