Which is the "appropriate government" empowered to remit/ suspend sentence in criminal cases? Madras High Court answers

Which is the "appropriate government" empowered to remit/ suspend sentence in criminal cases? Madras High Court answers

The Court passed the ruling in view of the confusion often encountered when leave petitions are submitted by prisoners convicted under laws over which both the Centre and the State exercise executive power.

Justice Anand Venkatesh, Madras High Court

Meera Emmanuel

Published on : 12 Mar, 2021 , 9:22 am

The State government is the "appropriate government" ordinarily empowered to suspend or remit sentences imposed on criminal convicts under Section 432 (power to suspend or remit sentences) of the Code of Criminal Procedure (CrPC), the Madras High Court ruled on Thursday, while maintaining that there are certain exceptions to the same (B Salma Mahajabeen v. Govt of Tamil Nadu).

Justice N Anand Venkatesh of High Court passed a detailed ruling clarifying various aspects surrounding the power of remission in view of the confusion often encountered by jail authorities when leave petitions are submitted by prisoners convicted under laws that fall under the executive power of the Union and also to which the executive power of the State extends.

The Court concluded that where the offender has been convicted of offences, where the executive powers of both the Centre and the State come into play, the Central, as well as the State Government, will be the "appropriate governments" to remit or suspend the sentence.

"Section 435(2) Cr.P.C., takes care of such situations by directing that an order of suspension, remission or commutation passed by a State Government shall not have effect unless a similar order is passed by the Central Government", the Court pointed out.

On how "appropriate government" under Section 432, CrPC is determined

The question of which government is empowered to remit or suspend a sentence under Section 432, CrPC hinges upon which level of government i.e. Central or State had executive power over the offence committed by the convict, the Court said.

As per Article 53 of the Constitution, the executive power of the Union vests in the President and is exercised by him either directly or through officers subordinate to him. Article 154 lays down that the executive power of the State vests in the Governor and is exercised by him either directly or through officers subordinate to him, the Court explained.

The question of which level of government exercises executive power, in turn, depended on which List of Schedule VII of the Constitution, the law dealing with the offence lay in.

List I deals with subjects over which the Centre can make laws on (Union List), List II deals with subjects over which the State can legislate (State List) and List III deals with subjects on which both the Centre and State can legislate (Concurrent List).

"The default position... is that the executive power of the Union shall not extend to any of the matters in List II or List III, save a provision to the contrary is expressly provided in the Constitution or by any law made by Parliament," Justice Venkatesh found, upon a perusal of various case laws and Constitutional provisions.

In other words, the executive power of the Union government would extend only to matters found in List I ordinarily, unless a law or a Constitutional provision extends the Centre's executive powers to a subject in List III.

On the other hand, the executive power of the State would extend to all matters prescribed in Lists II and III, except where this power is limited by the Constitution or any law made by Parliament (as per the proviso to Article 162).

Criminal law, which would include the Indian Penal Code (IPC), falls under List III of the Constitution under Entry 1. Therefore, the State would ordinarily exercise executive power over such matters.

In arriving at this finding, the Court also dispelled that the prevailing fallacy that the “appropriate government” under Section 432, CrPC, must be reckoned with reference to the legislature that passed the law. If this assumption holds true, the "appropriate government" for all IPC offences would be the Central government, since it is a Central law.

Emphasising that this assumption is incorrect, the Court relied on the Union of India v. V. Sriharan case to reiterate that "This is not only against the express language of Article 73(1) (extent of executive power of the Union) but would completely overburden the Central Government."

The exceptions where the Union exercises executive power over criminal cases

The Court opined that the executive power of the Central government would only extend in criminal cases only in certain instances, i.e. where

the offence is tied to a subject matter in List 1of Schedule VII of the Constitution, or  the offence falls under one of the categories listed in Section 435 (1), CrPC, which requires that the State government consult with the Central government before granting remission or commutation of sentence.

The cases falling under the categories listed in Section 435, CrPC are:

where the offence was investigated by the CBI under the Delhi Special Police Establishment Act, 1946 or any other agency under a Central Act other than the CrPC;

where the offence involves misappropriation, or destruction of, or damage to any property belonging to the Central Government; and

where the offence was committed by a person in the service of the Central Government while acting or purporting to act in discharge of his official duty.

In V Sriharan's case, the Supreme Court has clarified that the State must obtain the concurrence of the Centre before it can commute or remit the sentence where the case falls under Section 435, CrPC,

In summary, the Court has culled out the following guiding principles:

Criminal law, being a matter falling within the net of Entry I of List III of Schedule VII of the Constitution, the executive power of the State would ordinarily extend to suspend or remit sentences for offences under all criminal laws. The "appropriate government" would be the State Government under Section 432(7)(b) CrPC.

An exception to the above rule is where an offence is in respect of a law the source of which is traceable to Entry 93 and any of the other entries in List I of Schedule VII of the Constitution in which case it is the Executive power of the Union which would extend and the appropriate Government would be the Central Government under Section 432(7)(a) CrPC.

Where the sentence is one of death, the powers conferred on the State Government under Section 432/433 CrPC, may also be exercised by the Central Government (Section 434 CrPC which deals with concurrent power of Central Government in case of death sentences).

For cases falling within the categories set out in Section 435(1) CrPC, the powers conferred on the State Government to remit or commute a sentence shall not be exercised except after obtaining the concurrence of the Central Government; and

Where the offender is sentenced to two different counts, one under a law referable to List I and the other referable to Entry I of List III, then the Central as well as the State Government will be the appropriate governments. Section 435(2) Cr.P.C., takes care of such situations by directing that an order of suspension, remission or commutation passed by a State Government shall not have effect unless a similar order is passed by the Central Government.

Advocates BA Sujay Prasanna, V Lakshmi Narayanan, Sharath Chandran and Additional Public Prosecutor M Mohammad Riyaz assisted the Court as amicus curiae in the matter.