INTRODUCTION

Legal provisions regarding power to suspension or remission by the appropriate Government

under section 432 of the Code of Criminal Procedure, 1973.

Section 432 of the Code of Criminal Procedure provides the following provisions relating the
power to suspension or remission by an appropriate Government:1

When any person has been sentenced to punishment for an offence, the appropriate
Government may, at any time, without conditions or upon any conditions which the person
sentenced accepts, suspend the execution of his sentence or remit the whole or any part of the
punishment to which he has been sentenced.

(2) Whenever an application is made to the appropriate Government for the suspension or
remission of a sentence, the appropriate Government may require the presiding judge of the
Court before or by which the conviction was had or confirmed, to state his opinion as to
whether the application should be granted or refused, together with his reasons for such
opinion and also to forward with the statement of such opinion a certified copy of the record
of the trial or of such record thereof as exists.2

(3) If any condition on which a sentence has been suspended or remitted is, in the opinion of
the appropriate Government, not fulfilled, the appropriate Government may cancel the
suspension or remission, and thereupon the person in whose favour the sentence has been
suspended or remitted, may, if at large, be arrested by any police officer, without warrant and
remanded to undergo the unexpired portion of the sentence.

(4) The condition on which a sentence is suspended or remitted under Section 432 may be
one to be fulfilled by the person in whose favour the sentence is suspended or remitted, or
one independent of his will.

1
Batuk Lal,Commentary on The Code of Criminal Procedure, 1973-1213(3rd Ed Orient PublishingCompany,
2005)
2
Sadhu Singh v. State of Punjab,1968Cri.L.J. 1183 (P&H)

1
(5) The appropriate Government may, by general rules or special orders, give directions as to
the suspension of sentences and the conditions on which persons should be presented and
dealt with.3

However, in the case of any sentence (other than a sentence of fine) passed on a male person
above the age of eighteen years, no such petition by the person sentenced or by any other
person on his behalf shall be entertained, unless the person sentenced is in jail, and;

(a) Where such petition is made by that person sentenced, it is presented through the officer
in charge of the jail; or

(b) Where such petition is made by any other person, it contains a declaration that the person
sentenced is in jail.

(6) The provisions of the above sub-sections shall also apply to any order passed by a
criminal Court under any Section of this Code or of any other law, which restricts the liberty
of any person or imposed any liability upon him or his property.

(7) In Sections 432 and 433, the expression appropriate Government means;

(a) In cases where the sentence is for an offence against, or the order referred to in sub-
section (6) is passed under any law relating to a matter to which the executive power of the
Union extends, the Central Government;

(b) In other cases, the Government of the State within which the offender is sentenced or the
said order is passed.

The powers conferred on the President of India and the Governors of States by Articles 72
and 161 of the Constitution of India to suspend, remit or commute any sentence is ordinarily
called mercy jurisdiction. The judiciary has no such mercy jurisdiction.4

Pardon and remission stand on different footings. The difference between a pardon and a
remission of sentence lies in the fact that in the case of pardon it affects both the punishment
prescribed for the offence and the guilt of the offender, in other words, a fall pardon may blot

3
Kartar Singh v. Emperor: AIR 1932 Lah. 259.
4
C.S.Ramachandran Nair v.G.Balachandran Gopala Pillai, 2011 CrLJ (Ker) 3449

2
out the guilt itself;5 in the case of remission, the guilt of the offender is not affected nor is the
sentence of the Court affected, except in the sense that the person concerned does not suffer
incarceration for the entire period of the sentence, but is believed from serving out a part of it.

The power to grant pardon is in essence an executive function to be exercised by the Head of
the State after taking into consideration various matters which may not be germane for
consideration before a Court of law inquiring into the offence.6

The Government of India and State Governments must dispose of the petitions under
Sections 432 and 433 of the Code as expeditiously as possible and a self imposed rule should
be followed by the authorities rigorously that every such application shall be disposed of
within the period of three months from the date on which it is received.

