All typesTrial Procedure

Conflict of opinion between Supreme Court and govt. in commutation of punishment

 

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Section 54 and 55 IPC deals respectively with death sentence and imprisonment for life vests the power to commute the sentence with the appropriate Government.

Parallel provisions also occur in Article 72, and 161 of the constitution of India.

Article 72 in The Constitution Of India 1949

  1. Power of President to grant pardons, etc, and to suspend, remit or commute sentences in certain cases

(1) The President shall have the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence

(a) in all cases where the punishment or sentence is by a court Martial;

(b) in all cases where the punishment or sentence is for an offence against any law relating to a matter to which the executive power of the Union extends;

(c) in all cases where the sentence is a sentence of death

(2) Noting in sub clause (a) of Clause ( 1 ) shall affect the power to suspend, remit or commute a sentence of death exercisable by the Governor of a State under any law for the time being in force.

Article 161 in The Constitution Of India 1949

  1. Power of Governor to grant pardons, etc, and to suspend, remit or commute sentences in certain cases The Governor of a State shall have the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence against any law relating to a matter to which the executive power of the State extends

Section 432 in The Code Of Criminal Procedure, 1973

  1. 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 con-

viction 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.

Explaining the scope of the different provisions Supreme Court held that the powers of pardon and clemency under Article 72 and 161 of the Constitution of India and so also under Section 432 CrPC, 1973 are to be exercised in a completely different field whereas the power of the Supreme Court, under Article 142 of the Constitution and those of the court of appeal under the CrPC operate in a completely different field. In order to give harmonious construction to the provision of article 142 of the Constitution on the one hand and Article 72 and 161 of the constitution on the other, and section 432 of CrPC, 1973 on one side and section 389 of the CrPC. These sections shall be construed that during the period the matter is sub judice  before the Court either under Article 142 of the Constitution or under section 389 of the CrPC, 1973, the field of operation of the powers under Article 72 and 161 of the Constitution and under Section 432 of the CrPC, 1973 will remain suspended and the court will have the final say in the matter of remission of the sentence. But where there is no matter pending before the court in reference to the above mentioned provisions, the field of operation regarding the remission etc. of the sentence properly vests in the authorities mentioned under Article 72 and 161 of the Constitution and under section 432 of the CrPC.[1] The power to grant reprieve or commutation of sentence under Article 161 of the Constitution of India lies with the Governor and under Article 72 the power of remission lies with the President of India and not with the Court.

[1] Nanavati v. State of Bombay, AIR 1961 SC 112

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