IV

Legislative Provisions Regarding Pardoning Power

of Some Other Authorities

1. Prelude:
Pardon, one of the biggest powers In the hands of the executives
which is 'part of Constitutional Scheme in almost all modern civilized
societies'^ is generally contained in the Constitution of a Country.^ In India
also the power to grant pardon is enshrined in the Constitution itself.^ The
main reason for incorporating this power in the Constitution itself may be
because of its importance as it saves a person from the penalty or
punishment inflicted upon him by the judiciary for breaking the laws of the
land. Moreover it may completely absolve such a person from all
disqualification attached to him for the commission of criminal offence."*
This is an extraordinary power given to the executive. The Constitution of
India confers this power on the President^ and the Governor of each

1. P.J. Dhan, "Justiciability of the President's Pardon Power", 26 (3&4) IBR 69

(1999).
2. Tlie power to grant pardon is generally contained in the Constitution of a Country
e.g. Constitution of United States, Art. 2, s. 2, Constitution of France Art. 17
Clause (i), Constitution of the Republic of South Africa, 1996 (Act 108 of 1996), s.
84(2) ( j ), Constitution of Islamic Republic of Pal<istan, 1973 Constitution of
Democratic Socialist Republic of Sri Lanl<a, 1978, Art.45, Art. 34, Constitution
Peoples Republic of China, Art. 67 (17), Nigerian Constitution, s. 161 (1) and so
on.
3. The Constitution of India, 1950, Arts. 72 and 161.
4. K. M. Nanawati\/. State of Bombay, AIR 1961 SC 112 at 123
5. Supra note 3 Art.72.

180
state.® In India it is not only the Constitution that contains the power to
grant pardon, remission, commutation etc. and it is not only the President
or the Governor of the concerned State who can enjoy this power to grant
pardon, remission, commutation etc. but there are a few more other
statutes or legislations which contain the provisions dealing with similar
pardoning power and these powers to grant such pardons have been
conferred on certain other authorities. These similar powers of pardon are
also called as pardoning powers^ despite the fact that they are being
exercised by some other authority. It is not only the executives who enjoy
this power to grant pardon but the judiciary has also been empowered to
exercise this power, although the objective of the same is different. But all
of these authorities including judiciary are exercising these powers on
behalf of the sovereign. Such pardoning powers that can be exercised by
authorities other than the President or Governor, who possess these
powers under other statutes, are discussed below.
2. Power of Courts to Grant Pardon:
The Courts in any country are basically established to adjudicate
upon the question of a right or liability. Similarly in our country as well the
object also is the same one. But beside this one more task or duty has
been conferred upon the Courts in our country and that is the granting of
pardon. This power has been conferred on courts by two different Acts i.e.
The Code of Criminal Procedure Act, 1973 and the Probation of Offenders
Act, 1958. The law contained in these statutes can be discussed under the
following four heads:
A. Pardon to an Accomplice.
B. Suspension of Sentences.
C. Commutation of death sentence of pregnant women.

6. /d., Art. 161.

7. D.D. Basu, Commentary on the Constitution of india 4456 (Lexis Nexis
Butterworths Wadhwa, Nagpur, 8* edn., 2009).

181
D. Release of Offenders on Probation.
A. Pardon to an Accomplice:
The power to grant pardon to an accomplice can be exercised by a
Magistrate under the Code of Criminal Procedure. This discretionary
power® conferred by the code on the Magistrate is basically a judicial
function.® This power of Magistrate is contained in Chapter-XXIV, Sections
306 to 308 of the Code.^° The very first section i.e. Section 306 deals with
the power to grant pardon and the second section i.e. Section 307 deals
with the 'power to direct tender of pardon' to be exercised by the court to
which the case has been committed. Whereas the last Section 308
provides for the trial of person pardoned for not complying with the
conditions of pardon.
a. Object:
It is the duty of the State to protect the individuals from external as
well as the internal disturbance. So far as the internal disturbance is
concerned it is the duty of the state to maintain the law and order. If any
person breaks the law and violates the rights of other individuals, the State
is bound to punish the offender. But this is quite possible that due to lack of
evidence the State may not be in a position to punish the offenders. In
such type of a situation the State enters into a contract resulting in pardon
to one of the accomplices.
The word contract is appropriate because granting of pardon in
substance and in fact is a contract between the State on the one hand and
a person whom it is granted on the other. ^^ The reason for calling it to be a

8. The Karnataka High Court in J. Raman v. State, 1979, Cri. L.J. (NOC) 185
(Kant), held that the power to tender pardon is discretionary.
9. Bawa Faquir Singh v. Emperor, AIR 1938 PC 266 at 270.
10. The Code of Criminal Procedure, 1973, (Act II of 1974), Chapter XXIV, ss. 306-
308.
11. N.D. Basu, The Code of Criminal Procedure 1267-68 (Ashoka Law House, New
Delhi, 9* edn., 2002).

182
contract is obvious that it is simply an agreement between the two parties
wherein one party i.e. approver, is willing to confess the commission of
crime and for doing so this party is receiving in consideration of
confession, a pardon from the other party. Moreover here also there is a
requirement of offer and acceptance as well. Unless and until the accused
accepts the offer of the pardon for confession he cannot be granted
pardon. Hence to make it a complete contract there shall be an offer and
its acceptance and there shall always be the consideration. Even the
Supreme Court accepted this averment and held that "the power of
tendering pardon is restricted to one consideration alone, namely the
obtaining of the evidence from the person to whom pardon is granted
relating to offences being tried.^^ But this power of pardon can never be
exercised in each and every case. This power shall be used only in those
cases where it is not possible to punish the offenders by other means
because of lack of evidence.^^ While dealing with Section 306 of the this
Code^^ the Supreme Court ruled that "the very object of this provision is to
allow pardon to be tendered in cases where a grave offence is alleged to
have been committed by several persons so that with the aid of the
evidence of the person pardoned the offence could be brought home to the
rest."''^

In Suresh Chandra Bahri v. State of Bihar ^® the Supreme Court

while dealing with the same question of the object of the provision relied
upon the judgment of the Court itself in Ganeshwara Rao's case^^ and
held that "the main object of this section is to obtain the true evidence of
offence by the grant of pardon to accomplices so as to prevent the escape

12. Jasbir Singh v. Vipin Kumar Jaggi, AIR 2001 SC 2734 at 2740.
13. Btiup Singii v. State of Haryana, (1986) 1 Crimes 432 (P&H).
14. The Code of Criminal Procedure, supra note 10.
15. State ofAndtira Pradesh v. Cheemalapati Ganeshwara Rao, AIR 1963 SC 1850.
16. AIR 1994 SC 2420.
17. Supra note 15.

183
of the offenders from punishment for lack of evidence in grave offences.^®
In a latest judgment the Supreme Court while dealing with the same
question observed that:

The grant of pardon by the Court is rooted in the

premise that most criminals try to avoid detention. Crimes lil<e
smuggling, by definition are carried on secretively. The
persons involved in such criminal activity would obviously try
to conceal and hide any evidence of their activity in as many
ways as human ingenuity can devise. That is why the
prosecution is often compelled to rely on the evidence of an
accomplice to bring the most serious offenders to book.^^

But it shall be pertinent to mention here that pardon shall never be

tendered in those cases where there are enough evidences available to
punish the offenders for the commission of the crime without the evidence
20

of the approver. The reason behind that is quite obvious that if such type
of practice is permitted then every criminal will try to escape from
punishment with the help of section 306. This type of misuse of power can
never be permitted.
Thus it can be concluded that in order to do justice with the
aggrieved persons and to bring the accused to justice for the offence
committed by him it is necessary to confer certain powers upon the
Magistrate to tender pardon to an accomplice if the Magistrate is not in a
position to punish the offenders due to lack of evidence. It spreads a
massage to the criminals that it is not easy for them to escape from
punishment even if they committed the offence very carefully and leaving
no evidence behind.
b. Pardon before the Committal Proceedings:
The Section 306 deals with the power to tender pardon to an
accomplice before the committal of the case. The law contained in this
18. Supra note 16.
19. Jasbir Singfi, supra note 12 at 2738.
20. Maosi Nainsi Jain v. State of Maharashtra, 1985 Cri. L.J. 1818.

184
section provides as under:
Tender of pardon to accomplice:
(1) With a view to obtaining ttie evidence of any person
supposed to have been directly or indirectly concerned in or
privy to an offence to which this section applies, the Chief
Judicial Magistrate or a Metropolitan Magistrate at any stage
of the investigation or inquiry into, or the trial of, the offence,
and the Magistrate of the first class inquiring into or trying the
offence, at any, stage of the inquiry or trial, may tender a
pardon to such person on condition of his making a full and
true disclosure of the whole of the circumstances within his
knowledge relative to the offence and to every other person
concerned, whether as principal or abettor, in the commission
thereof^^

Basically this section contains five sub-sections. The very first sub-
section mentioned above confers the power to grant pardon on the Chief
Judicial Magistrate or the Metropolitan Magistrate. This power can be
exercised by them at any time i.e. either during invesfigation or inquiry or
during the trial itself. This sub-section further says that these magistrates
can exercise this power for the purpose of obtaining the evidence of any
person who falls within the definifion of 'accomplice.' This sub section also
confers this power to grant pardon on the Judicial Magistrate first class, but
he can exercise this power only during the inquiry or during the trial. While
exercising the power under this provision the Magistrate can tender pardon
only if the person pardoned had been an accomplice makes full and true
disclosure of the complete circumstances within his knowledge relative to
the offence.
The second sub-section of this section provides that the power to
tender pardon under sub-section (1) can only be exercised in cases of
offences exclusively triable by the Court of Sessions or by a Special judge
appointed under Criminal Law Amendment Act^^ or

21. The Code of Criminal Procedure, supra note 10 s. 306.

22. Criminal Law Amendment Act, 1952 (46 of 1952).

185
any offence punishable with imprisonment which may extend to seven
years or more. That means the offences in which the prescribed
punishment do not fall under the four corners of the above mentioned limit,
in such type of cases this power can never be exercised by the authorities
concerned.
The third sub-section says that whenever a Magistrate tender
pardon under this section he shall record the reasons for doing so. He
shall also record whether the pardon tendered to him was accepted by the
person concerned or not. Moreover Magistrate is bound to furnish a copy
of such record to the accused if he applies in writing to the Magistrate.
Thus under this provision the accomplice may refuse to accept the pardon
tendered to him. But if he accepts the pardon then he becomes the
approver in the case. And in such a case the Magistrate is bound to record
the reasons for tendering the pardon so that it can be scrutinised in future
if required.
The sub-section fourth of this section provides that such a person
who as been pardoned under sub-section (1) shall be examined as a
witness before the Magistrate taking the cognizance of the offence in the
subsequent trial. This sub-section also talks about the custody of such a
person and says that the pardoned person shall, unless he is already on
bail, be detained in the custody till the completion of the trial.
The last sub-section provides that if a person accepts the pardon
tendered to him under this section and he has also been examined as a
witness before the Magistrate taking cognizance of the offence thereafter
such Magistrate shall commit the case to the Court of Session or the Court
of Special Judge if it is triable by them and in all other cases it is to be tried
by the Chief Judicial Magistrate himself.
This section 306 of the code confers a wide power upon the
Magistrates to tender pardon to a person who himself was involved in the
commission of crime under scrutiny. If the person becomes the approver

186
on the condition imposed by the Magistrate then he may receive pardoned
in consideration. But this power under Section 306 can only be exercised
by the Magistrate before the committal of the case only.
c. Pardon after the Committal Proceedings:
Once the case has been committed from a lower court to the higher
court then the power to grant pardon can only be exercised by the court
whom the case has been committed. This law has been contained in
Section 307 which corresponds to the Section 338 of the old code.^^ It
reads as under:
Power to direct tender of pardon:
At any time after commitment of a case but before Judgment is
passed, the Court to wtiicti ttie commitment is made may, witti
a view to obtaining at ttie trial ttie evidence of any person
supposed to tiave been directly or indirectly concerned in, or
privy to, any sucfi offence, tender a pardon on ttie same
condition to such person.^^

The preceding section i.e. Section 306 of the Code deals with tender
of pardon by Magistrate where as this section applies to tender of pardon
by the court to which the case has been committed.^^ That means
pardoning power under this section can be exercised by Court of Sessions,
the special Judge or the Chief Judicial Magistrate. But this section does
not take away the additional power of the Chief Judicial Magistrate or any
Magistrate under Section 306 to tender pardon when the offence is under
inquiry or trial.^®
The object of tendering pardon remains the same that is the
obtaining at the trial the evidence of the approver supposed to have been
directly or indirectly concerned in, or privy to, any such offence. This

23. The Code of Criminal Procedure, 1898 (Act V of 1898), s. 338.

24. The Code of Criminal Procedure, supra note 10 s. 307.
25. A. J. Peris v. State of Madras, AIR 1954 SC 616 at 620; see also Bawa Faquir
Singti V. Emperor, AIR 1938 PC 266.
26. Kanta Prasad v. Deltii Administration, AIR 1958 SC 350.

187
section also says that the pardon can be tendered to the approver on the
"same condition".^^ The phrase "same condition" used in this section refers
back to the condition referred to in Section 306 (1) viz. of malcing a full and
true disclosure under which a Magistrate can tender pardon under Section
306(4).^^

The court to which commitment is made can itself exercise this

power under section 307 at any time after the commitment of the case but
it should be done before the pronouncement of the judgment.^^ It has also
been made clear that the power to grant pardon under both of these
sections is not circumscribed by any condition except, that action must be
taken with a view to obtain evidence of any person who is supposed to
30

have been directly or indirectly concerned in, or privy to, an offence. The
main intent and purpose of tendering pardon to accused as envisaged in
Section 306 and Section 307 of the Code, is to bring to light the missing
and hidden circumstances which though very much relevant are not
coming forth from others.^^
So far as the recording of the statement of the approver is
concerned the Supreme Court of India while dealing with scope of this
section held that this section does not contemplate recording of the
statement twice. I.e., first by the Magistrate and subsequently in trial court
after the committal of the case.^^
Thus it can be concluded that the power under sections 306 and 307
are same or identical. The only difference is that the power is to be
exercised by different authorities under different sections and at different

27. Supra note 10 s. 307.

28. State v. Briyan Malik, 1975 Cri. L.J. 1937 (Ori.) at 1938.
29. M. M. KocharM. The State, AIR 1969 Delhi 21 at 26.
30. Konaji Raja Babu v. State of Andhra Pradesh, 2002 Cri. L.J. 2990 (AP) at
2996.
31. Ram Rattan v. State, 2008 (40) Gauhati L. R. 572 at 582.
32. Narayan Chetanram Chaudhary v. State of Maharashtra, AIR 2000 SC 3352 at
3361.
188
time and this power contained in two different provision do not go against
each other. The Chief Judicial IVIagistrate is the only authority who can
exercise the power to tender pardon at two different stages i.e. before
committal of case under section 306 and after committal of case under
section 307.
d. Conditions for the exercise of the power:
The power to tender pardon is subject to so many conditions. Some
of these conditions are specified by the code itself and a few are
prescribed by the judiciary. The conditions for the exercise of the power to
tender pardon are as under:
i. Competent Court to Tender Pardon:
This section 306 and 307 clearly point out the authorities who can
exercise the power to tender pardon under these sections. The power is
exclusively conferred by the Code on the following magistrates:
1. Chief Judicial Magistrate or the Metropolitan Magistrate;
2. Judicial Magistrate First class;^^
3. Court of Session;^®
4. Special Judge.^^
Thus these sections empower only four categories of magistrates to
exercise the power to tender pardon. The power conferred on the different
classes of Magistrates is concurrent and is of the same character. Even
the Supreme Court has also affirmed it.^® That follows that the power to

33. As per the judgment of the Apex Court in State of Utter Pradesh v. Ganeshwar
Rao, AIR 1963 SC 1850, the temn "Chief Judicial Magistrate includes "Additional
Chief judicial Magistrate" as well.
34. The Code of Criminal Procedure, supra note 10 s. 306. This section empowers
both of these authorities to exercise this power before the committal of the case.
But virtue of Section 307 the Chief Judicial Magistrate can also exercise this
power even after committal of the case.
35. Id, s. 306.
36. Id, s. 307.
37. Ibid.
38. State of Utter Pradesh v. Kailash Nath Aggarwal, 1973 Cri. L.J. 1196. SC.

