The State of Haryana & Ors. vs Raj Kumar @ Bittu

Disposing of the appeals, the Court

HELD: 1.1 The power under Article 161 of the Constitution can be exercised by the State Governments, not by the Governor on his own. The advice of the appropriate Government binds the Head of the State. No separate order for each individual case is necessary but any general order made must be clear enough to identify the group of cases and indicate the application of mind to the whole group. Therefore, the policies of the State Government are composite policies encompassing both situations under Article

161 of the Constitution and Sections 432, 433 and 433-A of the Code. The remission under Article 161 of the Constitution will override Section 433-A of the Code, if the State Government decides to be governed of its constitutional power. [Para 11][337D-F]

1.2 A prisoner has to undergo a minimum period of imprisonment of 14 years without remission in the case of an offence, the conviction of which carries death sentence, to take benefit of policy of remission framed by an appropriate government under Section 432 of the Code in view of the overriding provision of Section 433-A of the Code. However, the power of the Hon’ble Governor to commute sentence or to pardon is independent of any such restriction or limitation. The State Government can frame a policy of grant of remissions either under Section 432 of the Code or under Article 161 of the Constitution. The Governor continues to exercise the power of commutation and release under Article 161 of the Constitution, notwithstanding Section 433-A of the Code. The action of commutation and release can thus be pursuant to a governmental decision and the order may be issued even without the Governor’s approval. However, under the Rules of Business and as a matter of constitutional courtesy, it may seek approval of the Governor, if such release is under Article 161 of the Constitution. [Para 13][339-G-H; 340-A-C]

1.3 The policy of premature release dated 13.08.2008 was issued in the name of the Governor and was published in the official Gazette. Such notification is said to have been issued in exercise of the powers conferred under sub-section (1) of Sections

432 and 433 of the Code. Such policy is in exercise of the powers conferred on the appropriate Government in terms of the provisions of the Code and is thus statutory in nature. The other policy dated 12.04.2002 is in fact a memo issued by the Financial Commissioner and Secretary to Government, Haryana, Jails Department, Chandigarh to the Director General of Prisons, Haryana, Chandigarh. Such policy of premature release would again be traceable to the provisions of the Code. [Para 15][340F-H]

1.4 Different policies have been issued from time to time and the later policy has superseded the earlier one, so there was no hiatus when a policy of premature release was not in operation or at any given point of time, the two polices were operational. The policy dated 12.04.2002 is in supersession of earlier policy circulated on 08.08.2000 substituted later on 23.02.2001. The policy dated 13.08.2008 has substituted the earlier policy dated 12.04.2002 and such policy has been published on behalf of the Governor of the State. The policy dated 13.08.2008 has been issued in exercise of powers conferred by sub-section (1) of Section 432 read with Section 433 of the Code and in supersession of Government Memorandum dated 12.04.2002 and all other policies. The policy dated 13.08.2008 is a statutory policy. The said policy cannot and has not tried to take over the discretion vested in the Hon’ble Governor to grant pardons, remissions or commute sentence in exercise of powers conferred under Article

161 of the Constitution but it is the policy issued under a Statute and therefore, such policy has a statutory force. The policy dated 12.04.2002 is again a statutory policy and cannot be put at a higher pedestal than the policy dated 13.08.2008 for the reason that it seeks approval from the Hon’ble Governor. Such policy has been specifically superseded on 13.08.2008, ceases to be operative for the convicts who are convicted after 13.08.2008. [Para 16][341A-E]

1.5 Section 433-A of the Code starts with a non-obstante clause restricting the right of the appropriate Government, to suspend the sentence of imprisonment for life imposed on conviction of a person for an offence for which death is one of the punishments provided by law, that such person shall not be released from prison unless he has served at least 14 years of imprisonment. Therefore, the power of the appropriate Government to release a prisoner after serving 14 years of actual imprisonment is vested with the State Government. On the other hand, the power conferred on the Governor, though exercised on the aid and advice of the State, is without any restriction of the actual period of imprisonment undergone by the prisoner. Thus, if a prisoner has undergone more than 14 years of actual imprisonment, the State Government, as an appropriate Government, is competent to pass an order of premature release, but if the prisoner has not undergone 14 years or more of actual imprisonment, the Governor has a power to grant pardons, reprieves, respites and remissions of punishment or to suspend, remit or commute the sentence of any person de hors the restrictions imposed under Section 433-A of the Constitution. Such power is in exercise of the power of the sovereign, though the Governor is bound to act on the aid and advice of the State Government. [Para 17][341-E-H; 342-A-B]

