# STATE OF HARYANA AND ORS v. JAGDISH

- **Citation:** [2010] 3 S.C.R. 716
- **Court:** Supreme Court of India
- **Decided:** 2010-03-22
- **Case number:** Criminal Appeal No. 566 of 2010
- **Bench:** K.G. Balakrishnan, J.M. Panchal, Dr. B.S. Chauhan
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/state-of-haryana-and-ors-v-jagdish-26778
- **Pages:** 39

## Headnote

Constitution of India, 1950 - Articles 161 and 72 - Life
C convict - Pre-mature release - Powers of clemency -
Respondent convicted and sentenced to life imprisonment as
a Class 3 prisoner - He sought pre-mature release after
serving more than 10 years of imprisonment - Case for premature release of respondent -
To be considered as per
o policy prevailing on date of his conviction, i.e. policy dated
4-2-~993 or as per short sentencing policy subsequently
introduced on 13-8-2008 - Policy dated 04-02-1993 referred
to exercise of powers under Article 161 of the Constitution
whereas policy dated 13-8-2008 was in exercise of powers
E under s.432 rlw ss.433 and 433-A CrPC - Held: The power
exercised under Article 161 of the Constitution is a mandate
of the Constitution while the policy dated 13-8-2008 is under
a rule of procedure which is subordinate to the Constitution -
Policy dated 13-8-2008 therefore cannot override the policy
F dated 4-2-1993 - Also, the State authority is under an
obligation to at least exercise its discretion in relation to an
honest expectation perceived by the convict, at the time of his
conviction that his case for pre-mature release would be
considered after serving the sentence, as prescribed in the
G short sentencing policy existing on that date - Thus, on facts,
the case of respondent was to be considered on the strength
of policy dated 4-2-1993 and not in terms of policy dated 13~
8-2008 - Code of Criminal Procedure, 1973 - ss.432, 433
and 433-A - Prisons Act, 1894 - s.59(5).
H
716
STATE OF HARYANA AND ORS. v. JAGDISH
717
Doctrines -
Doctrine of "legitimate expectation" -
A .
Applicability of.
Constitution of India, 1950 - Articles 161 and 72 -
Clemency power of the Executive. - Held: Is absolute and
unfettered - The provisions contained under Article 72 or 161.
8
of the Constitution cannot be restricted by ss.432, 433 and
433-A CrPC - Even if, a life convict does not satisfy the
requirement of remission rules/short sentencing schemes,
there can be no prohibition for the President or the Governor
of the State, as the case may be, to exercise the power of C
clemency under Arlicle 721161 of the Constitution - Code of
Criminal Procedure, 1973 - ss. 432, 433 and 433A.
Administration of Justice - Criminal Justice - Exercise
of clemency powers - Held: Considerations of public policy
and humanitarian impulses supporl the concept of executive
D
power of clemency.
Maxims -"Vana est ii/a potentia quae nunquam venit in
actum" and "Veniae facilitas incentivum est delinquendi" -
Discussed.
Sentencing - Object and relevancy of - Discussed.
Respondent was convicted under ss.302, 148 and
149 IPC and sentenced to life imprisonment in 1999.
After having served
more
than
10
years
imprisonment, respondent filed application before the
High Court praying for consideration of his case for grant
of clemency as per the policy prevailing on the date of
E
F
his conviction, i.e. policy dated 4-2-1993. Respondent
G
contended that his case for pre-mature release was not
being considered in view of the policy of short
sentencing· introduced on 13-8-2008 under s.432 rlw
ss.433 and 433-A, CrPC.
The High Court held in favour of the respondent
H
. 718
SUPREME COURT REPORTS
[2010] 3 S.C.R.
A holding that his case for pre-mature release was required
to be considered in the light of the policy existing on the
date of his conviction and thus, issued direction to the
State Authorities to consider his case for pre-mature
release in terms of the policy dated 4-2-1993.
B
In appeal to this Court, the appellant-State contended
that it has unfettered power to lay down a policy in regard
to remission of sentence; that short sentencing policies
are merely executive instructions havi11g no statutory
C force, therefore, do not create any legal/vested right in
favour of the convict; that having regard to the provisions
of ss.54, 55 IPC and s.433A CrPC, no interference was
required by the High Court and the case of respondent
for pre-mature release ha

## Text

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A
B
[2010] 3 S.C.R. 716
STATE OF HARYANA AND ORS.
v.
JAGDISH
(Criminal Appeal No. 566 of 2010)
MARCH 22, 2010
,•
[K.G. BALAKRISHNAN, CJI., J.M. PANCHAL AND
DR. B.S. CHAUHAN, JJ.]