The law governing suspension, remission and commutation of sentence is both statutory and
constitutional. The stage for the exercise of this power generally speaking is post-judicial.
The grant of remission is a matter of policy and it is for the executive branch of Government
to decide as to when, to what extent and in what manner remission is to be granted.

The Courts cannot give any direction in the matter of policy which is purely within the
executive domain of the Government. It is not the duty of the Government to give reasons in
its order of remission. The remission of sentence depends on the concept of mercy and it is
not a prisoners right.

The sentence will not automatically be revived when there is a breach of any condition of
suspension or remission. It is only when the Government chooses to pass an order of
cancellation of the suspension or remission that the convict is arrested and is required to serve
the unexpired portion of the sentence.

Section 389 of Cr. P.C. empowers the Court to suspend the sentence and even the conviction
but if there is no such suspension, the Competent Authority or the Governments powers
under Section 432, Cr. P.C. are not curtailed in any manner nor there is an embargo on its
powers merely because the appeal against the conviction is pending. But when the sentence is

5
https://indiankanoon.org/search/?formInput=remission%20of%20sentence
6
Batuk Lal,Commentary on The Code of Criminal Procedure, 1973-1213(3rd Ed Orient PublishingCompany,
2005)

3
suspended and the convict is ordered to be released on bail, such an order prevails over the
powers of the Government under Section 432, Cr. P.C.

Literature Review

Ratanlal & Dhirajlal , THE CODE OF CRIMINAL PROCEDURE(CRPC) , 20th edition,

2016

Being an exhaustive treatise on the Cr.P.C. as practiced in India. This is an enlarged

edition in single volume, with more case-law than ever. Text is as amended by the Code of
Cr.P.C. (Amendment) Act, 2005 & the Criminal Law (Amendment) Act, 2005 (2 of 2006).

Ram Jethmalani & D. S. Chopra , THE CODE OF CRIMINAL PROCEDURE, 1973 (In 2
Volumes), 2015

Criminal Procedure Code amongst other things provides the mechanism of a fair trial. This
book written by one of the most eminent criminal lawyers of all time Mr RAM
JETHMALANI, Senior Advocate, Supreme Court of India, Ex Union Minister of Law and
Justice along with Mr D S CHOPRA, Advocate is an exhaustive commentary on all
sections. Some of the topics like one on Bail has been given special attention. The book in
two volumes covers every subject in detail . The law is updated till 15th April 2015. A
must for all judges, advocates, teachers and students of law.

Scope and objective

The scope and objective of my project is to give an analysis of suspension, remission and
commutation of sentences

Research questions

Q-1 What is suspension, remission and commutation of sentence?

Q-2 What are the sections related to suspension, remission and commutation of sentence?

Q-3What is the relation between suspension, remission and commutation of sentence?

4
Research Methodology

The researchers have adopted Doctrinal type of research approach.

Help from library resources and websites was taken.

The researchers adapted Descriptive type of research design.

5
 CHAPTER-2

Sections related to Suspension, Remission and Commutation of sentence

Section 432 Power to suspend or remit sentences

1. When any person has been sentenced to punishment for an offence, the appropriate
Government may, at any lime, without conditions or upon any conditions which the
person sentenced accepts, suspend the execution of his sentence or remit the whole or
any part of the punishment to which he has been sentenced.
2. Whenever an application is made to the appropriate Government for the suspension or
remission of a sentence, the appropriate Government may require the presiding Judge
of the Court before or by which the conviction was had or confirmed, to state his
opinion as to whether the application should be granted or refused, together with his
reasons for such opinion and also to forward with the statement of such opinion a
certified copy of the record of the trial or of such record thereof as exists.
3. If any condition on which a sentence has been suspended or remitted is, in the opinion
of the appropriate Government, not fulfilled, the appropriate Government may cancel
the suspension or remission, and thereupon the person in whose favour the sentence
has been suspended or remitted may, if at large, be arrested by any police officer,
without warrant and remanded to undergo the unexpired portion of the sentence.
4. The condition on which a sentence is suspended or remitted under this section may be
one to be fulfilled by the person in whose favour the sentence is suspended or
remitted, or one independent of his will.
5. 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.7

