Bilkis Bano’s case against the premature release of the 11 convicts was mentioned again before the Apex Court. In response, while hearing petitions with Bilkis Bano as the lead petitioner, the Supreme Court remarked over the crime as horrendous.
The court raised concerns – if the uniform parameters & standards were adopted in granting remission in this case as in other murder cases. Article 72 and Article 161 of the Constitution, grant the remission powers to the President and the Governor of the State respectively (referred to as appropriate authority), for offences against the law relating to a subject matter to which the executive power of the Union and the State extends respectively. It is germane to note that the President and the Governor have concurrent powers in cases of death penalty.
The procedural aspect of remission can be traced back to the Code of Criminal Procedure, 1973.
Section 432 of the Cr.P.C empowers the respective appropriate government in different cases to suspend or remit the sentences:
The power of remission and suspension- When any person has been sentenced to punishment for any offence, the appropriate Government may in its discretion, at any time or stage suspend the execution of his sentence or remit the whole or any part of the punishment to which he has been sentenced. This suspension or remission may be conditional or unconditional subject to the discretionary authority of the appropriate authority and fats and circumstances of the case
The confinement in jail -In the case of any sentence except in cases 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 by the concerned authorities unless the person sentenced is actually in jail, and where such petition is made by the person sentenced, it is to be duly presented through the officer in charge of the jail or where such petition is made by any other person on convict’s behalf, it contains a declaration that the person sentenced is in jail. The provisions of Section 432, apply to any order passed by a Criminal Court under any section of this Cr.P.C or of any other law which restricts the liberty of any person or imposes any liability upon him or his property.
In cases of breach of condition imposed- the appropriate Government may cancel the suspension or remission, and the person in whose favour the sentence was suspended or remitted may be arrested by any police officer, without warrant and remanded to undergo the unexpired portion of the sentence.
Opinion of the Presiding Judge- Whenever an application is made to the Appropriate Government for the suspension or remission of a sentence in question, the Appropriate Government may require the Presiding Judge of the Court before or by which the conviction was given or confirmed, to state his reasoned opinion as to whether the application should be granted or refused, along with certified copy of the record of the trial or of such records thereof, as exists. By the language of the provision and the use of the word ‘may’, consultation with the presiding judge seems to be a discretionary, but this cannot be arbitrary and as a rule of practice and to reach a justified and reasoned order, the presiding judge is rather supposed to be duly consulted.
Appropriate government and contextual directions–
Section 432(5) empowers the appropriate government to issue directions by general or special orders, regarding the suspension of sentences and the conditions on which petitions itself for suspension or remission should be presented and dealt with.
As for the ‘appropriate government’ referred in section 432 and in section 433-
- In cases where the sentence is for an offence against any law relating to a matter to which the executive power of the Union extends- it would be the Central Government;
- In all the other cases- the Government of the State within which the offender is sentenced or the said order of sentence is passed.
What would be the appropriate government is another point of contention in the Bilkis Bano’s case as the case was transferred from the jurisdiction of Gujarat Court to the Bombay High Court by the order of the Supreme Court, owing to the looming bias and threats. By the virtue of –Union of India v Sriharan @ Murugan and Ors and S.432 (7) of Cr.P.C one can say that Government of Maharashtra was the appropriate government for determining the remission, as the the offenders were sentenced and convicted by the Court of Maharashtra. However, the Supreme Court back in May 2022 held that the Gujarat government, is the ‘appropriate government’ since the case was transferred to and adjudicated in Maharashtra for the limited purpose of trial only, owing to special circumstances and the court did not have its original jurisdiction in that cases. The court stated that remission was to be considered by the State where the cause of action arose i.e. where the crime was committed. This has been raised as a contention again in these petitions and may be considered as it is indeed a question of jurisdiction. Even a court’s final judgment cannot confer jurisdiction on an authority, if inherently lacks one.
The disputed consultation– 435(1) of the Cr.P.C, stipulates that in all the cases wherein the prosecuting agency is the CBI or any other Central agency the State Government shall consult the Central Government before remitting or commuting the sentence. The five-judge Bench in case of Sriharan (supra) held that ‘consultation’ in this regard would necessarily amount to ‘concurrence’, which has been another issue in the Bilkis case.
The affidavit submitted by the Gujarat government submitted before the Supreme Court mentioned that the Presiding Judge of the trial court and the CBI had objected to the premature release of the convicts in the Bilkis Bano’s case on account of gravity of the offence and the crime being heinous, which is another bone of contention in the petition.
As far as the objections to the locus standi of petitioners for the present petitions under Article 32 are concerned, it is pertinent to note that Bilkis Bano herself is the main petitioner and, as far as other petitioners (being 3rd party) are concerned the petition is rather a PIL challenging the remission itself on ground of legality and arbitrariness, in public interest.
So, remission of sentence is rather a discretionary consideration and not an absolute right, granted by the statute. However this discretion is to be exercised by judicious application of mind and due consideration of all the facts and circumstances of a case. This is no sort of legal entitlement or a default process to be followed, only on consideration of long duration of time spent in the prison. The order of the remission may or may not be conditional, as decided by the concerned authorities and the grant of the remission shall be subject to the due acceptance of such conditions, if any by the convict.
ADV. ANANYA TYAGI
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