State can't, but Governor can release lifers before they spent 14 years in jail: Supreme Court

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NEW DELHI: In an interesting contrasting interpretation of powers for premature release of lifers, the Supreme Court on Tuesday said state governments have no power under the criminal procedure code to release a person sentenced to life imprisonment prior to undergoing a minimum 14 years jail term.
However, the Governor using his powers under Article 161 of the Constitution can remit the sentence of a lifer even prior to serving 14 years in prison, said a bench of Justices Hemant Gupta and A S Bopanna. The bench immediately clarified that the Governor could exercise his remission powers under Article 161 only on the aid and advice of the council of ministers headed by the chief minister.
This leads to the conclusion that the state government, if it wants to remit the sentence of a lifer after he serves a jail term of 14 years, would take resort to Section 432 of the crpc, but if it wants to release the lifer prior to serving the 14 year period in jail, then it would use the remission powers conferred on the Governor by advising him accordingly.
Writing the judgment, Justice Gupta said, "the power to release a prisoner after serving 14 years of actual imprisonment is vested with the state government. On the other hand, the power conferred on the Governor, though exercised on the aid and advice of the State, is without any restriction of the actual period of imprisonment undergone by the prisoner. "
"Thus, if a prisoner has undergone more than 14 years of actual imprisonment, the state government, as an appropriate Government, is competent to pass an order of premature release, but if the prisoner has not undergone 14 years or more of actual imprisonment, the Governor has a power to grant pardons, reprieves, respites and remissions of punishment or to suspend, remit or commute the sentence of any person de hors the restrictions imposed under Section 433-A of the Constitution. Such power is in exercise of the power of the sovereign, though the Governor is bound to act on the aid and advice of the State Government," the bench said.
Setting aside the Punjab and Haryana HC's direction to the Haryana government to frame guidelines for exercise of remission powers by the Governor, the SC said the power under Article 161 of the Constitution can be exercised by the state governments through the Governor but not by the Governor on his own. A general grant of remission of sentence to prisoners can be issued by the state government through the Governor, the bench said.
"No separate order for each individual case is necessary but any general order made must be clear enough to identify the group of cases and indicate the application of mind to the whole group. Therefore, the policies of the State Government are composite policies encompassing both situations under Article 161 of the Constitution and Sections 432, 433 and 433-A of the Code. The remission under Article 161 of the Constitution will override Section 433-A of the Code, if the State Government decides to be governed of its constitutional power," the SC said.
The bench said, "Thus, a prisoner has to undergo a minimum period of imprisonment of 14 years without remission in the case of an offence, the conviction of which carries death sentence, to take benefit of policy of remission framed by an appropriate government under Section 432 of the CrPC in view of the overriding provision of Section 433-A of the Code."
"However, the power of the Governor to commute a sentence or to pardon is independent of any such restriction or limitation. The state government can frame a policy of grant of remissions either under Section 432 of the CrPC or under Article 161 of the Constitution. The Governor continues to exercise the power of commutation and release under Article 161 of the Constitution, notwithstanding Section 433-A of the CrPC. The action of commutation and release can thus be pursuant to a governmental decision and the order may be issued even without the Governor's approval," it said.


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