Constitution of India, 1950 - Articles 161 and 72 - Life
C convict - Pre-mature release - Powers of clemency -
Respondent convicted and sentenced to life imprisonment as
a Class 3 prisoner - He sought pre-mature release after
serving more than 10 years of imprisonment - Case for premature release of respondent -
To be considered as per
o policy prevailing on date of his conviction, i.e. policy dated
4-2-~993 or as per short sentencing policy subsequently
introduced on 13-8-2008 - Policy dated 04-02-1993 referred
to exercise of powers under Article 161 of the Constitution
whereas policy dated 13-8-2008 was in exercise of powers
E under s.432 rlw ss.433 and 433-A CrPC - Held: The power
exercised under Article 161 of the Constitution is a mandate
of the Constitution while the policy dated 13-8-2008 is under
a rule of procedure which is subordinate to the Constitution -
Policy dated 13-8-2008 therefore cannot override the policy
F dated 4-2-1993 - Also, the State authority is under an
obligation to at least exercise its discretion in relation to an
honest expectation perceived by the convict, at the time of his
conviction that his case for pre-mature release would be
considered after serving the sentence, as prescribed in the
G short sentencing policy existing on that date - Thus, on facts,
the case of respondent was to be considered on the strength
of policy dated 4-2-1993 and not in terms of policy dated 13~
8-2008 - Code of Criminal Procedure, 1973 - ss.432, 433
and 433-A - Prisons Act, 1894 - s.59(5).
H
716
STATE OF HARYANA AND ORS. v. JAGDISH
717
Doctrines -
Doctrine of "legitimate expectation" -
A .
Applicability of.
Constitution of India, 1950 - Articles 161 and 72 -
Clemency power of the Executive. - Held: Is absolute and
unfettered - The provisions contained under Article 72 or 161.
8
of the Constitution cannot be restricted by ss.432, 433 and
433-A CrPC - Even if, a life convict does not satisfy the
requirement of remission rules/short sentencing schemes,
there can be no prohibition for the President or the Governor
of the State, as the case may be, to exercise the power of C
clemency under Arlicle 721161 of the Constitution - Code of
Criminal Procedure, 1973 - ss. 432, 433 and 433A.
Administration of Justice - Criminal Justice - Exercise
of clemency powers - Held: Considerations of public policy
and humanitarian impulses supporl the concept of executive
D
power of clemency.
Maxims -"Vana est ii/a potentia quae nunquam venit in
actum" and "Veniae facilitas incentivum est delinquendi" -
Discussed.
Sentencing - Object and relevancy of - Discussed.
Respondent was convicted under ss.302, 148 and
149 IPC and sentenced to life imprisonment in 1999.
After having served
more
than
10
years
imprisonment, respondent filed application before the
High Court praying for consideration of his case for grant
of clemency as per the policy prevailing on the date of
E
F
his conviction, i.e. policy dated 4-2-1993. Respondent
G
contended that his case for pre-mature release was not
being considered in view of the policy of short
sentencing· introduced on 13-8-2008 under s.432 rlw
ss.433 and 433-A, CrPC.
The High Court held in favour of the respondent
H
. 718
SUPREME COURT REPORTS
[2010] 3 S.C.R.
A holding that his case for pre-mature release was required
to be considered in the light of the policy existing on the
date of his conviction and thus, issued direction to the
State Authorities to consider his case for pre-mature
release in terms of the policy dated 4-2-1993.
B
In appeal to this Court, the appellant-State contended
that it has unfettered power to lay down a policy in regard
to remission of sentence; that short sentencing policies
are merely executive instructions havi11g no statutory
C force, therefore, do not create any legal/vested right in
favour of the convict; that having regard to the provisions
of ss.54, 55 IPC and s.433A CrPC, no interference was
required by the High Court and the case of respondent
for pre-mature release had to be considered in view of the
policy dated 13-8-2008.
D
Respondent, on the other hand, contended that all
remission schemes are issued making reference to Article
161 of the Constitution; that the clemency power of the
executive cannot be subjected to any law whatsoever
E and thus, a legal right stood crystallised in favour of the .
convict, to be considered for pre-mature release in view
of the scheme pr~vailing on the date of his conviction;
that such scheme envisaged at least a promise; that the
provisions of the Prisons Act, 1894 and rules framed
F under it create legal right in favour of the convict and that
such rights cannot be taken away by the policy dated 138-2008.
The Amicus Curiae submitted that even if there is no
vested right of the convict to be considered for preG mature release, in view of the policy prevailing on the date
of his conviction, at least a human element of expectation
that the convict would have remission as per the
guidelines prevailing on the date of his conviction cannot
be ruled out; that even if the convict does not satisfy the
H requirement of the remission policy dated 13-8-2008, his
STATE OF HARYANA AND ORS. v. JAGDISH
719
case can always be considered for remission under the
A
provisions of Article 72 or 161 of the Constitution and it
will be for the President or the Governor, as the case may
be, to take a view in the matter.
Dismissing the appeal, the Court
B
HELD: 1.1. Pardon is one of the many prerogatives
which have been recognised since time immemorial as
being vested in the sovereign, whoever the sovereignty
might be. Every civilised society recognises and has
therefore provided for the pardoning power to be C
exercised as an act of grace and humanity in appropriate
cases. This power is also an act of justice, supported by
a wise public policy. It cannot, however, be treated as a
privilege. It is as much an official duty as any other act. It
is vested in the Authority not for the benefit of the convict D
only, but for the welfare of the people; who may properly
insist upon the performance of that duty by him if a
pardon or parole is to be granted. [Paras 32, 40) [745-E;
750-G-H; 751-A]
1.2. The legal maxim, "Veniae facilitas incentivum est
delinquendi", is a caveat to the exercise of clemency
powers, as it means -"Facility of pardon is an incentive
to crime." It may also prove to be a "grand farce", if
granted arbitrarily, without any justification, to "privileged
class deviants". Thus, no convict should be a "favoured
recipient" of clemency. [Para 36) [749-B-C]
1.3. The State has to achieve the goal of protecting
E
F
the society from convict and also to rehabilitate the
offender. The Remission policy manifests a process of G
reshaping a person who, under certain circumstances,
has indulged in criminal activity and is required to be
rehabilitated. Objectives of the punishment are wholly or
predominantly reformative and preventive. The basic
principle of punishment that "guilty must pay for his
H
720
SUPREME COURT REPORTS
[2010] 3 S.C.R.