Provided that in the case of any sentence (other than a sentence of fine) passed on a
male person above the age of eighteen years, no such petition by the person

7
Batuk Lal,Commentary on The Code of Criminal Procedure, 1973-1213(3rd Ed Orient PublishingCompany,
2005)

6
 sentenced8 or by any other person on his behalf shall be entertained, unless the person
sentenced is in jail, and,
1. where such petition is made by the person sentenced, it is presented through
the officer in charge of the jail; or
2. where such petition is made by any other person, it contains a declaration that
the person sentenced is in jail.
6. The provisions of the above Sub-Sections shall also apply to any order passed by a
Criminal Court under any section of this Code or of any other law which restricts the
liberty of any person or imposes any liability upon him or his properly.
7. In this section and in section 433, the expression appropriate Government means,
1. in cases where the sentence is for an offence against, or the order referred to in
Sub-Section (6) is passed under, any law relating to a matter to which the
executive power of the Union extends, the Central Government;
2. in other cases the Government of the State within which the offender is
sentenced or the said order is passed.

Section 433 Power to commute sentence

The appropriate Government may, without the consent of the person sentenced commute

1. a sentence of death, for any other punishment provided by the Indian Penal Code (45
of 1860);
2. a sentence of imprisonment for life, for imprisonment for a term not exceeding
fourteen years or for fine;
3. a sentence of rigorous imprisonment for simple imprisonment for any term to which
that person might have been sentenced, or for fine;
4. a sentence of simple imprisonment, for fine.

Section 433A Restriction on powers of remission or commutation in certain cases

Notwithstanding anything contained in section 432, where a sentence of imprisonment for

life is imposed on conviction of a person for an offence for which death is one of the
punishment provided by laws or where a sentence of death imposed on a person has been

8
http://bdlaws.minlaw.gov.bd/sections_detail.php?id=75&sections_id=21619

7
commuted under section 433 into one of imprisonment for life, such person shall not be
released from prison unless he had served at least fourteen years of imprisonment.

Section 434 Concurrent power of Central Government in case of death sentences

The powers conferred by sections 432 and 433 upon the State Government may, in the case
of sentences of death, also be exercised by the Central Government

Section 435 State Government to act after consultation with Central Government in
certain cases

1. The powers conferred by sections 432 and 433 upon the State Government to remit or
commute a sentence, in any case where the sentence is for an offence
1. which was investigated by the Delhi Special Police Establishment constituted
under the Delhi Special Police Establishment Act, 1946 (25 of 1946), or by
any other agency empowered to make investigation into an offence under any
Central Act other than this Code, or
2. which involved the misappropriation or destruction of, or damage to, any
property belonging to the Central Government, or
3. which was committed by a person in the service of the Central Government,
while acting or purporting to act in the discharge of his official duty.
shall not be exercised by the State Government except after consultation with
the Central Government.
2. No order of suspension, remission or commutation of sentences passed by the State
Government in relation to a person, who has been convicted of offences, some of
which relate to matters to which the executive power of the Union extends, and who
has been sentenced to separate terms of imprisonment which are to run concurrently,
shall have effect unless an order for the suspension, remission or commutation, as the
case may be, of such sentences has also been made by the Central Government in
relation to the offences committed by such person with regard to matters to which the
executive power of the Union extends.9

9
ibid

8
 Chapter-3

Relation between Suspension, Remission and Commutation of sentence

In this paper an attempt has been made to explain as to what do three terms suspension,
remission and commutation mean, what are the grounds for granting these concessions,
who is empowered to exercise jurisdiction under the Code of Criminal Procedure, 1898
and what are the exceptions or preconditions. 10

