STATE (GOVT. OF NCT OF DELHI)versusPREM RAJ

                      STATE (GOVT. OF NCT OF DELHI)                                 A
                                         v.
                                    PREM RAJ

                                AUGUST 5, 2003

             [DORAISWAMY RAJU AND ARIJIT PASAYA T, JJ. ]                            B


          Code of Criminal Procedure, 1973-Section 433 (c)-Power to
    commute-Accused sentenced to rigorous imprisonment andfine-High Court
    commuting the sentence on deposit of enhanced fine and directing state C
    Government to formalize the order-Sustainability of-Held: Power of
    commutation exclusively vests with appropriate Government-Such power has
    to be exercised reasonably and rationally keeping in view reasons necessitating
    commutation-Hence order of High Court unsustainable-However, right of
    accused to move to the appropriate Government not restricted
                                                                                    D
          Respondent-accused was sentenced to undergo rigorous
    imprisonment for two years for offence under Section 7 of the Prevention
    of Corruption Act, 1988 with fine of Rs. 500. He was further sentenced·
    under Section 13(2) of the Act to undergo imprisonment for 3Yz years with
    fine of Rs. 1000. Respondent-accused challenged the quantum of sentence
    before High Court. High Court commuted the sentence of imprisonment E
    by enhancing the sentence of fine and on deposit of fine directed the State
    Government to formalize the matter by passing an appropriate order
    under Section 433(c) of the Code. Hence the present appeal.

          Appellant-State contended that the power of commutation is not
    available to a Court and it is the exclusive domain of the executive.           F

          Respondent-accused contended that on the peculiar facts of the case
•   no interference is called for.

          Allowing the appeal, the Court
                                                                                    G
         HELD:l. The powers of commutation exclusively vest with the
    appropriate Government. Commutation is in essence the alteration of a
    sentence of one kind into a sentence of less severe kind. Section 433 Cr.P.C.
    provides for a power of the State Government to commute the sentence.
                                         235                                        II
    236                     SUPREME COURT REPORTS [2003] SUPP. 2 S.C.R.

A   Clause (c) of Section 433 deals with commutation of a sentence of rigorous
    imprisonment to simple imprisonment for any term to which the person
    might have been sentenced, or to fine. (241-D; 240-D]

           1.2. The powers conferred upon the appropriate Government under
    Section 433 have to be exercised reasonably and rationally keeping in view
B   reasons germane and relevant for the purpose of law, mitigating
    circumstances and/or commiserative facts necessitating the commutation
    and factors like interest of the society and public interest. Thus, the order
    pf High Court is set aside. However, the right of the accused to move the
    appropriate Government for such relief as is available in law is not
C   restricted. It would be at sole discretion of the appropriate Government
    to exercise the power conferred on it in accordance with law.
                                                           [241-C, D; 244-D, E)

         Delhi Administration (Now NCT of Delhi) v. Madan Lal (2002) 6
    Supreme 77 and State ofPunjab v. Kesar Singh [1996) 5 SCC 495, referred
D   to.

         CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 948
    of 2003.

          From the Judgment and Order dated 19.9.2001 of the Delhi High Court
E   in Cr!. A. No 172 of 1997.

          Arun K. Sinha for the Appellant.

          Ravi Prakash Mehrotra and Garvesh Kabaria ·for the Respondent.

F         The Judgment of the Court was delivered by

          ARIJIT PASAYAT, J. Leave granted.

          The only question raised in this appeal is whether the High Court of
    Delhi acted within the framework of law in exercising power available under
G   Section 433 (c) of the Code of Criminal Procedure, 1973 (for short 'Code').

