Supreme Court: While considering the instant suo motu petition revolving around the power of the appropriate Government to remit the whole or a part of the sentence of the convicts; the Division Bench of Abhay S. Oka* and Ujjal Bhuyan, JJ., concluded the following:
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Where there is a policy of the appropriate Government laying down guidelines for consideration of the grant of premature release under Section 432 of the CrPC1, it is the obligation of the appropriate Government to consider cases of all convicts for grant of premature release as and when they become eligible for consideration in terms of the policy. In such a case, it is not necessary for the convict or his relatives to make a specific application for grant of permanent remission.
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In accordance with the afore-said conclusion, the District Legal Services Authorities (DLSAs) shall endeavour to implement NALSA SOP in its true letter and spirit. Furthermore, the DLSAs shall maintain the relevant date of the convicts and as and when they become eligible to a consideration for grant of premature release. The State Legal Services Authorities shall endeavour to create a portal on which the data as aforesaid can be uploaded on real time basis.
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The Court also directed those States and Union Territories that do not have a policy dealing with the grant of remission in terms of Section 432 of the CrPC to formulate a policy within two months from 18-2-2025.
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The Court further concluded that Appropriate Government has the power to incorporate suitable conditions in an order granting permanent remission. The conditions must aim at ensuring that the criminal tendencies, if any, of the convict remain in check and that the convict rehabilitates himself in the society. The conditions should not be so oppressive or stringent that the convict is not able to take advantage of the order granting permanent remission. The conditions cannot be vague and should be capable of being performed;
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Order granting or refusing the relief of permanent remission must contain brief reasons. The order containing reasons should be immediately communicated to the convict through the office of the concerned prison. The copies thereof should be forwarded to the Secretaries of the concerned District Legal Services Authorities. It is the duty of the prison authorities to inform the convict that he has the right to challenge the order of rejection of the prayer for the grant of remission. Furthermore, an order granting permanent remission cannot be withdrawn or cancelled without giving an opportunity of being heard to the convict.
Power to Suspend and Remit Sentences:
Perusing Section 432 of the CrPC, the Court pointed out that the power conferred on the appropriate Government is of remitting the whole or part of the punishment to which an accused has been sentenced with or without conditions. There is also a power vested in the appropriate Government to suspend the execution of the sentence. The Court further pointed out that power under Section 432 of the CrPC is circumscribed by Section 433-A. It provides that where a sentence of imprisonment for life is imposed on conviction of a person for an offence for which death is one of the punishments provided or where a sentence of death imposed on a person has been commuted under Section 433 into one of imprisonment for life, the appropriate Government cannot grant remission unless the convict has served at least 14 years of actual imprisonment. This is an embargo on the power of the appropriate Government under Section 432 of the CrPC.
It was pointed out that the power of the President of India under Article 72 of the Constitution and the power of the Governor under Article 161 of the Constitution to grant pardon, commute the sentence, or remit the sentence remains unaffected by Section 433-A of the CrPC2.
Additionally, Section 433 of the CrPC also vests in the appropriate Government the power to commute sentence. Commuting a sentence is independent of the power to remit a sentence.
Issues for Consideration:
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Whether the power to grant remission can be exercised without the convict or anyone on behalf of the convict applying to the appropriate Government for a grant of remission.
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The nature of conditions imposed while granting remission.
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Whether there can be automatic revocation of remission granted to the convict if he commits a breach of the terms and conditions on which remission is granted.
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Whether there is a requirement to record reasons while rejecting applications of the convicts for grant of permanent remission.
Court’s Assessment:
Vis-a-vis Issue 1, the Court pointed out that Section 432(2) contemplates an application being made for grant of remission. Since the convict will be in jail, any of his relatives can make an application in terms thereof.
It was further noted that the provisions for premature release have been incorporated in prison manuals of various States. In the Model Prison Manual, it is provided that the superintendent-in-charge of a prison has to initiate a case of a prisoner for grant of premature release.
When a State Government/Union Territory has adopted a policy for the grant of permanent remission which incorporates conditions for eligibility, it becomes an obligation of the State Government or the Union Territory to consider cases of all eligible convicts for the grant of permanent remission as per the policy adopted.
“If such a policy exists, and if the State Government or the Government of Union Territory raises a contention that relief will be granted only to those who apply as per policy, it will amount to saying that even if convicts are eligible for consideration in terms of the policies, their cases will not be considered in terms of the policy. Such conduct on the part of the States will be discriminatory and arbitrary and amount to a violation of Article 14 of the Constitution.”