What is Suspension?
Suspension is postponement of a judicial sentence.
1 Suspension is a temporary stop
The question of stoppage or temporary stoppage arises only after the passing of the sentence.
Where no sentence has been passed there is no question of suspension.
What is remission?
According to Black remission is forgiveness of condonation of and offence or injury. To
remit is to give up,to pardon or forgive, to annul; to relinquish, as to remit a fine, sentence, or
punishment.
What is Commutations?
As a term of Criminal law, according to Black:
In criminal law, the change of a punishment to one which is less severe; as from execution
to life imprisonment. The President of the United States has the power to grant reprieves and
pardons for offences against the United states, except in cases of impeachment [US
Constitution article 2 Sec.2 cl. 1]. With respect of state offences, the governor of a state has
the power to commutations.

The Criminal Procedure Code 1973 provides for power to suspend or remit sentences
Section 432 and the power to commute sentence [see Section 433]. Section 433A lays down
restrictions on provisions of remission or commutation in certain cases mentioned therein.
Section 434 confers 11

10
C.S.Ramachandran Nair v.G.Balachandran Gopala Pillai, 2011 CrLJ (Ker) 3449
11
Manepragada Ramachandra Rao v. The Revenue Divisional Officer, Kovvuru: AIR 1957 AP 249.

9
concurrent power on the central government in case of death sentence. Section 435 provides
that the power of the state government to remit or commute a sentence where the
sentence is in respect of certain offences specified therein will be exercised by the state
government only after consultation with the central government. Sections 54 and 55 of the
IPC confer power on the appropriate government to commute sentence of death or sentence
of imprisonment for life as provided therein.

The executive's act of grace in showing mercy to an accused cur a convicted person takes
several forms such as reprieve, pardon, respite, commutation, remission etc. Pardon and
remission stand on different footings and give rise to different consequences. Remission and
suspension are also not the same. The effect of an order of remission is to entitle the prisoner
to his freedom on a certain date. Therefore, once that day arrives ,he is entitled to be released,
and in the eye of law he is a free man from that moment. As soon as there is a breach of the
conditions of the remission, the remission can be cancelled and the prisoner committed to
custody to undergo the unexpired portion of the sentence. As the sentencing is a judicial
function whatever may be done in the matter of executing that sentence like remission,
pardon etc., the executive cannot alter the sentence itself. Prisoners in Australia are generally
eligible to earn remissions for good behaviour with the effect that the sentences imposed by
the courts may be shortened. The details of remission systems vary widely between the
different jurisdictions, with short sentence prisoners being ineligible for remission in some
cases. Prison administrators frequently argue that remission systems are a necessary aid to
control, as they encourage good behaviour, but it is common practice for maximum
remission to be granted in all cases except where prisoners have been charged with offences
while in prison12

By virtue of Article 72 of the Constitution of India the President is having the power to grant
pardon and to suspend, remit, cm: commute sentences passed by courts. Similarly the
Governor of a State is vested with the power to grant pardons, reprieves, respites cnr
remissions of punishment or to suspend, remit or commute the sentence of any person
convicted of any offence against any law relating to a matter to which the executive power of
the State extends.13

12
Union of India v. Sriharan@Murgan, WRIT PETITION (CRL.) NO. 48 OF 2014

13
http://www.citizensinformation.ie/en/justice/prison_system/remission_and_temporary_release.html

10
 Chapter-4
Case studies related to suspension remission and commutation of sentences

In a recent decision the Supreme Court has revisited the principles which apply in relation to
an application for remission of sentence of a convict. Holding that clemency / pardon is an
act of grace and also is consistent with the ideals of human liberty, the Supreme Court
discussed the principles which govern the consideration of a plea of remission of sentence
made by a convict.

