Legal Provisions of Section 433 of Code of Criminal Procedure, 1973 (Cr.P.C.), India.
The provisions relating to suspension and remission of sentences contained in the earlier Section 432 would apply mutatis mutandis to Section 433 as well which deals with commutation of sentence by the appropriate Government. Similar provisions are also contained in Sections 54, 55 and 55-A of the Indian Penal Code.
ADVERTISEMENTS:
The Supreme Court in Maktool Singh v. State of Punjabi has held that keeping in view the heinousness of the offence and its evil effects on society, Section 32-A of the NDPS Act has provided that neither the Court will have the power to suspend the sentence nor the Government would have the power to remit the sentence of an offender convicted under the Act and as such he would have to undergo full term of his sentence as ordered by the Court.
The Supreme Court in State of Haryana v. Bhup Singh & others has reiterated that as regards release of convicts, this power vests in the State Government under the Prison Rules and the State may changes its policy in this regard from time to time. The State Governments also had the right to lay down a policy decision as regards classification of prisoners for considering their cases of premature release from jail and it would not offend Article 14 of the Constitution.
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In the instant case, the appellants had undergone actual sentence of 14 years and 3 months which was three months over and above the actual sentence of 14 years and claimed release. The State of Haryana took a policy decision as regards premature release of the life-convicts by putting them in various categories.
ADVERTISEMENTS:
The cases of appellants were not considered on the premise that offence committed by them fall in the category of “heinous crimes” as they had committed murder of more than two persons and therefore could be considered for release only after completion of 20 years actual imprisonment and 25 years’ imprisonment including remissions.
The appellants had challenged this policy decision of the State Government before the Supreme Court. The Court directed the State to consider the case of appellant as per policy decision as was applicable on date of their conviction and not on the basis of subsequent policy decision.
The general impression that an imprisonment for life means an imprisonment of maximum 14 years or even less, has no legal support. Such a prisoner cannot be released even after 14 years unless it is commuted to a specific period of time by the appropriate Government. In the absence of such an order of commutation the convict will continue undergoing imprisonment because it is imprisonment for “life”.
In the case of Harbans Singh v. State of U.P. the accused were sentenced to death for a multiple murder by a common judgment. The Government commuted the death sentence of one of the accused to that of life imprisonment. The Court held that the other co-accused was also entitled to similar commutation.
ADVERTISEMENTS:
The Supreme Court has reiterated time and again, that the exercise of power to commute the sentence under Section 433 is vested in the Government and not in the Court. Therefore, the Court cannot order commutation of sentence of a convicted prisoner.
Where the accused who was 80 years old and was convicted for murder, the Supreme Court observed that as the accused was quite old, the State Government may consider his case sympathetically as and when an application was made by him for commutation of sentence under Section 433 of the Code.
The Supreme Court, in the context of Section 433 (a) has once again ruled that the right to commute sentence under this section vests in the Government. The High Court could only direct consideration of the case of premature release by Government and it has no right to commute the sentence itself.
The order of the High Court issuing, mandatory direction to Government to commute the sentence by itself and leaving no discretion or liberty with the Government was contrary to the provisions contained in Section 433 and therefore not proper.
In Mohd Ishaq v. S. Kazam Pasha, three Government functionaries in their report had framed basis of order of commutation of sentence. The accused was absconding and was a fugitive to law for four months. None of the Government reports took into consideration the utter disregard by the accused to rule of law by evading arrest.
There was no evidence to show that the accused was suffering from multiple ailments as claimed by him. Therefore, the impugned order of commutation having been passed without proper application of mind was liable to be quashed.
[433-A. Restriction on powers of remission or commutation in certain cases:
Notwithstanding anything 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 punishments 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.]
Comment:
This section applies to prisoners undergoing imprisonment for life who (1) have been sentenced for an offence punishable with death or life, or (2) to prisoners who have been sentenced to death by Court but whose death sentence has been commuted to imprisonment for life. Such prisoners cannot be released by remission of their sentences unless they have undergone imprisonment for at least fourteen years in jail. It may be stated that as per the ruling of the Supreme Court in Satpal Singh v. State of Haryana, imprisonment for life awarded after January 1, 1956 means rigorous imprisonment and not the simple imprisonment.
