State of Haryana and Ors. v. Jagdish
DR. 8.5. CHAUHAN, J. 1. Delay condoned. Leave D
granted.
2. This matter has come up before us upon reference
having been made by a Two-Judge Bench vide order dated
04.11.2009 upon noticing an inconsistency in the views
expressed by this Court in the case of State of Haryana & Ors. E
v. Ba/wan AIR 1999 SC 3333 on one hand and in the cases of
State of Haryana v. Mahender Singh & Ors. (2007) 13 SCC
606; and State of Haryana v. Bhup Singh AIR 2009 SC 1252,
on the other hand. The inconsistency, which was pointed out in
the said order was noticed by taking into account the para 5 F
of the judgment in Ba/wan (supra) which is as follows :-
" ........ However, in order to see that a life convict does not
lose any benefit available under the remission scheme
which has to be regarded as the guideline, it would be just G
and proper to direct the State Government to treat the date
on which his case is/was required to be put up before the
Governor under Article 161 of the Constitution as the
relevant date with reference to which their cases are to be
considered ...... " H
A 3. The views expressed in Mahender Singh (supra) and
Bhup Singh (supra) were as follows :-
Mahender Singh (supra)
"40. Whenever, thus, a policy decision is made,
persons must be treated equally in terms thereof. A' fortiori
the policy decision applicable in such cases would be
which was prevailing at the time of his conviction."
Bhup Singh (supra)
"10 ..... The right to ask for remission of sentence by a life
,convict would be under the law as was prevailing on the
date on which the judgment of conviction and sentence
was passed ...... .
11 ...... It is, therefore, directed that if the respondents have
not already been released, the State shall consider their
cases in terms of the judgment of this Court in Mahender
Singh case having regard to the policy decision as was
applicable on the date on which they were convicted and
not on the basis of the subsequent policy decision of the
year 2002 .... "
4. The question that has been posed before us is as to
whether the policy which makes a provision for remission of
F sentence, should be that which was existing on the date of the
conviction of the accused or it should be the policy Dthat exists
on the date of consideration of his case for pre-mature release
by the appropriate authority?
5. In the instant case, we find that the respondent, herein,
G has been granted the relief by the Punjab and Haryana High
Court for consideration of his case for grant of clemency as per
the policy prevailing on the date of his conviction. The
respondent was convicted and sentenced for life imprisonment
vide judgment and order dated 20.05.1999 and the policy which
H was in existence at that point of time was dated 04.02.1993.
'
STATE OF HARYANA AND ORS. v. JAGDISH 729
[DR. B.S. CHAUHAN, J.]
The respondent, having served more than 10 years A
imprisonment, approached the High Court that in spite of having
undergone the sentence as per the aforesaid policy dated
04.02.1993, his case for pre-mature release was not being
considered in view of the new policy of short sentencing,
introdu'c~d on 1'3.Q8.2008. The policy dated 13.8.2008 has B
been brought on record, which expressly recites that the same
was being issued in exercise _of the powers conferred by Sub
section (1) of Section 432 read with Section 433 of Criminal
Procedure Code (hereinafter called Cr.P.C.), 1973. The same
further recites that it is in supersession of the Government c
Memorandum dated 12.04.2002 and all other earlier policies.
6. The respondent was involved in a case, the FIR whereof
was registered Don 16.01.1995 and he was convicted vide
judgment and order dated 20.5.1999 under Sections 302, 148
and 149 Indian Penal Code (hereinafter called IPC), 1860. ln D
the above background, the respondent filed a Criminal Misc.
Application before the High Court. The Court placing reliance
on the judgments of this Court in Mahender Singh (supra) and
Bhup Singh (supra) came to the conclusion that the case of
the respondent for pre-mature release was to be considered E
in the light of the short sentencing policy existing on the date
of his conviction and thus, a direction was issued to the State ·
Authorities to consider his case for pre-mature release in view
of the policy dated 4.2.1993 existing on the date of his
conviction i.e. 20th May, 1999 within a period of one month from F
the date of receipt of the certified copy of the judgment. Hence,
this appeal. In view of the conflicting views in various judgments
of this Court, reference has been made to the larger Bench.
7. Heard Shri Gopal Subramanium, learned Solicitor G
General, Amicus Curiae, Shri P.N. Mishra, learned senior
counsel appearing for the State of Haryana, Shri B.S. Malik,
Senior Advocate, Shri Manoj Swarup, Shri D.P. Singh and Shri
Sanjay Jain, Advocates for respondents.
8. Shri P.N. Mishra, learned senior counsel appearing for H
730 SUPREME COURT REPORTS (2010] 3 S.C.R.
A the State of Haryana has submitted that State has unfettered
power to lay down a policy in regard to remission of sentence.
The short sentencing policies are merely executive instructions .
having no statutory force, therefore, do not create any legal/
vested right in favour of the convict. Having regard to the
B provisions of Sections 54, 55 IPC and Section 433-A Cr.P.C.,
no interference was required by the High Court. Case of the
respondent for pre-mature release would be considered in view
of the policy dated 13.8.2008. Thus, the judgment and order of
the High Court impugned herein, is liable to be set aside.
c 9. On the contrary, learned counsel appearing for the
respondent in this appeal and other connected cases, which
are being disposed of by separate order, have contended that
all remission schemes were issued making reference to Article
161 of the Constitution of India (hereinafter called the
D Constitution). The clemency power of the executive cannot be
subjected to any law whatsoever and thus, a legal right stood
crystallised in favour of the convict, to be considered for pre
mature release in view of the scheme prevailing on the date of
his conviction. They have emphasised that such scheme
E envisaged at least a promise and in view of the provisions of
Articles 20(1) and 21 of the Constitution, the conditions
contained in subsequent policies being more stringent cannot
be enforced against the "lifer". Provisions of the Prisons Act,
1894 (hereinafter called as 'Act 1894') and rules framed under
F it create legal right in favour of the convict. Such rights cannot
be taken away by presently prevailing policy dated 13.8.2008.