189
tender pardon can be exercised by every authority mentioned in the
39
Code. Practically that means if the tender of pardon has been refused by
the Judicial Magistrate first class while inquiring into the offence then it will
not create a bar for applying pardon before the Chief Judicial Magistrate.
But the Chief Judicial Magistrate while dealing with such a request shall
take into consideration the view expressed by the Judicial Magistrate First
Class while refusing to tender pardon. On the other side if the higher
authority declined to tender pardon then the lower shall not tender pardon
in that case except only in that case where new facts have been brought
up before him and these facts were not presented before the higher
authority. Moreover, a further request can also be made again before the
magistrate if fresh or exceptional facts are placed by the party
concerned.^°
The problem may arise when a Magistrate not authorise to tender
pardon exercise the power to tender pardon. This question arose before
the Supreme Court in Ganeshwara Rao's case.^^ In this case the Apex
Court held that by virtue of Section 460 (g) of the Code if any magistrate
not empowered by law to tender pardon under Section 306, erroneously
but in good faith does tender such pardon, his proceedings cannot be set
aside merely on the ground of his not being so empowered. Even the
Supreme Court upheld it in Ganeshwara Rao's case.
But the Supreme Court in a latest judgment did not agree with this
previous judgment of the court itself."^^ After comparing the section 460(g)
of the new code with the corresponding provision in the old code^ the

39. / d , at 1201.
40. R.V. Kelkar, Criminal Procedure 456 (Eastern Book Co., Lucknow, 4"" edn.,
2001).
41. Ctieemalapati Ganesfiwara Rao, supra note 15.
42. The Code of Criminal Procedure, supra note 10 s. 460 (g).
43. Supra note 15 at 1871.
44. A. Devindran v. State of Tamil Nadu, 1998 Cri. L.J. 814 (SC) at 823-24.
45. Kanta Prasad, supra note 26 s. 529 (g).

190
Court came to the conclusion that once the case has been committed to
the Court of Session the Chief Judicial Magistrate or the Metropolitan
Magistrate do not possess any kind of jurisdiction to grant pardon and if
they do so they would be violating the mandate of Section 307, which is
not curable irregularity within the ambit of Section 460(g) of the code.
There is no other authority under the Code of Criminal Procedure
which can enjoy this power. But the Supreme Court found it necessary to
consider the request of the prosecution for grant of pardon under this
section. The Court ruled that:
Ordinarily it is for ttie prosecution to as/c ttiat a particular
accused, out of several may be tendered pardon. But even
where the accused directly applies to the Special Judge, he
must first refer the request to the prosecuting agency. It is not
for the Special Judge to enter the ring as a veritable director of
prosecution. The power which the Special Judge exercises is
not on his own behalf but on behalf of the prosecuting agency
and must, therefore, be exercised only when the prosecution
joins tendered of pardon because it does not need approver's
testimony. It may also not like the tender of pardon to the
crime or the worst offender The proper course for the Special
Judge is to ask for a statement from the prosecution on the
request of the prisoner. If the prosecution thinks that the
tender of pardon will be in the interests of a successful
prosecution of the other offenders whose conviction is not
easy without the approver's testimony, it will indubitably agree
to the tendering of pardon. The Special Judge (or the
Magistrate) must not take on himself the task of determining
the propriety of tendering pardon in the circumstances of the
case.^^

Therefore, on the basis of this judgment it can be inferred that the

power to grant pardon can be exercised by the Magistrates as per the
provision in the code itself but such Magistrate shall exercise the power
only on the basis of the prayer of the prosecution itself.
Moreover the Supreme Court in another case held that it is the duty

46. Lt. Commander Pascal Fernandez v. State of Maharashtra, AIR 1968 SC 594.
47. Id., at 599.

191
of the prosecution only to find out the weightage of the evidence of the
48

approver. In a latest judgment the Supreme Court once again reiterated

the law declared in the Pascal Fernandes's case.^^ The Supreme Court
discussed the role to be played by court in matter of grant of pardon. The
Court held that the rejection of application for tender of pardon canvassed
by the prosecution after assessing weight of approver's evidence which
was yet to be given was an improper act of the court. The court ruled that
"although the power to actually grant the pardon is vested in the court,
obviously the court can have no interest whatsoever in the outcome nor
can it decide for the prosecution whether particular evidence is required or
not to ensure the conviction of the accused. This is the prosecution's
50

job." Thus the court made it clear that It is for the prosecution to decide
whether the evidence of the approver will be of some importance for the
purpose of punishment of the wrongdoers. In such type of questions the
court must not take on itself the task of determining the propriety of
tendering pardon, as it is simply the job of the prosecution itself. That
means the prosecution plays a role in granting pardon.
But it will be pertinent to mention over here that it is not necessary
that in all cases the pardon can only be tendered after the prosecution
made a request for the same it can be tendered on the basis of request of
the accused as well.^^ That means it is not compulsory that the application
for pardon need not be filed through the prosecution. It is the Court who is
the final authority to decide the tender of pardon.
Similarly the position of the police is not different. Rather it is worst.
In a landmark judgment delivered the Supreme Court by P. Sirajuddin v.
State of Madras^^ it was held that the granting of pardon is not the
48. Jasbir Singh, supra note 12.
49. Lt. Commander Pascal Fernandez, supra note 46.
50. Supra note 12 at 2739.
51. Ibid.
52. AIR 1971 SC 520.

192
discretion of the police at all. In this case the Investigating Officer gets a
statement signed from a person and assures him that he would be called
to give evidence before the court as an approver and his name will not be
included in the list of the accused persons in the charge sheet. The
Supreme Court took it very seriously and held it to be a highly irregular
procedure as it is not the Investigation Officer who can tender pardon but
the power is vested in the magistrate only. The decision of the Court seem
to be perfect as there are provisions in Section 306 and 307 relating to
pardon to an accomplice. An investigating officer cannot himself grant
pardon bypassing the aforesaid provisions of the code.^^
Therefore it can be concluded on the basis of the judgments passed
by the Apex Court of our country that only the Judicial Magistrates
mentioned specifically in the section 306 and 307 can tender pardon to an
accomplice but before exercising this power of pardon he shall take care of
the wishes of the prosecution as well.
But the court authorised to exercise the power under section 306
can never exercise the power to tender the pardon to an accomplice if the
case has been committed. After the committal of the case, the pardon
granted by the Magistrate not empowered under section 307, is not
curable.
ii. Person to whom pardon can be tendered:
Sections 306 and 307 itself answer this question that who can be the
receiver of pardon. The qualification for becoming an approver under both
of these sections is basically the same and moreover the pardon under
both of these sections can be tendered on the 'same conditions'. In other
words the conditions mentioned in section 306 are equally applicable to
pardon under section under Section 307. The sub-section (1) of Section
306 and Section 307 provide that pardon under these sections can be

53. Shankar v. State of Madhya Pradesh, 1997 Cri. L.J. 3876.

193
tendered to 'any person.' But this term any person will not include each
and every person. By virtue of Section 306 (2) only those persons can
receive pardon who have committed certain specific offences.^^
Both of these sections provide that 'any person supposed to have
been directly or indirectly concerned in or privy to an offence' can be
pardoned on certain conditions. The main condition imposed by Section
306 is that the approver shall make full and true confession.
As a general rule pardon can be tendered to an accomplice as the
language of the section 306 and 307 also makes it clear. An accomplice is
a person who sustains such a relation to the criminal act that he could be
55

charged with the accused and while granting pardon to such accomplice,
it is mandatory that the court should make an offer to one least guilty
among several guilty accused persons.^^
But a police officer, who lays trap and who receives a gratification,
not with an intention of taking it as a bribe but in order to bring to book the
person who had offered the gratification cannot be said to be an
accomplice.^^ It had also been ruled that a person who has already been
convicted or whose complicity in the crime is not admitted by him can
never receive pardon under this section because the word "supposed"
used in Section 306 (1) must be taken merely as intended to exclude the
case of a man who has actually been convicted of crime, and not the case
of a man who, although admitted to be a party to the crime, is
unconvicted.^®
But it is 'not necessary that pardon under this provision can only be
tendered to an accomplice or who in his statement has implicated himself

54. See, infra head note "Offences for which Pardon can be tenderecf.
55. Ramaswami Gounden v. Emperor, (1904) 27 ILR 271 (Mad).
56. Konaji Raja Babu, supra note 30.
57. Mahadeo Daunappa Gunal<i v. State, AIR 1952 Bom 435 at 437.
58. Ka//u, (1884) 7 AIM 60.

194
in the offence. This section requires that the statement must be obtained
from the concerned person who is supposed to be directly or indirectly
concerned or privy in the offence.'^^ It implies that it is not necessary that
granting of pardon should be made to a co-accused in a particular case in
which he is sought to be examined. Hence pardon may be granted to sole
accused of another case. It is more than enough if he is directly or
indirectly concerned in or privy to the offence.^°

In a significant judgment^^ while defining this term "supposed" it was

held that this word 'does not mean that such a person should have actually
participated in the commission of crime. The very basis of the section is
that a person who applies for pardon can be assumed to be directly or
indirectly concerned in the offence. Similarly he may be assumed to be a
privy to an offence. The assumption does not mean that he is party to the
offence.'^^
In two more judgments while dealing with the scope of the
expression "any person supposed to have been directly or indirectly
concerned in or privy to an offence" the same view had been expressed by
the Supreme Court that this expression is not confined to a person who
has been charged with the offence or who has been sent up by the police
for trial as accused person.^^ In other words the person to whom pardon is
64
tendered need not necessarily be accused in the case.
Moreover it is also not compulsory that any person supposed to
have been directly or indirectly concerned in or privy to an offence should
exactly know about the crime being committed in all its details. Moreover

59. state of Gujarat v. Ramasi Devasi Bhai, 1991 Cri. L.J. 2801; see also Maosi
NainsiJainy. State of Maharashtra, 1985 Cri. L.J. 1818.
60. In re K. Venkata Reddy, 1970 Mad. L. J. (Cri.) 66.
61. Supra note 59.
62. Id., at 2805.
63. Santosh Saha v. State, 1973 Cri. L.J. 968 (Cal); see also Kashiram v. Emperor,
AIR 1923 Nag 248.
64. Giria v. State of Orissa, (2001) 91 C. L. T. 639 (Ori).
195
the complicity is also not essential.^^
Another term 'concerned' used in sub-section (1) of Section 306 also
shows that such a person may be somehow directly or indirectly connected
with the offence. He may have some interest therein or the incident which
led to the offence may be of some importance to him. Inculpation of the
approver in the commission of a crime is not a necessary condition for
being pardoned.®^
Therefore in order to punish the main culprits the court may tender
pardon to the parson whose participation in the offence was lesser. Hence
the very first, basic, initial or primary condition is that the approver should
be one of the privy or an abettor in the commission of the crime. In other
words he should be an accomplice. But it is not compulsory that he shall
know in details each and everything regarding the crime committed. The
only condition for pardon is that he should be an accomplice and pardon
can be tendered to him on the condition of making a full and true
disclosure of the whole circumstances within his knowledge related to the
offence.
iii. Offences for which pardon can be tendered:
The Section 306 (2) specifically categorized the offences for which
the pardon can be granted.^^ As discussed earlier it simply says that the
offences exclusively triable either by the Court of Sessions or the Court of
Special Judge appointed under the Criminal Law Amendment Act, 1952
(46 of 1952) and the offences punishable with imprisonment which may
extend to seven or more years imprisonment are subject matter of this
section.®^ In all other cases this power of pardon to an accomplice can
never be exercised.

65. Surya Kanta v. Emperor, AIR 1920 Cal 980; see also Sumermal Jain v. Union
Temtory of Tripura, AIR 1964 Tripura 41.
66. Ramasi Devasi BJrtai, supra note 59 at 2805.
67. Laxmipat Chararia v. State of Matiarastitra, (1968) 2 SCJ 689.
68. The Code of Criminal Procedure, supra note 10 s. 306 (2).
196
 Dealing with the question that whether in cases of the offences
69

punishable under section 5 of the Official Secrets Act and Section 120-B
of the Penal Code7° the court has power to tender pardon under Sub-
Section (1) of Section 337^^ (Now Sub-section (1) of Section 306 of new
code) the Supreme Court of India held that:
a pardon under s. 337(1) of the Code of Criminal
Procedure could be tendered only with respect to the offences
mentioned therein and that as s. 5 of the Official Secrets Act
read with s. 120-B of the Indian Penal Code was not covered
by the words of s. 337(1) no pardon could be granted for an
offence of this nature. Consequently, as the proceedings
before the magistrate were only with respect to these
offences, M could not be treated as an approver for the
purpose of these proceedings.^^
This sole judgment on this question settled the matter that in no
cases the Magistrate can go beyond the limitations prescribed in the
Section 306 itself. While explaining it the court held that "where the
disclosure of the approver makes out certain subsidiary offences
committed by him, which do not come within the categories under this
section, the pardon granted cannot be said to include such subsidiary
offences notwithstanding the fact that they have been mentioned in the
application by police for tender of pardon or in the order of the Magistrate
granting pardon." In addition to it there is one more condition that the
validity of pardon is determined with reference to offence alleged against
approver alone and not with reference to the offence or offences of which
his associates were ultimately convicted.^^

Although where two separate cases had been filed against the
accused, one on the charge-sheet, another on complaint and allegation in

69. Official Secrets Act. 1923, (Act 19 of 1923), s. 5.

70. Indian Penal Code, 1860 (Act XLV of 1860), s. 120-B.
71. The Code of Criminal Procedure, supra note 23 s. 337.
72. State v. HIra Lai Girdhari Lai Khatri. AIR 1960 SC 360.
73. Jasbir SIngfi, supra note M,

197
charge-sheet and those in complaint were however, composite allegation
and composite investigation was undertaken in relation to those allegations
the approvers who were recipients of pardon in charge-sheet case could
be treated as approver in complaint case also, notwithstanding that no
pardon was tendered to them in complaint case/^
Therefore, it can be concluded that the Magistrates authorised by
Section 306 and the Court of Session, Special Judge or the Chief Judicial
Magistrate under Section 307 can exercise the power to tender pardon to
an accomplice only in those caseswhere the offence committed are triable
exclusively by the Court of Session or special Magistrate or offence is
punishable with seven or more years imprisonments. The jurisdiction to
tender a pardon to an accomplice is strictly limited to these offences are
mentioned in section 306 itself.
iv. Stage for the exercise of the power:
As per the code itself a pardon to an accomplice can be tendered at
any stage before the pronouncement of the judgment. The Section 306
empowers the Chief Judicial Magistrate or Metropolitan Magistrate to
tender pardon at any stage i.e. at the stage of investigation, inquiry or even
at trial stage pardon may be tendered^^ and the Judicial Magistrate First
Class can tender pardon only during inquiry or trial.^^ Whereas the pardon
under Section 307 can be tendered at any time before the pronouncement
of the judgment.^^
Even the judiciary has also interpreted both of these sections in the
same way. While dealing with the question regarding the stage of pardon it
has been ruled that the pardon may be tendered even after framing of the
charges. Moreover, it is enough if application for granting of pardon

74. J. K. Ralhan v. The State, 1984 Cri. L.J. 1538 at 1549.

75. The Code of Criminal Procedure, supra note 10 Sec 306(1); see also Krishna v.
State, 1976 Cri. LJ. 1825 (All).
76. Id., s. 306(1).
77. Id., s. 307; see also M. M. Kochary. The State, AIR 1969 Delhi 21.
198
was moved before the evidence had began. Though the prayer may be
delayed, it may be allowed. Delay may be a factor in allowing or refusing a
prayer for grant of pardon, but never a governing factor.^®
In another case it was held that pardon may be granted at any
stage. Where the application for grant of pardon under section 306/307
has been rejected on the ground that some evidence has already been
recorded the rejection is bad although it may have some material bearing
79
in the case, where the accused applies for the first time at a later stage.
The question that may arise over here is that if the application for
grant of pardon has been rejected by the court whether the same party can
file a fresh applicafion? This question has been dealt with by Supreme
Court in a landmark judgment wherein it was held that the court can grant
pardon even if the previous application for grant of pardon had been
rejected by the court itself hence the application for pardon can always be
moved before the same Magistrate but it can be considered only if fresh
80
facts have been placed before the court by the party concerned.
Therefore, it can be concluded that the power to tender pardon to an
accomplice under Section 306 and 397 can be exercised at any fime
before the passing of the judgment. The pardon may be tendered even if
the previous request of the accused for pardon has been turned down.
V. Obligations on Accomplice:
Since the tender of pardon to an accomplice is basically a part of
contract between the approver and the state hence if the pardon is
tendered to an accomplice he is also bound to perform his part of the
contract. Such type of a contract is entered only with one goal that is the
punishment of the accused persons involved in a criminal act.

78. Maosi Nainsi Jain, supra note 20.

79. Aftab AH v. State ofRajasthan, 1981 Cri. L.J. 349.
80. Kailasti Nath Aggarwal, supra note 38 at 1201; see also State of West Bengal v.
R. S. Adhiseshan, (1979) 4 SCC 558.

199
 In order to achieve such a goal the very basic requirement or
81

condition is that the approver shall accept the pardon. Once the approver
accepts the pardon then it is the turn of such approver to make full and
82

true disclosure of facts of the case. It has been held that the approver
must make such a disclosure before the committing Magistrate and before
the Sessions Court. He cannot withdraw it after making it once.^"^ The
tender of pardon to an approver has to precede and not to follow on the
making of full and true disclosure.®'* There is no obligation on the
Magistrate to record the statement of the person before he is tendered a
pardon. The sole consideration in this regard is that he should make a full
and free disclosure of all facts within his knowledge with regard to the
offence. A witness making a self incriminatory statement in the evidence
voluntarily is not covered by Section 306 or 307. The court may act in its
discretion against him.
Therefore to conclude it can be said that the person whom pardon is
tendered is bound to disclose the complete and true disclosure of the facts
within his knowledge pertaining to the commission of the offence. But at
the same time it shall be taken care that the disclosure of facts is free and
voluntary.
e. Effects of Pardon:
The effects of pardon granted under Section 306 or 307 of the code
are as under:
1. The grant of pardon carries with it the imputation of guilt and the

81. Jasbir Singh, supra note 12; see also Bipin Behari Sarkar v. State of West
eenga/, AIR 1959 S C I 3.
82. Maosi Nainsi Jain, supra note 20; see also Maghar Singli v. State of Punjab, AIR
1975 SC 1320.
83. Kotliiia, (1906) 30 Bom. 611.
84. Hor//a/, (1941) Nag 372.
85. Gagu v. State ofGujrat, 1975 Cri. L.J. 670 (Guj).
86. S. S. Chaudhary v. State of Utter Pradesti, 1978 Cri. L.J. 391.