A crime" should not be extended to the extent that
punishment becomes brutal. The matter is required to be
examined keeping in view modern reformative concept
of punishment. The concept of "Savage Justice" is not
to be applied at all. The sentence softening schemes
B have to be viewed from a more human and social
science oriented approach. Punishment should not be
regarded as the end but as only the means to an end. The
object of punishment must not be to wreak vengeance
but to reform and rehabilitate the criminal. More so,
c relevancy of the circumstances of the offence and the
state of mind of the convict, when the offence was
committed, are the factors, to be taken note of. [Para 37]
[749-D-H; 750-A]
1.4. At the time of considering the case of pre-mature
D release of a life convict, the authorities may require to
consider his case mainly taking into consideration
whether the offence was an individual act of crime
without affecting the society at large; whether there was
any chance of future recurrence of committing a crime;
E whether the convict had lost his potentiality in committing
the crime; whether there was any fruitful purpose of
confining the convict any more; the socio-economic
condition of the convict's family and other similar
circumstances. [Para 38] [750-A-C]
F
1.5.
Considerations of public
policy and
humanitarian impulses - supports the concept of
executive power of clemency. If clemency power is
exercised and sentence is remitted, it does not erase the
G fact that an individual was convicted of a crime. It merely
gives an opportunity to the convict to reintegrate into the
society. The modern penology with its correctional and
rehabilitative basis emphasise that exercise of such
power be made as a means of infusing mercy into the
justice system. Power of clemency is required to be
H
STATE OF HARYANA AND ORS. v. JAGDISH
721
pressed in service in an appropriate case. Exceptional
A
circumstances, e.g. suffering of a convict from an
incurable disease at last stage, may warrant his release
even at much early stage. 'Vana Est Illa Potentia Quae
Nunquam Venit In Actum' means-vain is that power which
never comes into play. [Para 39] [750-C-F]
B
K. M. Nanavati v. State of Bombay AIR 1961 SC 112,
referred to.
Salmond on Jurisprudence by P.J. Fitzgerald (12th
Edition) and Jurisprudence by R.M. V.Dias (5th Edition, 1985),
C
referred to.
2.1. The power of the sovereign to grant remission
is within its exclusive domain and it is for this reason that
our Constitution makers went on to incorporate the
D
provisions of Article 72 and Article 161 of the Constitution.
This power was never intended to be used or utilised by
the Executive as an unbridled power of reprieve. Power
of clemency is to be exercised cautiously and in
appropriate cases, which in effect, mitigates the sentence
E
of punishment awarded and which does not, in any way,
wipe out the conviction. It is a power which the sovereign
exercises against its own judicial mandate. The act of
remission of the State does not undo what has been
done judicially. The punishment awarded through a
judgment is not overruled but the convict gets benefit of
F
a liberalised policy of State pardon. However, the exercise
of such power under Article 161 of the Constitution or
under Section 433A Cr PC may have a different flavour
in the statutory provisions, as short sentencing policy
brings about a mere reduction in the period of
imprisonment whereas an act of clemency under Article
161 of the Constitution commutes the sentence itself.
Since this matter relates to the State of Haryana, the
Governor of Haryana may exercise the clemency power.
[Paras 27, 30] [742-G-H; 743-A-D; 744-G]
G , ..
H
722
SUPREME COURT REPORTS
[2010) 3 S.C.R.
A
2.2. Articles 72 and 161 of the Constitution provide
for a residuary sovereign power, thus, there can be
nothing to debar the concerned authority to exercise
such power, even after rejection of one clemency petition,
if the changed circumstances so warrant. [Para 33] [746B A-B]
2.3. The clemency power of the Executive is absolute
and remains unfettered for the rea~on that the provisions
contained under Article 72 or 161 of the Constitution
C cannot be restricted by the provisions of Sections 432,
433 and 433-A Cr. P.C. though the Authority has to meet
the certain requirements while exercising the clemency
power. To say that clemency power under Articles 72/161
of the Constitution cannot be exercised by the President
or the Governor, as the case may be, before a convict
D completes the incarceration period provided in the shortsentencing policy, even in an exceptional case, would be
mutually inconsistent with the theory that clemency
power is unfettered. [Para 35] [746-G-H; 747-A]
E
2.4. Not only the provisions of Section 433-A Cr. P.C.
would apply prospectively but any scheme for short
sentencing framed by the State would also apply
prospectively. This is in conformity with the provisions
of Articles 20(1) and 21 of the Constitution. The
F expectancy of period of incarceration is determined soon
after the conviction on the basis of the applicable laws
and the established practices of the State. When a short
sentencing scheme is referable to Article 161 of the
Constitution, it cannot be held that the said scheme
G cannot be pressed in service. Even if, a life convict does
not satisfy the requirement of remission rules/short
sentencing schemes, there can be no prohibition for the
President or the Governor of the State, as the case may
be, to exercise the power of clemency under the
provisions of Article 72 and 161 of the Constitution. Right
H
STATE OF HARYANA AND ORS. v. JAGDISH
723
of the convict is limited to the extent that his case be
A
considered in accordance with the relevant rules etc., he
cannot claim pre-mature release as a matter of right. [Para
35] [747wC-F]
Maru Ram v. Union of"lndia (1981) 1SCC107, followed.