No policy can be framed in derogation of the statutory rules.
However, in case a lenient policy is enforced at subsequent
stage, the same can be made applicable and thus, the
G judgment and order of the High Court does not require any
interference. The appeal is liable to be dismissed.
10. Shri Gopal Subramanium, learned Solicitor General
who appeared as Amicus Curiae, has submitted that even if
there is no vested right of the convict to be considered for pre
STATE OF HARYANA AND ORS. v. JAGDISH 731
[DR. B.S. CHAUHAN, J.]
mature release, in view of the policy prevailing on the date of A
his conviction, at least a human element of expectation that the
convict would have remission as per the guidelines prevailing
on the date of his conviction cannot be ruled out. Even if the
convict does not satisfy the requirement of presently existing
remission policy dated 13.8.2008, his case can always be B
considered for remission under the provisions of Article 72 or
161 of the Constitution and it will be for the President or the
Governor, as the case may be, to take a view in the matter in
conformity with the decision in Maru Ram v. Union of India
(1981) 1 sec 101. c
11. We have considered the rival submissions made by
learned counsel for the parties and perused the record.
12. In the instant case, the respondent was convicted on
20th May, 1999 and sentenced for life imprisonment. D
Remission policy has been changed from time to time and
provided mainly as under:
Date of Policy
4th February, 1993
(a) Convicts whose death
sentence has been
commuted to life
imprisonment and convicts
who have been imprisoned
for life for having and after
earning at least 6 years
committed a heinous crime
such as:-
murder with wrongful
confinement, for extortion/
robbery; murder with rape;
Minimum required sentence
for pre-mature release
Their cases may be
considered after completion
of 14 years actual sentence F
including under trial period
and after earning at least 6
years remission.
murder while undergoing 11te
imprisonment; murder with
dacoity
.... ; murder of a child under
the age of 14 years; and
murder on professional/hired
basis ....
(b) Adult life convicts who
have been imprisoned for life
C but whose cases are not
covered under (a) above and
who have committed crime
which are not considered
heinous as mentioned in
D clause (a) above, or other life
convicts imprisoned for life for
·offence for which death
penalty is not a punishment.
8th August, 2000
(a) Convicts whose death
sentence has been
commuted to life
imprisonment and convicts
who have been imprisoned
for life having committed a
heinous crime such as:-
(i) ~urder with wrongful
confinement, for extortion/
robbery; (ii) murder with rape;
(iii) murder while undergoing
life imprisonment; (iv) murder
with dacoity .... ; (viii) murder
of a child under the age of 14
Their c:1ses may be
considered after completion
of. 10 years of actual
sentence including under trial
period, provided that the total
period of such sentence
including remission is not
less than 14 years.
Their cases may be
considered after completion
of 14 years a~tual sentence
including under trial period
provided that the total period
of such sentence including
remission is not less than
20 years.
STATE OF HARYANAAND ORS. v. JAGDISH
[DR. S.S. CHAUHAN, J.]
733
years; (ix) murder of woman;
and (xi) murder on
professional/hired basis ....
(xvi) convicts who have been
awarded life imprisonment a
second time under any
offence ....
(b) Adult life convicts who
have been imprisoned for life
but whose cases are not
covered under (a) above and
who have committed crime
which are not considered
heinous as mentioned in
clause (a)
29th October, 2001
Their cases may be
considered after completion
of 10 years actual sentence
including under trial period
provided that the total period
of such including
remissions is not less than
14 years.
(aa) Convicts whose death Their cases may be
sentence has been considered after completion
commuted to life of 20 years actual sentence E
imprisonment and convicts and 25 years total sentence
who have been imprisoned with remissions.
for life having committed a
heinous crime such as:-
(i) murder after rape repeated
chained rape/unnatural
offences; (ii) murder with
intention for the ransom; (iii)
murder of more than two
persons; (iv) persons
convicted for second time for
murder; and (v) sedition with
murder.
734 SUPREME COURT REPORTS (2010] 3 S.C.R.
A (a) Convicts who have been
imprisoned for life having
committed a heinous crime
such as:-
(i) murder with wrongful is not
less than 20 years.
c confinement for extortion/
robbery; (ii) murder while
undergoing life sentence;
murder with dacoity ..... and
(vii) murder of a child under
D the age of 14 years ......
(b) Adult life convicts who
have been imprisoned for life
but whose cases are not
covered under (aa) and
sentence including under trial
period (a) above and who
have committed crime which
are not considered heinous
as mentioned in clause (aa)
& (a) above.
13th August, 2008
(a) Convicts whose death
sentence _ has been
G commuted to life
imprisonment and convicts
who have been imprisoned
for life having committed a
heinous crime such as:-
Their cases may be
considered after completion
of 14 years actual
sentence including under trial
period provided that the total
period of such including
remissions is not less than
20 years.
Their cases may be
considered after completion
of 10 years actual
sentence including under
trial period provided that the
total period of such
sentence including
remissions is not less than
14 years.
Their cases for pre-mature
release may be considered
after completion of 20
years actual sentence and
25 years total sentence
with remissions.
STATE OF HARYANA AND ORS. v. JAGDISH
[DR. B.S. CHAUHAN, J.]
735
(i) murder with rape/unnatural
offences; (ii) murder with
intention to collect ransom/
robbery/ kidnapping/
abduction; (iii) murder of
more than two persons; (iv)
persons convicted for
second time for murder; (v)
sedition; (vi) sedition with
murder; and (vii) murder
while undergoing life
sentence ......