          Factual position giving rise to the appeal is as follows:

         Respondent (also described as 'accused') was prosecuted for alleged
    commission of offence punishable under Section 7, and Section(13)(1)(d)
H   punishable in terms of Section 13 (2) of the Prevention of Corruption Act,
       STATE (GOVT. OF NCT OF DELHI) v. PREM RAJ [ PASA YAT, J.]              237
 1988 (for short 'the Act'). The respondent was found guilty by Addition!il A
Sessions Judge, Delhi and was sentenced to undergo rigorous imprisonment
for two years relating to offence under Section 7 with fine of Rs. 500. He was
further sentenced under Section 13(2) to undergo imprisonment for 3 and Yi
years with fine of Rs. l,000. Both the sentences were directed to run
concurrently. The matter was carried in appeal by the responde6.t-accused
before the High Court. The order of conviction was not challenged at the B
time of hearing. What was pressed before the High Court related to the
quantum of sentence. It was submitted that the appellant had faced ordeal of
trial for 11 years and was on the verge of retirement as his date o(
superannuation was to be in March, 2002. He was not a previous convict and
the ends of justice would be met if sentence of fine is enhanced in order to C
commute the sentence of imprisonment and consequentially recommend to .
the Government to consider the case under Section 433 of the Code. High
Court noted that there was no serious opposition by the investigating agency,
the Central Bureau of Investigation (for short 'CBI') for a recommendation.

       The learned Single Judge who heard the criminal appeal felt that no            D
useful purpose would be served in requiring the appellant to undergo sentence
at the belated stage and it would be appropriate if fine is enhanced to Rs.15,000
in commutation of sentence of imprisonment. He further directed that the
case of the accused was to be considered and regularized in accordance with
Section 433 (c) of the Code. A further direction was given that on the deposit        E
of Rs. 15,000 as fine in commutation of sentence of imprisonment within a
stipulated period and intimation of deposit being given to the appropriate
Government, the State Government may formalize the matter by passing an
appropriate order under Section 433 (c) of the Code. The sentence of
imprisonment was directed to be suspended on furnishing personal bond and
furnishing surety to the satisfaction of the Trial Court.                             F
      In support of the appeal the State (Govt. of NCT of Delhi) submitted
that the power of commutation is not available to a Court and it is the
exclusive domain of the executive. It was, therefore, submitted that the course
adopted by the High Court is unsustainable.
                                                                                      0
      Learned counsel for the respondent-accused submitted that on the
peculiar facts of this case no interference is called for. Though strictly speaking
the High Court had no power of commutation, yet direction was given to the
State Government to formalize the order of commutation on deposit of the
enhanced fine and same cannot be faulted.
                                                                                      H
    238                      SUPREME COURT REPORTS [2003] SUPP. 2 S.C.R.

A         Section 432 of the Code corresponds to and reproduces almost word
    for word Section 401 and sub-section (3) of Section 402 of the Code of
    Criminal Procedure, 1889 (in short old Code). Sub-sections (1) to (4) of
    Section 432 reproduce word for word sub-sections (1) to (4) of Section 401
    of the old Code. Sub-section (5) reproduces word for word sub-section (6) of
B   the old Section. Sub-section (6) similarly reproduces sub-section (4-A) of the
    old Section. Sub-section (5) of old Section 401 had been omitted earlier .in
    1950. Sub-section (7) corresponds to sub-section (3) of Section 402 of the
    old Code. The main paragraph and Clause (a) reproduce the old provision
    word for word without any change. Clause (b) is slightly different, but without     r
    any change of substance. That clause reads: ·                                       '
c         "(b) in other cases, the State Government."

           Article 72 of the Constitution of India, 1950 (in short the Constitution)
    confers upon the President power to grant pardons, reprieves, respites or
    remissions of punishment or to suspend, remit or commute the sentence of
D   any person convicted of any offence. The power so conferred is without
    prejudice to the similar power conferred on Court Martial or the Governor of
    a State. Article 161 of the Constitution confers upon the Governor of a State
    simila.r powers in respect of any ~ffence against any law relating to a matter
    to which the executive power of the State extends. The power under Articles
    72 and 161 of the Constitution is absolute and cannot be fettered by any
E   statutory provision such as, Sections 432, 433 or 433~A of the Code or by
    any Prison Rules. But the President or the Governor, as the case may be,
    must act on the advice of the Council of Ministers ..