200
 acceptance thereof a confession of it. It completely exempts the
individual from the punishment which the law inflicts for a crime he
has committed. It is in substance and effect a contract between
State and the person to whom it is granted.^^ But an accomplice
selected for award of pardon cannot be said to have obtained
complete exoneration from guilt till he complies with the terms of his
undertaking.^®
Where a pardon is tendered and is accepted under Section 306, the
accused person ceases to be an accused and becomes a
89

witness thereafter. The person to whom pardon has been tendered

cannot be re-arrested for the same offence or any other offence
90

connected with that offence. Where prosecution has been

instituted ignoring the legal bar created by the existence of an
operative pardon, it would be an abuse of the process of the court to
continue such prosecution and the High Court can quash the
91
proceedings in exercise of the powers under Section 482 of the
Code.^^
The withdrawal of prosecution against the individual is not necessary
93
in cases where a pardon is tendered and accepted. But the
prosecution may be stayed till the trial of the case in which pardon is
granted is over. In a latest judgment while dealing with this question
the Supreme Court held that:
However it is clear tliat to get benefit of the pardon ttie
Appellant fias to make a full and frank disclosure regarding the

87. Mehra v. State, AIR 1958 Punj. 72 at 75.

88. T. P. Mohideen v. The State of Madrass, AIR 1965 Mad 461: 1965 (2) CrI. L.J.
516.
89. A. J. Peris, supra note 25 at 620.
90. Stiiam Sundery. Emperor, AIR 1921 All 234:22 Cri. L.J. 699.
91. V. Seetharaman v. The State of Mysore, 1968 Cri. L.J. 841 at 844.(Mys).
92. The Code of Criminal Procedure, supra note 10 s. 482.
93. Faquir Ahmed \/. Emperor, AIR 1936 Lah. 353: 37 Cri. L.J. 515.

201
 offences of misappropriation. If he does not make a full and
complete disclosure, the pardon may be cancelled. If he
makes a full and complete disclosure he faces the prospect of
being convicted in the prosecution under Section 277 and 278
of the Income Tax Act. Article 20(2) of the Constitution of India
enjoins that no person can be compelled to be a witness
against himself To continue with the prosecution would thus
amount to forcing the Appellant to give evidence himself or to
risk pardon being cancelled as he cannot make a full and
complete disclosure for fear of being convicted in the other
case. Thus, even though the pardon may not extent to these
offences, it can be said that this is a fit case where the
Government should consider not prosecuting the Appellant
under these Sections. To insist on so prosecuting may result
in valuable evidence being lost in the fodder scam cases.
Therefore, it is directed that the prosecution under Section 277
and 278 of the Income Tax Act will stand stayed till trial of the
cases in which pardon is granted is over. If the Appellant
makes a full and a complete disclosure, then, the prosecution
under Section 277 and 278 should not be allowed to proceed.
Therefore, Appellant is granted liberty to apply for quashing
94
that prosecution at that stage.
4. If the order of the Magistrate granting pardon also includes offences
not falling within Section 306 of the code, the person to whom the
pardon is granted cannot be treated as an approver and examined
as such in a trial which is concerned only with respect to an offence
95

not falling within this section. In other words if an order granting

pardon also relates to sections not falling under section 306 the
accused can never be treated as an approver.
5. The Supreme Court has held that the pardon extends to all
connected offences.^^ But a pardon will not operate as a bar to trial
97
for a distinct and entirely different offence.
Thus on the basis of above judgments it can be concluded that if a

94. DIpesh Chandak v. Union of India, 2004 Cri. L.J. 4605.

95. Hira Lai Girdhari Lai Khatri, supra note 72 at 362.
96. Ibid
97. Sardara v. King Emperor, AlR 1924 All 220.

202
pardon is tendered under the code of criminal procedure to an accomplice
then he ceases to be an accused and becomes a witness. If at the trial he
stands by his words then the State fulfills its promise and sets him free to
live in the society as if he never committed the offence for which pardon
has been tendered to him. The effect of such pardon tendered under the
Code to an accomplice is similar to the pardon granted by the President
and Governor under the Constitution.
f. Consequences of breach of Conditions of Pardon:
Pardon to an accomplice can be tendered under Sections 306 and
307 of the Code. This power to grant pardon carries with it the right to
impose a condition limiting the operation of such a pardon. Hence a
pardoning power can attach any condition, precedent or subsequent so
98

long it is not illegal, immoral or impossible of performance. The Section

306 (1) clearly enjoins that the approver who was granted pardon had to
comply with the condition of full and true disclosure of the facts and
circumstances within his knowledge relative to the commission of the
offence under scrutiny.
It is quite possible that the approver may not comply with the
conditions of the pardon. In such type of situation the question arises
whether the person concerned be tried for the offence in respect of which
pardon was tendered to him alongwith the offence of giving false
evidence? The code itself provided the answers to this question in the
following words:
Trial of person not complying with conditions of pardon.
(1) Where, in regard to a person who has accepted a tender of
pardon made under section 306 or section 307, the Public
Prosecutor certifies that in his opinion such person has, either
by willfully concealing anything essential or by giving false
evidence, not complied with the condition on which the tender
was made, such person may be tried for the offence in respect
98. R.C. Khera, Supreme Court Criminal Digest 1950-2004 739, (Allied Book
Company, Delhi, 2005).

203
 of which the pardon was so tendered or for any other offence
of which he appears to have been guilty in connection with the
same matter, and also for the offence of giving false evidence:
Provided that such person shall not be tried jointly with any of
the other accused:
Provided further that such person shall not be tried for the
offence of giving false evidence except with the sanction of the
High Court, and nothing contained in section 195 or section
340 shall apply to that offence ^®

Thus the breach of the condition results in a trial of the person under
the code for the offence in respect of which pardon was tendered to him.
The Section 308 simply says that in case a person who accepted a
tender of pardon under section 306 or 307 willfully conceal anything
essential or gave false evidence or did not comply with the conditions of
the pardon such a person may be tried for the offence for which pardon
was tendered to him. He may also be tried for giving false evidence as well
with the prior permission of the High Court. But it can be done only when
first of all the Public Prosecutor certifies that the approver has not complied
with the conditions on which pardon was tendered. This certificate of the
Public Prosecutor was held to be a condition precedent to the prosecution
of an approver to whom a tender of pardon has been made but who has
failed to comply with the conditions of tender of pardon.^°°
The question that arises over here is whether the certificate of Public
Prosecutor is sufficient and there is no need of an inquiry or trial. While
dealing with this question the Law commission observed that:
After careful consideration, however, we are of the view
that the view that it would be sufficient to provide for a
certificate of the Public Prosecutor and sanction of the High
Court under Section 339 and that it is not necessary to
complicate and delay the prosecution by insisting upon a prior
inquiry under Section 476, followed by a complaint under

99. The Code of Criminal Procedure, supra note 10 s. 308.

100. State V. H. Gundappa, 1972 Cri. L.J. 191 at 192 (Mys.); see also State of M. P. v.
Dal Chand Hardyal, AIR 1960 M P 63.

204
 Section 195 (1) (b).^°^

Thus it is sufficient that a certificate has been given by the public

prosecutor and the High Court permitted for the prosecution. But this
section becomes applicable only when a pardon is accepted by the
accused and he is examined as a witness and in case the pardon is not
accepted there is no question of application of this section.^°^
While dealing with the question of the effect of the forfeiture of
pardon the Supreme Court held that this section provides that failure to
comply with the conditions on which the pardon was tendered removes the
103

protection provided under Section 306. Thus the approver will be tried
for the offences and will never enjoy the protection provided to an
approver.
Therefore, a pardon tendered under Section 306 or 307 can be
revoked if the conditions of pardon are violated by the approver. Such a
person will have to face prosecution for the commission of the offence
wherein he was an accomplice and for giving false evidence.
B. Suspension of Sentences:
The power to suspend the sentences can also be exercised by the
courts. This power has also been conferred by the Code of Criminal
Procedure, 1973. Generally this power can be exercised by the court till
the happening of certain things such as till the pendency or filling of the
appeals etc. The Code of Criminal Procedure contains as many as three
different provisions dealing with the suspension of sentence. These are the
sections 389, 424 and 415. The law and the rationale of these provisions is
discussed hereunder:
a. Power of Trial Court:
There are as many as two provisions in the Code of Criminal
101 Law Commission of India, 41^' Report on The Code of Criminal Procedure, 1898
(September, 1969) para 24.28.
102. Bipin Behari Sarkar v. State of West Bengal, AIR 1959 SC 13.
103. Hira Lai Girdhari Lai Khatri, supra note 72 at 362.

205
Procedure Code, 1973, that confer the power to suspend a sentence on
the trial court. The very first power is contained in section 389 that reads
as under:
(3) Where the convicted person satisfies the Court by which
he is convicted that he intends to present an appeal, the Court
shall,—
(/) where such person, being on bail, is sentenced to
imprisonment for a term not exceeding three years, or
(ii) where the offence of which such person has been
convicted is a bailable one, and he is on bail,
order that the convicted person be released on bail unless
there are special reasons for refusing bail, for such period as
will afford sufficient time to present the appeal and obtain the
orders of the Appellate Court under sub-section (1), and the
sentence of imprisonment shall, so long as he is so released
on bail, be deemed to be suspended.

Thus this sub-section (3) empowers the trial court to suspend the
sentence if the person convicted by the court itself satisfies the court that
he intends to file an appeal against the orders of conviction. Such a person
shall be released only in two cases firstly where a person who is already
on bail and has been punished with a sentence to imprisonment for a term
not exceeding three years or secondly where the person who is also on
bail and has been punished for the commission of a bailable offence. To
release a person under this sub-section is not mandatory. The court may
refuse to release a convicted person on bail for special reasons.
The basic rationale behind the suspension of sentence is that it is
unjust to refuse the bail merely because the person concerned has been
convicted by the trial court. If the person is already on bail during the trial
of the case then it is always better to provide him one more chance to file
an appeal in the higher court and till that time he may not be arrested.
It will be pertinent to mention here that the power under this section
can only be exercised after the conviction. The trial court can exercise this

104. The Code of Criminal Procedure, supra note 10 s. 389 (3).

206
power to enable the convict to file an appeal before the appellate court.
That means the suspension ordered by the trial court can never operate
after the appeal has been filed. Thereafter it is only the appellate court
which can suspend the sentence. But if the convicted person does not file
the appeal within the stipulated time his bail automatically stands canceled.
The power of trial court contained in Section 389 (3) of the Code can
be summarized as under:
1. The court before which the person is seeking bail shall be the court
which convicted him. Thus where a person was convicted by the
court of first instance and his conviction was confirmed by the Court
of Session and in the revision the High Court declined to interfere, in
such a case the High Court is not the court which convicted him.^°^
2. The person applying for bail under Section 389 (3) (i) or (ii) shall be
convicted by the court itself before whom he is asking for the release
on bail, hence this provision do not apply to acquitted persons
against whom appeal is intended to be applied.^°^
3. The convicted person should be on bail during trial.
4. The convicted person shall satisfy the trial court that he intends to
file an appeal against the orders of the trial court.
5. The convicted person shall be sentenced to imprisonment for a term
not exceeding three years or to an offence which is bailable.
The second provision that confers the power to suspend a sentence
on the trial court is Section 424. It reads as under:
Suspension of execution of sentence of imprisonment.(1)
When an offender has been sentenced to fine only and to
imprisonment in default of payment of the fine and the fine is
not paid forthwith, the Court may—
(a) order that the fine shall be payable either in fully on or
before a date not more than thirty days from the date of the
order, or in two or three installments, of which the first shall

105. Mammooty v. Food Inspector, A! R 1987 Ker 270 at 272.

106. Id. a\ 277.

207
 be payable on or before a date not more than thirty days from
the date of the order and the other or others at an interval or at
intervals, as the case may be, of not more than thirty days; (b)
suspend the execution of the sentence of imprisonment and
release the offender, on the execution by the offender of a
bond, with or without sureties, as the Court thinks fit,
conditioned for his appearance before the Court on the date or
dates on or before which payment of the fine or the installment
thereof, as the case may be, is to be made; and if the amount
of the fine or of any installment, as the case may be, is not
realised on or before the latest date on which it is payable
under the order, the Court may direct the sentence of
imprisonment to be carried into execution at once.
(2) The provisions of sub-section (1) shall be applicable also in
any case in which an order for the payment of money has
been made on non-recovery of which imprisonment may be
awarded and the money is not paid forthwith; and, if the
person against whom the order has been made, on being
required to enter into a bond such as is referred to in that sub-
section, fails to do so, the Court may at once pass sentence of
imprisonment.^^^

The Section 424 of the Code empowers the court to suspend the
execution of sentence of imprisonment in two cases. Firstly in cases of
sentences awarded for default of payment of fine for the commission of
any offence punishable with fine and secondly in case of default of
payment with imprisonment. In simple words sentence of imprisonment
can be cancelled in the following two cases:
1. Where the offender has been sentenced to fine only and an
imprisonment in default of payment of such fine and the fine has not
been paid forthwith.
2. Where an order for payment of money has been made and in case
of non-payment the defaulter has been ordered to undergo
imprisonment and payment has not been made forthwith.
In both of these cases the court may suspend the execution of the
sentence of imprisonment and ask the person concerned to deposit the

107. The Code of Criminal Procedure, supra note 10 Section 424.

208
money in full or in two or three installments. This section contemplates the
payment of money forthwith that means when a court passes a sentence
of the fine or the order of payment of money. It is open to the court to
proceed under this section, and if a court does act under its provisions it
can suspend the execution of the sentence of imprisonment and release
the offender on the execution by him of a bond. But the court is not bound
to do so because of the word 'may' used in this section.^°® Although one
thing is quite clear that in case the sentence has been suspended by the
court then the offender must deposit the amount before the period
specifically fixed by the Court and if he does not do so he immediately
109

incurs liability of being sent to prison.

This section applies only in cases mentioned above but it does not
apply in cases firstly where the person sentenced has been sentenced to
fine in addition to a sentence of imprisonment^ ^° and secondly the cases
where the offender is not sentenced to imprisonment in default of payment
of fine.^^^ This section applies only in those cases where the offender has
been sentenced to fine only and to imprisonment in default of fine.
To conclude it can be said that the law contained in this section
simply provides that the court may provide a relief from imprisonment as
well as from the immediate payment of money. Court may permit to
deposit the same in installments. But the compliance of orders issued
under Section 424 is mandatory and the non-compliance results in
imprisonment.
b. Power of Appellate Court:
The Code of Criminal Procedure also confers the power suspend the
sentence on the appellate court. This power of the appellate court is

108. Id, s. 424.

109. Ram Lakhan v. State, 1986 Cri. LJ. 617 at 619.
110. Siddappa v. State, AIR 1957 Mys. 52 at 57.
111. Ram Dalai v. Corporation of Calcutta, AlR 1953 Cal 76 at 78.
209
contained in Section 389. It reads as under:
Suspension of sentence pending the appeal; release of
appellant on bail. (1) Pending any appeal by a convicted
person, tlie Appellate Court may, for reasons to be recorded
by it in writing, order that ttie execution of ttie sentence or
order appealed against be suspended and, also, if he is in
confinement, that he be released on bail, or on his own
bond...^^^

This sub-section (1) provides that whenever an appeal has been

filed by the convicted person, the appellate court may order the
suspension of his sentence till the pendency of appeal. The court may also
order the release of the appellant on bail or on his own bond if he is in
confinement at the time of filing of such appeal. This sub-section imposes
a duty upon the appellate court to record reasons for grant of suspension
and release of convict person on bail or bond as the case may be.
The sub-section (1) is followed by two provisos that were inserted by
an amendment of 2005.^^^ The first proviso provides that an opportunity to
show cause against the release on bail or bond shall be given to the Public
Prosecutor in case of an appeal filed by a person who has been convicted
of an offence punishable with death or imprisonment for life or
imprisonment for a term of not less than ten years. Whereas the second
proviso provides that in case a person has been released on bail it shall be
open to the Public Prosecutor to file an application for the cancellation of
the bail.
The power under Section 389(1) can only be exercised by the
appellate court. The power conferred on the trial court to suspend a
sentence remains effective only till the filling of the appeal. Once the
appeal is in seisin of the appellate court the order of suspension can only
be passed by the appellate court. But in cases where no appeal is

112. The Code of Criminal Procedure, supra note 10 s. 389(1).

113. Code of Criminal Procedure (Amendment) Act, 2005 (Act No. 25 of 2005), s. 33
(w.e.f. 23. 06.2006).

210
preferred the powers cannot be exercised because the sub-section says,
'pending any appeal by a convicted person' the execution of a sentence
may be suspended. The pendency of an appeal is a condition precedent to
the exercise of jurisdiction under sub-section (1) and (2) of this section^ ^"^
and the appeal must be a valid appeal as well.^^^ Before exercising the
power under this section the Court shall take care that the appeal must be
filed by the 'convicted person.' The words 'convicted persons' means
persons convicted of an offence and that this section would be inapplicable
to the case of persons who are bound over.^^^

As the power under Section 389 (1) is conferred only upon the
appellate court hence this section does not include the Supreme Court
within the meaning of section 389(1) and it does not apply to the appeals
to the Supreme Court whether the appeal is filed before the Supreme
Court by way of special leave to appeal^^^ or by a certificate^^^ granted by
the High Court.^^^ Even the Privy Council was not a court of criminal
120

appeal for staying the execution of the sentence. Therefore the power
under this section can only be exercised by an appellate court mentioned
in the code itself and the Supreme Court is not an appellate court under
the sub-section (1) of the Section 389 of the Code.
It is only this section that provides for suspension of the execution of
sentences or of orders pending appeal and for release the appellant on
bail.^^^ Nowhere in the Code of Criminal Procedure or under any Rules or

114. Charan Mahto v. Emperor, AIR 1930 Pat 274 at 275.

115. Shambhoo v. State, AIR 1956 All 633 at 635.
116. Emperor v. Masuria. AIR 1936 All 107 at 108.
117. Special leave to appeal can be filed by an aggrieved person before the Supreme
Court of India under Article 136 of the Constitution of India, 1950.
118. A certificate for filling an appeal before the Supreme Court of India can be issued
by the High Court under Article 134A of the Constitution of India wherein the High
Court certifies that the case if fit for an appeal before the Supreme Court.
119. Bhaskaran v. State of Kerala, 1987 Cri. L.J. 1588 (Ker) at 1591.
120. Balmukand v. King Emperor, AIR 1915 PC 29 at 30 : 16 Cri. L.J. 494.
121. Bansi v. Hah Singti, AIR 1956 All 297 at 303.