(b) Convicts who have been
imprisoned for life having
committed any crime which
is defined in IPC and/or
NDPS Act as punishable with
death sentence.
(c) ......
Their cases for pre-mature
release may be considered
after completion of 14
years actual sentence
including under trial period;
provided that the total period
of such sentence
including remissions is
not less than 20 years.
It may also be pertinent to mention here that all the
aforesaid policies made a clear-cut distinction and categorised F
the offence of murder in two separate categories. Heinous
crime means murder, i.e., (i) murder with wrongful confinement,
for extortion/robbery; (ii) murder with rape; (iii) murder
undergoing life imprisonment; (iv) murder with dacoity .... ; (v)
murder of a child under 14 years; and (vi) murder on G
professional/hired basis etc. Murders not mentioned in either
of these above categories have been treated differently for the
purpose of grant of pre-mature release. In all the policies issued
by the Government except policy dated 13th August, 2008, the
provisions of Article 161 of the Constitution have been referred H
A to. All the said policies provided that the cases of life convicts
would be put to the Governor through the Minister for Jails and
the Chief Minister, Haryana with full background of the prisoners
and recommendations of the Committee alongwith the copy of
the judgment etc. for orders under Article 161 of the
s Constitution.
13. This Court in Gopal Vinayak Godse v. State of
Maharashtra & Ors. AIR 1961 SC 600 considered the
provisions of Section 53-A IPC, Cr.P.C. and also considered
the Code of Criminal Procedure Amendment Act, 1955 which
C provided that a person sentenced to transportation for life
before the Amendment Act would be considered as sentenced
to rigorous imprisonment for life. The life convict was bound to
serve the remainder of sentence imprisoned. Unless the
sentence was commuted or remitted by the Competent
D Authority, such sentence would not be equated with any fixed
term. The benefit of remission or any short sentencing policy
in accordance with the rules framed under the Act 1894, if any,
would be considered towards the end of the term and the said
question was within the exclusive domain of the appropriate
E Government. In the said case, in spite of the fact that certain
remissions had been made, the competent authority did not
remit the entire sentence. While deciding the said case, this
court placed reliance on the judgment of the Privy Council in
Pt. Kishori/al v. Emperor AIR 1946 P.C. 64.
F 14. In Dalbir Singh & Ors. v. State of Punjab AIR 1979
SC 1384, this court came to the conclusion that 'life
imprisonment' means imprisonment for the whole of the man's
life. But in practice it amounts to incarceration for a period
G between 10 to 14 years.
15. In State of Haryana v. Nauratta Singh & Ors. AIR 2000
SC 1179, this Court clearly held that 14 years mentioned in
Section 433-A Cr. P.C. is the actual period of imprisonment
undergone without including any period of remission.
STATE OF HARYANA AND ORS. v. JAGDISH 737
[DR. B.S. CHAUHAN, J.]
16. In Swamy Shraddananda@Murali Manohar Mishra v. A
State of Kamataka AIR 2008 SC 3040, this Court had passed
the order that the appellant therein would not be released from
prison till the rest of his life. Such a punishment was considered
necessary because this Court substituted the death sentence
given to the appellant by the Trial Court and confirmed by the B
High Court, with imprisonment for life with a direction that the
said appellant would not be released from prison for the rest
of his life. Thus, the Court came to the conclusion, on the facts
of that case, that ih such an eventuality the pre-mature release
after a minimum incarceration for a period of 14 years as c
envisaged under Section 433-A Cr.P.C. would not be acceded
to, since the sentence of death had been stepped down to that
of life imprisonment which was definitely a lenient punishment.
17. In Ram raj @ Nanhoo @ Bihnu v. State of
Chhattisgarh AIR 2010 SC 420, this Court held as under: D
"In the various decisions rendered after the decision in
Godse case, "imprisonment for life" has been repeatedly
held to mean imprisonment for the natural life term of a
convict, though the actual period of imprisonment may E
stand reduced on account of remissions earned. But in no
' case, with the possible exception of the powers vested in
the President under Article 72 of the Constitution and the
powers vested in the Governor under Article 161 of the
Constitution, even with remissions earned, can a sentence F
of imprisonment for life be reduced to below 14 years. It
is thereafter left to the discretion of the authorities
concerned to determine the actual length of imprisonment
having regard to the gravity and intensity of the offence."
18. In Mohd. Munna v. Union of India (2005) 7 SCC 417, G
this Court came to the conclusion that life imprisonment was
not equivalent to imprisonment for 14 years or 20 years. Life
imprisonment means imprisonment for the whole of the
remaining period of the convicted person's natural life. There
was no provision either in the IPC or Cr.P.C. whereby life H
A imprisonment could be treated as either 14 years or 20 years
incarceration without there being a formal remission by the
Appropriate Government. The contention that having regard to
the provisions of Section 57 IPC, a prisoner was entitled to be
released on completing 20 years of imprisonment under the
B West Bengal Correctional Services Act, 1992 and the West
Bengal Jail Code, was rejected.
19. Before we proceed to consider the exercise of powers
with regard to remission, as provided for either under the
C Constitution, the IPC or the Cr.P.C., it would be worth reiterating
what has already been traversed and laid down by this Court
right from the case of Maru Ram (supra) to the decision in the
case of Ram_Raj (supra).