B
State of Haryana v. Mahender Singh & Ors. (2007) 13
SCC 606 and State of Haryana v. Bhup Singh AIR 2009 SC
1252, affirmed.
State of Haryana & Ors. v. Ba/wan AIR 1999 SC 3333; c
Gopal Vinayak Godse v. State of Maharashtra & Ors. AIR
1961 SC 600; Pt. Kishori/al v. Emperor AIR 1946 P.C. 64;
Dalbir Singh & Ors. v. State of Punjab AIR 1979 SC 1384;
State of Haryana v. Nauratta Singh & Ors. AIR 2000 SC 1179;
Swamy Shraddananda @Murali Manohar Mishra v. State of 0
Kamataka AIR 2008 SC 3040; Ramraj @ Nanhoo @ Bihnu
v. State of Chhattisgarh AIR 2010 SC 420; Mohd. Munna v.
Union of India (2005) 7 SCC 417; State of Punjab v. Joginder
Singh, AIR 1990 SC 1396; Laxman Naskar v. Union of India
& Ors. (2000) 2 SCC 595; Ashok Kumar @ Go/u v. Union of E
tngia & Ors. AIR 1991 SC 1792; Bhagirath v. Delhi
'Administration AIR 1985 SC 1050; Kehar Singh & Anr. v.
Unioq of India & Anr. AIR 1989 SC 653; Epuru Sudhakar &
Another v. Govt. of A.P. & Ors. AIR 2006 SC 3385; Swaran
Singh v. State of U.P. AIR 1998 SC 2026; Satpa/ & Anr. v.
State of Haryana & Ors. AIR 2000 SC 1702; Bikas Chatterjee
v. Union of India (2004) 7 SCC 634; G. Krishta Goud & J.
Bhoomaiah v. State of Andhra Pradesh & Ors. (1976) 1 SCC
157 and Regina v. The Secretary of State for the Home
Department (1996) EWCA Civ 555, referred to.
3.1. Section 59 (5) of the Prisons Act, 1894 enables
F
G
the Government to frame rules for "award of marks and
shortening of sentence". The Rules framed thereunder
provide .for classification of prisoners according to the
intensity and gravity of the offence. According to the
H
724
SUPREME COURT REPORTS
[2010] 3 S.C.R.
A classification of prisoners, Class 1 prisoners are those
who had committed heinous organized crimes or
specially dangerous criminals. Class 2 prisoners include
dacoits or persons who commit heinous organized
crimes. Class 3 prisoners are those who do not fall within
B Class 1 or Class 2. The instant case falls in Class 3, not
being a case of organized crime or by professionals or
hereditary or specially dangerous criminals. The aforesaid
rules are statutory rules, not merely executive
instructions. Therefore, a "lifer" has a right to get his case
C considered within the parameters laid down therein.·
More so, consistent past practice adopted by the State
can furnish grounds for legitimate expectation (Para 41]
[751-B-G; 752-A]
3.2. As per the information furnished by the
D appellant-State, the respondent has served more than 14
years (actual) prior to the date of judgment impugned
herein. By now, the respondent has served (actual) for
more than 15 years. Respondent falls in category 3 of the
prisoners as he did not indulge in any organised crime.
E [Para 44) (753-B-C]
Official Liquidator v. Dayanand & Ors. (2008) 10 SCC 1,
relied on.
·Sadhu Singh v. State of Punjab AIR 1984 SC 739,
F referred to.
4.1. In the present case, the earlier policies including
the policy dated 04-02-1993 refers to the exercise of
powers under Article 161 of the Constitution whereas the
G policy dated 13-08-2008 is in exercise of the powers
under Section 432 read with Sections 433 and 433-A of
CrPC. The restriction under Section 433-A is only to the
extent of the powers to be exercised in respect of
offences as referred to under Section 432 Cr.P.C. The
H
STATE OF HARYANA AND ORS. v. JAGDISH
725
notification dated 13-08-2008 is, therefore, under a rule of A
procedure, which is subordinate to the Constitution. The
power exercised under Article 161 of the Constitution is
obviously a mandate of the Constitution and, therefore,
the policy dated 13-08-2008 cannot override the policy
dated 04-02-1993. [Para 42] [752-B-D]
B
4.2. The right of the respondent prisoner, therefore,
to get his case considered at par with such of his inmates,
who were entitled to the benefit of the said policy, cannot
be taken away by the policy dated 13.08.2008. This is
evident from a bare perusal of the recitals contained in
C
the policies prior to the year 2008, which are referable to
Article 161 of the Constitution. The High Court, therefore,
was absolutely justified in arriving at the conclusion that
the case of the respondent was to be considered on the
strength of the policy that was existing on the date of his
D
conviction. The State authority is under an obligation to
at least exercise its discretion in relation to an honest
expectation perceived by the convict, at the time of his
conviction that his case for pre-mature release would be
considered after serving the sentence, prescribed in the
E
short sentencing policy existing on that date. The State
has to exercise its power of remission also keeping in
view any such benefit to be construed liberally in favour
of a convict which may depend upon case to case and
for that purpose it should relate to a policy which, in the
F
instant case, was in favour of the respondent. In case a
liberal policy prevails on the date of consideration of the
case of a "lifer" for pre-mature release, he should be
given benefit thereof. [Para 43] [752-E-H; 753-A]
G
4.3. The appellant-State Government is directed to
proceed to calculate the sentence for the purpose of
consideration of remission jn the case of respondent as
-
per the policy dated 4-2-1993.._ [Para 45] [753-D]
H
726
SUPREME COURT REPORTS
(2010] 3 S.C.R.