211
Regulations under any other enactment, is a provision made for
suspension of conviction pending appeal.^^^ Under this section the
appellate court can suspend whole or part of the sentence, which may
include the sentence of imprisonment as well as that of fine whereas the
trial court can suspend sentence of jail only.^^^
Generally the appellate court shall exercise the power under this
section liberally in absence of exceptional circumstance. Especially in short
term imprisonment the normal rule is that the sentence should be
suspended and rejection is only by way of exception.^^^ The Supreme
Court in a significant judgment set aside the orders of the High Court
where the convicted person approached the High Court with a prayer for
suspension of his sentence, but the High Court refused to grant
suspension by passing a one line order. The Supreme Court held that the
High Court erred in refusing to suspend the sentence absence of any
125
exceptional circumstances.
So far as the heinous crimes like murder, dacoity etc. are concerned
the practice of suspension of sentence is altogether different. The benefit
of this section is granted only in exceptional cases. The Supreme Court
itself while setting aside the orders of the High Court held that this power
shall be exercised only in exceptional cases. In this case the High Court
granted bail to the appellant during the pendency of the appeal without
assigning any reasons for the same.
Therefore it can be concluded that the appellate court may also
exercise the power to suspend a sentence under Section 389 (1). But it
can only be exercised only when the convicted person himself files an

122. M. S. Reddyy. State Inspector of Police, Nellore, 1993 Cri. L.J. 558 (AP).
123. M. P. Brajesh Kumar Sharma v. Ram Prakash Kulshresht, 2008 Cri. L.J. (NOC)
187.
124. K. C. Sareen v. Central Bureau for Investigation, 2001AIRSCW 5130.
125. Suresh Kumar v. State (NCT of Delhi), (2001) 10 SCC 338.
126. Ramji Prasad v. Rattan Kumar Jaiswal, (2002) 9 SCC 366.

212
appeal. This order of suspension remains in force till the pendency of the
appeal.
0. Power of High Court:
The High Court does possess the power to suspend the sentence.
This power can be exercised by the High Court in three cases. All these
powers are contained in the Code of Criminal Procedure, 1973. Firstly this
power can be exercised under Section 389 of the Code. Section 389
empowers the High Court to suspend the sentence in three cases. Firstly
under Section 389 (1) where the High Court may suspend the sentence in
cases of appeal against conviction has been filed before it.^^^ The other
case where the High Court may suspend the sentence is Section 389 (2).
It reads as under:
(2) The power conferred by this section on an Appellate Court
may be exercised also by the High Court in the case of an
appeal by convicted person to a Court subordinate thereto.

Thus by virtue of Section 389 (2) the High Court can suspend the
execution of the sentence and bail can be granted to the convicted person
even if the appeal has been filed by the convicted person before the court
subordinate to the High Court. Thus if the release of a convicted person on
bail has been rejected under Section 389 (1) that person can always apply
for the same under Section 389 (2) before the High Court. But the order
relating to suspension of sentence is to be passed under Section 389 and
not under section 482 of the Code as the High Court has no inherent
power and Section 389 is the only section which refers to grant of bail to a
129
convicted person.
There is no doubt that the power under Section 389 being of special
importance can only be exercised either by the trial court or by the

127. The power of Appellate Court has already been discussed under the head note
"Power of Appellate Courf supra.
128. The Code of Criminal Procedure, supra note 10 s. 389 (2).
129. Lala Jai Ram Dass v. Emperor, A!R 1945 PC 94 at 97.

213
appellate court but It can never be exercised by the High Court under the
Inherent power contained in Section 482 of the Code^^° or under Section
289(1) or under any other provision of the Code.^^^ Although under
Section 482 of the Code of Criminal Procedure the High Court may cancel
an order of suspension of punishment issued under Section 389 by the
appellate court and the High Court may also issue the order that the
appellant be re-arrested and committed to jail- custody.^^^
The High Court has unfettered powers to grant bail yet in exercising
these powers it ought to have regard to the limitation imposed on lower
appellate courts. There is no doubt that the power under this section is
discretionary but it has to be exercised judiciously and it cannot be
133

exercised as a matter of course. Where no special reasons were

assigned by the High Court while passing the order under this section, the
order deserves to be set aside.^"^^
The third situation where the High Court may suspend the sentence
under the Section 389 of the code is a case where the High Court
becomes the convicting court e.g. if a person has been acquitted by the
trial court and the prosecution filed an appeal against acquittal. The High
Court found him guilty and passed the sentence. In such type of a case the
High Court being the Court that convicted the person may under Section
389n (3) suspend the sentence till the filling of the appeal before the
Supreme Court within a specific period of time.
Thus the High Court may exercise the power to suspend a sentence
in three cases under Section 389. Firstly under Section 389 (1) in a case
where the appeal has been filed before the High Court itself against the

130. Ramesh Narang v. Rama Narang, 1995 Cri. L.J. 1685 (Bom).
131. Benzamin Khiro v. State of Orissa, 1995 Cri. L.J. 1682. (Ori).
132. Pampapathy v. State of Mysore, A! R 1967 SC 286.
133. SanthanapandiM. State, 1999 Cri. L.J. 861 (Mad.) at 865.
134. State of Punjab v. Deepak Mattu, A! R 2008 SC 35.

214
conviction and secondly under Section 389 (2) in case of appeal filed
before the court subordinate to High Court. Lastly, under Section 389 (3) in
case of conviction by the High Court itself.
The High Court may also exercise the power to suspend the
sentence under Section 424 of the Code of Criminal Procedure.^^^ Such a
power can be exercised by the Court only if it is the convicting court e.g. a
person accused of commission of an offence punishable under Section
379 was acquitted by the trial Court and the prosecution filed an appeal
under Section 378 of the Code of criminal Procedure before the High
Court. The High Court found him guilty and passed a sentence of fine and
in case of default some imprisonment. In such a case the High Court may
suspend the sentence of imprisonment if the fine is not deposited forthwith
and may also permit the person to deposit the fine in installments.
The third power of the High Court to suspend a sentence is
contained in Section 415 of the Code of Criminal Procedure. But this
power can be exercised only in cases of death sentences. The power
contained in the code read as under:
Postponement of execution sentence of death in case of
appeal to Supreme Court. (1) Where a person is sentenced
to death by the High Court and an appeal from its judgment
lies to the Supreme Court under sub clause (a) or sub-
clause(b) of clause (1) of article 134 of the Constitution, the
High Court shall order the execution of the sentence to be
postponed until the period allowed for preferring such appeal
has expired, or, if an appeal is preferred within that period,
until such appeal is disposed of
(2) Where a sentence of death is passed or confirmed by the
High Court, and the person sentenced makes an application to
the High Court for the grant of a certificate under article 132 or
under sub - clause (c) of clause (1) of article 134 of the
Constitution, the High Court shall order the execution of the
sentence to be postponed until such application is disposed of
by the High Court, or if a certificate is granted on such

135. The power to suspend a sentence under Section 424 has already been
discussed in details under the head note "Power of Trial Court supra.

215
 application, until the period allowed for preferring an appeal to
the Supreme Court on such certificate has expired.
(3) Where a sentence of death is passed or confirmed by the
High Court, and the High Court is satisfied that the person
sentenced intends to present a petition to the Supreme Court
for the grant of special leave to appeal under article 136 of the
Constitution, the High Court shall order the execution of the
sentence to be postponed for such period as it considers
sufficient to enable him to present such petition.^^^

Thus this section maizes provision for the postponement of execution

of death sentence after it is confirmed by the High Court in the following
three cases:
i. When appeal from the judgment of the High Court lies to the
Supreme Court under Article 134 (1) (a) or (b) of the Constitution.
The execution of sentence in such a case shall be postponed by the
High Court until the period allowed for the filling appeal before the
Supreme Court.
ii. Where sentence of the death is confirmed by the High Court and the
accused makes an application to the High Court for granfing a
certificate under Article 132 or 134 (1)(c) of the Constitution. The
High Court must in such a case, order the execution to be stayed fill
the applicafion is disposed by the High Court, and if the certificate is
granted by the High Court, unfil the period for appeal has expired.
ill. When sentence of death is confirmed and the High Court is safisfied
that the accused is to present an applicafion to the Supreme Court
for grant of special leave to appeal under Article 136 of the
Constitufion.
The law contained in this section was not there in the old code of
1898 as this section is altogether new. This secfion was inserted on the
recommendation of the report of the Law commission.^ ^ The reason or

136. The Code of Criminal Procedure, supra note 10 s. 415.

137. Law Commission of India, supra note 101.

216
the object for the enactment of this section was explained by the Law
commission while proposing the insertion of the new section in the
following words:
28.2. We propose the insertion of anottier new section
providing for tfie postponement of execution of a deatli
sentence in cases where an appeal against the judgment of
High Court passing or confirming such sentence can be
preferred to the Supreme Court under the Constitution. Our
object in recommending the new provision is to ensure that
where there is a possibility of appealing to the Supreme Court,
the appeal is not rendered infructuous by an unfortunately
prompt execution of the sentence.^^^

The Law commission also explained all of the three sub-section

alongwith the necessity thereof and said that appeals in capital sentence
cases may come up before the Supreme Court in three cases- (i) as of
right under Article 134(1) (a) or (b) or (ii) on a certificate of fitness
granted by the high Court under Article 132 or 134 (1) (c) or (iii) after
obtaining special leave from Supreme Court under Article 136 of the
Constitution.
The Law commission observed that in the first case, the appeal to
the Supreme Court can be filed as a matter of right hence it is necessary
that the execution should be postponed until the period of limitation for
preferring the appeal expires, or, if an appeal is filed within the period, until
the appeal is disposed of. In the second case, it is only if an application for
certificate is made, execution should be postponed until the application is
disposed of. If the certificate is granted, the possibility of appeal becomes
almost a certainty, and the execution should be further postponed till the
period of limitation for preferring an appeal expires. Within that period, the
person sentenced should prefer an appeal and obtain a stay from the
Supreme Court.
Lastly the Law commission observed that it is sufficient if execution

138. W., at 241.

217
is postponed for such period as would enable the person sentenced to
apply for special leave to the Supreme Court. Within that period, the
person sentenced can apply for special leave and obtain from the
Supreme Court orders for stay of execution.
Practically the law under this section is also working in the same
manner as explained by the law commission. This section applies only in
cases where the person has been punished with death sentence and do
not cover the cases where capital punishment is one of the sentences for
the offence committed and the person is punished for imprisonment for any
term prescribed therein.
The power conferred under Section 415 (3) is different and distinct
from the power vested in the High Court under Section 389 (3) and Section
415 (1) and (2). Section 415 (1) as in case of Section 389 (3) covers the
case where the accused person has a right of appeal whereas sub-section
(2) of Section 415 is meant to be availed by accused person who presents
a petition before the High Court for a certificate to file an appeal before
Supreme Court or who has already obtained a certificate to file an appeal
139
before the Supreme Court.
Therefore to conclude it can be said that the High Court possess the
power to suspend a sentence. It may suspend the sentence in cases
where the sentence has been passed by the subordinate court or by the
High Court itself.
d. Power of Supreme Court:
The Supreme Court also possesses the power to suspend a
sentence. This power can be exercised by the Court under the Supreme
Court Rules, 1966.^^° The power contained therein reads as under:
Pending the disposal of any appeal under these rules the

139. Mammooty, supra note 105 at 281.

140. These rules have been framed by the Supreme Court itself. Article 145 of the
Constitution empowers the Supreme Court to make rules. It includes the power
to make rules pertaining to appeals and the release on bail etc.

218
 Court may order that the execution of the sentence or order
appealed against be stayed on such terms as the Court may
think m.^^^

Thus as per this provision wherever an appeal has been filed in the
Supreme Court by the convicted person, the Supreme Court may suspend
the sentence passed by the subordinate courts. This stay order remains In
force till the pendency of the appeal. The Supreme Court exercises the
same power of the appellate court that has been conferred on the lower
appellate courts by the Code of Criminal Procedure, 1973.
C. Commutation of Sentence:
The power to commute a sentence can also be exercised by the
courts. But this power can only be exercised by the High Court and the
Supreme Court. The effect of commutation of sentence by the Court is the
same as it is in the case of commutation of sentence by the executives.
This power to commute a sentence is contained In the Code of Criminal
Procedure and the Constitution of India.
The Code of Criminal Procedure confers the power to commute a
sentence on the High Court. The Section 416 that contains this power
reads as under:
Postponement of capital sentence on pregnant woman. If
a woman sentenced to death is found to be pregnant, the l-ligh
Court shall commute the sentence to imprisonment for life ^^

The head note of this section specifies that it deals with the power to
postpone the capital sentence of a pregnant woman. But if we read the
whole section the result is that the power contained in this section is that of
commutation of death sentence only and the High Court is bound to
commute the sentence of death, it cannot postpone or suspend the
execution of death.

141. Supreme Court Rules, 1966, Order XXI Rule 27.

142. The Code of Criminal Procedure, supra note 10 s. 416.

219
 As a matter of fact when the section was enacted it originally
contained two powers i.e. the power of postponement and commutation of
capital sentence of the pregnant woman.^"^^ This section provided that if a
woman is found to be pregnant at the time of sentence, the High Court
execution of a sentence of death confirmed by it. The High Court shall
postpone the execution of the sentence. The High Court is the only judicial
tribunal in which the law vested the power to postpone the death sentence
and while exercising this power it can order postponement of the execution
till the delivery of the child.
The power under this section was not limited to the postponement of
sentence but in a fit case the High Court was also empowered to order the
commutation of death sentence to one of imprisonment for life. This order
of commutation could have been issued even after the judgment has been
signed and passed. Generally the act of alteration of judgment is barred
even at present.^'^'* But this was an instance of a case contemplated by
Section 362 in which the High Court, after signing or passing judgment,
could alter or review, the same.
Moreover, the power of the High Court did not affect its power to
suspend the execution of sentence of a person whose conviction and
sentence it had maintained when a person had been granted special leave
145
to appeal under Article 136 of the constitution.
But in the year 2009 the power of the High Court to postpone a
death sentence of a pregnant woman was taken away. As a result of this
amendment now the High Court can only commute the sentence of death.
Prior to this amendment the High Court was having a discretionary power

143. Ibid. Originally this Section 416 provided:

Postponement of capital sentence on pregnant woman. If a woman
sentenced to death is found to be pregnant, the High Court shall order the
execution of sentence be postponed, and may, if it think fit, commute the
sentence to imprisonment for life.
144. The Code of Criminal Procedure, supra note 10 Section 362.
145. Gore Lai v. State, AIR 1958 All 667 at 670.
220
to commute the sentence of death but now the High Court is bound to
exercise this power to commute the sentence of death of a pregnant
woman.
This amendment was carried out on the basis of the Report of the
law commission wherein it has been observed by the commission
that:
We think that the time has to mai<e commutation of the
sentence mandatory in such cases and we recommend that
the section 416 be so amended. For this purpose, for existing
section 416 Cr P. C, the following section should be
substituted:
416. Death sentence on pregnant woman- If a woman
is sentenced to death is found to be pregnant, the High Court
shall commute the sentence to one of imprisonment for life. ^^^

Therefore it can be concluded that the High Court possess the

power to order commutation of sentence of death in cases where the
woman under death sentence is pregnant at the time of sentence. The
Court while dealing with such type of cases is bound to exercise this power
for the obvious reason that we cannot punish a person in the mother's
womb for the offence committed by its mother.
Apart from this, the power to commute a sentence can be exercised
under the Constitution of India. This power can be exercised by the
Court in cases of delay in execution of death sentences. It has rightly been
said that "justice delayed is justice denied.^"^^ But the right to speedy trial is
not expressly guaranteed constitutional right in India. In fact speedy trial is
149

the essence of criminal justice. The Supreme Court while dealing with
the question of delay in disposal of mercy petitions by the President under

146. Law Commission of India, 135*^ Report on Women in Custody, Chapter II, para
2.13, at 14-15 (1989).
147. Tlie Constitution of India, supra note 3 Arts. 32 and 226.
148. William E. Gladstone, available at: http://thinkexist.com/quotation/ius
tice delayed is iustice denied/227920.html. (Visited on June 20, 2010)
149. Hussainara Khatoon v. Home Secretary, State of Bihar, AIR 1979 CS 1360.