20. In Maru Ram (supra), this Court elaborately dealt with
D the issue of validity of Section 433-A Cr.P.C. and the remission/
'G
short sentencing policies and held as under:
"54. The major submissions which deserve high
consideration may now be taken up. They are three and
important in their outcome in the prisoners' freedom from
behind bars. The first turns on the 'prospectivity' (loosely
so called) or otherwise of Section 433-A. We have already
held that Article 20(1) is not violated but the present point
is whether, on a correct construction, those who have been
convicted prior to the coming into force of Section 433-A
are bound by the mandatory limit. If such convicts are out
of its coils their cases must be considered under the
remission schemes and 'short-sentencing' laws. The
second plea, revolves round 'pardon jurisprudence', if we
may coarsely call it that way, enshrined impregnably in
Articles 72 and 161 and the effect of Section 433-A
thereon. The power to remit is a constitutional power and
any legislation must fail which seeks to curtail its scope
and emasculate its mechanics. Thirdly, the exercise of this
plenary power cannot be left to the fancy, frolic or frown of
Government, State or Central, but must embrace reason,
STATE OF HARYANA AND ORS. v. JAGDISH 739
[DR. B.S. CHAUHAN, J.]
relevance and reformation, as all public power in a republic A
must. On this basis, we will have to.scrutinize and screen
the survival value of the various remission schemes and
short-sentencing projects, not to test their supremacy over
Section 433-A, but to train the wide and beneficent power
to remit life sentences without the hardship of fourteen 8
fettered years.
xx xx xx
67. All these go to prove that the length of imprisonment
is not regenerative of the goodness within and may be C
proof of the reverse - a calamity which may be averted
by exercise of power under Article 161 ...... In short, the.
rules of remission may be effective guidelines of a
recommendatory nature, helpful to Government to release
the prisoner by remitting the remaining term. D
xx xx xx
72(7) We declare that Section 433-A, in both its limbs (i.e.
both types of life imprisonment specified in it), is
prospective in effect.. .... It follows, by the same logic, that E
short-sentencing legislations, if any, will entitle a prisoner
to claim release thereunder if his conviction by the court
of first instance was before Section 433-A was brought
into effect.
xx xx xx
72(10) Although the remission rules or short-sentencing
provisions proprio vigore may not apply as against Section
433-A, they will override Section 433-A if the Government,
Central or State, guides itself by the selfsame rules or G
schemes in the exercise of its constitutional power. We
regard it as fair that until fresh rules are made in keeping
with experience gathered, current social conditions and
accepted penological thinking-a desirable step, in our
view-the present remission and release schemes may H
A usefully be taken as guidelines under Articles 72/161 and
orders for release passed. We cannot fault the
Government, if in some intractably savage delinquents,
Section 433-A is itself treated as a guideline for exercise
of Articles 72/161. These observations of ours are
8 recommendatory to avoid a hiatus, but it is for Government,
Central or State, to decide whether and why the current
Remission Rules should not survive until replaced by a
more wholesom~ scheme."
21. Thus, the Court held that the amendment would apply
C prospectively. The life convicts who had been sentenced prior
to 18.12.1978 i.e. date of enforcement of amendment would
· not come within the purview of the provisions of Section 433-
A Cr.P.C. and short sentencing policy would also apply
prospectively. Remission rules/short sentencing policies could
D be taken as guidelines for exercise of power under Articles 72
or 161 of the Constitution and in such eventuality, remission
rules will override Section 433-A Cr.P.C.
22. In State of Punjab v. Joginder Singh AIR 1990 SC
E 1396 this Court held that remission cannot detract from the
quantum and quality of judicial sentence except to the extent
permitted by Section 433 Cr.P.C. subject of course, to Section
433-A or where the clemency power under the Constitution is
. invoked. But while exercising the constitutional power under
F Articles 72/161 of the Constitution, the President or the
Governor, as the case may be, can exercise an absolute power
which cannot be fettered by any statutory provision such as
Sections 432, 433 and 433-A Cr.P.C. This power cannot be
altered, modified or interfered with in any manner whatsoever
by any statutory provisions or Prison Rules.
23. In Sadhu Singh v. State of Punjab AIR 1984 SC 739,
this Court examined the nature of the provisions contained in
para 516-B of the Punjab Jail Manual which provided for
remissioi:is etc. and executive instructions issued by the Punjab
H Government from time to time and came to the conclusion that
STATE OF HARYANA AND O,R,S. v. JAGDISH 741
[DR. B.S. CHAUHAN, J.]
the Jail Manual contained merely executive instructions having A
no statutory force. Thus, it was always open to the State
Government to alter, amend or withdraw the executive
instructions or supersede the same by issuing fresh
instructions. But the Court observed as under:
"Any existing executive instruction could be substituted by
issuing fresh executive instructions for processing the
cases of lifers for pre-mature release but once issued
these must be uniformly and invariably apply to all cases
of lifers"
24. A similar view has been re-iterated by this Court in
Ba/wan (supra); and Laxman Naskar v. Union of India & Ors.
(2000) 2 sec 595.
25. In Ashok Kumar@ Golu v. Union of India & Ors. AIR D
1991 SC 1792 this Court considered the scope and relevancy
of Rajasthan Prisons (Shortening of Sentences) Rules, 1958
qua the provisions of Section 433-A Cr.P.C. The said
Rajasthan Rules 1958 provided that a "lifer" who had serve
dactual sentence of about nine years and three months was E
entitled to be considered for pre-mature release if the total
sentence including remissions worked out to 14 years and he
was reported to be of good behaviour. The grievance of the
petitioner therein had been that his case for pre-mature release
had no.t been considered by the Concerned Authorities in view F
of the provisions of Section 433-A Cr.P.C. This Court
considered the matter elaborately taking into consideration
large number of its earlier judgments including Maru Ram
(supra), Bhagirath v. Delhi Administration AIR 1985 SC 1050;
Kehar Singh & Anr. v. Union of India & Anr. AIR 1989 SC 653,
and came to the following conclusions: G
(i) Section 433-A Cr.P.C. denied pre-mature release
before completion of actual 14 years of
incarceration to only those limited convicts
convicted of a capital offence i.e. exceptionally H
742
(ii)
heinous crime;
Section 433-A Cr.P.C. cannot and does not in any
way affect the constitutional power conferred on the
President/Governor under Article 72/161 of the
Constitution;
(iii) Remission Rules have a limited scope and in case
of a convict undergoing sentence for life
imprisonment, it acquires significance only if the
sentence is commuted or remitted subject to
Section 433-A Cr.P.C. or in exercise of
constitutional power under Article 72/161 of the
Constitution; and
(iv) Case of a convict can be considered under Articles
72 and 161 of the Constitution treating the 1958
Rules as guidelines. The aforesc:iid case was
disposed of by this Court observing that in case the
clemency petition of the petitioner therein was
pending despite of the directive of the High Court,
it would be open to the said petitioner to approach
the High Court for compliance of its order.