1.6 The policy of 12.04.2002 is applicable in the cases of the prisoners who have undergone actual sentence of 14 years of imprisonment and also the prisoners who have not completed 14 years of actual imprisonment. Therefore, the cases of the prisoners who have completed 14 years of actual imprisonment can be decided by the State Government in terms of Sections 432 and 433 of the Code unless the State Government choses to seek the approval of the Hon’ble Governor. There is nothing illegal or improper to seek approval of the Hon’ble Governor in all cases but in the cases where the prisoner has not undergone 14 years of actual imprisonment falling within scope of Section 433-A of the Code, it is for the Hon’ble Governor to exercise the power conferred under Article 161 of the Constitution, though on the aid and advice of the State Government. Clause (b) of the policy dated 12.04.2002 provided for the cases of the prisoners to be considered after completion of 10 years of actual sentence including undertrial period provided the total period of such sentence including remission is not less than 14 years. The remissions not contemplated by Section 433A of the Code, the power to remit or commute sentence can be exercised by the Governor in exercise of the power conferred under Article 161 of the Constitution. This explains the last line in the policy that such cases would be put up before the Governor with full background of the prisoner and recommendation of the Committee including copy of the judgment for orders under Article 161 of the Constitution. [Para 18][342-B-F]

1.7 The Notification dated 13.08.2008 published in exercise of the powers conferred upon an appropriate Government under Section 432(5) of the Code, provides that 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. Therefore, all the polices issued from time to time are under Section 432 of the Code, though no reference is made to such provisions in any of the policies except the last one dated 13.08.2008. The source of power to frame guidelines or the policies for remission etc. was earlier in Section 59(5) of the Prisons Act, 1894 and now in terms of Section 432(5) of the Code. Therefore, such policies are statutory in nature, framed in exercise of power conferred upon appropriate government under Section 432(5) of the Code. [Para 19][342-F-H; 343-A]

1.8 The clause 2(c) of the policy dated 13.08.2008 deals with the convicts who have been imprisoned for life having committed a crime which is defined in the Penal Code, 1860 as punishable for life imprisonment but not with death sentence. The cases of such prisoners can be considered after completion of 10 years of actual sentence including undertrial period provided the total period of such sentence including remission is not less than 14 years. The distinction is that in such cases, the remission is taken into consideration whereas, the remissions earned by a prisoner convicted for an offence under Section 302 IPC, an offence punishable with death, cannot be considered for premature release. If such a prisoner is to be considered for premature release in the cases of life imprisonment for an offence under IPC, the bar under Section 433-A of the Code would not apply. The judgment in Jagdish’case has to be read in the light of the distinction drawn between the power exercised by the Hon’ble Governor and the power to be exercised by the State Government. [Para 20][343-B-D]

1.9 The directions issued by the High Court are not sustainable for the reason that the policies have to be read keeping in view the period of imprisonment undergone by a prisoner. The power of remission is to be exercised by the State Government, as an appropriate Government, if the prisoner has undergone 14 years of actual imprisonment in the cases falling within the scope of Section 433-A of the Code and in case the imprisonment is less than 14 years, the power of premature release can be exercised by the Hon’ble Governor though on the aid and advice of the State Government. The directions issued by the Single Bench are set aside. [Para 21, 22][343-D-F]

1.10 The prisoner has completed 12 years and 25 days as on 06.07.2021 as per the custody certificate produced by the State. The case for premature release of the prisoner in terms of the policy of the State Government dated 13.08.2008, the policy which was applicable on the date of his conviction, can be considered only after he completes 14 years of actual imprisonment. However, the State Government can consider the prisoner in question for premature release after undergoing imprisonment for less than

14 years only under Article 161 of the Constitution. [Para 23][343G-H; 344-A] State of Haryana & Ors. v. Jagdish (2010) 4 SCC 216 : [2010] 3 SCR 716; Sadhu Singh & Ors. v. State of Punjab (1984) 2 SCC 310 : [1984] 2 SCR 741; State of Haryana v. Mahender Singh & Ors. (2007) 13 SCC

606 : [2007] 11 SCR 932; L. Hazari Mal Kuthiala v. Income Tax Officer, Special Circle, Ambala Cantt. AIR 1961 SC 200 : [1961] SCR 892; N. Mani v. Sangeetha Theatre & Ors. (2004) 12 SCC 278; Maru Ram v. Union of India & Ors. (1981) 1 SCC 107 : [1981] 1 SCR 1196; Union of India v. V. Sriharan & Ors. (2016) 7 SCC 1 : [2015] 14 SCR 613; State of Haryana v. Nauratta Singh & Ors. (2000) 3 SCC 514 : [2000] 2 SCR 246 – referred to.