Remission – Grant of – Policy Regarding Release of Life Convicts 2002 – Premature Release of Life Convicts 2008 – The appellant stood convicted for murder of a 12 year old child, on 03.01.2009 – He was sentenced to undergo life imprisonment – On 26.05.2022, the appellant sought release on the basis of 2002 Policy, having served 14 years of actual imprisonment – His representation was rejected on two grounds – (i) that the appellant would be governed by the 2008 Policy and not the 2002 Policy; (ii) that as per the former he had completed only 13 years 7 months and 16 days of actual imprisonment and 16 years five months and 16 days of total imprisonment as on 21.09.2022 and as such was not eligible for not having completed the requisite period of twenty years of actual sentence and twenty five years of total sentence – Correctness:
Held: It appears that the policies of the year 2000 and 2002 clearly state that for orders to be passed under these policies, the papers are to be placed before the Hon’ble Governor of the State for soliciting orders u/Art.161 of the Constitution of India – However, the later 2008 Policy specifically states that papers shall be put up before the Chief Minister for orders u/s.432 of CrPC – This clearly shows the constitutional ambit of the former and statutory ambit of the latter – It need not be said that a statutory policy, even if it may be so, cannot override a exercise of power u/Art.161, for that power is distinct and independent, uninfluenced by any other power, more so statutory in nature – Since the 2002 Policy stood framed under the Constitution and such power is to be exercised by the Governor himself, the subsequent Policy of 2008, cannot deter the effect of the former and the observation that it supersedes the 2002 Policy, is untenable in law – In respect of the appellant herein, it can be said that the 2002 Policy would still have its effect – The holding in Jagdish would operate, and the appellant would be entitled for the benefit of the lesser time served thereby making him eligible for remission. [Paras 9, 16] Remission – Grant of – Policy Regarding Release of Life Convicts 2002 – Premature Release of Life Convicts 2008 – Conflict between State of Haryana v. Raj Kumar (2 Judges Bench) [2021] 8 SCR 320 : (2021) 9 SCC 292 and State of Haryana v. Jagdish (3 Judges Bench) [2010] 3 SCR 716 : (2010) 4 SCC 216:
Held: The Policies of 1993 and 2002 are identical in terms of their source of power u/Art.161, and since the former has been declared by a Bench of three judges to be an exercise under the constitutional power, the inescapable conclusion would be that the identical later policy would also be the same – The judgment in Rajkumar (2 Judges Bench) held the 2002 Policy to be of statutory origin – This would fall foul of the reasoning in Jagdish (3 Judges Bench) and hence be rendered per incuriam. [Para 15] Judgment – When ‘does’ or ‘does not’ in a decision become per incuriamm, is a question that has been discussed in various judgments – Certain facets emerge from these discussions as follows:
Held: 1) It is an exception to the rule of stare decisis and must be applied sparingly; 2) A judgment is per incuriam: (a) when its ratio is not reconcilable with an earlier decision rendered by a Bench of equal or higher strength; or (b) when a particular provision or a statute or a rule or a regulation has not been brought to the attention of the Court; 3) It applies only to the ratio decidendi of a judgment and not to obiter dicta; 4) Judicial discipline requires that if a bench disagrees with another bench of co-equal strength the matter should be referred to a bench of three judges to decide the issue; 5) The decision rendered by the Bench of largest strength binds any subsequent Bench of co-equal or lesser strength – A Bench of lesser strength cannot dissent from the view already taken by a Bench of larger strength; 6) A judgment cannot be said to be per incuriam: (a) if it makes reference to an earlier decision and then concludes correctly or incorrectly; or (b) if the ordinary reading of the judgment does not on the face of it show it to be in conflict with earlier decisions, the court should refrain adopting such an interpretation; 7) It is not the numerical strength of judges taking a particular view that is relevant but it is instead the strength of the Bench, which is the determinative factor of the binding nature of a particular view. [Para 14]
As published in the Supreme Court Reports, Supreme Court of India. Headnotes prepared by: Ankit Gyan. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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