High Court Cannot Exercise The Power Of Remission Itself : Supreme Court

The Supreme Court observed that while exercising the power of judicial review, a High Court cannot excercise the power of remission itself.

In this case, the convict in a murder case had undergone 12 years and 9 months of actual sentence and 14 years and 6 months with remission when he sought premature release. The authorities kept the issue pending which made him approach the Punjab and Haryana High Court by filing a writ petition. The High Court allowed the request for remission itself on the premise that it is covered by the policy.

The State of Haryana, assailing this order before the Apex Court, contended that the judge could have only directed the issue of remission to be examined by the concerned authorities and/ or given a time bound frame for taking the decision and ought not to have exercised that power himself.

We are in agreement with the submission of learned counsel for the petitioner in this behalf that it was not within the domain of judicial review for the learned judge to have himself exercised the power of remission, the bench of Justices Sanjay Kishan Kaul and Abhay S. Oka observed.

The court however noted that the convict stands enlarged 9 months back and no purpose would be served in sending him back to custody and for the State to once again examine the request for remission. 

"Though we do not find the exercise of power in the impugned judgment in accordance with law, we would not like to interfere under Article 136 of the Constitution of India insofar as now the respondent having been given the benefit of remission, it would not be appropriate to put him back in custody", the court said.

In another judgment [Ram Chander vs State of Chhattisgarh | 2022 LiveLaw (SC) 401], the Supreme Court had observed that though the court can review the decision of the government to determine whether it was arbitrary, it cannot usurp the power of the government and grant remission itself. Where the exercise of power by the executive is found to be arbitrary, the authorities may be directed to consider the case of the convict afresh, it was observed.

Case details

State of Haryana vs Daya Nand | 2022 LiveLaw (SC) 948 | SLP(Crl) 10687/2022 | 10 Nov 2022 | Justices Sanjay Kishan Kaul and Abhay S. Oka

For Petitioner(s) Mr. Deepak Thukral, Dy. A.G. Dr. Monika Gusain, AOR

Headnotes

Constitution of India, 1950 ; Article 226 - Code of Criminal Procedure, 1973 ; Section 432 - Judicial Review - Appeal against the High Court judgment which allowed the request for remission itself on the premise that it is covered by the policy - It was not within the domain of judicial review for the learned judge to have himself exercised the power of remission - Though we do not find the exercise of power in the impugned judgment in accordance with law, we would not like to interfere under Article 136 of the Constitution of India insofar as now the respondent having been given the benefit of remission, it would not be appropriate to put him back in custody. 

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