Governor Can Exercise Pardon Power Even If Prisoner Has Not Undergone 14 Years Imprisonment : Supreme Court

The Supreme Court hass observed that the power of Governor under Article 161 of the Constitution to commute sentence or to pardon will override the restrictions imposed under Section 433-A of the Criminal Procedure Code.

Even 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, the bench comprising Justices Hemant Gupta and AS Bopanna observed.

The court held that 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.

The court was considering an appeal filed by the State against the Punjab and Haryana High Court order which directed it to consider fresh policies in respect of exercise of powers conferred under Article 161 of the Constitution. The issue in appeal was about the applicability of policy dated 12.4.2002 or the policy dated 13.8.2008 to the prisoner convicted on 25.3.2010.

Referring to various judgments, including that of the Constitution bench in Union of India v. V. Sriharan , the court said that the remission under Article 161 of the Constitution will override Section 433-A of the Code.

"11. Thus, 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."

The court noted that 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 Governor to commute sentence or to pardon is independent of any such restriction or limitation, the bench noted.

"13.....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.", it said.

The court also observed that the policy prevalent at the time of conviction shall be taken into consideration for considering the premature release of a prisoner. Referring to Section 433A CrPC, the bench further observed:

"17. 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."

The bench said that 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. We find that clause (b) of the policy dated 12.4.2002 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 433-A 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.", it said.

Setting aside the High Court directions, the bench observed that 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  Governor though on the aid and advice of the State Government.

In this case, the prisoner had completed about 12 years sentence. "The case for premature release of the prisoner in terms of the policy of the State Government dated 13.8.2008, 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.", the Court said.

Case: State of Haryana vs. Rajkumar @ Bittu ; CrA 721 OF 2021
Coram: Justices Hemant Gupta and AS Bopanna 
Citation: LL 2021 SC 345

Click here to Read/Download Judgment