"A copy of this judgment shall be forwarded to NALSA which in turn will forward the same to the Legal Service Authorities of the States and Union Territories to enable them to monitor implementation of the directions issued..." referring to the 21-page long judgement dated February 18, 2025 by Justices Abhay S. Oka and Ujjal Bhuyan In Re: Policy Strategy for Grant of Bail, a suo motu writ petition. It was heard along with a Special Leave Petition. Other issues will be considered on the dates already fixed.
The provisions under Section 432 of the Code of Criminal Procedure, 1973 (CrPC) and Section 473 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) deal with remission of the sentence of the convicts. Both CrPC and BNSS have substantial similarity.
It noted that appropriate Government has the power of remitting the whole or part of the punishment to which an accused has been sentenced with or without conditions. There is also a power vested in the appropriate Government to suspend the execution of the sentence.
The judgement is confined to the power to remit the whole or part of the sentence.
It is noteworthy that the power under Section 432 of the CrPC is circumscribed by Section 433-A. It provides that where a sentence of imprisonment for life is imposed on conviction of a person for an offence for which death is one of the punishments provided or where a sentence of death imposed on a person has been commuted under Section 433 into one of imprisonment for life, the appropriate Government cannot grant remission unless the convict has served at least fourteen years of actual imprisonment. There is an identical provision in Section 475 of the BNSS. This is an embargo on the power of the appropriate Government under Section 432 of the CrPC.
In addition to the power under Section 432 of the CrPC, there is a power vesting in the appropriate Government under Section 433 of the CrPC to commute the sentence. There is a similar power under Section 474 of the BNSS. Commuting a sentence is independent of the power to remit a sentence.
The Court did not deal with the power to commute sentences.
The Court pointed out that the power of the President of India under Article 72 of the Constitution of India and power of the Governor under Article 161 of the Constitution to grant pardon, commute the sentence, or remit the sentence remains unaffected by Section 433-A of the CrPC or Section 475 of the BNSS.
The Court examined whether the power to grant remission can be exercised without the convict or anyone on behalf of the convict applying to the appropriate Government for a grant of remission. It examined the nature of conditions imposed while granting remission. It also examined whether there can be automatic revocation of remission granted to the convict if he commits a breach of the terms and conditions on which remission is granted. Lastly, another question is whether there is a requirement to record reasons while rejecting applications of the convicts for grant of permanent remission.
The Court observed:"The power under Section 432(1) must be exercised in a fair and reasonable manner. Therefore, whenever there is a policy for consideration of cases for permanent remission, it becomes an obligation of the State to consider cases of every eligible convict under the policy."
Notably, the National Legal Services Authority (NALSA) has formulated a Standard Operating Procedure on legal assistance, operationalisation, and co-ordination in improving the process of premature release, parole, furlough of prisoners, 2022 (SOP). The SOP has been formulated as per the directions issued by this Court in Special Leave Petition (Crl.) No. 4358-59 of 2021 in the case of Kadir v State of Uttar Pradesh. The SOP contemplates prison superintendents of all the prisons preparing a list of all life convicts and other convicts who will be entitled to be considered for premature release in immediate four months as per the eligibility provided under the state policy. It is thus apparent that after the preparation of a list of all life convicts and other convicts who will be entitled to be considered for premature release, the said list must be regularly forwarded by the prison superintendents to the appropriate Government so that the case of premature release of such convicts is considered by the appropriate Government.
The SOP provides for appointing an advocate for the purposes of challenging the order refusing to grant permanent remission.
The Court has asked NALSA to consider incorporating in the SOP the requirement of bringing to the notice of the convict the fact that the convicts have the liberty to challenge the order of rejection of grant of premature release.
It observed that the power under Section 432 of the CrPC is to be exercised in a fair and reasonable manner. If there is neither a policy nor any Regulations for exercising the power under Section 432 of the CrPC, there is a possibility that the authorities will not exercise their power in a fair and rational manner. The Court's direction reads: "To ensure that the power is not exercised in an arbitrary manner, all the states that do not have an exhaustive policy on this aspect must come up with an exhaustive policy within two months from today. It can be either a separate policy or it can be incorporated into the prison manuals."
Under of Section 432 (3) CrPC and Section 473 (3) BNSS, there is a power vesting in the appropriate Government to cancel the remission. The cancellation can be only on the grounds of the breach of the terms and conditions on which the remission is granted.
