The Madras High Court on Thursday, while maintaining that there are exceptions, ruled that 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).
A single-judge bench of Justice N. Anand Venkatesh passed this order while hearing a Writ Petition filed by B. Salma Mahajabeen.
The accused has also been convicted and sentenced under Sections 3,4 (b), 5 and 6 of the Explosive Substances Act, 1908 and Sections 3 and 25 (1-B)(a) of the Arms Act, 1959. The executive power in respect of offences under these two enactments is directly traceable to Entry 5 read with Entry 93 of List I of Schedule VII to the Constitution with the result that the Central Government would be the appropriate Government for grant of suspension of sentence or remission in respect of these offences.
The Writ Petition has been filed for the issue of a writ of mandamus directing the respondents to grant emergency leave to the husband of the petitioner, who is a life convict, on the ground that the marriage of their son is going to be held on January 31, 2021.
The Counsel for the petitioner submitted that there was some urgency in the present case and hence a writ petition has been directly filed before this Court without giving any representation to the 4th respondent.
The Counsel further submitted that the petitioner is seeking for an emergency leave under Rule 6 and 7 of the Tamil Nadu Suspension of Sentence Rules, 1982, in order to enable her husband, who is a life convict to conduct the marriage of his son, which is fixed to be held on January 31, 2021.
The Additional Public Prosecutor appearing on behalf of the respondents submitted that as and when a representation is received in this regard, the same will be considered in accordance with law.
The Additional Public Prosecutor further submitted that such a leave cannot be granted without the permission of the State Government. For this purpose, the Additional Public Prosecutor relied upon the circular issued by the ADGP dated July 24, 2018.
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.
“Article 53 of the Constitution declares that the executive power of the Union shall vest in the President and shall be exercised by him either directly or through officers subordinate to him in accordance with the Constitution. Similarly, Article 154 of the Constitution declares that the executive power of the State shall vest in the Governor and shall be exercised by him either directly or through officers subordinate to him in accordance with the Constitution,” the Court said.
The general power under Article 73(1), alluded to supra, is “subject to the provisions of the Constitution”. This is on account of the fact that, de-hors Articles 73 and 154, the Constitution confers the executive power on the Union and each of the States as regards three specific matters.
The all-important provision which clarifies that the executive power referred to in Article 73(1)(a) of the Constitution shall not, save as expressly provided in the Constitution or by any law made by Parliament, extend to matters in List II and List III of Schedule VII of the Constitution.
It may also be necessary to notice Article 162 of the Constitution which declares that, subject to the provisions of the Constitution, the executive power of the State shall extend to all matters with respect to which the Legislature of the State has the power to make laws (i.e., matters prescribed in List II and III).
The Court relied on the Union of India v. V. Sriharan case to reiterate, “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.”
In arriving at this finding, the Court also dispelled 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.
Another qualification is contained in Section 435 (1), Cr.P.C., which requires the State Government to consult the Central Government before granting remission or commutation of sentences for the classes of cases falling within that provision.
In V. Sriharan’s case, the Supreme Court has held that the word “consultation” occurring in Section 435(1), Cr.P.C., implies concurrence.
Therefore, a State Government cannot remit or commute a sentence without the concurrence of the Central Government in the following classes of cases;
(a) where the offence involves misappropriation, or destruction of, or damage to any property belonging to the Central Government; and
(b) 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.
The 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.
“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.
From the aforesaid discussion, the following principles emerge:
(a) 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.
(b) 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.
(c) 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).
(d) 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.