          A pardon is an act of grace, proceeding from the power entrusted with
F   the execution of the laws, which exempts the individual on whom it is bestowed
    from the punishment the law inflicts for a crime he has committed. It affects
    both the punishment prescribed for the offence and the guilt of the offender;
    in other words, a full pardon may blot out the guilt itself. It does not a~ount
    to an acquittal unless the Court otherwise directs. Pardon is to be distinguish~d
    lorn "amnesty" which is defined as "general pardon of political prisoners; an
G   act of oblivion." As understood in common parlance, the word "amnesty" is
    appropriate only where political prisoners are released and not in cases where
    those who have committed felonies and murders are pardoned. -

          Reprieve means a stay of execution of sentence, a postponement of
    capital sentence. Respite means awarding a lesser sentence instead of the
H   penalty prescribed in view of the fact that the accused has had no previous
      STATE (GOVT. OF NCT OF DELHI) v. PREM RAJ [PASAYA T, J.]           23 9
conviction. It is some thing like a release on probation of good conduct undet A
Section 360 of the Code. Remission is reduction of the amount of a sentence
without changing its character. In the case of a remission, the guilt of the
offender is not affected, nor is the sentence of the Court, except in the sense·
that the person concerned does not suffer incarceration for the entire period
of the sentence, but is relieved from serving out a part of it. Commutation is B
a change of a sentence to a lighter sentence of a different kind (Section 433-
A empowers the appropriate Government to suspend or remit sentences). The:
expression "appropriate Government" means the Central Government in cases
where the sentences or order relates to matter to which the executive power ·
of the Union extends, and the State Government in other cases. The release
of prisoners condemned to death in exercise of powers conferred under Section C
433-A of the Code and Article 161 of the Constitution odes not amount to
interference with the due and proper course of justice, as the power of the
High Court to pronounce upon the validity, propriety and correctness of the
conviction and sentence remains unaffected. Powers under Article 161 of the
Constitution can be exercised before, during or after trial. By reducing the
sentence, the authority concerned does not thereby modify the judicial sentence. D
The fact that the sentence was remitted by the appropriate Government or
that on account of certain remissions which he earned under the Jail Rules
or under some order of general amnesty, the. person was released earlier, does
not affect disqualifications incurred, if any. Section 432 confines the power
of the Government to the suspension of the execution of the sentence of the E
remission of the whole or any part of the punishment. The conviction under
which the sentence is imposed remains unaffected. The section gives no
power to the Government to revise judgment of the Court. It only provides
with the power to remitting the sentence. Remission of punishment assumes
the correctness of the conviction and only reduces the punishment in part or
in whole. The word "remit" as used in Section 432 is not a term of art. Some .F
of the meanings of the word "remit" are "to pardon, to refrain from inflicting,
to give up." A remission of sentence does not mean acquittal and an aggrieved
party has every right to vindicate himself or herself.

      Section 428 contemplates a conviction by the court and it operates at
the time of the pronouncement of the sentence by the Court, whereas Section     G
433 deals with commutation by the State authority. Consequences that follow
from the provisions of Section 433 do not affect Section 428. Sections 432
and 433 appear under the heading "Suspension, Remission and Commutation
of Sentences." Under Section 432(1) there is power in the appropriate
Government in the case of any person, who has been sentenced to punishment      H
    240                     SUPREME COURT REPORTS [2003] SUPP. 2 S.C.R.

A for an offence, to suspend the execution of his sentence or remit the whole
    or any part of the punishment to which he has been sentenced without
    conditions or upon any condition which the person sentenced accepts. Under
    sub-section (2) it is provided that whenever an application is made to the
    appropriate Government for the suspension or remission of a sentence, the
B   appropriate Government may require the Presiding Judge of the Court before
                                                                                        \
    or by which the conviction was made 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.
    Section 433 of the Code provides fer a power of the State Government to
C   commute the sentence and Clause (b) thereof provides that the appropriate
    Government may without the consent of the person sentenced commute a
    sentence of imprisonment for life, for imprisonment for a term not exceeding
    14 years or for fine. It may be pointed out that this provision is similar to the
    provision in Section 55 of the Indian Penal Code, 1860 (in short the 'IPC').
    The power to commute a sentence of death is independent of Section 433-
D   A. The restriction under Section 433-A comes into operation only after the
    power under Section 433 is exercised. Clause (c) of Se~tion 433 deals with
    commutation of a sentence of rigorous imprisonment to simple imprisonment
    for any term to which the person might have been sentenced, or to fine.