221
Article 72 of the Constitution of India held that:
Speedy thai in Criminal cases though may not be a
fundamentalright,is implicit in the broad sweep and content of
Article 21. Speedy trial is pari: of one's fundamentalrightto life
and liberty.'^^^

If the mercy petition of the prisoner sentenced with death penalty will
remain pending for disposal for a very long time then it will result in delay
in execution of death sentence. The Supreme Court took it seriously and
observed that:
the dehumanising factor of prolonged delay in the
execution of a sentence of death has the constitutional
implication of depriving a person of his life in an unjust, unfair
and unreasonable way so as to offend the constitutional
guarantee that no person shall be deprived of his life or
personal liberty except according, to procedure established by
law.'''

The Court rightly termed the act of the government to be

dehumanising factor as it basically kills the accused almost every day. The
Court also had the same view and observed that:
Sentence of death is one thing; sentence of death
followed by lengthy imprisonment prior to execution is another
A period of anguish and suffering is an inevitable
consequence of sentence of death, but a prolongation of it
beyond the time necessary for appeal and consideration of
retrieve is not. And, it is no answer to say that the man will
struggle to stay alive. In truth, it is this ineradicable, human
desire which makes prolongation inhuman and degrading with
its anguish of alternating hope and despair, the agony of
uncertainty and the consequences of such suffering on the
mental, emotional and physical integrity and health of the
individual. Where, after the sentence of death is given, the
accused is made to undergo inhuman, and degrading
punishment or where the execution of the sentence is
endlessly delayed and the accused is made to super the most
excruciating agony and anguish, it is open to a court of appeal

150. Madhu Metita v. Union of India, A! R 1989 SC 2299 at 2304:1989 SCR (3) 774.
151. T.V. Vatheeswaran \j.State of Tamil Nadu, AIR 1983 SC 361 at 366 :(1983) 2
SCR 348 at 360.

222
 or a court exercising writ jurisdiction, in an appropriate
proceeding, to tal(e note of the circumstance when it is
brought to its notice and give relief where necessary.^^^

Since the delay in execution of deatii sentence infringes the right of

a person under Article 21 therefore the High Court and Supreme Court can
entertain writ petitions for the violation of the same and in fit cases the
court may commute the sentence of death into imprisonment for life.
D. Release on Probation:
The courts in India have power to release an offender on probation.
Basically it is a reformatory treatment measure for the rehabilitation of the
delinquent in the community.^^^ In order to improve certain categories of
the first offender no sentence is executed. The offender is released and
the law permits him to live in the society. But during the period of probation
the offender is bound to follow the instructions of the court and lives in the
society under the supervision of the probation officer.
In India, this power to release a delinquent on probation is contained
in two different statutes i.e. the Code of Criminal Procedure^^'* and the
Probation of offenders Act.^^^ The Section 360 of the Code of the Criminal
Procedure that provides for release of offender on probation is applicable
156

to the whole of India except Jammu and Kashmir but this section is not
applicable in those States where the Probation of Offenders Act have been
adopted.^^^ Under both of these statutes the Courts have power to release
an offender on probation of good conduct instead of sentencing him to
imprisonment. These laws are discussed hereunder.

152. /d., at 363.

153. Probation and Related Measures (New York) United Nations, Department of
Social Affairs, (1951) at 287.
154. The Code of Criminal Procedure, supra note 10 s. 360.
155. Probation of Offenders Act, 1958 (Act 20 of 1958), s. 3 and s. 4.
156. Supra note 10 s. 1(2).
157. Supra note 155 s. 19; see also Chhanni v. State of Utter Pradesh, AIR 2006 SC
3051.

223
a. Probation under the Code of Criminal Procedure:
The term probation that derived from a Latin term 'probare' which
means 'to test' or 'to prove' basically originated from the medieval concept
of 'benefit of clergy' that survived in England and America until the middle
of the nineteenth century. The privilege of 'benefit of clergy' permitted
clergy and other literates to escape the severity of the criminal law.^^® It
meant the execufion of sentence is suspended for some time and the
suspension of sentence may be extended forever if the delinquent starts
behaving well in the society.
The law of probation in India also works on the same lines. This law
contained in Secfion 360 of the Code of Criminal Procedure is intended to
provide opportunities for reformation and rehabilitation of certain offenders
instead of sentencing them to imprisonment. It reads as under:
Order to release on probation of good conduct or after
admonition.(l) When any person not under twenty-one years
of age is convicted of an offence punistiabie witti fine only or
with imprisonment for a term of seven years or less, or when
any person under twenty-one years of age or any woman is
convicted of an offence not punishable with death or
imprisonment for life, and no previous conviction is proved
against the offender, if it appears to the Court before which he
is convicted, regard being had to the age, character or
antecedents of the offender, and to the circumstances in
which the offence was committed, that it is expedient that the
offender should be released on probation of good conduct, the
Court may, instead of sentencing him at once to any
punishment, direct that he be released on his entering into a
bond, with or without sureties, to appear and receive sentence
when called upon during such period (not exceeding three
years) as the Court may direct and in the meantime to keep
the peace and be of good behaviour
(3) In any case in which a person is convicted of theft, theft in
a building, dishonest misappropriation, cheating or any
offence under the Indian Penal Code (45 of 1860) punishable
with not more than two years' imprisonment or any offence
punishable with fine only and no previous conviction is proved
against him, the Court before which he is so convicted may, if

158. F.W. Grinel, The Common Law History of Probation, 32 JCL 15 (1941).
224
 it thinks fit, having regard to the age, character, antecedents
or physical or mental condition of the offender and to the trivial
nature of the offence or any extenuating circumstances under
which the offence was committed, instead of sentencing him
to any punishment, release him after due admonition.

This Section specifically provides that the benefit under this section
can be given only to the first offenders. The first offenders mean those
offenders whose previous conviction has not been proved. These first
offenders are further divided into two categories for the purpose of their
release. Firstly those offenders who can be released after admonition are
in one category and the second category belongs to the offenders who can
be released on probation of good conduct. Under the first case when an
accused is convicted he may instead of being sentenced be released after
admonition. But the Court may exercise this power only in cases of an
offence of theft in building, of dishonest misappropriation, cheating or any
offence under the Indian Penal Code, 1860 punishable without more than
two years of imprisonment or an offence punishable with fine only.
The second category where the first offender can be released on
probation of good conduct is further divided into two parts. The first part
belongs to those offenders who are above the age of 21 years. The
offenders of this category can be released on probations only if they are
convicted of an offence punishable under any law with fine only or
imprisonment for a term of seven years or less. Under the second part only
those first offenders that are either under the age of 21 years or women
can get relief of probation if they are convicted for an offence not
punishable under any law with death or imprisonment for life.
The object of this section is to keep the persons who are basically
the first offenders, away from the company of the hardcore criminals who
are already undergoing the punishment in jail. In the wordings of Bombay
High court "the object of this provision is to avoid sending the first offender

159. The Code of Criminal Procedure, supra note 10 s. 360.

225
to prison for an offence which is not of a serious character, thereby running
the risk of turning him into a regular criminal.^®°
This section empowers the Court to use discretion to allow benefit of
release on probation to an offender who, in his opinion, would respond
favourably to this lenient treatment. This discretion is to be used keeping in
view the age of the offender, his character, antecedents and lastly the
circumstances in which the offender committed the offence. ^^^ So far as
the first ground i.e. the age of the offender, is concerned it is a common
ground for relief under Article 72 and 161 of the Constitution of India.^^^
The tender age is helpful a lot for release under this section. For example
the Rajasthan High Court ordered the release of persons who were
convicted u/s 338/34, IPC for causing injuries by fist blows, as they were
below 21 years of age at the time of commission of the offence and were
164

not previous convicts and were repenting over their acts. Although the
age of offender plays comparatively a big role but the other grounds are
also equally relevant. As observed by the Bombay High Court that "the
persons of tender age and of very advanced age are certainly entitled to a
pardon under this section, but this does not mean that the persons who are
165
not of that age are in no way to be granted pardon.
Hence the other grounds are also relevant. The most technical one
is the last ground i.e. the circumstances under which the offence has been
committed is concerned, as no hard and fast rule can be laid down to
calculate the circumstances under which pardon under this section can be
granted. The circumstances may be different in different cases of pardon
such as a person may be granted pardon if he had been led astray for the
160. Mahomed Hanif, (1942) 44 Bom L.R. 456.
161. Hah Singh v. Sukhbir Singh, (1988) 4 SCC 551; see also Dilbagh Singh v. State
of Punjab, (1979) 2 SCC 103.
162. See, Annexure-4.
163. Indian Penal Code, supra note 70 s. 388 / s. 34.
164. Pawan Kumar y. State of Rajasthan, 1995 Cri. L.J. 3950 (Raj).
165. State of l\/laharashtra v. B. R. Patil, 1978 Cri. L.J. 411 (Bom).
226
first time by force of circumstances, by bad company or evil tliings.^^^ But
when the offence is an act of daring and of reprehensible nature involving
previous well arranged preparation the offender does not deserve pardon
under this section.^^^
The last but not least is the fact that for claiming a pardon under this
section it is the accused who will have to prove that his case is fit for
release under this section. In other words the burden of proof shall lie on
the accused for proving that his case falls under this section. In case the
court is not satisfied with the reasons mentioned by the accused then it is
bound to record reasons for not granting pardon to such person.^®^
Therefore it can be concluded that the section 360 confers the
power on the court to release the first offenders with a hope that they will
respond positively to the same. But unfortunately, the provisions of section
360 of the code, being rigid, permit no discretion whereas there is always a
need to investigate in each case whether probation will be suitable for the
needs of the offender or not. This is quite possible that there may be a
case where a teenager might not be suited for probation, whereas on the
other hand, an offender who is otherwise a recidivist, might respond well if
he is admitted to the benefit of the law of probation.
b. Probation under the Probation of Offenders Act:
This Act alongwith the section 360 of the Code of Criminal
Procedure, 1973 is also applicable in India but only in those States where it
169
has been adopted and by virtue of Section 360 (10) the provisions of

166. Public Prosecutor v. Madathi, AIR 1942 Mad 415.

167. Lekh Raj v. State, AIR 1960 Punj 482.
168. The Code of Criminal Procedure, supra note 10 Section 361.
169. The Probation of Offenders Act, 1958 has been enforced in States of Andhra
Pradesh, Andaman and Nicobar Islands, in some districts of Assam, Bihar, Delhi,
Goa, Maman and Diu, Jind district of Haryana, Himachal Pradesh, Some districts
of Maharashtra, Mysore, some districts of Orissa, Some districts of Punjab,
Rajasthan, some districts of Tamil Nadu, Tripura, Some districts of Utter
Pradesh, Some districts of West Bengal and Dadra and Nagar Haveli (Union
Territory).

227
Section 360 shall not affect the provisions of the Probation of Offenders
Act, 1958. From this it follows that in any part of India wherein the
Probation of Offenders Act has been enforced by the State concerned, the
law relating to release of an offender on probation or admonition shall be
governed by the provisions of Probation of Offenders Act only and the
Section 360 of the code will not apply in that part of the country. But in
places where the Probation of Offenders Act, 1958 has not been enforced
the release of offenders on probation or after admonition shall be governed
by Section 360 of the code provided the State has not enacted some other
170
provision for the purpose.
The objects of the Act as mentioned in the Act^^^ itself practically
does not disclose the object of the Act. It simply expresses the scope and
purpose of legislation according to the mover of the Bill. It stands on the
same footings as a speech made on the floor of the House. The real object
of the Act has been spelt out by the Supreme Court in the following
words:
The purpose of the Act is to stop conversion of youthful
offenders into stubborn criminals as a result of their
association with hardened criminals of mature age in case of
youthful in case of youthful offenders are sentenced to
undergo imprisonment in jail. Modern criminal jurisprudence
recognises that no one is born criminal and that a good many
crimes are the result of socio-economic milieu. Although not
much can be done for hardened criminals, yet a considerable
emphasis has been laid on bringing about reform of youth
offenders not guilty of very serious offences by preventing
their association with hardened criminals. The Act gives
172

statutory recognition to the above object.

Therefore It may be said that the ultimate goal of this legislation is to

170. state of Punjab v. Harbans Lai, 1983 Cri. L.J. 13 (P&H).
171. Probation of Offenders Act, supra note 155 Statement of Objects and Reasons.
172. Ramji Missar v. State of Bihar, A! R 1963 SC 1088; see also Ram Naresh Pandey
V. State ofMadhya Pradesh, (1974) 3 SCO 30, Jagdev Singh \/.State of Punjab,
AIR 1973 SC 2427, Musa Khan v. State of Maharashtra, 1976 Cri. L.J. 1987
(SC).
228
reclaim back those amature first offenders back to tlie orderly society who
have due to certain reasons fallen into bad company and committed the
offence. It can also be said that this Act has been enacted in view of
increasing emphasis on the reformation and rehabilitation of the offender
as a useful and self-reliant member of society without subjecting them to
deleterious effect of jail iife.^^"^ But this Act provides no relief to the
hardened or habitual offenders who are beyond redemption and
incorrigible.
The Act provides three different modes of dealing with the amature
and the other offenders in lieu of sentence subject to certain conditions.
These modes includes firstly the release of offender after admonition^^^
secondly, the release on probation of good conduct^^^ and lastly the
release of offender under the age of 21 years.^^^ In addition to it the act
also provides that in case an offender is released under this Act then he
shall not suffer any disqualification, if any, attaching to a conviction of an
offence.""^^
So far as the very first mode is concerned under this provision the
Court has power to release such a person after admonition who is found
guilty of having committed an offence punishable under Section 379 or
Section 380 or Section 381 or Section 404 or Section 420 of the Indian
Penal Code, 1860 or any of the offence punishable with imprisonment for
not more than two years or fine or both under any law in force in India. But
such a person can only be released if no previous conviction is proved
against him and the Court is of the opinion that it is expedient to release
him after admonition.

173. Commandant 20 BN Indo - Tibetan Border Police v. Sanjay Binjoa, AIR 2001 SC
2058.
174. Probation of Offenders Act, supra note 155 s. 3.
175. Id.,s.4.
176. Id.s.e.
177. Id., s. 12.

229
 In the second case the court has power to release a person on a
bond on probation of good conduct with or without supervision under the
probation officer, and on payment by the offender the compensation and
cost to the victim if so ordered. But such an order can only be issued if the
following conditions are satisfied:
i. Any person is found guilty of having committed an offence which is
not punishable with death or imprisonment of life.
II. The Court by whom the person is found guilty is of the opinion that it
is expedient to release him on probation of good conduct,
iii. The court may for such opinion having regard to (i) the
circumstances of the case, (ii) the nature of the offence and (iii) the
character of the offender.
The last mode of dealing with the offenders pertains to the offenders
under the age of 21 years. Under this provision a restriction has been
imposed on the courts dealing with the offenders under 21 years of age
who have been found guilty by the court. The restriction is that such a
person is not to be sentenced to imprisonment unless the court calls for a
report from the probation officer or records reasons to the contrary in
writing.
Thus it is evident that the provisions of the Act are not confined to
the juveniles alone but extends to adults as well and the Act is not confined
to the offences committed under the Indian Penal Code but they extend to
offences under other laws.
On a comparative study of the Section 360 of the Code of Criminal
Procedure and the Probation of Offenders Act one thing emerges that the
Act is much more comprehensive in its scope and application. The Section
360 does not provide for any role of probation officer in assisting the courts
in relation to supervision and other matters while the Act provides for the
same. Further the Act states that a person released on probation shall not
suffer any disqualification attached to conviction of an offender under any

230
law but the code of criminal procedure does not contain any such
provision.
Unlike the code of criminal procedure, the probation Act has done
away with the distinction on the basis of age or sex and as such all the
offenders whether male or female or below 21 or above 21 years of age
are equally entitled to avail the benefit of release on probation. Moreover
the release of an offender on probation is not confined to first offender
under the Act as in case of release under the code. Even the Supreme
Court also recognised the difference between the two and observed that:
Section 360 of the Code relates only to persons not
under 21 years of age convicted for an offence punishable
with fine only or with Imprisonment for a term of seven years
or less, to any person under 21 years of age or any woman
convicted of an offence not punishable with sentence of death
or Imprisonment for life. The scope of Section 4 of the
Probation Act Is much wider It applies to any person found
guilty of having committed an offence not punishable with
death or imprisonment for life. Section 360 of the Code does
not provide for any role for Probation Officers In assisting the
Courts in relation to supen/islon and other matters while
Probation Act does make such a provision. While Section 12
of the Probation Act states that the person found guilty of an
offence and dealt with under Section 3 or 4 of the Probation
Act shall not suffer disqualification, if any, attached to
conviction of an offence under any law, the Code does not
contain parallel provision. Two statutes with such significant
differences could not be intended to co-exist at the same time
in the same area. Such co-existence would lead to anomalous
results. The Intention to retain the provisions of Section 360 of
the Code and the provisions of the Probation Act as applicable
at the same time In a given area cannot be gathered from the
provisions of Section 360 or any other provision of the Code.
Therefore, by virtue of Section 8(1) of the General Clauses
Act, where the provisions of the Act have been brought into
force, the provisions of Section 360 of the Code are wholly
Inapplicable.

