Legal provisions regarding power to suspension or remission by the appropriate Government under section 432 of the Code of Criminal Procedure, 1973.
Section 432 of the Code of Criminal Procedure provides the following provisions relating the power to suspension or remission by an appropriate Government:
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ADVERTISEMENTS:
(1) When any person has been sentenced to punishment for an offence, the appropriate Government may, at any time, without conditions or upon any conditions which the person sentenced accepts, suspend the execution of his sentence or remit the whole or any part of the punishment to which he has been sentenced.
(2) Whenever an application is made to the appropriate Government for the suspension or remission of a sentence, the appropriate Government may require the presiding judge of the Court before or by which the conviction was had or confirmed, to state his opinion as to whether the application should be granted or refused, together with his reasons for such opinion and also to forward with the statement of such opinion a certified copy of the record of the trial or of such record thereof as exists.
(3) If any condition on which a sentence has been suspended or remitted is, in the opinion of the appropriate Government, not fulfilled, the appropriate Government may cancel the suspension or remission, and thereupon the person in whose favour the sentence has been suspended or remitted, may, if at large, be arrested by any police officer, without warrant and remanded to undergo the unexpired portion of the sentence.
(4) The condition on which a sentence is suspended or remitted under Section 432 may be one to be fulfilled by the person in whose favour the sentence is suspended or remitted, or one independent of his will.
ADVERTISEMENTS:
(5) The appropriate Government may, by general rules or special orders, give directions as to the suspension of sentences and the conditions on which persons should be presented and dealt with.
However, in the case of any sentence (other than a sentence of fine) passed on a male person above the age of eighteen years, no such petition by the person sentenced or by any other person on his behalf shall be entertained, unless the person sentenced is in jail, and;
(a) Where such petition is made by that person sentenced, it is presented through the officer in charge of the jail; or
(b) Where such petition is made by any other person, it contains a declaration that the person sentenced is in jail.
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(6) The provisions of the above sub-sections shall also apply to any order passed by a criminal Court under any Section of this Code or of any other law, which restricts the liberty of any person or imposed any liability upon him or his property.
(7) In Sections 432 and 433, the expression ‘appropriate Government’ means;
(a) In cases where the sentence is for an offence against, or the order referred to in sub-section (6) is passed under any law relating to a matter to which the executive power of the Union extends, the Central Government;
(b) In other cases, the Government of the State within which the offender is sentenced or the said order is passed.
The powers conferred on the President of India and the Governors of States by Articles 72 and 161 of the Constitution of India to suspend, remit or commute any sentence is ordinarily called ‘mercy jurisdiction’. The judiciary has no such ‘mercy jurisdiction’.
‘Pardon’ and ‘remission’ stand on different footings. The difference between a pardon and a remission of sentence lies in the fact that in the case of pardon it affects both the punishment prescribed for the offence and the guilt of the offender, in other words, a fall pardon may blot out the guilt itself; in the case of remission, the guilt of the offender is not affected nor is the sentence of the Court affected, except in the sense that the person concerned does not suffer incarceration for the entire period of the sentence, but is believed from serving out a part of it.
The power to grant pardon is in essence an executive function to be exercised by the Head of the State after taking into consideration various matters which may not be germane for consideration before a Court of law inquiring into the offence.
The Government of India and State Governments must dispose of the petitions under Sections 432 and 433 of the Code as expeditiously as possible and a self imposed rule should be followed by the authorities rigorously that every such application shall be disposed of within the period of three months from the date on which it is received.
The law governing suspension, remission and commutation of sentence is both statutory and constitutional. The stage for the exercise of this power generally speaking is post-judicial. The grant of remission is a matter of policy and it is for the executive branch of Government to decide as to when, to what extent and in what manner remission is to be granted.
The Courts cannot give any direction in the matter of policy which is purely within the executive domain of the Government. It is not the duty of the Government to give reasons in its order of remission. The remission of sentence depends on the concept of mercy and it is not a prisoner’s right.
The sentence will not automatically be revived when there is a breach of any condition of suspension or remission. It is only when the Government chooses to pass an order of cancellation of the suspension or remission that the convict is arrested and is required to serve the unexpired portion of the sentence.
Section 389 of Cr. P.C. empowers the Court to suspend the sentence and even the conviction but if there is no such suspension, the Competent Authority or the Government’s powers under Section 432, Cr. P.C. are not curtailed in any manner nor there is an embargo on its powers merely because the appeal against the conviction is pending. But when the sentence is suspended and the convict is ordered to be released on bail, such an order prevails over the powers of the Government under Section 432, Cr. P.C.