Declaring the law, the Supreme Court inter alia observed as under;

In Mahender Singh (supra), this Court as referred to hereinabove held that the policy decision
applicable in such cases would be which was prevailing at the time of his conviction. This
conclusion was arrived on the following ground:

A right to be considered for remission, keeping in view the constitutional safeguards of a

convict under Articles 20 and 21 of the Constitution of India, must be held to be a legal one.
Such a legal right emanates from not only the Prisons Act but also from the Rules
framed thereunder.

Nevertheless, we may point out that the power of the sovereign to grant remission is within
its exclusive domain and it is for this reason that our Constitution makers went on to
incorporate the provisions of Article 72 and Article 161 of the Constitution of India. This
responsibility was cast upon the Executive through a Constitutional mandate to ensure that
some public purpose may require fulfillment by grant of remission in appropriate cases. This
power was never intended to be used or utilised by the Executive as an unbridled power of
reprieve. Power of clemency is to be exercised cautiously and in appropriate cases, which in
effect, mitigates the sentence of punishment awarded and which does not, in any way, wipe
out the conviction. It is a power which the sovereign exercises against its own judicial
mandate. The act of remission of the State does not undo what has been done judicially. The
punishment awarded through a judgment is not overruled but the convict gets benefit of a
liberalised policy of State pardon. However, the exercise of such power under Article 161 of
the Constitution or under Section 433-A Cr. P.C. may have a different flavour in the
statutory provisions, as short sentencing policy brings about a mere reduction in the period of

11
imprisonment whereas an act of clemency under Article 161 of the Constitution commutes
the sentence itself.

In Epuru Sudhakar & Another v. Govt. of A.P. & Ors.14 this Court held that reasons had to be
indicated while exercising power under Articles 72/161. It was further observed (per
Kapadia, J) in his concurring opinion: Pardons, reprieves and remissions are manifestation
of the exercise of prerogative power. These are not acts of grace. They are a part of
Constitutional scheme. When a pardon is granted, it is the determination of the
ultimate authority that public welfare will be better served by inflicting less than what the
judgment has fixed.. Exercise of Executive clemency is a matter of discretion and yet
subject to certain standards. It is not a matter of privilege. It is a matter of performance of
official duty. It is vested in the President or the Governor, as the case may be, not for the
benefit of the convict only, but for the welfare of the people who may insist on the
performance of the duty. Granting of pardon is in no sense an overturning of a judgment of
conviction, but rather it is an Executive action that mitigates or sets aside the punishment for
The power under Article 72 as also under Article 161 of the Constitution is of the widest
amplitude and envisages myriad kinds and categories of cases with facts and situations
varying from case to case.

29. There is no dispute to the settled legal proposition that the power exercised under Articles
72/161 could be the subject matter of limited judicial review. (vide Kehar Singh (supra);
Ashok Kumar (supra); Swaran Singh v. State of U.P. ;15 Satpal & Anr. v. State of Haryana &
Ors.;16 and Bikas Chatterjee v. Union of India 17. In Epuru Sudhakar (supra) this Court held
that the orders under Articles 72/161 could be challenged on the following grounds:

(a) that the order has been passed without application of mind;

(b) that the order is mala fide;

(c) that the order has been passed on extraneous or wholly irrelevant considerations;

(d) that relevant materials have been kept out of consideration;

(e) that the order suffers from arbitrariness.

30. The power of clemency that has been extended is contained in Articles 72 and 161 of the
Constitution. This matter relates to the State of Haryana. The Governor of Haryana may

14
AIR 1932 Lah. 308
15
AIR 1998 SC 2026
16
AIR 2000 SC 1702
17
(2004) 7 SCC 634)

12
exercise the clemency power. Article 161 of the Constitution enables the Governor of a State
to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or
commute the sentence of any person convicted of any offence against any law relating to a
matter to which the executive power of the State extends

31. Sections 54 and 55 IPC provide for punishment. However, the provisions of Sections 432
and 433-A Cr.P.C., relate to the present controversy. Section 432(1) Cr.P.C. empowers the
State Government to suspend or remit sentences of any person sentenced to punishment for
an offence, at any time, without conditions or upon any conditions that the person sentenced
accepts, suspend the execution of his sentence or remit the whole or any part of the
punishment to which he has been sentenced. Section 433-A Cr.P.C. imposes restriction on
powers of remission or commutation where a sentence of imprisonment for life is imposed on
conviction of a person for an offence for which death is one of the punishment provided
by law or where a sentence of death imposed on a person has been commuted under section
433 into one of imprisonment for life, such person shall not be released from prison unless he
has served at least fourteen years of imprisonment.

