Supreme Court: While considering the instant appeal concerning the legality of the conditions imposed while remitting the life sentence of the appellant in the exercise of powers under Section 432(1) of the Code of Criminal Procedure, 1973 (CrPC); the Division Bench of Abhay S. Oka* and Augustine George Masih, JJ., explained that Appropriate Government under Section 432(1), CrPC/ Section 473(1) of Nagarik Suraksha Sanhita, 2023 (BNSS) has the power to remit whole or any part of sentence of a convict either conditionally or without conditions. However, the conditions so imposed must be reasonable. If the conditions imposed are arbitrary, then they will stand vitiated due to violation of Article 14; furthermore, such arbitrary conditions may violate the convict’s rights under Article 21 of the Constitution.
The Court further stated that power to revoke or cancel remission cannot be exercised without following the principles of natural justice. The Court further explained that Registration of a cognizable offence against the convict, per se, is not a ground to cancel the remission order. The allegations of breach of condition cannot be taken at their face value, and whether a case for cancellation of remission is made out will have to be decided in the facts of each case. Every case of breach cannot invite cancellation of the remission order.
Background and Contentions:
The appellant was aggrieved by 2 of the conditions that were imposed on him by Home Department, State of Gujarat while granting him remission on 15-9-2023. The Conditions are as follows:
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After the release from jail the prisoner shall behave decently for 2 years.
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If the prisoner after the release from the jail carries out any cognizable offence or inflicts any serious injury to any citizen or property, then he will be arrested again, and he will have to serve the remaining period of sentence in jail.
Counsel for the appellant argued that the word “decently” used in 1st condition is vague as decency varies from person to person. Furthermore, the 1st condition is manifestly arbitrary and violates Articles 14 and 21 of the Constitution. Vis-a-vis the 2nd condition, the appellant’s counsel argued that even if a false allegation is made against the appellant, then by virtue of 2nd condition, his remission will be cancelled.
Per contra, the State of Gujarat argued that a convict is not entitled to remission of the sentence as a matter of right. It was further argued that the power to remit sentence is a discretionary power which has to be exercised on public interest considerations.
Court’s Assessment and Findings:
Perusing the contentions, the impugned conditions and Section 432(1), CrPC, the Court observed that there is no doubt that there exists a power in the appropriate Government to grant remission subject to compliance with conditions.
Furthermore, the power to remit is discretionary. However, one of the considerations for the exercise of discretion can be public interest, gravity and nature of the offences committed by the convict and his criminal antecedents are also relevant factors to be considered. Furthermore, the existence of a rational policy is necessary to prevent the arbitrary exercise of power to grant a remission under Section 432(1) of the CrPC.
The Court pointed out that a convict cannot seek remission as a matter of right. However, he has a right to say that his case for the grant of remission ought to be considered in accordance with the law. Therefore, conditions imposed while exercising the power under Section 432(1) must be reasonable. The conditions must stand the test of scrutiny of Article 14 of the Constitution.
Considering the 1st impugned condition, the Court observed that the words ‘decent’ or ‘decently’ are not defined in the CrPC or any other cognate legislation. The concept of decency of each human being is likely to be different and the idea of decency keeps on changing with time. Hence every person or authority may interpret the same differently. Therefore, such a condition while granting remission becomes too subjective. “Putting such a vague condition while exercising the power under Section 432 (1) of the CrPC will give a tool in the hands of the executive to cancel the remission at its whims and fancies”. Therefore, such a condition is arbitrary and will be hit by Article 14 of the Constitution, because such a condition cannot be imposed as it will defeat the very object of remitting the sentence.
Therefore, the Court found the 1st condition to be unsustainable. “If a condition imposed is unclear or ambiguous, it can have different meanings. Consequently, it becomes very difficult to enforce such conditions”. The condition imposed while granting remission must be such that it is capable of being complied with and enforced.
Coming onto the 2nd condition, the Court noted that this condition authorised the Appropriate Government to arrest the convict and revoke the benefit of remission. This clause provides for automatic cancellation of the order remitting the sentence. The Court also pointed out that the effect of remitting the sentence is the restoration of the liberty of a convict. If the order granting remission is to be cancelled or revoked, it will naturally affect the convict’s liberty.
When an action is taken under Section 432(3) of CrPC or Section 473(3) of BNSS, it results in the convict being taken to prison for undergoing the remaining part of the sentence. Thus, the benefit of remission stands withdrawn. Therefore, this drastic power cannot be exercised without following the principles of natural justice. A show cause notice containing the grounds for withdrawal/cancellation of remission must be served on the convict before taking action that is proposed to be taken. The concerned authority must give the convict an opportunity to file a reply and of being heard. After that, the authority must pass an order stating brief reasons. “Principles of natural justice must be read into Section 432(3), CrPC and 473(3), BNSS”.
Therefore, the Court clarified the 2nd impugned condition stating that it cannot be interpreted to mean that every allegation of a breach thereof would automatically result in the cancellation of the order of remission. The appropriate Government will have to consider the nature of the breach alleged against the convict. A minor or a trifling breach cannot be a ground to cancel remission. There must be some material to substantiate the allegations of breach.
Decision:
With the afore-stated assessment, the Court struck down the 1st condition for being manifestly arbitrary and clarified the 2nd condition holding that the order of remission shall not be revoked on the ground of breaches of conditions without compliance with the principles of natural justice.
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