The power under Section 432(1) of the CrPC must be exercised in a fair and reasonable manner. Therefore, whenever there is a policy for consideration of cases for permanent remission, it becomes an obligation of the State to consider cases of every eligible convict under the policy.
Taking note of the Standard Operating Procedure formulated by the National Legal Services Authority (NALSA) on legal assistance, operationalisation, and co-ordination in improving the process of premature release, parole, furlough of prisoners (2022 SOP), the Court SOP contemplates prison superintendents of all the prisons preparing a list of all life convicts and other convicts who will be entitled to be considered for premature release in immediate four months as per the eligibility provided under the state policy. It is thus apparent that after the preparation of a list of all life convicts and other convicts who will be entitled to be considered for premature release, the said list must be regularly forwarded by the prison superintendents to the appropriate Government so that the case of premature release of such convicts is considered by the appropriate Government.
The Court requested NALSA to consider incorporating in the SOP the requirement of bringing to the notice of the convict the fact that the convicts have the liberty to challenge the order of rejection of grant of premature release.
Emphasising on the necessity of having a policy, the Court observed that the power under Section 432 of the CrPC is to be exercised in a fair and reasonable manner. If there is neither a policy nor any Regulations for exercising the power under Section 432 of the CrPC, there is a possibility that the authorities will not exercise their power in a fair and rational manner.
Regarding the power to grant conditional remission, the Court said that a plain reading of Section 432(1) of the CrPC reveals that the appropriate Government has the power to grant remission without imposing any condition or subject to certain conditions. Therefore, there cannot be any doubt that a conditional order can be passed by the appropriate Government granting permanent remission. Different States have different provisions in this regard.
The Court said that the conditions imposed while granting remission, must be reasonable must be such that they are capable of being complied with. The conditions must be such that the same ensures that the criminal tendency of the convicts remains in check, they do not indulge in the commission of crimes, and they are rehabilitated in society. Therefore:
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Consideration of various factors which are mentioned by way of illustration is necessary before finalizing the terms and conditions.
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The conditions must aim at ensuring that the criminal tendencies, if any, of the convict remain in check and the convict rehabilitates himself in society;
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The conditions should not be so oppressive or stringent that the convict is not able to take advantage of the order granting permanent remission; and
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The conditions cannot be vague and should be capable of being performed.
Considering the legal effect of a breach of terms and conditions on which remission has been granted, the Court said that in the light of the provisions of the CrPC and the BNSS, there is a power vesting in the appropriate Government to cancel the remission. The cancellation can be only on the grounds of the breach of the terms and conditions on which the remission is granted. In case of cancellation, the convict is required to undergo the remaining sentence. The test to be applied and the procedure to be followed are set out in clauses (v) and (vi) of paragraph 17 of the decision of the Court in Mafabhai Motibhai Sagar v. State of Gujarat, 2024 SCC OnLine SC 2982.
Even while passing an order of cancellation of the order of remission, the appropriate Government must record brief reasons. When an order of remission is cancelled, it affects the right of the convict to liberty under the Constitution. Therefore, the requirement of recording reasons must be read into Section 432(2) of the CrPC. The convict must be given a show cause notice stating the grounds for cancellation and he must be provided an opportunity to file a reply. If this is not read into the statute, the convict will not be in a position to defend the proceedings. Furthermore, principles of natural justice must be read into the provisions of Section 432 of the CrPC.
The Court further added that the order passed by the appropriate Government of either granting or rejecting the prayer for remission must be communicated to the convict. If the prayer is refused, while providing a copy of the order to the convict, he must be informed that he has a right to challenge the order. A copy of the order rejecting the prayer must be immediately provided to the Secretary of the District Legal Services Authority so that legal aid can be offered to the prisoner to challenge the order.
taking note of the 2022 SOP by NALSA, the Court emphasised that the exhaustive SOPs must be implemented in true letter and spirit. “Writ petitions are being filed in this court wherein either the facts are not fully stated, or there is suppression of facts. The reason is that most of the convicts are placed in such a position that they find it difficult to give correct information to their advocates. Clause 4.3 of the NALSA SOP is of utmost importance and needs strict implementation”.
Finally, shedding light on the duty of Presiding Officer, the Court said that when the Presiding officer’s opinion is sought as per Section 432(2) of the CrPC, then he must submit his opinion at the earliest considering the fact that the issue of liberty of the convict is involved.
[In Re: Policy strategy for grant of bail, 2025 SCC OnLine SC 349, decided on 18-2-2025]
*Judgment by Justice Abhay S. Oka
Advocates who appeared in this case :
Ms. Liz Mathew, senior counsel and Shri Navneet R.
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