32. Pardon is one of the many prerogatives which have been recognised since time
immemorial as being vested in the sovereign, whoever the sovereignty might be. Whether the
sovereign happened to be an absolute monarch or a popular republic or a constitutional king
or queen, Sovereignty has always been associated with the source of power the power to
appoint or dismiss public servants, the power to declare war and conclude peace, the power to
legislate and the power to adjudicate upon all kinds of disputes etc. The rule of law, in
contradiction to the rule of man, includes within its wide connotation the absence of arbitrary
power, submission to the ordinary law of the land, and the equal protection of the laws. As a
result of the historical process aforesaid, the absolute and arbitrary power of the
monarch came to be canalised into three distinct wings of the Government, (Vide K.M.
Nanavati v. State of Bombay ). 18

Articles 72 and 161 of the Constitution provide for a residuary sovereign power, thus, there
can be nothing to debar the concerned authority to exercise such power, even after rejection
of one clemency petition, if the changed circumstances so warrant. (Vide G. Krishta Goud &
J. Bhoomaiah v. State of Andhra Pradesh & Ors. (1976)19)

18
AIR 1961 SC 112
19
1 SCC 157

13
34. In Regina v. The Secretary of State for the Home Department (1996) EWCA Civ 555, the
question came for consideration, before the Court that if the short-sentencing policy is totally
inflexible, whether it amounts to transgression on the clemency power of the State which
is understood as unfettered? The court considered the issue at length and came to the
conclusion as under: the policy must not be so rigid that it does not allow for the
exceptional case which requires a departure from the policy, otherwise it could result
in fettering of the discretion which would be unlawful. It is inconsistent with the very
flexibility which must have been intended by the Parliament in giving such a wide and
untrammeled discretion to the Home SecretaryApproximately 90 years ago
an enlightened Parliament recognised that a flexible sentence of detention is what is required
in these cases with a very wide discretion being given to the person Parliament thought best
suited to oversee that discretion so that the most appropriate decision as to release could be
taken in the public interest. The subsequent statutes have not altered the nature of the
discretion. (Emphasis added).

Thus, it was held therein that the clemency power remains unfettered and in exceptional
circumstances, variation from the policy is permissible.

In view of the above, it is evident that the clemency power of the Executive is absolute and
remains unfettered for the reason that the provisions contained under Article 72 or 161 of the
Constitution cannot be restricted by the provisions of Sections 432, 433 and 433-A Cr. P.C.
though the Authority has to meet the requirements referred to hereinabove while exercising
the clemency power. To say that clemency power under Articles 72/161 of the
Constitution cannot be exercised by the President or the Governor, as the case may be, before
a convict completes the incarceration period provided in the short-sentencing policy, even in
an exceptional case, would be mutually inconsistent with the theory that clemency power is
unfettered. The Constitution Bench of this Court in Maru Ram (supra) clarified that not only
the provisions of Section 433-A Cr. P.C. would apply prospectively but any scheme for short
sentencing framed by the State would also apply prospectively. Such a view is in conformity
with the provisions of Articles 20 (1) and 21 of the Constitution. The expectancy of period
of incarceration is determined soon after the conviction on the basis of the applicable laws
and the established practices of the State. When a short sentencing scheme is referable to
Article 161 of the Constitution, it cannot be held that the said scheme cannot be pressed in
service. Even if, a life convict does not satisfy the requirement of remission rules/short
sentencing schemes, there can be no prohibition for the President or the Governor of

14
the State, as the case may be, to exercise the power of clemency under the provisions of
Article 72 and 161 of the Constitution. Right of the convict is limited to the extent that his
case be considered in accordance with the relevant rules etc., he cannot claim pre-mature
release as a matter of right.