26. In Mahender Singh (supra), this Court as referred to
hereinabove held that the policy decision applicable in such
cases would be which was prevailing at the time of his
F conviction. This conclusion was arrived on the following ground:
"38. A right to be considered for remission, keeping in view
the constitutional safeguards of a convict under Articles 20
and 21 of the Constitution of India, must be held to be a
G legal one. Such a legal right emanates from not only the
Prisons Act but also from the Rules framed thereunder."
27. Nevertheless, we may point out that the power of the
sovereign to grant remission is within its exclusive domain and
it is for this reason that our Constitution makers went on to
H ·incorporate the provisions of Article 72 and Article 161 of the
STATE OF HARYANA AND ORS. v. JAGDJSH 743
[DR. B.S. CHAUHAN, J.]
Constitution of India. This responsibility was cast upon the A
Executive through a Constitutional mandate to ensure that
some public purpose may require fulfillment by grant of
remission in appropriate cases. This power was never
intended to be used or utilised by the Executive as an unbridled
power of reprieve. Power of clemency is to be exercised 8
cautiously and in appropriate cases, which in effect, mitigates
the sentence of punishment' awarded and which does not, in
any way, wipe out the conviction. It is a power which the
sovereign exercises against its own judicial mandate. The act
of remission of the State does not undo what has been done C
judicially. The punishment awarded through a judgment is not
overruled but the convict gets benefit of a liberalised policy of
State pardon. However, the exercise of such power under
Article 161 of the Constitution or under Section 433-ACr. P.C.
may have a different flavour in the statutory provisions, as short
sentencing policy brings about a mere reduction in the period D
of imprisonment whereas an act of clemency under Article 161
of the Constitution commutes the sentence itself.
28. In Epuru Sudhakar & Another v. Govt. of A.P. & Ors.
AIR 2006 SC 3385 this Court held that reasons had to be
indicated while exercising power under Articles 72/161. It was
further observed (per Kapadia, J) in his concurring opinion:
"Pardons, reprieves and remissions are manifestation of
the exercise of prerogative power. These are not acts of
grace. They are a part of Constitutional scheme. When a
pardon is granted, it is the determination of the ultimate
authority that public welfare will be better served by
inflicting less than what the judgment has fixed ....... .
Exercise of Executive clemency is a matter of discretion G
and yet subject to certain standards. It is not a matter of
privilege. It is a matter of performance of official duty. It is
vested in the President or the Governor, as the case may
be, not for the benefit of the convict only, but for the welfare
of the people who may insist on the performance of the H
A duty .......
Granting of pardon is in no sense an overturning of a
judgment of conviction, but rather it is an Executive action
that mitigates or sets aside the punishment for a crime ........
B The power under Article 72 as also under Article 161 of
the Constitution is of the widest amplitude and envisages
myriad kinds and categories ofcases with facts and
situations varying from case to case."
c 29. There is no dispute to the settled legal proposition that
the power exercised under Articles 72/161 couid be the subject
matter of limited judicial review. (vide Kehar Singh (supra);
Ashok Kumar(supra); Swaran Singh v. State of U.P. AIR 1998
SC 2026; Satpal & Anr. v. State of Haryana & Ors. AIR 2000
0 SC 1702; and Bikas Chatterjee v. Union of India (2004) 7
SCC 634). In Epuru Sudhakar (supra) this Court held that the
. orders under Articles 72/161 could be challenged on the
following grounds:
(a) that the order has been passed without application
of mind;
(b) that the order is mala fide;
(c) that the order has been passed on extraneous or
wholly irrelevant considerations;
(d) that relevant materials have been kept out of
consideration;
(e) that the order suffers from arbitrariness.
30. The power of clemency that has been extended is
contained in Articles 72 and 161 of the Constitution. This matter
relates to the State of Haryana. The Governor of Haryana may
exercise the clemency power. Article 161 of the Constitution
enables the Governor of a State "to grant pardons, reprieves,
"'
STATE OF HARYANA AND ORS. v. JAGDISH 745
[DR. B.S. CHAUHAN, J.]
respites or remissions of punishment or to suspend, remit or A
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"
31. Sections 54 and 55 IPC provide for punishment.
However, the provisions of Sections 432 and 433-A Cr.P.C.,
relate to the present controversy. Section 432(1) Cr.P.C.
empowers the State Government to suspend or remit sentences
of any person sentenced to punishment for an offence, at any
time, without conditions or upon any conditions that the person C
sentenced accepts, suspend the execution of his sentence or
remit the whole or any part of the punishment to which he has
been sentenced. Section 433-A Cr.P.C. imposes restriction on
powers of remission or commutation where a sentence of
imprisonment for life is imposed on conviction of a person for
an offence for which death is one of the punishment provided D
by law or where a sentence of death imposed on a person has
been commuted under section 433 into one of imprisonment
for life, such person shall not be released from prison unless
he has served at least fourteen years of imprisonment.