The Court observed:"The power to grant premature release must be exercised in a fair and reasonable manner. It affects the convict’s liberty guaranteed under Article 21 of the Constitution. Therefore, the requirement of recording reasons either for granting or rejecting the prayer for permanent remission will have to be read into the provisions of Section 432 of the CrPC and Section 473 of the BNSS. Principles of natural justice must be read into the provisions of Section 432 of the CrPC. In any case, in the case of Bilkis Yakub Rasool v. Union of India (2024) 5 SCC 481 in paragraph 222.8, this Court held that the reasons for grant or refusal of remission should be clearly delineated in the order. Therefore, the requirement to record reasons exists. Brief reasons must be recorded, which are sufficient to enable the convict to understand why his prayer for remission has been rejected. This enables him to challenge the order of rejection. Furthermore, it follows that the order passed by the appropriate Government of either granting or rejecting the prayer for remission must be communicated to the convict. If the prayer is refused, while providing a copy of the order to the convict, he must be informed that he has a right to challenge the order. A copy of the order rejecting the prayer must be immediately provided to the Secretary of the District Legal Services Authority so that legal aid can be offered to the prisoner to challenge the order."
The judgement reads:"The SOP issued by NALSA on the subject of premature release is very exhaustive and needs to be implemented in its true letter and spirit. More often than not, we have noticed that the convicts whose prayer for premature release is rejected are not well informed. Writ petitions are being filed in this court wherein either the facts are not fully stated, or there is suppression of facts. The reason is that most of the convicts are placed in such a position that they find it difficult to give correct information to their advocates. Clause 4.3 of the NALSA SOP is of utmost importance and needs strict implementation. "
The Court's direction reads: "When the Presiding officer's opinion is sought as per SubSections (2) of Section 432 of the CrPC and Section 473 of the BNNS, the Presiding Officer must submit his opinion at the earliest considering the fact that the issue of liberty of the convict is involved." The judgement was authored by Justice Oka.
The Court concluded:a) Where there is a policy of the appropriate Government laying down guidelines for consideration of the grant of premature release under Section 432 of the CrPC or Section 473 of the BNSS, it is the obligation of the appropriate Government to consider cases of all convicts for grant of premature release as and when they become eligible for consideration in terms of the policy. In such a case, it is not necessary for the convict or his relatives to make a specific application for grant of permanent remission. When the jail manual or any other departmental instruction issued by the appropriate Government contains such policy guidelines, the aforesaid direction will apply;
b) We direct those States and Union Territories that do not have a policy dealing with the grant of remission in terms of Section 432 of the CrPC or Section 473 of the BNSS to formulate a policy within two months from today;
c) Appropriate Government has the power to incorporate suitable conditions in an order granting permanent remission. Consideration of various factors, which are mentioned in the paragraph 13 above by way of illustration, is necessary before finalizing the conditions. The conditions must aim at ensuring that the criminal tendencies, if any, of the convict remain in check and that the convict rehabilitates himself in the society. The conditions should not be so oppressive or stringent that the convict is not able to take advantage of the order granting permanent remission. The conditions cannot be vague and should be capable of being performed;
d) Order granting or refusing the relief of permanent remission must contain brief reasons. The order containing reasons should be immediately communicated to the convict through the office of the concerned prison. The copies thereof should be forwarded to the Secretaries of the concerned District Legal Services Authorities. It is the duty of the prison authorities to inform the convict that he has the right to challenge the order of rejection of the prayer for the grant of remission.
e) As held in the case of Mafabhai Motibhai Sagar, an order granting permanent remission cannot be withdrawn or cancelled without giving an opportunity of being heard to the convict. An order of cancellation of permanent remission must contain brief reasons;
f) The District Legal Services Authorities shall endeavour to implement NALSA SOP in its true letter and spirit.
g) Further, the District Legal Services Authorities shall also monitor implementation of conclusion (a) as recorded above. For this purpose, the District Legal Services Authorities shall maintain the relevant date of the convicts and as and when they become eligible to a consideration for grant of premature release, they shall do the needful in terms of conclusion (a). The State Legal Services Authorities shall endeavour to create a portal on which the data as aforesaid can be uploaded on real time basis.
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