Two contrary views have always prevailed on the issue of purpose of criminal justice and
punishment. The punishment, if taken to be remedial and for the benefit of the convict,
remission should be granted. If sentence is taken purely punitive in public interest to
vindicate the authority of law and to deter others, it should not be granted. In Salmond on
Jurisprudence, 12th Edition by P.J. Fitzgerald, the author in Chapter 15 dealt with the
purpose of criminal justice/punishment as under :- Deterrence acts on the motives of the
offender, actual or potential; disablement consists primarily in physical restraint.
Reformation, by contrast, seeks to bring about a change in the offenders character itself so as
to reclaim him as a useful member of society. Whereas deterrence looks primarily at the
potential criminal outside the dock, reformation aims at the actual offender before the bench.
In this century increasing weight has been attached to this aspect. Less frequent use
of imprisonment, the abandonment of short sentences, the attempt to use prison as a training
rather than a pure punishment, and the greater employment of probation, parole and
suspended sentences are evidence of this general trend. At the same time, there has been
growing concern to investigate the causes of crime and the effects of penal treatment...
The reformative element must not be overlooked but it must not be allowed to assume undue
prominence. How much prominence it may be allowed, is a question of time, place and
circumstance.

R.M.V.Dias, in his book Jurisprudence (Fifth Edition- 1985) observed as under :- The
easing of laws and penalties on anti-social conduct may conceivably result in less freedom
and safety for the law-abiding. As Dietze puts it: Just as the despotio variant of democracy
all too often has jeopardized human rights, its permissive variant threatens these rights by
exposing citizens to the crimes of their fellowmen . The more law-abiding
people lose confidence in the law and those in authority to protect them, the more will they be
driven to the alternative of taking matters into their own hands, the perils of which
unthinkable and are nearer than some liberty-minded philanthropists seem inclined to
allow

Legal maxim, Veniae facilitas incentivum est delinquendi, is a caveat to the exercise of
clemency powers, as it means - Facility of pardon is an incentive to crime. It may also

15
prove to be a grand farce, if granted arbitrarily, without any justification, to privileged
class deviants. Thus, no convict should be a favoured recipient of clemency.

Liberty is one of the most precious and cherished possessions of a human being and he would
resist forcefully any attempt to diminish it. Similarly, rehabilitation and social reconstruction
of life convict, as objective of punishment become of paramount importance in a welfare
state. Society without crime is a utopian theory. The State has to achieve the goal of
protecting the society from convict and also to rehabilitate the offender. There is a very real
risk of revenge attack upon the convict from others. Punishment enables the convict to
expiate his crime and assist his rehabilitation. The Remission policy manifests a process of
reshaping a person who, under certain circumstances, has indulged in criminal activity and is
required to be rehabilitated. Objectives of the punishment are wholly or predominantly
reformative and preventive. The basic principle of punishment that guilty must pay for his
crime should not be extended to the extent that punishment becomes brutal. The matter is
required to be examined keeping in view modern reformative concept of punishment.
The concept of Savage Justice is not to be applied at all. The sentence softening schemes
have to be viewed from a more human and social science oriented approach. Punishment
should not be regarded as the end but as only the means to an end. The object of punishment
must not be to wreak vengeance but to reform and rehabilitate the criminal. More so,
relevancy of the circumstances of the offence and the state of mind of the convict, when the
offence was committed, are the factors, to be taken note of.

At the time of considering the case of pre-mature release of a life convict, the authorities
may require to consider his case mainly taking into consideration whether the offence was an
individual act of crime without affecting the society at large; whether there was any chance of
future recurrence of committing a crime; whether the convict had lost his potentiality in
committing the crime; whether there was any fruitful purpose of confining the convict any
more; the socio-economic condition of the convicts family and other similar circumstances.