32. Pardon is one of the many prerogatives which have
been recognised since time immemorial as being vested in the
sovereign, whoever the sovereignty might be. Whether the ..
sovereign happened to be an absolute monarch or a popular
republic or a constitutional king or queen, Sovereignty has
always been associated with the source of power - the power
to appoint or dismiss public servants, the power to declare war
and conclude peace, the power to legislate and the power to
adjudicate upon all kinds of disputes etc. The rule of law, in
contradiction to the rule of man, includes within its wide G
connotation the absence of arbitrary power, submission to the
ordinary law of the land, and the equal protection of the laws.
As a result of the historical process aforesaid, the absolute and
arbitrary power of the monarch came to be canalised into three
distinct wings of the Government, (Vide K.M. Nanavati v. State
of Bombay AIR 1961 SC 112). H
A 33. Articles 72 and 161 of the Constitution provide for a
residuary sovereign power, thus, there can be nothing to debar I
the concerned authority to exercise such power, even after
rejection of one clemency petition, if the changed
circumstances so warrant. (Vide G. Krishta Goud & J.
B Bhoomaiah v. State of Andhra Pradesh & Ors. (1976) 1 SCC
157)
34. In Regina v. The Secretary of State for the Home
Department (1996) EWCA Civ 555, the question came for
consideration, before the Court that if the short-sentencing
C policy is totally inflexible, whether it amounts to transgression
on the clemency power of the State which is understood as
unfettered? The court considered the issue at length and came
to the conclusion as under:
D " ...... the policy must not be so rigid that it does not allow
for the exceptional case which requires a departure from
the policy, otherwise it could result in fettering of the
discretion which would be unlawful .... It is inconsistent with
the very flexibility which must have been intended by the
E Parliament in giving such a wide and untrammeled
discretion to the Home Secretary ...... Approximately 90
years ago an enlightened Parliament recognised that .a
flexible sentence of detention is what is required in these
cases with a very wide discretion being given to the
F person Parliament thought best suited to oversee that
discretion so that the most appropriate decision as to
release could be taken in the public interest. The
subsequent statutes have not altered the nature of the
discretion." (Emphasis added).
G Thus, it was held therein that the clemency power remains
unfettered and in exceptional circumstances, variation from the
policy is permissible.
35. In view of the above, it is evident that the clemency
H power of the Executive is absolute and remains unfettered for
STATE OF HARYANA AND ORS. v. JAGDISH 747
[DR. B.S. CHAUHA'N, J.]
the reason that the provisions contained under Article 72or161 A
of the Constitution cannot be restricted by the provisions of
Sections 432, 433 and 433-A Cr. P.C. though the Authority has
to meet the requirements referred to hereinabove while
. exercising the clem·ency power.
To say that clemency power under Articles 72/161 of the
Constitution cannot be exercised by the President or the
Governor, as the case may be, before a convict completes the
incarceration period provided in the short- sentencin.Q policy,
even in an exceptional case, would be mutually inconsistent with C
the theory that clemency power is unfettered.
The Constitution Bench of this Court in Maru Ram (supra)
clarified that not only the provisions of Section 433-A Cr: P.C.
would apply prospectively but any scheme for short sentencing
· framed bythe State would also apply prospectively. Such a view D
is in conformity with the provisions of Articles 20 (1) and 21 of
the Constitution. The expectancy of period of incarcE!ration is
determined soon after the conviction on the basis of the
applicable laws and the established practices of the State.
When a short sentencing scheme is referable to Article 161 of E
the Constitution, it cannot be held that the said scheme cannot
be pressed in service. Even if, a life convict does not satisfy
the requirement of remission rules/short sentencing scliemes,
there can be no prohibition for the President or the Governor
of the State, as the case may be, to exercise the power of F
clemency under the provisions of Article 72 and 161 of the
Constitution. Right of the convict i;¥limited to the extent that his
case be considered in accorda!)Ce with the relevant rules etc.,
he cannot claim pre-mature release as a matter of right.
36. Two contrary views have always prevailed on the issue G
of purpose of criminal justice and punishment. The punishment,
if taken to be relT'edial and for the benefit of the convict,
remission should be granted. If sentence is taken purely punitive
in public interest to vindicate the authority of law and to deter
A others, it should not be granted.
----In Salmond on Jurisprudence, 12th B:tltion by P.J.
Fitzgerald, the author in Chapter 15 dealt with the purpose of
criminal justice/punishment as under :-
"Deterrence acts on the motives of the offender, actual or
potential; disablement consists primarily in physical
restraint. Reformation, by contrast, seeks to bring about a
change in the offender's character it!Self so as to reclaim
him as a useful member of society. Whereas deterrence
looks primarily at the potential criminal outside the dock,
reformation aims at the actual offender before the bench.
In thjs century increasing weight has been attached to this
aspect. Less frequent use of imprisonment, the
abandonment of short sentences, the attempt to use prison
as a training rather than a pure punishment, and the
greater employment of probation, parole and suspended
sentences are evidence of this general~rend. At the same
time, there has been growing concern to investigate the
causes of crime and the effects of penal treatment.. ...... The
reformative element must not be overlooked but it must not
be allowed to assume undue prominence. How much
prominence it may be allowed, is a question of time, place
and circumstance."
F R.M.V.Dias, in his book Jurisprudence (Fifth Edition- 1985)
observed as under:-
"The easing of laws and penalties on anti-social conduct
may conceivably result in less freedom and safety for the
law-abiding. As Dietze puts it: 'Just as the despotic variant
of democracy all too often has jeopardized human rights,
its permissive variant threatens these rights by exposing
citizens to the crimes of their fellowmen .........