Thus to conclude it can be said that the Probation of offenders Act is

178. Chhanni v. State of Utter Pradesti, AIR 2006 SC 3051 at 3053.

231
a better statute then Section 360 of the Code of Criminal Procedure. The
Code aims to stop the conversion of youthful offenders into stubborn
criminals as a result of their association with the hardened criminals of
mature age.
3. Power of Government to Grant Pardon:
There are as many as three different legislations that empower the
government to exercise the power of pardon in cases of persons who are
already in jail after their conviction by the court of law. This power has
been conferred by these legislations on the central as well as the State
Governments. The legislations and the law contained therein have been
examined by the researcher under the following heads:
A. Power under the Code of Criminal Procedure:
The very first provision providing for the exercise of pardoning power
is contained in Sections 432 to 435 of Chapter XXXII of the Code of
Criminal Procedure, 1973. These sections deal with the power to suspend,
remit and commute sentences and confer these powers on the
government. This power conferred upon the government can be discussed
under the following heads:
a. Power to Suspend or Remit Sentence.
b. Power to Commute Sentences.
c. Concurrent powers of Centre and State.
a. Power to Suspend or Remit Sentence:
The power to suspend or remit a sentence under the Code of
Criminal procedure is contained in Section 432. It provides:
Power to suspend or remit sentences.(l) When any person
has been sentenced to punishment for an offence, the
appropriate Government may, 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.
(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

232
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 thai 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 and dealt with:
Provided that in the case of any sentence (other than a
sentence of fine) passed on a male person above the age of
eight 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 the 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 imposes any liability upon him or his property.
(7) In this section and in section 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 is passed under, any law relating to a

233
 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. ^^^

This section contains almost complete law of suspension and

remission of sentence under the Code. The power conferred by this
section on the appropriate government is the same one that can be
180

exercised by the President or the Governor under the Constitution. The

meaning of the terms suspension and remission is also the same under
both of these laws.
This section basically applies to any punishment for an offence and
the power under this section can be exercised 'at any time.' The words 'at
any time' emphasise that the power under this section can be exercised
without limit of time, but they do not necessarily lead to the inference that
this power can also be exercised while the court is seized of the same
181

matter under Section 389 of the Code of Criminal Procedure, 1973.

Hence If the matter Is pending before the court then the government shall
not exercise this power. The power can only be exercised after the
conviction becomes final.
This power can be exercised by the appropriate Government on its
182
own that means the Government can take suo motu action or on the
183

application of the person concerned. With the help of this power under
Section 432 the appropriate Government can suspend or remit the
sentence of a convicted person but this section never confers the power on
the Government to reverse the judgment of the court^^^ as the power of

179. The Code of Criminal Procedure, supra note 10 s. 432.

180. The Constitution of India, supra note 3 Arts. 72 and 161.
181. K. M. Nanawati, supra note 4 at 123.
182. Ram Shankarv. State of Madhya Pradesh, 1981 Cri. L.J. 162 (SC).
183. State v. Mansa Singti, AIR 1958 Punj. 233 at 236:1958 Cri. L.J. 938.
184. In re Ram Dawan Singh, AIR 1932 All 232.

234
the Government to suspend or remit a sentence is purely an exercise of
executive power/®^ whereby the Government cannot alter the judgment^^^
It can simply suspend or remit the sentence. Whenever the Government
exercises this power of remission or suspension it neither wipes out the
offence nor the conviction. Such an order has only the effect of either
requiring the convict concerned not to suffer the remaining part of the
sentence which has been covered in the order of remission or to suspend
the enforcement of the judgment.
The question of remission is exclusively within the executive
187

province of the appropriate Government. There is no power conferred

on the courts to order release by reduction or remission of sentence in the
manner in which the appropriate Government stands authorised under
Section 432. The Privy council itself was unable to interfere with regard to
188
Staying of execution of death sentence as it Is not the court but only the
189

government who can suspend the execution of a death sentence.

Therefore it has rightly been held that if the court cannot remit the
sentence equally it cannot suspend the sentence in the manner in which it
is exercised by the Government.^^° Hence the power lies with the
Government only. Moreover the court can neither direct while imposing life
imprisonment that he shall not be released till his life nor can direct
191
commutation of sentence.
The power to grant remission or suspension rests entirely at the
discretion of the Government and no prisoner can claim the same as a

185. Supra note 183.

186. Meghar Singh v. State of Punjab, 1982 Cri. L.J. 317.
187. Gopal Vinayak Godse v. State of Maharashtra, AIR 1961 SC 600; see also Naku
Lama Bhatia v. State ofSikkim, 1997 Cri. L.J. 2782 (Sik.).
188. Balmukand, supra note 120 at 30.
189. Chint Ram Thakurw. Emperor, vs. AIR 1931 Lah 359 at 360.
190. Meghar Singh, supra note 186.
191. Datu Chimanrao v. State of Gujarat, 1986 Cri. L.J. 1998 (Guj.).

235
 192

matter of right. Moreover while exercising this power the State

Government is not bound to give reasons for granting or refusing the
remission or the suspension of sentence of the prisoner concerned. The
main facts the appropriate Government shall take into consideration while
considering the review of sentences for premature release, are the nature
of crime, factors in the causation of crime and that too apart from those
mentioned in the copy of judgment and more importantly, whether the
reformative treatment programme helped in the transformation of the
prisoner and also note the post-release programme of the concerned
prisoner but the premature release shall never be based on the ground of
race, caste or religion. The order of the Government shall also not violate
the principles of equality and justice. In a significant judgment it was held
that in case a remission has been granted on an occasion of public
rejoicing to the prisoners of Schedule caste and schedule tribes categories
and not to the persons of other caste, will be a violation of Articles 14 and
15 (1) of the Constitution of India and in such type of a case the prisoners
of other caste may file a writ petition and shall be entitled for the same
remission that was granted to the prisoners of Schedule caste and
194
schedule tribes.
i) Appropriate Government:
The term appropriate Government has satisfactorily been defined by
the code itself in sub-section (7) of the Section 432 which says that the
appropriate Government will be the one who possesses the power to
legislate on the matter under which a person has been punished. By virtue
of Article 245 the Parliament may make laws for the whole or any part of
the territory of India and the legislature of the state may make laws for the

192. Mohan v. State of Madhya Pradesh, 1981 Cri. L.J. 147 (MP); see also Sitabaiv.
State of Madhya Pradesh, 1970 Cri. L.J. 2226 (MP).
193. Hukum Singh v. State of Punjab, AIR 1975 Punj. 148.
194. Mohan, supra note 192.

236
 195

whole or any part of the state. That means it will either be the Union or
the State Government which shall be appropriate Government to take
decision under this section.
Although the powers have been divided but still the problem may
arise when a person has been punished by one state and later he has
been transferred to some other State. In such type of case the question
arises that who will be the appropriate Government for his premature
release.
This question came up for the consideration of the Supreme
196

Court. The facts of the case are that the accused was convicted by the
Court of Madhya Pradesh. He was later on transferred to State of Punjab
under the Transfer of Prisoners Act. The prisoner having served
imprisonment for more than thirty years, the Punjab Government made a
request to the State of Madhya Pradesh for release of prisoner and
remitting the remaining part of sentences. The Madhya Pradesh
Government declined to pass an order under Section 432. Thereafter the
respondent filed a writ petition in the High Court of Punjab for quashing the
order of Madhya Pradesh Government. The High Court quashed the order
of that Government and directed the Government of Punjab to consider the
case of respondent for his release. It was held by the Supreme Court that
the appropriate Government to pass an order under Section 432 is the
Government of the State in which the prisoner has been convicted and
sentenced by the court of the State. Therefore the
195. The Central Government division of legislative powers has already been
discussed in Chapter-Ill supra. The parliament has exclusive power to make laws
with respect to any matters enumerated in List I of Seventh Schedule i.e. Union
List and legislature of the State has power to make laws with respect to any
matters contained in the List-ll i.e. State List lastly in case of List III i.e.
Concurrent List both have power to make laws. The clause (1) of the Article 73
made it clear that executive power, so far as the concurrent list is concerned, will
rest with the State. It is only in exceptional cases that parliament may entrust the
administration of a law on a concurrent subject to the Union executive.
196. State of Madhya Pradesh v. Ajit Singh, Al R 1976 SC 1855.

237
Supreme Court quashed the orders of the Punjab High Court as it was the
State of Madhya Pradesh who was appropriate Government in this

198

In another case the Supreme Court once again reiterated and

reaffirmed the same law pronounced by the court itself in Ajit Singh's
199
case. Basically the facts of this case are that the respondent was
convicted and sentenced to imprisonment for life by a court in the State of
Madhya Pradesh. At his request he was transferred to a jail in the State of
Punjab, to which State he belonged. He applied to the Government of
Punjab that under the Punjab Jail Manual he is entitled to be released
since he had completed more than 20 years of imprisonment. The
application was sent to the Government of Madhya Pradesh, which
rejected it. In a writ petition filed by him the High Court of Punjab and
Haryana held that the State of Punjab was the appropriate authority to
release him and directed the State of Punjab to consider the matter. In
appeal filed by the State of Madhya Pradesh the Supreme Court looked
into the spirit of the Section 401 (Now Section 432) and held that:
"a perusal of this provision clearly reveals that the test to
determine the appropriate Government is to locate the State
where the accused was convicted and sentenced and the
Government of that State would be the appropriate
Government within the meaning of sec. 401 of the Code of
Criminal Procedure. Thus since the prisoner in the instant
case, was tried, convicted and sentenced in the State of
Madhya Pradesh, the State of Madhya Pradesh would be the
appropriate Government. To exercise the discretion for
remission of the sentence under sec. 401(1) of the Code of
Criminal Procedure. Thus since the prisoner in the instant
case was tried, convicted and sentenced in the State of
Madhya Pradesh the State of Madhya Pradesh would be the
appropriate Government to exercise the discretion for

197. Ibid.
198. State of Madhya Pradesh v. Rattan Singh, (1976) Supplement 1 SCR 552: AIR
1976 SC 1552.
199. Ajit Singh, supra note 196.

238
 remission of the sentence under s. 401(1) ofttie Code of
Criminal Procedure. '^°°

In another case the Supreme Court confronted with a bit different

201

question. Basically the facts of this case are that one Mr Vinay Kumar,
the husband of the deceased Asha and his mother Chliano Devi were
charged, convicted for the offence of burning alive the deceased and
sentenced to life Imprisonment on a complaint by Hanumant Dass the
father of the deceased by the Sessions Judge Gurdaspur, Punjab. The
offence was alleged to have been committed within the territorial limits of
the State of Himachal Pradesh, but on an application of the complainant
the case was transferred by an order of the Supreme Court inasmuch as
the accused were the brother-in-law and mother-in-law of a Judge of the
High Court of Himachal Pradesh. The question before the Supreme Court
was that since the offence was committed in Himachal Pradesh and the
matter was transferred from Himachal to the State of Punjab then which
State can be the 'appropriate Government' in such type of case. In this
case the Supreme Court followed its previous judgments and held that
"according to this section the appropriate Government is the Government
of the State of conviction and not the Government of the State where the
202

offence was committed."

In the year 2004 once again the same question arose before the
Supreme Court. In this case also the question was whether the
Governor of a particular State in exercise of clemency powers can grant
remission to prisoners convicted by courts outside the concerned State,
but undergoing sentences in its own State? The two High Courts whose
judgments were impugned in this case held In the affirmative. As

200. Rattan Singh, supra note 198 at 558.

201. Hanumant Dass v. Vinay Kumar, AIR 1982 SC 1052.
202. Id, at 1055.
203. Government ofAndhra Pradesh v. M. T. Khan, AIR 2004 SC 428.

239
matter of fact the facts of this case are that both of these persons were
punished for the offence punishable under Section 302 of the Indian Penal
Code, 1860 in the State of Madhya Pradesh and Maharashtra. Both of
them were punished with imprisonment for life in the concerned State by
the Sessions Judge and the Additional Session Judge respectively. After
some time they were transferred from their jails in the State to the jails in
the Andhra Pradesh. After undergoing the requisite sentence of 11 to 14
years they claimed a right to be released from jail on the basis of the fact
that other convicted persons had been released by the orders of the
Governors, hence they do have a right to be released from the jail
otherwise it will go against the spirit of Article 14 of our Constitution. They
challenged the General order of the Government of Andhra Pradesh which
granted remission to the prisoners punished by the courts situated inside
the State and expressly excluded the prisoners punished by the courts
outside the State of Andhra Pradesh. The High Court as mentioned above
accepted the contention of the prisoners. The Government of Andhra
Pradesh approached the Supreme Court against the orders of the High
Court.
The Supreme Court ruled that the High Court's judgment is
erroneous and needs to be set aside which was directed as well. The
Court further held that after serving the requisite sentence, the appropriate
Governments which according to us in the present case are States of
Madhya Pradesh and Maharashtra respectively, their cases shall be
considered by those two State Governments who shall take necessary
decision as to whether their release is permissible and desirable. The most
important part of the judgment was the para wherein the Supreme Court
dealt with the question of scope and ambit of pardoning power. In this
regard the Court ruled that:
.. to extend the benefit of clemency to a given case or
class of cases is a matter of policy and to do it for one or
some, they need not do it for all, as long there is no insidious

240
 OC\A
discrimination involved.

Thus the judgment made it clear that the power to grant pardon is
within the purview of judicial review but only in case of mala fide intentions
behind the exercise of the power.
Thus the term the appropriate government has satisfactorily been
defined by the Section 432 and interpreted by the Supreme Court. But still
in two cases the term appropriate government will work in accordance with
the Section 434 and 435. Under section 434 both the Central government
and the State Government are having concurrent powers to suspend, remit
or commute the death sentences. In other words the powers conferred by
sections 432 and 433 upon the State Government may, in the case of
sentences of death can also be exercised by the Central Government.
Thus in cases of death sentence the appropriate government will be the
central government alongwith the state government.
The section 435 of the code also clarifies the position of the
appropriate government. It imposes a restriction on the State Government
205

for exercising power under Sections 432 and 433 in certain cases. It
says that in cases of commission of certain offences, the State
Government before taking an action under sections 432 or 433 of the Code
shall first of all consult the Central Government. The offences the
punishment of which can be suspended, remitted or commuted only with
the prior consultation with the Central Government are:
1. Offences which were investigated by the Delhi Special Police
Establishment constituted under Delhi Special Police Establishment
Act, 1946 or by any other agency empowered to investigate under
any Central Act other than the Code of Criminal Procedure, 1973.
2. Offences that involves the misappropriation or destruction of or
damage to the property of the Central Government.

204. /d, at 431.