A
Case Law Reference:
AIR 1999 SC 3333
referred to
Para 2
(2001) 13 sec 606
affirmed
Para 2
B
AIR 2009 SC 1252
affirmed
Para 2
(1981) 1 sec 101
followed
Para 11
AIR 1961 SC 600
referred to
Para 13
AIR 1946 P.C. 64
referred to
Para 13
c
AIR 1979 SC 1384
referred to
Para 14
AIR 2000 SC 1179
referred to
Para 15
AIR 2008 SC 3040
referred to
Para 16
D
AIR 2010 SC 420
referred to
Para 17
(2005) 1 sec 417
referred to
Para 18
AIR 1990 SC 1396
referred to
Para 22
E
AIR 1984 SC 739
referred to
Para 23
(2000) 2 sec 595
referred to
Para 24
AIR 1991 SC 1792
referred to
Para 25
F
AIR 1985 SC 1050
referred to
·Para 25
AIR 1989 SC 653
referred to
Para 25
AIR 2006 SC 3385
referred to
Para 28
AIR 1998 SC 2026
referred to
Para 29
G
AIR 2000 SC 1702
referred to
Para 29
(2004) 1 sec 634
referred to
Para 29
AIR 1961 SC 112
referred to
Para 32
H
(1976) 1 sec 151
referred to
Para 33
STATE OF HARYANA AND ORS. v. JAGDISH
727
(1996) EWCA Civ 555 referred to
(2008) 1 o sec 1
relied on
Para 34
Para 41
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 566 of 2010.
From the Judgment & Order dated 17.2.2009 of the High
Court of Punjab & Harayana at Chandigarh in Crl. Misc. No.
M-641 of 2009.
A
B
Gopal Subramanium, Sol. Genl. of India (A.C.), P.N. Mishra
C
Manjit Singh, AAG, Kamal Mohan Gupta for the appearing
parties.
The Judgment of the Court was delivered by
DR. 8.5. CHAUHAN, J. 1. Delay condoned. Leave
D
granted.
2. This matter has come up before us upon reference
having been made by a Two-Judge Bench vide order dated
04.11.2009 upon noticing an inconsistency in the views
expressed by this Court in the case of State of Haryana & Ors.
E
v. Ba/wan AIR 1999 SC 3333 on one hand and in the cases of
State of Haryana v. Mahender Singh & Ors. (2007) 13 SCC
606; and State of Haryana v. Bhup Singh AIR 2009 SC 1252,
on the other hand. The inconsistency, which was pointed out in
the said order was noticed by taking into account the para 5
F
of the judgment in Ba/wan (supra) which is as follows :-
" ........ However, in order to see that a life convict does not
lose any benefit available under the remission scheme
which has to be regarded as the guideline, it would be just
G
and proper to direct the State Government to treat the date
on which his case is/was required to be put up before the
Governor under Article 161 of the Constitution as the
relevant date with reference to which their cases are to be
considered ...... "
H
728
SUPREME COURT REPORTS
[2010] 3 S.C.R.
A
3. The views expressed in Mahender Singh (supra) and
B
c
D
E
Bhup Singh (supra) were as follows :-
Mahender Singh (supra)
"40. Whenever, thus, a policy decision is made,
persons must be treated equally in terms thereof. A' fortiori
the policy decision applicable in such cases would be
which was prevailing at the time of his conviction."
Bhup Singh (supra)
"10 ..... The right to ask for remission of sentence by a life
,convict would be under the law as was prevailing on the
date on which the judgment of conviction and sentence
was passed ...... .
11 ...... It is, therefore, directed that if the respondents have
not already been released, the State shall consider their
cases in terms of the judgment of this Court in Mahender
Singh case having regard to the policy decision as was
applicable on the date on which they were convicted and
not on the basis of the subsequent policy decision of the
year 2002 .... "
4. The question that has been posed before us is as to
whether the policy which makes a provision for remission of
F
sentence, should be that which was existing on the date of the
conviction of the accused or it should be the policy Dthat exists
on the date of consideration of his case for pre-mature release
by the appropriate authority?
5. In the instant case, we find that the respondent, herein,
G has been granted the relief by the Punjab and Haryana High
Court for consideration of his case for grant of clemency as per
the policy prevailing on the date of his conviction. The
respondent was convicted and sentenced for life imprisonment
vide judgment and order dated 20.05.1999 and the policy which
H was in existence at that point of time was dated 04.02.1993.
'
STATE OF HARYANA AND ORS. v. JAGDISH
729
[DR. B.S. CHAUHAN, J.]
