Supreme Court Directs States To Consider Premature Release Of Convicts When They Become Eligible Even Without Their Applications

The Supreme Court today(February 18) passed certain directions on the power of the Government to remit the whole or part of the sentence of the convicts under Section 432 of the Code of Criminal Procedure, 1973 ('the CrPC') and Section 473 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS).

A bench of Justices Abhay S. Oka and Augustine George Masih held that the power to grant remission can be exercised without convict or anyone on behalf of the conviction applying to the appropriate Government.

It observed:

"When a State Government or a Union Territory has adopted a policy for the grant of permanent remission which incorporates conditions for eligibility, it becomes an obligation of the State Government or the Union Territory to consider cases of all eligible convicts for the grant of permanent remission as per the policy adopted. If such a policy exists, and if the State Government or the Government of Union Territory raises a contention that relief will be granted only to those who apply as per policy, it will amount to saying that even if convicts are eligible for consideration in terms of the policies, their cases will not be considered in terms of the policy.

Such conduct on the part of the States will be discriminatory and arbitrary and amount to a violation of Article 14 of the Constitution. The power under Section 432(1) must be exercised in a fair and reasonable manner. Therefore, whenever there is a policy for consideration of cases for permanent remission, it becomes an obligation of the State to consider cases of every eligible convict under the policy."

The Court emphasised that wherever there is no policy, there is a possibility that authorities may not exercise the power of Section 432 CrPC in a fair and rational manner. To ensure that, the Court directed:

"all the states that do not have an exhaustive policy on this aspect must come up with an exhaustive policy within two months from today. It can be either a separate policy or it can be incorporated into the prison manuals."

Apart from this, the Court dealt with three other issues, which are the nature of conditions imposed while granting remission, whether automatic revocation can be granted if a breach of terms and conditions is there and lastly, whether there is a requirement of recording reasons. 

Conditions for remission

The Court held that the conditions while approving remission should be reasonable. 

It held: "While granting remission, reasonable conditions can be imposed. The conditions must be such that they are capable of being complied with. The conditions cannot be vague. The conditions cannot be oppressive. When a convict is released by granting relief of permanent remission, it is necessary to ensure that he is rehabilitated in society. It is necessary to consider the nature of the crime he committed. To fix terms and conditions, it is necessary to ascertain the motive for committing the crime for which he was punished. Even criminal background needs to be taken into consideration. Another concern that must be taken care of is public safety."

On revocation of remission

On the third issue, the Court noted:

"In the light of the provisions of the CrPC and the BNSS, there is a power vesting in the appropriate Government to cancel the remission. The cancellation can be only on the grounds of the breach of the terms and conditions on which the remission is granted. In case of cancellation, the convict is required to undergo the remaining sentence.

Even while passing an order of cancellation of the order of remission, the appropriate Government must record brief reasons. The reason is it takes away the liberty granted to the convicts. When an order of remission is cancelled, it affects the right of the convict to liberty under the Constitution. Therefore, the requirement of recording reasons must be read into the provisions of Sub-Sections (2) of Section 432 of the CrPC and Section 473 of the BNSS. The convict must be given a show cause notice stating the grounds for cancellation and he must be provided an opportunity to file a reply. If this is not read into the statute, the convict will not be in a position to defend the proceedings.

Recording of reasons 

The Court here held that the power to grant premature release must be exercised in a fair and reasonable manner. 

It held:

"It affects the convict's liberty guaranteed under Article 21 of the Constitution. Therefore, the requirement of recording reasons either for granting or rejecting the prayer for permanent remission will have to be read into the provisions of Section 432 of the CrPC and Section 473 of the BNSS. Principles of natural justice must be read into the provisions of Section 432 of the CrPC."

Directions issued :

a) Where there is a policy of the appropriate Government laying down guidelines for consideration of the grant of premature release under Section 432 of the CrPC or Section 473 of the BNSS, it is the obligation of the appropriate Government to consider cases of all convicts for grant of premature release as and when they become eligible for consideration in terms of the policy. In such a case, it is not necessary for the convict or his relatives to make a specific application for grant of permanent remission. When the jail manual or any other departmental instruction issued by the appropriate Government contains such policy guidelines, the aforesaid direction will apply;

b) We direct those States and Union Territories that do not have a policy dealing with the grant of remission in terms of Section 432 of the CrPC or Section 473 of the BNSS to formulate a policy within two months from today;

c) Appropriate Government has the power to incorporate suitable conditions in an order granting permanent remission. Consideration of various factors, which are mentioned in the paragraph 13 above by way of illustration, is necessary before finalizing the conditions. The conditions must aim at ensuring that the criminal tendencies, if any, of the convict remain in check and that the convict rehabilitates himself in the society. The conditions should not be so oppressive or stringent that the convict is not able to take advantage of the order granting permanent remission. The conditions cannot be vague and should be capable of being performed;

d) Order granting or refusing the relief of permanent remission must contain brief reasons. The order containing reasons should be immediately communicated to the convict through the office of the concerned prison. The copies thereof should be forwarded to the Secretaries of the concerned District Legal Services Authorities. It is the duty of the prison authorities to inform the convict that he has the right to challenge the order of rejection of the prayer for the grant of remission.

e) As held in the case of Mafabhai Motibhai Sagar, an order granting permanent remission cannot be withdrawn or cancelled without giving an opportunity of being heard to the convict. An order of cancellation of permanent remission must contain brief reasons;

f) The District Legal Services Authorities shall endeavour to implement NALSA SOP in its true letter and spirit.

g) Further, the District Legal Services Authorities shall also monitor implementation of conclusion (a) as recorded above. For this purpose, the District Legal Services Authorities shall maintain the relevant date of the convicts and as and when they become eligible to a consideration for grant of premature release, they shall do the needful in terms of conclusion (a). The State Legal Services Authorities shall endeavour to create a portal on which the data as aforesaid can be uploaded on real time basis.

Case details: IN RE POLICY STRATEGY FOR GRANT OF BAIL SMW(Crl) No. 4/2021

Citation : 2025 LiveLaw (SC) 220

Click Here To Read Order

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