205. The Code of Criminal Procedure, supra note 10 s. 435.
241
3. Offence committed by a Central Government employee in discharge
of his duties.
The Section 435 of the code is basically a new provision made on
the recommendation of the Law Commission.^°® The Law commission
emphasised upon the insertion of this provision and said that:
It has been suggested that there are few types of cases
in which the Central Government is vitally concerned though
the offence is against a law relating to a matter to which the
executive power of the State Government extends and as
such the authority to suspend, remit or commute the sentence
is the State Government. Important instances are offences
investigated by the Delhi Special Police Establishment,
Offences involving misappropriation or destruction of, damage
to, Central Government property and offences committed by
Central Government Servants in the discharge of their official
duties. If the State chooses to take a lax view of these
offences and to exercise its powers of remission and
commutation unduly liberty, it is bound to create difficulties of
administration for the Central Government. We feel it desirable
that in such cases where the Central Government is obviously
concerned in the proper enforcement of the penal provisions,
including the execution of sentences awarded by Court, the
State Government should be required to exercise its powers of
remission and commutation only in consultation with Central
207
Government.
Thus the objective behind the enactment of this section has been
clarified in the recommendation of the Law Commission discussed above.
This section basically empowers the Central Government to apply its own
mind in cases of commission of an offence directly related to the central
Government. Hence in such a case the person cannot be released unless
the Central Government also suspends, remits or commutes the sentence
relating to an offence falling within its field.
ii. Imposition of Conditions and Violation thereof:
The section 432 (1) itself provides that the appropriate government

206. Law Commission of India, supra note 101 at 253.

207. Id., at 252-53.

242
may with or without conditions suspend the execution of the sentence or
remit the whole or any part of the punishment to which a person is
208

sentenced. This power is discretionary. But it can only be implemented

by the appropriate government if the prisoner accepts the conditions
imposed. As a matter of fact it is just like a contract between the
government and the prisoner. The government may impose the conditions
on the prisoner. The main conditions imposed by the Government are that
the prisoner after release will maintain peace and will not commit any
offence within a specific period of time. He may be asked not to leave a
particular territory and will report to a particular officer daily or monthly
during the period of time specified etc.
This is quite possible that the person released under Section 432
may violate the conditions imposed. For such type of cases the sub-
section (3) of Section 432 provides that if in the opinion of the appropriate
Government, a person who has been released on certain conditions under
this section fails or violates any condition then the Government concerned
may cancel the suspension or remission of sentence. Once the suspension
or remission has been cancelled the person may be arrested by any police
officer, without warrant. Thereafter he would have to undergo the
unexpired portion of the sentence.
209
The Penal Code contains the same law as contained in Section
432 (3) for the prosecution and the punishment of the person who violates
the condition imposed on him at the time of granting remission to such a
person. It provides:
Violation of condition of remission of punistiment.- Wlioever,
fiaving accepted any conditional remission of punishment,
knowingly violates any condition on which such remission was
granted, shall be punished with the punishment to which he
was originally sentenced, if he has already suffered no part of
that punishment, and if he has suffered any part of that

208. Sitabai v. State of Madtiya Pradesh, 1970 Cri. L.J. 2226 (MP).
209. Indian Penal Code, supra note 70.
243
 punishment, then with so much of that punishment as he has
210
not already suffered.
Thus this section also providers that if a person knowing the
conditions on which his sentence is remitted, violates it, he will come within
the purview of this section and the punishment under this section is the
original punishment or so much of it as has not been undergone. The
offence under this Section 227 is cognizable, non-bailable, non
compoundable and triable by a court competent to try the original
offence.^^^
On breach of any condition of the remission there is not an
automatic revival of the sentence. The Government is not under a legal
obligation to cancel the remission. It is only when the Government choose
to pass an order of cancellation of the remission of sentence that the
accused is arrested and required to serve the unexpired portion of the
sentence. During the interregnum the accused that is released cannot be
212

said to be under a sentence of imprisonment for life.

Whenever the Government cancels the remission thereafter the
person is required to be produced before the court of law because the
question of breach of condition on which remission was granted is to be
decided only by the court itself.^^^ The executive has no power to decide
whether the condition is broken by the person.^^'*
Thus, a prisoner may be released by the appropriate government by
passing the orders of suspension of remission of sentence with or without
conditions. In case the conditions are imposed the same shall be accepted
by the prisoner. If later the person so released violates any condition he

210. /d. Section 227.

211. The Code of Criminal Procedure, supra note 10 First Schedule.
212. Shakh Abdul Aziz v. State, AIR 1977 SC 1485 at 1487.
213. Jagdish Prashad v. Rex, A!R 1949 All 626.
214. Emperorv. Nga Po Miu, AIR 1933 Rang 28.

244
may be brought back to face a trial and if found guilty the court may order
him to serve the remaining period of original sentence in prison.
b. Power to Commute Sentences:
The Section 432 of the Code confers on the appropriate
Government the power to remit or suspend the sentence of a prisoner
whereas the next Section of the Code i.e. Section 433 confers upon the
same appropriate Government the power to commute the sentence. It
reads as under:
Power to commute sentence: Appropriate Government may,
without the consent of the person sentenced, commute-
(a) a sentence of death, for any other punishment provided the
Indian Penal Code,(45 of1860);
(b) a sentence of imprisonment for life, for punishment for a
term not exceeding fourteen years or for fine;
(c) a sentence of rigorous imprisonment, for simple
imprisonment for any term to which that person might have
been sentenced, or for fine;
(d) a sentence of simple imprisonment, for fine ^^^
Unlike Section 432 this Section provides that while exercising the
power under this section the government need not require to take the
consent of the person concerned whose sentence is to be commuted by
the Government.
The relief or benefit contained in Section 433 can never be claimed
as a matter of right. The language of this section clearly mandates that the
power conferred upon the appropriate Government is a discretionary
power to release prisoners prematurely. Even the High Court cannot direct
the State Government to commute the sentence of a person convicted for
life imprisonment, irrespective of the fact that he had already undergone
the mandatory minimum sentence. The Court can only ask the
Government to consider the premature release of the prisoner. The

215. The Code of Criminal Procedure, supra note 10 s. 433.

216. Unior) Territory of Chandigarh v. Charanjeet Kaur, (1996) 7 SCC 492 at 493; see
also State of Punjab v. Kesar Singh, AIR 1996 SC 2512.

245
order of the High Court issuing mandatory direction to the Government to
commute sentence and leaving no discretion or liberty with the
Government was held by the Supreme Court as 'not proper'.^^^ Even the
Supreme Court itself made a request instead of issuing direction to the
appropriate government to consider the case of an old person of 80 years
sympathetically, when an application for commutation of sentence will be
made by him.^^^

The power given to the appropriate Government is that of the

commutation only which means the Government can simply change the
character of the punishment by making it less severe. The Government
cannot order the release under this section. Section 433 (b) empowers the
appropriate Government to commute a sentence of imprisonment for life
'which in normal course is to end up with the last breath of convict'^^^ for
220
punishment to a lesser term but not less than 14 years or fine.
The exercise of the power to commute sentence are not to be
exercised by the Government as a matter of routine course. Although it is
a sweet will of the Government, but it is to be exercised reasonably,
221

rationally and with great circumspection It is compulsory to the

Government to exercise this power to commute sentence in accordance
222

with the rules and the established principles. This term established
principle may include the recommendations of the jail authorities for the
223
premature release of the pnsoner.

217. Delhi Administration v. Monoiiar Lai, AIR 2002 SC 3088 at 3091.

218. Dills V. State of Utter Pradesh, AIR 2002 SC 3387 at 3390.
219. Subhash ChanderM. Krishan Lai, AIR 2001 SC 1903 at 1909. In this case the
Supreme Court held that a prisoner sentenced to life imprisonment is bound in
law to serve his life term in prison.
220. Pavitar Singh v. Sfafe of Punjab, 1988 Cri. L.J. 1052 at 1053.
221. Monohar Lai, supra note 217 at 3091.
222. Sanaboina Satyanarayana v. Government of Andhra Pradesh, AIR 2003 SC
3074 at 3076.
223. Sukumar Singh v. State of West Bengal, 1997 Cri. L.J. 4341 (Cal.).

246
 Therefore it can be concluded that the appropriate government
possesses a discretionary power to commute a sentence passed by the
court of law. It is only the government who can exercise this power even
the court cannot direct the government to exercise this power.
c. Restriction on Power of Remission or Commutation:
The power of the appropriate Government to issue order under
Sections 432 and 433 is subject to the condition mentioned in Section 433-
A. The law contained in this section reads as under:
Restriction on powers of remission commutation in
certain cases: Notwithstanding anyttiing 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 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 had served at least fourteen
years of imprisonment.

The restriction of minimum imprisonment of fourteen years

imprisonment contained in this section was not there in the old code of
1898 as it is a new section. Even the new code was not having this
provision at the time of its enactment as this section was inserted in this
225
code in the year 1978 by the Criminal Law Amendment Act, 1978.
Basically the Joint Committee on the Indian Penal Code
(Amendment) Bill, 1972, had suggested the insertion of a proviso to
Section 57 of the Indian Penal Code, 1860, to the effect that a person who
has been sentenced to death and whose death sentence has been
commuted into that of life imprisonment and persons who have been
sentenced to life imprisonment for a capital offence should undergo actual
imprisonment of fourteen years in jail. Since the insertion of this provision
into the Penal Code was not proper as it is the Criminal Procedure Code

224. The Code of Criminal Procedure, supra note 10 s. 433-A.

225. Criminal Law amendment Act, 1978 (Act 45 of 1978) s. 32 (w. e. f. 18.12.1978).

247
where it should have been inserted, a new Section 433-A was inserted in
the Code.
A plain reading of Section 433-A of the Code simply says that the
cases where a sentence of imprisonment for life is imposed on 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 to one of imprisonment for life, such person cannot be
released from prison unless he has served at least fourteen years of
226

imprisonment. This section also makes it clear that such minimum

imprisonment notwithstanding anything contained in Section 432 which
means that the power to suspend or remit sentence under that Section
cannot be exercised so as to reduce the imprisonment of a person
convicted of such an offence or whose death sentence has been
commuted to life imprisonment for less than fourteen years. The Supreme
Court abruptly said held that the language of this section is clear and
227

unambiguous and does not call for extrinsic aid for its interpretation. The
Court held the Section 433-A as valid, and observed that the Government
cannot reduce or commute sentence to less than 14 years for weighty
228
reasons as the crime was serious.
The scope and applicability of this section has been examined
229
thoroughly at length by the Supreme Court in Maru Ram's Case. The
observations made by the Court on this Section 433-A are as follows:
1. Section 433-A was sternly woven, with virtual consensus, into the
punitive fabric obligating the actual detention in prison for full
fourteen years as a mandatory minimum in the two classes of cases
where the court could have punished the offender with death but did

226. Bhagirath v. Delhi Administration, (1985) 87 Bom. L. R. 460.

227. Ashok Kumar M. Union of India, 1991 Cri. L.J. 2483 at 2490.
228. Shidagauda Nilgappa Gtiandal<ar v. State of Kamataka, AIR 1981 SC 764:
(1981)Cri. LJ. 324.
229. Maru Ram v. Union of India, AIR 1980 SC 2147.
248
 not, or where the court did punish the culprit with death but he
survived through commutation to life imprisonment granted under
Section 433 (a) of the Procedure Code.^^° This act is not beyond the
control of the Parliament. Parliament can make law by virtue of Art.
246 (2) in respect of matters contained in List III Entry 2 of
Schedule 7.^^^
2. Section 433-A not only excludes 432, but subjects operation of
Section 433 (a) to serious restrictions and also excludes all contrary
prison rules. The obligation enjoined by Section 433-A is the actual
232
detention in prison for fourteen years as mandatory.
3. Section 433-A is not violative of Article 14 on the ground that it does
not distinguish between those prisoners who reform and who do

4. Section 433-A is not violative of Article 20(1) of the Constitution of

India on the Ground that it enlarges the punishment retrospectively.
The Supreme Court negated the plea as this section contravenes
Article 20(1) of the Constitution.^^"*
5. The Section 433-A is prospective and is not applicable to convictions
235

prior to the introduction of this section that means its applicability

is confined only to those cases where a person has been convicted
and sentenced by the Court after 18-12-1978 when Section 433-A
came into force.^^^
6. The Section 433-A cannot be invalidated as indirectly violative of 72

230. /d., at 2152.

231. /c/., at 2155.
232. Id., at 2176; see also Y. Dass v. State ofKarnataka, 1990 Cri. L.J. 234.
233. /£/., at2166.
234. /of., at 2174.
235. /d., at 2181.
236. Karan Singh v. State, 1982 Cri. L J . 2133 (MP); see also Jai Prakash v. State
(Delhi Administration), 1989 Cri. L.J. 1938.

249
 and 161 on ground that, it detracts from operation of Sections 432
and 433 (a) which are legislative surrogates, as it were, of pardon
power under Constitution. Two powers, one Constitutional and other
statutory, are co- extensive. Two things may be similar but not same.
Power which is creature of Code cannot be equated with the high
prerogative vested by Constitution in highest functionaries of Union
and States. Source is different, substance is different, strength is
different, although stream may be flowing alongwith same bed.^^^
7. The Section 433-A is valid and necessary as well. If deterrent
punishment is not restored, there will be complete chaos in entire
country and criminals will be let loose endangering the lives of
thousands of innocent people of our country.^^^
8. The power contained in Section 433-A shall be exercised by the
appropriate Government keeping in mind the legislative intent
expressed in this section.^"^^
9. Section 433-A cannot fetter the constitutional power of the President
(Union Council of Ministers) and the Governor of a State (Council of
Ministers of a State) under Articles 72 and 161 respectively to grant
full pardon even before the expiry of the statutory period prescribed
under Section 433-A. It was held that Section 433-A restricts the
appropriate government to exercise its powers under Section 432
Code of Criminal Procedure but cannot restrict the constitutional
power under Articles 72 and 161. Exercise of power under Section
433 Code of Criminal Procedure on the one hand and Articles 72
and 161 on the other is a distinction without a difference.
Thus to conclude it can be said that the appropriate government has

237. Maru Ram, supra note 229 at 2169.

238. /d, at 2180.
239. /d., at 2174.
240. /d, at 2181.
250
been empowered by the code of criminal procedure to exercise the power
to suspend, remit or commute a sentence. The early release basically
serves two purposes firstly the rehabilitation of the offender in the society
who may become a good citizen and secondly it reduces the numbers of
prisoners. But at the same time the restriction of fourteen years
imprisonment has rightly been imposed by the parliament. This minimum
imprisonment is necessary because the offences for which this restriction
works are basically the serious offences.
B. Power under the Penal Code:
The Indian Penal Code also contains the power to grant pardon. The
code confers the power to commute the sentence on the appropriate
government. This power can be exercised by the appropriate
241

government in two cases. Firstly this power can be exercised under

Section 54. This section provides that in all cases where a sentence of
death shall be passed, the appropriate Government may commute the
punishment for any other punishment provided by this Penal Code. It also
says that there is no need to take the consent of the offender for the
purpose of commutation of death sentence under this section. The Section
433 (a) of the Code of Criminal Procedure, 1973 also contains the same
provision.
The objects or the principles of this section have been explained

241. The expression 'appropriate Government' under the penal code has the same
meaning as that of the expression 'appropriate government' under section 432(7)
of the Code of Criminal Procedure, 1973. The Section 55A of the Indian Penal
Code, 1860 defines it in the following words:
Definition of "appropriate Government". - In sections fifty- four and fifty-
five the expression "appropriate Government" means,-
(a) in cases where the sentence is a sentence of death or is for an
offence against any law relating to a matter to which the executive
power of the Union extends, the Central Government; and
(b) in cases where the sentence (whether of death or not) is for an
offence against any law relating to a matter to which the executive
power of the State extends, the Government of the State within
which the offender is sentenced.
242. Indian Penal Code, supra note 70 s. 54.

251
very nicely by the framers of the Code. It was said that:
"It is evidently fit that the Government should be
empowered to commute the sentence of death for any other
punishment provided by the Code. It seems to us also very
desirable that the Government should have the power of
commuting perpetual transportation for perpetual
imprisonment. Many circumstances, of which the executive
authorities ought to be accurately informed, but which must
often be unknown to the ablest Judge, may, at particular
times, render it highly inconvenient to carry a sentence of
transportation into effect. The state of those remote provinces
of the Empire, in which convict settlements are established,
and the way in which the interest of those Provinces may be
affected by an addition to the convict population, are matters
which lie altogether out of the cognizance of the Tribunal by
which those sentences are passed, and which the
Government only is competent to decide.

With this intent the power to commute a sentence was conferred on

the appropriate government. The power under this section is similar to one
contained in section 433 of the Code of Criminal Procedure, 1973. The
question of commutation of death penalty either under Section 54 of the
Penal Code or under Section 433 of the Criminal Procedure Code arises
only after the death penalty is confirmed by the competent Court.
The Supreme Court of India while dealing with these provisions of
the Penal Code observed that in fact, the provisions under Section 54 and
55 of the Indian Penal Code have become redundant in view of the similar
provisions contained under Sections 432 and 433 of the Code of Criminal
Procedure, 1973 which empowers the appropriate Government (Central or
State) to commute, suspend, or remit sentences passed by the
Courts.^^^

243. Report of Second Indian Law Commission, Note A, Sections 511 and 512 at 95
quoted by Hari Singh Gaur, Penal Law of India 446, (Allahabad Law Publisher
(India) Pvt Ltd, Allahabad, 11* edn., 2006).
244. Rajeshwary. State, 1996 (1) Mah. L.J. 864.
245. Sanbha ji Krishan v. State of Maharastitra, (1974) 1 SCC 196.

252
 Beside these powers contained in Section 54 and Section 433 of the
penal code and the code of criminal procedure, there a few more
provisions that contain the same power. Section 416 of the code of
criminal procedure and Article 72 and 161 of the Constitution of India
contain the same power to commute a sentence of death. Under Section
416 it is the Court who will exercise this power. But under all other
provisions it is the same central or state executive who can exercise the
power to commute the sentence of death.
Beside Section 54 there is one more provision that confers the
power to commute a sentence on the appropriate government is Section-
55. But under this section this power can be exercised In cases of life
imprisonment. This section provides that in all cases where a sentence of
imprisonment for life shall have been passed, the appropriate
government^^® may commute the sentence for imprisonment for life for
imprisonment of any term not exceeding fourteen years. This power under
this section can be exercised by the Government concerned without the
consent of the offender. The only thing that shall be taken into
consideration by the Government is that the punishment substituted for
original punishment shall not exceed fourteen years.
So far as the scope and applicability of the Section is concerned it
has been held that Section 55 of the Code empowers the appropriate
Government to commute sentence of imprisonment of life for a term not
exceeding fourteen years. However, this provision does not mean that life
imprisonment is imprisonment of fourteen years and prisoner would be
automatically released after fourteen years. It is for the appropriate
Government to commute sentence.