Considerations of public policy and humanitarian impulses supports the concept of

executive power of clemency. If clemency power exercised and sentence is remitted, it does
not erase the fact that an individual was convicted of a crime. It merely gives an opportunity
to the convict to reintegrate into the society. The modern penology with its correctional and
rehabilitative basis emphasis that exercise of such power be made as a means of infusing
mercy into the justice system. Power of clemency is required to be pressed in service in an
appropriate case. Exceptional circumstances, e.g. suffering of a convict from an incurable

16
disease at last stage, may warrant his release even at much early stage. Vana Est
Illa Potentia Quae Nunquam Venit In Actum means-vain is that power which never comes
into play.

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 Chapter-5
Conclusion

Any decision to free the killers of Rajiv Gandhi will be political but the law gives the final
say in this case to the Centre which will be swallowing its own words if it consents to
Jayalalithaas plan. In the Supreme Court, attorney-general G.E. Vahanvati and additional
solicitor-general Sidharth Luthra had repeatedly said Rajivs killers must face the noose as
they showed no remorse and were enjoying their lives in the jails. They are singing,
dancing and entertaining other prisoners. Delay in disposing of the mercy petitions cannot be
a ground as they had waged a war against the country, the attorney-general had told the
bench headed by Chief Justice P. Sathasivam. The bench, while commuting the death
sentences on the ground of inordinate delay, said the convicts shall remain in jail
throughout their life, subject to any remission granted by the government.The power to grant
remission in the particular case actually vests with the Union government. The state has, at
best, only the power to recommend remission. Rajivs assassination was investigated by the
CBI which is under the control of the Centre and hence any decision on granting remission to
the convicts needs the Union governments consent. Under normal circumstances, Sections
432 and 433 of the Criminal Procedure Code (CrPC) empower the state government to grant
remission. But, in this case, Section 435 of the CrpC comes into play as the CBI, which
functions under the Delhi Special Police Establishment Act (DSPE Act), was the prosecuting
agency.Section 432 and 433 of the CrPC gives absolute powers to the state government or a
Union territory to grant remission to any prisoner convicted by a court of law. But in cases
investigated and prosecuted by the CBI or the Enforcement Directorate or any other central
agency, the power to grant remission is vested in the Union government.

Sub Section 2 of Section 435 is categorical when it asserts that no remission granted by the
state government will have an effect, unless an order of suspension or remission has also been
passed by the central government.

In other words, if the Tamil Nadu government passes an order for suspension/remission of
the sentence, a similar order needs to be passed by the Centre for it to become effective.

The operative part, Section 435(2), of the CrPC says: No order of suspension, remission or
commutation of sentences passed by the state government in relation to a person, who has
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been convicted of offences, some of which relate to matters to which the executive power of
the Union extends, and who has been sentenced to separate terms of imprisonment which are
to run concurrently, shall have effect unless an order for the suspension, remission or
commutation, as the case may be, of such sentences has also been made by the central
government in relation to the offences committed by such person with regard to matters to
which the executive power of the Union extends.

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Bibliography

Books
Ratanlal & Dhirajlal , THE CODE OF CRIMINAL PROCEDURE(CRPC) , 20th edition,
2016

Ram Jethmalani & D. S. Chopra, THE CODE OF CRIMINAL PROCEDURE, 1973 (In 2
Volumes), 2015

Websites

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2168954

http://shodhganga.inflibnet.ac.in/bitstream/10603/148889/13/13_chapter%206.pdf

http://www.ebcindia.com/downloads/written_submissions_of_mr_soli_sorabjee_in_power_to
_pardon_case.pdf

http://medind.nic.in/jal/t07/i2/jalt07i2p54.pdf
http://delhihighcourt.nic.in/writereaddata/upload/CourtRules/CourtRuleFile_NVFKGPCU.P
DF

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