HEMANT GUPTA, J. - (1.) The State and the writ petitioner before the High Court,[1] are aggrieved by an order passed by the learned Single Bench of the High Court of Punjab and Haryana at Chandigarh on 12.5.2020 whereby the policies of the State Government to grant remission to the prisoners were decided, inter alia, directing the State to consider the feasibility of drafting a fresh policy particularly in respect of exercise of powers conferred under Article 161 of the Constitution. It was also held that the State may also consider the feasibility of having a policy with retrospective operation, provided the same does not lead to discrimination amongst substantial number of identically situated prisoners. The Court further observed that till such time a decision is taken, the appropriate Government can exercise its powers under Sections 432 and 433 of the Code of Criminal Procedure, 1973[2] in terms of policy dated 13.8.2008, but while strictly adhering to the restrictions imposed under Section 433-A of the Code. [1] Hereinafter referred to as the 'prisoner'. [2] For short, the 'Code'.
(2.) The learned Single Bench has referred to certain policies circulated by the State Government. First policy referred to was circulated on 23.4.1987 wherein the convicts on whom punishment of life imprisonment is imposed on conviction of an offence for which death is one of the punishments provided by law, or where the sentence of death imposed on a person had been commuted under Section 433 of the Code on or after 18.12.78, would be considered by the State Government for premature release after they have undergone 14 years of substantive sentence. Thereafter, policies dated 28.9.1988, 19.11.1991, 8.8.2000 and 12.4.2002 were issued contemplating that case of premature release would be considered on individual basis after review by the State Level Committee falling within the purview of Section 433 of the Code and cases thereafter shall be put up to the Hon'ble Governor. However, the policy dated 13.8.2008 did not contemplate that the individual cases will have to be placed before the Hon'ble Governor.
(3.) The relevant provisions of the Constitution and the Code read as thus: Constitution of India "Article 161 - Power of Governor to grant pardons etc., and to suspend, remit or commute sentences in certain cases. - The Governor of a State shall have the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence against any law relating to a matter to which the executive power of the State extends. Code of Criminal Procedure 1973 432. Power to suspend or remit sentences. - (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) xxxx xxxx (5) The appropriate Government may, by general rules or special orders, give directions as to the suspension of sentences and the conditions on which petitions should be presented and dealt with: Provided that 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 the 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. (6) xxxx xxxx (7) In this section and in Section 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. 433. Power to commute sentence. - The appropriate Government may, without the consent of the person sentenced, commute- (a) a sentence of death, for any other punishment provided by the Indian Penal Code (45 of 1860); (b) a sentence of imprisonment for life, for imprisonment for a term not exceeding fourteen years or for fine; (c) a sentence of rigorous imprisonment, for simple imprisonment for any term to which that person might have been sentenced, or for fine; (d) a sentence of simple imprisonment, for fine. 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.";