The Supreme Court of India has held that in case where a convicted
person is imprisoned for life, he is not entitled to premature release as a

246. For details of expression "appropriate government" see supra note 241.
247. Lakhl v. State of Rajasthan, 1996 Cri. L.J. 2965 at 2967.

253
matter of right. The claim of the convict to have undergone rigorous
imprisonment for more than fourteen years does not entitle the convict to
be released in absence of any formal order of commutation passed by the
appropriate Government under Section 55 of Indian Penal Code, 1860 or
Section 433 (b), of the Code of Criminal Procedure, 1973.^"*®
The law under section 55 and section 432 is altogether different. A
distinction has been made between the powers conferred by Section 55 of
the Penal Code and those conferred by Section 432 of the Criminal
Procedure Code. If the accused, after he is imprisoned for life, has his
punishment commuted under Section 55 of the Code to imprisonment for
fourteen years, he cannot, upon his release, be regarded thereafter as
"being under sentence for imprisonment for life." But where the sentence of
imprisonment has been remitted under Section 432 of the Criminal
Procedure Code, the accused must be regarded as still "being under
249
sentence of imprisonment for life" after his release from jail.
Thus to conclude it can be said that the power to commute a
sentence can be exercised under various provisions by the central or state
government. Moreover the effect of exercise of this power under different
provision is almost the same. So far as the powers under Section 54 and
55 of the penal code are concerned they have become abundant. Even
the Supreme Court also found that the appropriate governments are not
using these provisions. The governments are exercising the power to
commute the sentence under the code of criminal procedure.
C. Power under Prisons Act:
The Prisons Act, 1894 also contains the provision for granting
pardon to the persons who are undergoing punishment in the jail. But this
Act directly does not contain the provision for the grant of pardon. It

248. Satpal v. State of Haryana, (1993) 1 Cri. L.J. 399 (SC) at 402; see also Naib
Singh v. State of Punjab, 1983 Cri. L.J. 1345 (SC) at 1356.
249. Po Kun v. The King, AIR 1939 Rang. 124.

254
confers the power on the State Government to make rules for shortening of
the sentence of the prisoner. The Section 59 of the Act reads as under:
Power to make rules.—The State Government may make
rules consistent with this Act—
(1) (5) for the award of marks and the shortening of
sentences; (21) for reward for good conduct.^^°

This Act came into force in the year 1894 hence it was necessary to
make certain changes in this Act. One of the changes made in this Act is
that in the provision dealing with the premature release of the prisoners i.e.
Section 59, the words "State Government" were substituted in the year
1937 for the words "The Governor General in Council may for any part of
British India, and each Local Government with the previous sanction of the
Governor General in Council may for the territories under its
administration. "^^^
This is the only amendment made in this Section. It is clear from the
language of the Act contained in this section that the State Government
may make rule for the premature release of the prisoner but it is not a
compulsion to do so. In pursuance of the power conferred by this Act all
States have either made or adopted the prison or jail rules or manuals. For
example in Himachal Pradesh the Government made rules for temporarily
release of prisoners on the basis of their good behaviour and it provides
that at the time of computation of the period of imprisonment the period
252
during which the prisoner was released shall be included.
Similarly some of the States have adopted the Act along with some
amendments e.g. Assam, Andhra Pradesh, Bombay etc. Thus presently all
States are having their own jail manual or prison rules providing for the
shortening of sentence, furlough and release of prisoner on parole etc.
Under these rules there are as many as the following three types of reliefs

250. Prison Act, 1894 (Act 9 of 1894), s. 59 (5) and (21).

251. Government of India (Adaption of Indian Laws) Order, 1937.
252. H. P. Good Conduct Prison (Temporary Release) Act, 1968 (Act 12 of 1969).
255
that can be awarded to a prisoner:
a. Remission by Good Conduct
b. Furlough
c. Parole
A prisoner may earn remission himself as well. He can earn it by
living a disciplined life in the prison. In other words if he will prove by his
good conduct that his behaviour has changed then he will be entitled as a
matter of right to the remission. But such remissions were to be taken into
account only towards the end of the term.^^^ That means if a person
earned 30 days remission he will be entitled to be released one month
before the expiry of his term of imprisonment.
This pardon is purely based on the scientific methods and is one of
the treatment measures which has never been questioned. The reason
behind the same is that a person will be entitled for relief under this
provision only if he will prove himself inside the prison by following the
norms laid down for their conduct.
This remission is altogether a different law than that under the
Constitution or the Code of Criminal Procedure. The remission over here is
a matter of right and it can be earned by the prisoner whereas the
remission under the constitution and the code is a matter of discretion of
the authority only.
Beside remission a prisoner may also be released on furlough. This
is granted to a prisoner periodically irrespective of any reason merely with
a view to enabling him to have family association and to keep up family
254

and social ties and avoid ill-effect of continuous prison life. The period of
furlough is treated as remission of sentence. That means the period spent
on furlough is treated as a period spent in prison.

253. Gopal Vinayak Godse, supra note 187.

254. State of Maharashtra v. Suresh Pandurang Darvekar, AIR 2006 SC 2471.

256
 Therefore a prisoner can be released on furlough if it is necessary
for him to go there in order to fulfill his moral or social ties. It is for this
reason that the application of a prisoner for release on furlough has to be
considered on merit and cannot be rejected at the threshold.^^^ Moreover
the authority while granting furlough is not bound to furnish the reasons.^^®
But release on furlough cannot be said to be an absolute right of the
prisoner. It is subject to the conditions mentioned in the concerned rules to
which he is subject. For example the authority may ask the prisoner to
furnish surety as per the rules. Or the rules may make it mandatory that
unless the prisoner has a relative willing to receive him while on furlough
and such a relative enters into a surety bond, he shall not be granted
257

furlough. It can also be denied in the interest of the society such as on

the ground of law and order in the society shall not be disturb.
Thus a prisoner may be permitted to go outside the prison on
furlough. It is granted only for enabling the prisoner to fulfill his social or
moral obligations such as to attend the marriage of his sister etc. The
period spent on furlough is counted as remission. Although unlike the
remission earned in prison the release of a prisoner on furlough is not a
matter of right, but at the same time the authority cannot reject the
application at the threshold.
The last but not the least authority of the Government to release a
prisoner is under the law of parole. Basically 'parole is the release from
penal or reformative institution, of an offender who remains under the
control of correctional authorities, in an attempt to find out whether he is fit
to live in the free society without supervision.^^^ Therefore under the parole
system the prisoner is released from prison and is permitted to live in the

255. Bhikhabhai Devshi v. State of Gujarat, AlR 1987 Guj 136.

256. Suresfi Pandurang Darvekar, supra note 254.
257. Prison (Bombay Furlough and Parole) Rules, 1959, Rule 6.
258. J.L. Gillin, Criminology and Penology 339, Greenwood Press, New York, USA,
3"^ edn).
257
society and he remains there under the control of the authorities. But
parole is altogether different from probation. Probation is the first stage of
correctional scheme whereas the parole is the final stage. Although the
basic object of both of these measures is the same that is the rehabilitation
of the offender in normal society.
The judiciary in our country is of the opinion that the prisoners who
are in jail for a very long durafion must be released on parole. The Apex
Court itself highlighted the need of paroling out the long term prisoners
periodically for reasonable spells, subject to sufficient safeguards ensuring
259

their proper behaviour outside and prompt return inside. The court also
stressed upon the desirability of release of long term prisoners on parole at
regular intervals so that they are not totally cut off from the society.^^° It
was also observed that in order to check recidivism the penological
innovation in the shape of parole is necessary.^®^
Basically the main object of the release of an inmate is to enable him
to maintain continuity with his family and to save him from the effect of
continuous prison life and to enable him to retain self-confidence and
acfive interest in life.^^^ But it is not so that by releasing a prisoner on
parole it is only be the prisoner who will be benefited, but the state will also
be benefitted from if the release will result in a success.
Thus to conclude it can be said that the prison Act, 1894 simply
empowers the State Governments to enact the rules and regulations for
the release of the prisoners on remission, furlough or parole. The State
Governments may make rules for these purposes. As a matter of fact the
different states have exercised the power under this Act.

259. Hiralal Mallick v. State of Bihar, AIR 1977 SC 2236.

260. Dharamvir v. State of Utter Pradesfi, 1979 (3) SCC 645.
261. Surest! Chandra v. State of Gujarat, 1976 (1) SCC 654.
262. Bhikhabhai Devshi, supra note 255.

258
4. Power of Armed Forces to Grant Pardon:
There are as many as five legislations passed by the Parliament of
India that provide for the power to grant pardon to be exercised by the
officers of the armed forces. All these special legislations basically deal
with the laws of the armed forces of the Union. The laws relating to armed
forces that also contain the power to grant pardon are as follows:
A. Army Act, 1950.
B. Air Force Act, 1950.
C. Navy Act, 1957.
D National Security Guard Act, 1986.
E Indo -Tibetan Border Police Force Act, 1992.
The law pertaining to the power to grant pardon contained in all of
these Acts has been discussed hereunder:
A. Power under Army Act:
The Chapter XIV of the Army Act contains the provisions of pardon
remission and suspensions under the Act. The Sections 179 and 180 of
the Army Act, 1950 contains the law concerning the grant of pardon,
remission and cancellation thereof. The Section 179 provides for the power
to grant pardon remission, commutation, suspension and release on parole
and whereas the Section 180 of the Act provides for the cancellation
of conditional pardon, remission or release on parole granted to an
offender under the Section 179 of the Act.
Section 179 confers the power to grant pardon, remission etc. upon
three authorities namely the Central Government or the Chief of Army
Staff^^^ or the officer commanding the army corps, division or independent
brigade. The power under this Section can be exercised by the first two
authorities when any person subject to this

263. The words "Chief of the Army Staff' substituted for "Commander in Chief by the
Commander in Chief (Change in Designation) Act, 1955 (Act 19 of 1955),
Section 2 (w.e.f 07.05.1955).

259
Act^^'* has been punished for any offence^®^ by a court martial.^^® Whereas
the third authority i.e. the officer commanding the corps etc. can exercise
the power only in case the person subject to this act has been punished by
a court martial in case of an offence which the officer could have confirmed
or which did not require confirmation. All of these authorities while
exercising the power under this section can issue any of the following
orders:
1. The person convicted may be pardoned with or without conditions or
the whole or any part of the punishment may be remitted; or
2. The punishment awarded may be mitigated; or
3. The punishment may be commuted to a lesser punishment
mentioned in the Act. But this power is subject to one condition that
a sentence of transportation shall never be commuted for a term
exceeding the term of transportation awarded by the Court; or
4. The person may be released on parole either with or without
condition. In case conditions were imposed the person to be
released shall accept the conditions.
The Army Act is a self-contained code.^®^ It has been held that the
person convicted under the Army Act in a court martial shall not
immediately approach the High Court in a writ petition for challenging the
orders especially when the findings and sentence by the court martial were
subject to confirmation under Section 154 of the Army Act and the same
were not yet promulgated. The writ petition shall be premature in view of
further remedy under Section 179 for pardon and remission under the
Army Act.^^^ Remission envisaged under Section 179 of the Army Act and
Sections 432 and 433 of the Code of Criminal Procedure readwith the

264. Army Act, 1950 (46 of 1950), Section 2 (1) defines the term 'subject to this Act".
265. Id., s. 3 (xvii).
266. For definition of the expression "Court IVIartial" see, supra Chapter III.
267. Virender KumarM. Chief of Army Staff, 1986 Cri. L.J. 848 (SC).
268. A.K. Handa v. Union of India, 1988 Cri. L.J. 597 at 603.

260
relevant provision of the Constitution are of entirely different nature from
the normal remission under the jail manual. The normal remission under
the jail manual is a matter of right and the approval of the Central
Government is not necessarily required. The case where the prisoner is
sent to open air jail and he earned the normal remission for good conduct
during that period but the same was not entered into his history ticket on
ground that approval of central was required. It was held that the remission
was a matter of right and the approval of central Government was not
required at all.^^^
A pardon received under the Army Act may be cancelled. The
Section 180 of the Army Act provides for the cancellation of an order of
pardon, remission etc. issued under section 179 of the Act. This section
provides that whenever an order of pardon, release or remission has been
issued under Section 179 by the authorities mentioned therein, in favour of
the convict alongwith certain conditions accepted by him and in the opinion
of the authority who issued the order the person so pardoned failed to fulfill
the conditions, such authority may cancel the orders of pardon etc.
Whenever the pardon etc. has been cancelled the sentence passed by the
Court has to be carried out into effect in the manner as if such pardon etc.
had never been granted. This section 180 further provides that where a
person whose sentence of transportation or imprisonment has been
carried out after the cancellation of the pardon, shall not be kept behind
bars for a period more than the unexpired portion of his sentence.
Beside the power contained in Section 179 the Act provides for the
exercise of one more power. The Section 182 of the Act provides for the
power to suspend a sentence. This section confers the power to suspend a
sentence upon the Central Government, the Chief of Army Staff or any

269. State of Himachal Pradesh v. A. K. Rana, 1989 Cri. L.J. NOC 58 (HP): (1989) 1
Sim. LC. 136 (HP).

261
officer empowered to convene a general or summary general court martial.
The authorities mentioned above may exercise the power to suspend a
sentence when a person subject to this Act^^° has been sentenced to
transportation or imprisonment. Such authority may in case of offenders so
sentenced issue the direction to the effect that the offender shall not be
committed to prison or military custody until the orders of the authority
itself. The power under this section may be exercised in case of any such
sentence which has been confirmed, reduced or commuted.
By virtue of Section 183 of the Act cases where the sentence
mentioned herein above is imposed by a court martial other than a
summary court martial, the confirming officer may, at the time of
confirmation of the sentence, issue a direction to the effect that the
offender shall not be committed to prison or military custody until the
orders of the authorities mentioned in Section 181 has been obtained.
Whereas in case of a sentence of imprisonment imposed by a summary
court martial, the officer holding the trial or the officer authorised to
approve the sentence may make the same direction that the offender shall
271
not be taken to the custody until the orders are obtained.
Thus it can be concluded that the Army Act provides the power to
grant pardon, remission, commutation, suspension of sentence and
release on parole. The authorities mentioned in the Act can exercise these
powers independently. Unlike the power of the President there is no
provision in the Act that binds the authority to receive advice from any
authority. At the same time there is no provision that provides for any
guidelines for the exercise of these powers.
B. Power under other Acts:
272
There are as many as four more Acts dealing with the Air force,

270. Army Act, supra note 264 Section 2 (1).

271. /d., Section 183.
272. Air Force Act, 1950 (45 of 1950), Section 177

262
Navy,^^^ National Security Guards,^^'* Indo-Tibetan Border Police Force^^^
that contain the power to grant pardon. The law of pardon contained in all
of these Acts works on the same lines as it is in case of the Army act. In
other words the same law of pardon is contained in all five Acts dealing
with armed forces. The nature, extent and scope of the powers contained
in these Acts are same.
Thus to conclude it can be said that in case a person has been
punished by a court martial under any of the five laws of the armed forces
he can receive pardon or commutation etc. under different laws. First of all
he can approach the authority mentioned in the Act to which he is subject.
If he fails to get a relief then he may approach the President of India under
the Constitution. He may also get a relief under Section 432 or 433 of the
Code of Criminal Procedure and lastly he may also earn the remission in
jail.
5. Conclusion:
To conclude it can be said that the power to grant pardon in India is
not only the subject matter of the Constitution of India but it can be found in
various other statutes as well. The power is being exercised by different
authorities on behalf of the sovereign. The power generally can be
exercised by the Government but under the laws for the armed forces it
can be exercised by the authorities working in the forces itself and the
courts are also enjoying the same powers but with a different purpose i.e.
in order to bring the criminal to justice or to rehabilitate the first offender.
All of these powers except that of judiciary are being exercise without any
statutory guidelines.
In a nutshell it can be said that if a person commits an offence he
may approach the authority for pardon under different statutes. For

273. Navy Act, 1957 (62 of 1957), s. 163.

274. National Security Guard Act, 1986 (47 of 1986), Chapter IX, s. 124.
275. Indo-Tibetan Border Police Force Act, 1992 (Act 35 of 1992), s.142.

263
example he may become approver, secondly, he may seek a probation at
the time of punishment by the court of law, thirdly he may approach
Governor under the Constitution of India, thereafter if the sentence
awarded to him is that of death then he may approach the President as
well. He may also ask for pardon under Section 432 or 433 of the Code of
Criminal Procedure or Section 54 or 55 of the Indian Penal Code.
To conclude it can be said that the Government possesses this
power under so many different statutes. These powers can be exercised
by the Government at different stages. It basically helps the offender who
may get relief under one or the other statutes.

264