The object of inserting the new Section 433-A is to make sure that the power of remission of whole or any part of sentence under Section 432 is not misused by the Government and the murderers and dangerous offenders who are sentenced to life imprisonment are not allowed to be set free only after a few days or few years imprisonment in jail.
The provision of mandatory requirement of undergoing at least fourteen years imprisonment by the life convicts, therefore, seems to be an effective restraint on unbridled power of the Government to release lifers on remission. This provision came into force on December 18, 1978 and, therefore, the rule of minimum 14 years for lifers would not operate in cases which were decided prior to this date.
The constitutional validity of Section 433-A was challenged before the Supreme Court on various grounds such as it was not within the competence of the Parliament to introduce this change under Section 246, and that it was violative of the provisions contained in Articles 14 and 20 (1) of the Constitution. But the Court held that Section 433-A is constitutionally valid as it was based on reasonable classification and was not arbitrary.
The Court emphatically pointed out that revision of sentence being a discretionary matter, it cannot be claimed as a matter of right and guidelines contained in Section 433-A were necessarily to check arbitrary dispensation of remission cases.
The provisions of this section (i.e., Section 433-A) are not applicable to those who are convicted under the Borstal School Act.
It must, however, be clarified that the requirement of at least 14 years’ imprisonment in jail for a life convict as contemplated in Section 433-A does not in any way affect the pardoning power of the Head of the Executive Government conferred on him by Article 72 or Article 161 of the Constitution and the President and the Governor of the State may commute or remit the sentence under these constitutional provisions on the advice of their respective Council of Ministers. Commenting on this point, the Supreme Court in Maru Ram v. Union of India, expressed a hope that the President or the Governor, as the case may be, while exercising powers under the aforesaid Articles is not likely to overlook the object, spirit and philosophy underlying Section 433-A so as to eliminate a conflict between the legislative intent and the executive power.
The period spent by the prisoner undergoing imprisonment for life on parole, open jail house detention shall be included for computing the period of fourteen years for the purpose of Section 433-A. So also, the release of a prisoner under a licence on probation, will be counted for the purpose of the fourteen years duration for it is as much an imprisonment but of somewhat liberal type.
But the Delhi High Court and the High Court of Gujarat have held that the period spent by a convict undergoing life imprisonment on furlough would not be reckoned for the purpose of computing fourteen years duration because furlough is not imprisonment. But the High Court of Madhya Pradesh has expressed a contrary view and held that release on furlough can be equated with imprisonment and therefore., should be included as imprisonment for the purpose of computing 14 years’ period under Section 433-A of the Code.
The Apex Court in Union of India v. Sadha Singh, has held that Section 433-A would be applicable to life convicts under the Army Act and their sentence of imprisonment for life cannot be remitted under Section 432 unless they have undergone an imprisonment of at least 14 years in jail.
In Suryakant Ranoji Andekar v. State of Maharashtra, petition was filed by convict that his detention was illegal on account of delay in release, the authorities (respondents) filed an affidavit that earlier date of release communicated to the convict was based on erroneous calculations and as such there was no delay.
The Court observed that merely because the specific chart of calculations was not made available by respondents would not justify convict’s contention that there was delay in his release. Therefore, the provisions of Section 433-A of the Code were not attracted in this case.
The Supreme Court in State of Haryana v. Bhup Singh has clarified that the Court could not direct the Government to release convicts undergoing imprisonment. It could only direct the State Government to consider the cases of convicts for release but the decision of release should be left for the Government to be considered as per its policy in this regard.
The State Government should consider the question of release as per its policy decision as was applicable on the date of conviction of the convict who is sought to be released and not on the basis of subsequent policy decision.
It is the submission of the author that the italicized portion of the judgment was uncalled for, as it may create obstacle in the release of long-term convicts.
The Supreme Court in Ramraj v. State of Chhattisgarh, once again clarified that a conjoint reading of Sections 432, 433 and 433-A of Cr. P.C. makes it abundantly clear that the term ‘life imprisonment’ implies minimum term of imprisonment for 14 years. It is not to be interpreted as being imprisonment for whole of convict’s natural life.
Even with remissions earned, sentence of life imprisonment cannot be reduced to below fourteen years. While Sections 432 and 433 of Cr P.C. empower the appropriate Government to suspend, remit or commute sentences including a sentence of death and life imprisonment, Section 433-A imposes a fetter that life convict cannot be released from prison unless he has served at least 14 years of imprisonment.