The respondent, having served more than 10 years
A
imprisonment, approached the High Court that in spite of having
undergone the sentence as per the aforesaid policy dated
04.02.1993, his case for pre-mature release was not being
considered in view of the new policy of short sentencing,
introdu'c~d on 1'3.Q8.2008. The policy dated 13.8.2008 has
B
been brought on record, which expressly recites that the same
was being issued in exercise _of the powers conferred by Subsection (1) of Section 432 read with Section 433 of Criminal
Procedure Code (hereinafter called Cr.P.C.), 1973. The same
further recites that it is in supersession of the Government c
Memorandum dated 12.04.2002 and all other earlier policies.
6. The respondent was involved in a case, the FIR whereof
was registered Don 16.01.1995 and he was convicted vide
judgment and order dated 20.5.1999 under Sections 302, 148
and 149 Indian Penal Code (hereinafter called IPC), 1860. ln
D
the above background, the respondent filed a Criminal Misc.
Application before the High Court. The Court placing reliance
on the judgments of this Court in Mahender Singh (supra) and
Bhup Singh (supra) came to the conclusion that the case of
the respondent for pre-mature release was to be considered
E
in the light of the short sentencing policy existing on the date
of his conviction and thus, a direction was issued to the State ·
Authorities to consider his case for pre-mature release in view
of the policy dated 4.2.1993 existing on the date of his
conviction i.e. 20th May, 1999 within a period of one month from
F
the date of receipt of the certified copy of the judgment. Hence,
this appeal. In view of the conflicting views in various judgments
of this Court, reference has been made to the larger Bench.
7. Heard Shri Gopal Subramanium, learned Solicitor G
General, Amicus Curiae, Shri P.N. Mishra, learned senior
counsel appearing for the State of Haryana, Shri B.S. Malik,
Senior Advocate, Shri Manoj Swarup, Shri D.P. Singh and Shri
Sanjay Jain, Advocates for respondents.
8. Shri P.N. Mishra, learned senior counsel appearing for
H
730
SUPREME COURT REPORTS
(2010] 3 S.C.R.
A the State of Haryana has submitted that State has unfettered
power to lay down a policy in regard to remission of sentence.
The short sentencing policies are merely executive instructions .
having no statutory force, therefore, do not create any legal/
vested right in favour of the convict. Having regard to the
B provisions of Sections 54, 55 IPC and Section 433-A Cr.P.C.,
no interference was required by the High Court. Case of the
respondent for pre-mature release would be considered in view
of the policy dated 13.8.2008. Thus, the judgment and order of
the High Court impugned herein, is liable to be set aside.
c
9. On the contrary, learned counsel appearing for the
respondent in this appeal and other connected cases, which
are being disposed of by separate order, have contended that
all remission schemes were issued making reference to Article
161 of the Constitution of India (hereinafter called the
D Constitution). The clemency power of the executive cannot be
subjected to any law whatsoever and thus, a legal right stood
crystallised in favour of the convict, to be considered for premature release in view of the scheme prevailing on the date of
his conviction. They have emphasised that such scheme
E envisaged at least a promise and in view of the provisions of
Articles 20(1) and 21 of the Constitution, the conditions
contained in subsequent policies being more stringent cannot
be enforced against the "lifer". Provisions of the Prisons Act,
1894 (hereinafter called as 'Act 1894') and rules framed under
F it create legal right in favour of the convict. Such rights cannot
be taken away by presently prevailing policy dated 13.8.2008.
No policy can be framed in derogation of the statutory rules.
However, in case a lenient policy is enforced at subsequent
stage, the same can be made applicable and thus, the
G judgment and order of the High Court does not require any
interference. The appeal is liable to be dismissed.
10. Shri Gopal Subramanium, learned Solicitor General
who appeared as Amicus Curiae, has submitted that even if
there is no vested right of the convict to be considered for preH
STATE OF HARYANA AND ORS. v. JAGDISH
731
[DR. B.S. CHAUHAN, J.]
mature release, in view of the policy prevailing on the date of
A
his conviction, at least a human element of expectation that the
convict would have remission as per the guidelines prevailing
on the date of his conviction cannot be ruled out. Even if the
convict does not satisfy the requirement of presently existing
remission policy dated 13.8.2008, his case can always be
B
considered for remission under the provisions of Article 72 or
161 of the Constitution and it will be for the President or the
Governor, as the case may be, to take a view in the matter in
conformity with the decision in Maru Ram v. Union of India
(1981) 1 sec 101.
c
11. We have considered the rival submissions made by
learned counsel for the parties and perused the record.
12. In the instant case, the respondent was convicted on
20th May, 1999 and sentenced for life imprisonment.
D
Remission policy has been changed from time to time and
provided mainly as under:
Date of Policy
4th February, 1993
(a) Convicts whose death
sentence
has
been
commuted
to
life
imprisonment and convicts
who have been imprisoned
for life for having and after
earning at least 6 years
committed a heinous crime
such as:-
murder
with
wrongful
confinement, for extortion/
robbery; murder with rape;
Minimum required sentence
for pre-mature release
Their
cases
may
be
considered after completion
E
of 14 years actual sentence
F
including under trial period
and after earning at least 6
years remission.
G
H
732
SUPREME COURT REPORTS
[2010] 3 S.C.R.