.......... The more law-abiding people lose confidence in the
law and those in authority to protect them, the more will
STATE OF HARYANA AND ORS. v. JAGDISH 749
[DR. B.S. CHAUHAN, J.]
they be driven to the alternative of taking matters into their A
own hands, the perils of which unthinkable and are nearer
than some liberty-minded philanthropists seem inclined to
allow ...... "
Legal maxim, "Veniae facilitas incentivum est 8
delinquendi'; is a caveat to the exercise of clemency powers,
as it means - "Facility of pardon is an incentive to crime." It may
· also prove to be a "grand farce", if granted arbitrarily, without
any justification, to "privileged class deviants". Thus, no convict
should be a "favoured recipient" of clemency.
37. Liberty is one of the most precious and cherished
possessions of a human being and he would resist forcefully
any attempt to diminish it. Similarly, rehabilitation and social
reconstruction of life convict, as objective of punishment
become of paramount importance in a welfare state. "Society D
without crime is a utopian theory''. The State has to achieve the
goal of protecting the society from convict and also to
rehabilitate the offender. There is a very real risk of revenge
attack upon the convict from others. Punishment enables the
convict to expiate his crime and assist his rehabilitation. The E
Remission policy manifests a process of reshaping a person
who, under certain circumstances, has indulged in criminal
activity and is required to be rehabilitated. Objectives of the
punishment are wholly or p(~dominantly reformative and
preventive. The basic principle of punishment that "guilty must F
pay for his crime" should not be extended to the extent that
punishment becomes brutal. The matter is required to be
examined keeping in view modern reformative concept of
punishment. The concept of "Savage Justice" is not to be
applied at all. The sentence softening schemes have to be G
viewed from a more human and social science oriented
approach. Punishment should not be regarded as the end but
as only the means to an end. The object of punishment must
not be to wreak vengeance but to reform and rehabilitate the
criminal. More so, relevancy of the circumstances of the offence H
A and the state of mind of the convict, when the offence was
committed, are the factors, to be taken note of.
38. At the time of considering the case of pre-mature
release of a life convict, the authorities may require to consider
8 his case mainly takirlg into consideration whether the offence
was an individual act of crime without affecting the society at
large; whether there was any chance of future recurrence of
committing a crime; whether the convict had lost his potentiality
in committing the crime; whether there w~s any fruitful purpose
C of confining the convict any more; the socio-economic condition
of the convict's family and other similar circumstances.
39. Considerations of public policy and humanitarian
impulses - supports the concept of executive power of clemency.
If clemency power exercised and sentence is remitted, it does
D not erase the fact that an individual was convicted of a crime.
It merely gives an opportunity to the convict to reintegrate into
the society. The modern penology with its correctional and
rehabilitative basis emphasis that exercise of such power be
made as a means of infusing mercy into the justice system.
E Power of clemency is required to be pressed in service in an
appropriate case. Exceptional circumstances, e.g. suffering of
a convict from an incurable disease at last stage, may warrant
his release even at much early stage. 'Vana Est Illa Potentia
Quae Nunquam Venit In Actum' means-vain is that power which
F never comes into play.
40. Pardon is an act of grace, proceedings from the power
entrusted with the execution of the laws, which exempts the
individual on whom it is bestowed from the punishment which
law inflicts for a crime he has committed. Every civilised society
G recognises and has therefore provided for the pardoning power
to be exercised as an act of grace and humanity in appropriate
cases. This power has been exercised in most of the States
from time immemorial, and has always been regarded as a
necessary attribute of sovereignty. It is also an act of justice,
H · supported by a wise public policy. It cannot, however, be
STATE OF HARYANA AND ORS. v. JAGDISH 751
[DR. B.S. CHAUHAN, J.]
treated as a privilege. It is as much an official duty as any other A
act. It is vested in the Authority not for the benefit of the convict
only, but for the welfare of the people; who may properly insist
upon the performance of that duty by him if a pardon or parole
is to be granted.
41. This Court in Mahender Singh (supra) has takeh/note
of the provisions of Act 1894 and rules framed thereunder as
well as the relevant paragraphs of Punjab Jail Manual. Section
59 (5) of Act 1894 enables the Government to frame rules for
"award of marks and shortening of sentence". Rules define
prisoner including a person committed to prison in default of C
furnishing security to keep peace or be of good behaviour.
Rules further provide for classification of prisoners according
to the intensity and gravity of the offence. According to the
classification of prisoners, Class 1 prisoners are those who had
committed heinous organized crimes or specially. dangerous D
criminals. Class 2 prisoners include dacoits or persons who
commit heinous organized crimes. Class 3 prisoners are those
who do not fall within Class 1 or Class 2. Rule 20 thereof
provides that life convict being a Class 1 prisoner if earned such
remission as entitles him to release, the Superintendent shall
report accordingly to the Local Government with a view to the
passing of orders under Section 401 Cr.P.C. Rule 21 provides
that save as provided by Rule 20, when a prisoner has earned
such remission as entitles him to release, the Superintendent
shall release him. Instant case falls in Class 3, not being a case
of organized crime or by professionals or hereditary or specially
dangerous criminals.
Undoubtedly, the aforesaid rul~s are applicable in Haryana
in view of the State Re-organisation Act. These are statutory G
rules, not merely executive instn.1ctions. Therefore, a "lifer" has
a right to get his case considered within the parameters laid
down therein.
It may not be out of place to mention here that while
deciding the case in Sadhu Singh (supra), provisions of the H
A aforesaid Act 1894 and Rules referred to hereinabove, had not
been brought to the notice of this Court.
More so, consistent past practice adopted by the State can
furnish grounds for legitimate expectation (vide Official
B Liquidator v. Dayanand & Ors. (2008) 10 SCC 1).