E         "Pardon is one of the many prerogatives which have been recognized
    since time immemorial as being vested in the sovereign, wherever the
    sovereignty might lie." This sovereign power to grant a pardon has been
    recognized in our Constitution in Articles 72 and 161, and also in Sections
    432 and 433 of the Code. Grant of pardon to an accomplice under certain
    conditions as contemplated by Section 306 of the Code is a variation of this
F   very power. The grant of pardon, whether it is under Article 16 l or 72 of the
    Constitution or under Sections 306, 432 and 433 is the exercise of sovereign
    power.

          An identical question regarding exercise of power in terms of Section
    433 of the Code was considered in Delhi Administration (Now NCT of Delhi)
G   v. Madan Lal, (2002) 6 Supreme 77. The bench speaking through one of us
    (Doraiswamy Raju, J) was of the view that exercise of power under Section
    433 was an executive discretion. The High Court in exercise of its revisional
    jurisdiction had no power conferred on it to commute the sentence imposed
    where a minimum sentence was provided for offence. In State of Punjab v.
H   Kesar Singh, [ 1996] 5 SCC 495 this Court observed as follows (though it was
      STATE (GOVT. OF NCT OF DELHI) v. PREM RAJ [ PASA VAT, J.]             241

in the context of Section 433 (b):                                                  A
       "The mandate of Section 433 Cr.PC enables the Government in an
       appropriate case to commute the sentence of a convict and to
       prematurely order his release before expiry of the sentence as imposed
       by the courts. That apart, even if the High Court could give such a
       direction, it could only direct consideration of the case of premature       B
       release by the Government and could not have ordered the premature
       release of the respondent itself. The right to exercise the power under
       Section 433 Cr.PC vests in the Government and has to be exercised
       by the Government in accordance with the rules and established
       principles. The impugned order of the High Court cannot, therefore,          C
       be sustained and is hereby set aside."

      "The powers conferred upon the appropriate Government under Section
433 have to be exercised reasonably and rationally keeping in view reasons
gennane and relevant for the purpose of law, mitigating circumstances and/
or commiserative facts necessitating the commutation and factors like interest      D
of the society and public interest. "Commutation" is in essence the alteration
of a sentence of one kind into a sentence of less severe kind The powers of
commutation exclusively vest with the appropriate Government. The 4Ist
report of the Law Commission throws beacon light on the exercise of such
power. The report was in respect of Sections 40 I and 402 of the old Code
which reads as follows:                                                             E
       The provisions of this Chapter are ancillary to the powers conferred
       on the President of India and the Governors of the States by article
       72 and article 161, respectively, of the Constitution. Both these articles
       first refer to the power to grant pardons, reprieves, respites or
       remissions of punishment, and then, to the power to suspend, remit           F
       or commute the sentence of any person convicted of any offence.
       Section 40 I contains detailed provisions in regard to the suspensions
       and remissions of sentences, while Section 402 deals with the
       commutation of sentences. Following article 72 (1) (c) of the
       Constitution, Section 402A makes the powers conferred by Sections            G
       401 and 402 on the State Governments in respect of State field of
       offence exercisable also by the Central Government.

       It is noteworthy that these sections do not circumscribe in any way
       the power of the President and Governors to grant pardons, reprieves
       and respites, which is analogous to sovereign's prerogative of mercy         H
    242                   SUPREME COURT REPORTS [2003] SUPP. 2 S.C.R.

A         in England.

          As mentioned earlier, articles 72 and 161 of· the Constitution first
          refer to the power to _grant pardons, reprieves; respites or remissions
          of punishments, and then to the power to suspend, remit or commute,
          of any person convicted of any offence. "Reprieve" means to take
B         back or withdraw a sentence for a time, the effect being simply to
          suspend t.he sentence. It is no more than a temporary postponement
          and, in England, is used as the first step in commuting a death sentence.
          The term "respite" means delaying the punishment, specially in the
          case of a death sentence, and means much the same as reprieve. It
          would seem that granting a respite or reprieve of punishment is
c         practically indistinguishable from suspending the execution of the
          sentence awarded by a Court for a temporary period. "Remission"
          originally meant a pardon under the great seal and release but latterly
          it came to mean the same as a reduction of the quantum of punishment
          (e.g. amount of the fine imposed or term of imprisonment awarded)
D         without changing its character. "Commutation" means the alteration
          of a sentence of one kind into a sentence of a less severe kind, as
          indicated in Section 402 of the Code.