A
B
murder while undergoing 11te
imprisonment; murder with
dacoity
.... ; murder of a child under
the age of 14 years; and
murder on professional/hired
basis ....
(b) Adult life convicts who
have been imprisoned for life
C
but whose cases are not
covered under (a) above and
who have committed crime
which are not considered
heinous as mentioned in
D
clause (a) above, or other life
convicts imprisoned for life for
·offence for which death
penalty is not a punishment.
E
F
G
H
8th August, 2000
(a) Convicts whose death
sentence
has
been
commuted
to
life
imprisonment and convicts
who have been imprisoned
for life having committed a
heinous crime such as:-
(i) ~urder with wrongful
confinement, for extortion/
robbery; (ii) murder with rape;
(iii) murder while undergoing
life imprisonment; (iv) murder
with dacoity .... ; (viii) murder
of a child under the age of 14
Their
c:1ses
may
be
considered after completion
of. 10 years of actual
sentence including under trial
period, provided that the total
period of such sentence
including remission is not
less than 14 years.
Their
cases
may
be
considered after completion
of 14 years a~tual sentence
including under trial period
provided that the total period
of such sentence including
remission is not less than
20 years.
STATE OF HARYANAAND ORS. v. JAGDISH
[DR. S.S. CHAUHAN, J.]
733
years; (ix) murder of woman;
and
(xi)
murder
on
professional/hired basis ....
(xvi) convicts who have been
awarded life imprisonment a
second time under any
offence ....
(b) Adult life convicts who
have been imprisoned for life
but whose cases are not
covered under (a) above and
who have committed crime
which are not considered
heinous as mentioned in
clause (a)
29th October, 2001
Their
cases
may
be
considered after completion
of 10 years actual sentence
including under trial period
provided that the total period
of
such
including
remissions is not less than
14 years.
(aa) Convicts whose death Their
cases
may
be
sentence
has
been considered after completion
A
B
c
D
commuted
to
life of 20 years actual sentence
E
imprisonment and convicts and 25 years total sentence
who have been imprisoned with remissions.
for life having committed a
heinous crime such as:-
(i) murder after rape repeated
chained
rape/unnatural
offences; (ii) murder with
intention for the ransom; (iii)
murder of more than two
persons;
(iv)
persons
convicted for second time for
murder; and (v) sedition with
murder.
F
G
H
734
SUPREME COURT REPORTS
(2010] 3 S.C.R.
A
(a) Convicts who have been
imprisoned for life having
committed a heinous crime
such as:-
B
(i) murder with wrongful is not
less
than
20
years.
c confinement for extortion/
robbery; (ii) murder while
undergoing life sentence;
murder with dacoity ..... and
(vii) murder of a child under
D the age of 14 years ......
E
F
(b) Adult life convicts who
have been imprisoned for life
but whose cases are not
covered under (aa) and
sentence including under trial
period (a) above and who
have committed crime which
are not considered heinous
as mentioned in clause (aa)
& (a) above.
13th August, 2008
(a) Convicts whose death
sentence
_ has
been
G commuted
to
life
H
imprisonment and convicts
who have been imprisoned
for life having committed a
heinous crime such as:-
Their
cases
may
be
considered after completion
of
14
years
actual
sentence including under trial
period provided that the total
period of such including
remissions is not less than
20 years.
Their
cases
may
be
considered after completion
of
10
years
actual
sentence including under
trial period provided that the
total
period
of such
sentence
including
remissions is not less than
14 years.
Their cases for pre-mature
release may be considered
after completion of 20
years actual sentence and
25 years total sentence
with remissions.
STATE OF HARYANA AND ORS. v. JAGDISH
[DR. B.S. CHAUHAN, J.]
735
(i) murder with rape/unnatural
offences; (ii) murder with
intention to collect ransom/
robbery/
kidnapping/
abduction; (iii) murder of
more than two persons; (iv)
persons
convicted
for
second time for murder; (v)
sedition; (vi) sedition with
murder; and (vii) murder
while
undergoing
life
sentence ......
(b) Convicts who have been
imprisoned for life having
committed any crime which
is defined in IPC and/or
NDPS Act as punishable with
death sentence.
(c) ......
Their cases for pre-mature
release may be considered
after completion of 14
years actual sentence
including under trial period;
provided that the total period
of
such
sentence
including remissions is
not less than 20 years.
A
B
c
D
E
It may also be pertinent to mention here that all the
aforesaid policies made a clear-cut distinction and categorised
F
the offence of murder in two separate categories. Heinous
crime means murder, i.e., (i) murder with wrongful confinement,
for extortion/robbery; (ii) murder with rape; (iii) murder
undergoing life imprisonment; (iv) murder with dacoity .... ; (v)
murder of a child under 14 years; and (vi) murder on
G
professional/hired basis etc. Murders not mentioned in either
of these above categories have been treated differently for the
purpose of grant of pre-mature release. In all the policies issued
by the Government except policy dated 13th August, 2008, the
provisions of Article 161 of the Constitution have been referred
H
736
SUPREME COURT REPORTS
[2010] 3 S.C.R.
A to. All the said policies provided that the cases of life convicts
would be put to the Governor through the Minister for Jails and
the Chief Minister, Haryana with full background of the prisoners
and recommendations of the Committee alongwith the copy of
the judgment etc. for orders under Article 161 of the
s Constitution.
