Govt. Can Commute A Sentence Of Imprisonment Below Minimum Prescribed Sentence In Special Cases: Kerala High Court

The Kerala High Court on Wednesday held that the Government was entitled to exercise its sovereign powers under Section 433 of Code of Criminal Procedure to commute a sentence in cases where the Court was empowered to impose imprisonment lower than the prescribed minimum sentence.

Justice R. Narayana Pisharadi observed that when a court has the discretion to impose a sentence below the minimum prescribed for special reasons, to hold that the Government has no discretion to commute the sentence would be an anomaly while allowing the writ petition. 

The petitioner was a public servant who served as Fisheries Development Officer in the Office of the Deputy Director of Fisheries at Kollam. He was indicted for committing certain offences under Section 5(1)(d) r/w 5(2) of the Prevention of Corruption Act and under Sections 419, 468, 471, and 120B of IPC. Advocate Gilbert George Correya appeared on behalf of the petitioner

The trial court found the petitioner guilty and sentenced him to undergo rigorous imprisonment for one year and a fine of Rs.2,000 along with rigorous imprisonment for one year each for the offences punishable under IPC. Later on, the High Court reduced his sentence to six months under Section 5(2) of the Act and three months each under IPC. Accordingly, he made a representation to the Government for commutation of the sentence, and the Government did so imposing a fine of Rs.30,000/- under Section 433(c) of CrPC.

However, the Special Judge dismissed the petitioner's applications on the ground that the Government order commuting his sentence was against the law, as declared by the Supreme Court in State of Rajasthan v. Jamil Khan [(2013) 10 SCC 721] and that it was an invalid order which cannot be acted upon.

The petitioner contended that the Special Court had no power of judicial review against the order passed by the Government, and thus exceeded his jurisdiction in invalidating the order.

The Single Bench after analysis observed that according to the Jamil Khan decision, when a minimum sentence of imprisonment is provided for an offence, it shall not be commuted by the Government. So the crucial question before the court was whether the offence under Section 5(1) of the Act was punishable with any minimum sentence.

Upon scrutiny, it was found that the proviso to Section 5(2) conferred power on the Court to award less than the minimum punishment in special cases where a sentence for a term less than the minimum was called for. 'The quantum of sentence to be imposed on an accused is in the discretion of the trial court. But, where the legislature has circumscribed and fettered the discretion of the court, by directing imposition of a minimum sentence, the court can exercise its discretion only within the limited sphere, if any, left open,' the Bench observed.

Since the offence under Section 5(1) was an offence for which a sentence of imprisonment below the minimum provided could be passed for special reasons, the dictum laid down in Jamil Khan with regard to the curtailment of the power of the Government under Section 433 of the Code does not apply to such a case.On that ground, the order passed by the Special Judge was liable to be set aside.

'It would be an anomaly to find that, when the court has the discretion to impose a sentence below the minimum prescribed for special reasons, the appropriate Government has no discretion to commute the sentence for such reasons in exercise of its sovereign powers.'

Consequently, the writ petition was allowed, and the Enquiry Commissioner and Special Judge were directed to permit the petitioner to remit the fine he is liable to pay as per the Government order. On remitting such amount, the warrant, if any, issued by the Special Court against the petitioner in the execution of the sentence imposed on him in the case shall be recalled as well. 

Case Title: S.Kailasam Iyer v State of Kerala & Ors

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