          The Constitution has lumped together both these powers (i.e. those
          under Section 295 (1) and (2) of the Government oflndia Act, 1935)
E         an~ placed them on the same footing. The overlap that obviously
          exists does not harm. There is, however, no need to enlarge the scope
          of Section 401 of the Code so as to cover expressly pardons, reprieves
          and respites besides suspension and remissions.

          The question of inserting in the Code a provision on the lines of S.69
F         of the Criminal Justice Act, 1948, was raised during the discussion
          before us. It was suggested for example that if a person who was
          sentenced to imprisonment for a term by the Court and a part· of this
          sentence was remitted by the State Government or the sentence was
          commuted to one of fine, the convicted person should be deemed to
          have been sentenced to the shorter term of imprisonment, or, as the
G         case may be, to fine only by the Court. This could be of practical
          importance because many Acts provide for collateral disqualification
          in the case of a person convicted for an offence and sentenced to
          imprisonment for a specified minimum term. We have, however, come
          to the conclusion that the gravity of the offence for which the law
H         provides for such disqualification should depend on the sentence .
STATE(GOVT. OFNCTOFDELHl)v. PREM RAJ [PASAYAT, J.]                243

awarded by the Court and not on the view which the State Government       A
may take while remitting or commuting the sentence. In any event,
this is essentially a question of policy and if such an amendment is
considered desirable in the context of a particular special law, it may
more appropriately be made in that view.

Another suggestion was that there should be provision for "general        B
amnesty" which would relieve the appropriate Government from the
necessity of passing separate orders of remission and release in every
case. In our opinion an amendment of the Code for this purpose is
not necessary. Once the policy of granting a "general amnesty" for
certain categories of convicted prisoners is decided upon by the          G
Government, it is hardly desirable that the Government should pass
a general order and leave it to be applied to individual cases by the
prison authorities.

Sub-section (l) of Section 402 enables the appropriate Government
to commute sentences without the consent of the person sentenced.         D
The general provision has, however, to be read with Section S4 and
Section SS of the l.P.C. which contains special provision in regard to
commutation of sentences of death and of imprisonment for life. The
definition of "appropriate Government" in Section 402(3) is
substantially the same as that contained in Section SSA of the 1.P.C.
It would obviously be desirable to remove this duplication and to         E
state the .Jaw in one place. In the present definition of "appropriate
Government" in Section 402(3), the reference to State Government is
somewhat ambiguous. It will be noticed that clause (b) of Section
SSA of the Indian Penal Code specifies the particular State Government
which is competent to order commutation as "the Government of the         p,
State within which the offender is sentenced."

 We, therefore, propose that Sections S4, SS and SSA may be omitted
 from the IPC and their substance incorporated in S.402 Criminal
 Procedure Code.

 (ii) "Clauses 441 to 444 fi These clauses correspond to sections 401     G
 and 402 and sections S4, SS and SSA of the IPC.

The Commission has recommended that in respect of cases investigated
by the Central Bureau of Investigation or involving misappropriation
or destruction or damage to Central Government property and offences
committed by Central Government servants in the discharge of their        H
    244                     SUPREME COURT REPORTS [2003] SUPP. 2 S.C.R.

A           official .duties, remission or commutation of sentences should be
            granted by the State Government only after consultation with the
            Central Government. It is considered better to require 'concurrence'
            of the Central Government instead of merely consultation with it.

            Where persons are prosecuted for offences, some under laws in the
B           State field and some in the Union field and sentenced to separate
            terms of imprisonment to run concurrently,. State Governments
            sometime remit the whole sentence without a,reference to the Central
            Government, although legally the Central Government has to order
            remission in relation of offences in the Union field. A provision is
            being added requiring specifically that the person cannot be released
c           unless the Central Government also remits the part of the sentence
            relating to an offence in the Union field".

          It is brought to our notice that the amount directed to be deposited has
    been so done by the respondent-accused before the Trial Court. We set aside
D   the order of the High Court.

          We do not .propose to restrict the right of the accused to move the
    appropriate Government for such relief as is available in law. It would be at
    sole discretion of the appropriate Government to exercise the power conferred
    on it in accordance with law.
E
           The appeal is allowed to the extent indicated.

    N.J.                                                         Appeal allowed.