13. This Court in Gopal Vinayak Godse v. State of
Maharashtra & Ors. AIR 1961 SC 600 considered the
provisions of Section 53-A IPC, Cr.P.C. and also considered
the Code of Criminal Procedure Amendment Act, 1955 which
C provided that a person sentenced to transportation for life
before the Amendment Act would be considered as sentenced
to rigorous imprisonment for life. The life convict was bound to
serve the remainder of sentence imprisoned. Unless the
sentence was commuted or remitted by the Competent
D Authority, such sentence would not be equated with any fixed
term. The benefit of remission or any short sentencing policy
in accordance with the rules framed under the Act 1894, if any,
would be considered towards the end of the term and the said
question was within the exclusive domain of the appropriate
E Government. In the said case, in spite of the fact that certain
remissions had been made, the competent authority did not
remit the entire sentence. While deciding the said case, this
court placed reliance on the judgment of the Privy Council in
Pt. Kishori/al v. Emperor AIR 1946 P.C. 64.
F
14. In Dalbir Singh & Ors. v. State of Punjab AIR 1979
SC 1384, this court came to the conclusion that 'life
imprisonment' means imprisonment for the whole of the man's
life. But in practice it amounts to incarceration for a period
G between 10 to 14 years.
H
15. In State of Haryana v. Nauratta Singh & Ors. AIR 2000
SC 1179, this Court clearly held that 14 years mentioned in
Section 433-A Cr. P.C. is the actual period of imprisonment
undergone without including any period of remission.
STATE OF HARYANA AND ORS. v. JAGDISH
737
[DR. B.S. CHAUHAN, J.]
16. In Swamy Shraddananda@Murali Manohar Mishra v.
A
State of Kamataka AIR 2008 SC 3040, this Court had passed
the order that the appellant therein would not be released from
prison till the rest of his life. Such a punishment was considered
necessary because this Court substituted the death sentence
given to the appellant by the Trial Court and confirmed by the
B
High Court, with imprisonment for life with a direction that the
said appellant would not be released from prison for the rest
of his life. Thus, the Court came to the conclusion, on the facts
of that case, that ih such an eventuality the pre-mature release
after a minimum incarceration for a period of 14 years as c
envisaged under Section 433-A Cr.P.C. would not be acceded
to, since the sentence of death had been stepped down to that
of life imprisonment which was definitely a lenient punishment.
17. In Ram raj @ Nanhoo @ Bihnu v. State of
Chhattisgarh AIR 2010 SC 420, this Court held as under:
D
"In the various decisions rendered after the decision in
Godse case, "imprisonment for life" has been repeatedly
held to mean imprisonment for the natural life term of a
convict, though the actual period of imprisonment may
E
stand reduced on account of remissions earned. But in no
'
case, with the possible exception of the powers vested in
the President under Article 72 of the Constitution and the
powers vested in the Governor under Article 161 of the
Constitution, even with remissions earned, can a sentence
F
of imprisonment for life be reduced to below 14 years. It
is thereafter left to the discretion of the authorities
concerned to determine the actual length of imprisonment
having regard to the gravity and intensity of the offence."
18. In Mohd. Munna v. Union of India (2005) 7 SCC 417,
G
this Court came to the conclusion that life imprisonment was
not equivalent to imprisonment for 14 years or 20 years. Life
imprisonment means imprisonment for the whole of the
remaining period of the convicted person's natural life. There
was no provision either in the IPC or Cr.P.C. whereby life
H
738
SUPREME COURT REPORTS
[2010] 3 S.C.R.
A imprisonment could be treated as either 14 years or 20 years
incarceration without there being a formal remission by the
Appropriate Government. The contention that having regard to
the provisions of Section 57 IPC, a prisoner was entitled to be
released on completing 20 years of imprisonment under the
B West Bengal Correctional Services Act, 1992 and the West
Bengal Jail Code, was rejected.
19. Before we proceed to consider the exercise of powers
with regard to remission, as provided for either under the
C Constitution, the IPC or the Cr.P.C., it would be worth reiterating
what has already been traversed and laid down by this Court
right from the case of Maru Ram (supra) to the decision in the
case of Ram_Raj (supra).
20. In Maru Ram (supra), this Court elaborately dealt with
D the issue of validity of Section 433-A Cr.P.C. and the remission/
E
F
'G
H
short sentencing policies and held as under:
"54. The major submissions which deserve high
consideration may now be taken up. They are three and
important in their outcome in the prisoners' freedom from
behind bars. The first turns on the 'prospectivity' (loosely
so called) or otherwise of Section 433-A. We have already
held that Article 20(1) is not violated but the present point
is whether, on a correct construction, those who have been
convicted prior to the coming into force of Section 433-A
are bound by the mandatory limit. If such convicts are out
of its coils their cases must be considered under the
remission schemes and 'short-sentencing' laws. The
second plea, revolves round 'pardon jurisprudence', if we
may coarsely call it that way, enshrined impregnably in
Articles 72 and 161 and the effect of Section 433-A
thereon. The power to remit is a constitutional power and
any legislation must fail which seeks to curtail its scope
and emasculate its mechanics. Thirdly, the exercise of this
plenary power cannot be left to the fancy, frolic or frown of
Government, State or Central, but must embrace reason,
STATE OF HARYANA AND ORS. v. JAGDISH
739
[DR. B.S.