42. We have already noticed that the earlier policies
including the policy dated 04.02.1993 refers to the exercise of
powers under Article 161 of the Constitution whereas the policy
dated 13.08.2008 is in exercise of the powers under Section
C 432 read with Sections 433 and 433-A of Cr. P.C. The
restriction under Section 433-A is only to the extent of the
powers to be exercised in respect of offences as referred to
under Section 432 Cr.P.C. The notification dated 13.08.2008
is, therefore, under a rule of procedure, which is subordinate
D to the Constitution. The power exercised under Article 161 of
the Constitution is obviously a mandate of the Constitution and,
therefore, the policy dated 13.08.2008 cannot override the
policy dated 04.02.1993.
E 43. The right of the respondent prisoner, therefore, to get
his case considered at par with such of his inmates, who were
entitled to the benefit of the said policy, cannot be taken away
by the policy dated 13.08.2008. This is evident from a bare
perusal of the recitals contained in the policies prior to the year
2008, which are referable to Article 161 of the Constitution. The
F High Court, therefore, in our opinion, was absolutely justified
in arriving at the conclusion that the case of the respondent was
to be considered on the strength of the policy that was existing
on the date of his conviction. State authority is under an
obligation to at least exercise its discretion in relation to an
G honest expectation perceived by the convict, at the time of his
conviction that his case for pre-mature release would be
considered after serving the sentence, prescribed in the short
sentencing policy existing on that date. The State has to
exercise its power of remission also keeping in view any such
H benefit to be construed liberally in favour of a convict which may
· STATE OF HARYANA AND ORS. v. JAGDISH 753
[DR. B.S. CHAUHAN, J.]
depend upon case to case and for that purpose, in our opinion, A
it should relate to a policy which, in the instant case, was in
favour of the respondent. In case a liberal policy prevails on the
date of consideration of the case of a "lifer" for pre-mature
release, he should be given benefit thereof.
44. As per the information furnished by the appellant-State .B
of Haryana, the respondent Jagdish has served more than 14
years (actual) on 12.2.2009 i.e. prior to the date of judgment
impugned herein dated 17.2.2009. By now, the respondent has
served (actual) for more than 15 years. Respondent falls in C
category 3 of the prisoners as he did not indulge in any
organised crime.
45. Accordingly, for the reasons given hereinabove, we find
no reason to interfere with the judgment of the High Court,
which is hereby affirmed. The appeal is dismissed accordingly, D
subject to the direction that the appellant- State Government
shall proceed to calculate the sentence for the purpose of
consideration of remission in the case of the respondent as per
the policy dated 04.02.1993.
E CRIMINAL APPELLATE JURISDICTION: Special Leave
Petition (Crl.) No. 5842 of 2009.
From the Judgment & Order dated 16.3.2009 of the High
Court of Punjab & Haryana at Chandigarh in Crl. Misc. No. M-
465 of 2009. F
WITH
SLP (Crl.) No.6385, 6442, 6441, 6444, 5768, 7629, 7579,
7580, 7581, 7582, 8140, 7631, 7630, 7628, 7622, 7623, 7625, G
7619, 7621, 7659, 7654, 7656, 7657, 7652, 7655, 7661, 7653,
7651, 7660, 7649, 7658/2009, SLP (Crl.) No ......... /2009
@Crl.M.P. No.13253, 7974, 9330, 9234, 9268, SLP (Crl.) No .
................ /2009 @Crl.M.P. No.12754, SLP (Crl.) No .................. .
/2009 Crl.M.P. No.13045, SLP (Crl.) No.6914, 6913, 8288,
A 8290,8291,8292,8293,8294,8297,8298,8300, 8301,8302/
2009, SLP (Crl.) No ................ /2009@Crl.M.P. No.18221, SLP
(Crl.) No .............. ./2009 @Crl.M.P. No.18264, SLP (Crl.)
No ............. /2009 @Crl.M.P. No. 18402, SLP (Crl.) No. 831,
832, 1026, 1097, 1615, 2101, 1861, 2216, 3475, 3035, 3042,
8 3032, 3044,3040, 3123,4125,4076,4077,4815,4882, 5117,
5173,6787,6272,6783,6310,6784,6467,6468,6985,6637,
6986,6647,6766,6767,6776,6777, 7147,8392,4789,6485,
4802,4803,4909,6487,4933,4934,4943,4956,6488,5115,
5118,5166,5170, 5174,8800,8802,8801,8806,8804,8807,
c 4883,9364, 9373,9392,9379,9376,9382,9384,9387,9389,
9372,9366,9371,9368,9388,9383,9385,9378,9377,9381,
9374, 9358, 9367, -g359, 9370, 9380, 10237, 9393, 9390 '
9355, 9351, 9359, 9354, 9386, 10119, 10122 10121, 10123,
10120 of 2009, 200, 211, 210, 206, 207, 196, 193, 194, 199,
0 205, 197, 198, 204, 208, 203, 192, 437 of 2010 & 3118 of 2009.
Gopal Subramanium, Sol. Genl. of India (A.C.), 8.S. Malik,
P.V. Dinesh, Athouba Khaidem, Harivansh Manab, Chander
Shekhar Ashri, A. Dasharatha, D.P. Singh, Sanjay Jain, Sanjay
- Sharawat, Satyendra Kumar, Gagan Gupta, Manoj Swarup,
E Vijay K. Jindal, Devesh Kr. Tripathi, Ashok Anand, Rohit Kr.
Singh, Ajay Pal, Rupender Singh, Prashant Shukla, S.K.
Shrivastava, Rishi Malhotra, S.K. Shrivastava (for Ajay Pal) for
the appearing parties.
F The Judgment of the Court was delivered by
DR. B.S. CHAUHAN, J.
In view of our judgment pronounced today in Criminal
Appeal No.566 of 2010@ SLP(Crl.) No. 6638 of 2009 (State
G of Haryana & Ors. v. Jagdish), these Special Leave Petitions
are dismissed.
8.8.8. Matters dismissed.