Source: Supreme Court 

Why in News? 

A bench of Justice Abhay S Oka and Justice Augustine George Masih laid down the law regarding conditions imposed while granting remission.                  

• The Supreme Court held this in the case of Mafatbhai Motibhai Sagar v. State of Gujarat & Ors. 

What was the Background of Mafatbhai Motibhai Sagar v. State of Gujarat & Ors. Case? 

• The Appellant was convicted for offences under Section 302 read with Section 147 and Section 148 of Indian Penal Code, 1860 (IPC). 
• He was sentenced to life imprisonment and the conviction of the appellant had attained finality. 
• An order was passed by the High Court of Gujarat granting parole under Rule 19 of the Prisons (Bombay Furlough and Parole) Rules, 1959. 
• The present appeal arises out of the above order where the Court rejected the prayer. 
• While arguing the appeal a submission was made on behalf of the appellant that the application for remission under Section 432 (2) of Criminal Procedure Code, 1973 (CrPC) was not being considered by the State Government. 
• The Home Department of the Government of Gujarat passed an order granting remission to the appellant. 
• While granting remission by order dated 15th September 2023 four conditions were imposed. 
• The two conditions under dispute are as follows: 
  • After the release from jail the prisoner shall behave decently for two years. 
  • If the prisoner after the release from   the   jail   carries   out   any cognizable   offence   or   inflict   any serious   injury   to   any   citizen   or property   then   he   will   be   arrested again   and  he  will  have   to   serve the remaining period of sentence in jail. 
• The Appellant was aggrieved by the above two conditions.  

What were the Court’s Observations?

• There is no doubt that the appropriate Government has the power to grant remission subject to compliance with the conditions. 
• The law laid down with regard to remission by several judgments is that the decision to grant remission has to be well-informed, reasonable and fair to all concerned. (as held in Union of India v. V. Sriharan (2015) and Mohinder Singh v. State of Punjab (2013)). 
• It is well settled that the power to remit a sentence is discretionary. The considerations for exercise of this power are: 
  • Public Interest 
  • The gravity and the nature of offences committed 
  • The antecedents of the convict 
•  Further, it was also held that a convict cannot seek remission as a matter of right. The conditions imposed while exercising the power under Section 432 (1) of CrPC has to be exercised in a fair and reasonable manner. 
• The conditions imposed must stand the scrutiny of Article 14 and Article 21 of the Constitution of India, 1950 (COI). 
• With Respect to Condition 1: 
  • The Court observed that the words ‘decent’ or ‘decently’ are not defined in CrPC or any other cognate legislation. 
  • As this term is not defined every person or authority may interpret it differently. Therefore, such a condition while granting remission becomes too subjective. 
  • The Court held that the condition imposed must not be ambiguous or difficult to enforce. 
  • Therefore, this condition was held to be arbitrary and hit by Article 14 of COI. 
• With Respect to Condition 2:   
  • The Court in this case cited Section 432 (3) of CrPC which talks about cancellation of remission. 
  • In the case of Shaik Abdul Azeez v. State of Karnataka (1977) the Court held that in the light of the provision under Section 432 (2) on breach of any condition of remission there is not an automatic revival of sentence. 
  • In case the order granting remission is cancelled or revoked it will affect the liberty of the convict and the same cannot be exercised without following the principles of natural justice. 
  • The Court held that condition no.2cannot be interpreted to mean that every allegation of a breachthereof would automatically result in the cancellation of the order of  remission. Registration ofa cognizable  offence   against the convict, per se, is not a ground to cancel the remission order. 
  • Thus, the Court held that every breach cannot invite cancellation of the order of remission and the appropriate Government will have to consider the nature of breach alleged against the convict. 
  • A minor breach cannot be a ground to cancel remission and there must be some material to substantiate the allegations of breach. Hence, the Court held that depending on the seriousness and gravity action can be taken regarding cancellation of order of remission. 
• The Court concluded on the above as follows: 
  • The remission under Section 432 (1) of CrPC or Section 473 (1) of Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) can be granted unconditionally or subject to certain conditions.  
  • The decision to grant or not to grant remission has to be well-informed, reasonable and fair to all concerned. 
  • A convict cannot seek remission as a matter of right. However, he has a right to claim that his case for thegrant of remission ought to be considered in accordance with   the   law   and/or applicablepolicy   adopted   by   the appropriate Government. 
  • Conditions   imposed   while   exercising   the   power   under sub­section (1) of Section 432 or sub­section (1) of Section 473 of the BNSS must be reasonable. If the conditionsimposed are arbitrary, the conditions will stand vitiateddue to violation of Article 14. Such arbitrary conditionsmay violate the convict's rights under Article 21 of the Constitution 
  • The effect of remission results in restoration of liberty of the convict and in case the remission is cancelled it will affect the liberty of the convict and hence this drastic power should not be exercised without following the principles of natural justice. Therefore, a show cause must be served on the convict before taking action to cancel/ withdraw remission. The concerned authority must give the convict an opportunity to file a reply and of being heard. 
  • Registration of cognizable offence per se is not a ground to cancel the remission order. Every case of breach does not invite cancellation of order of remission. Depending on the gravity and seriousness action can be taken under Section 432 (3) CrPC or Section 473 (3) of BNSS.

What is Remission under Section 473 of BNSS?

• About:  
  • Section 473 of BNSS reproduces what was provided under Section 432 of CrPC. 
  • Section 473 of BNSS provides for power to suspend or remit sentences. 
• Remission granted by whom and how (Section 473 (1)) : 
  • The Appropriate Government may grant remission at any time 
  • This may be granted without conditions or upon any conditions which the person sentenced accepts 
  • By way of remission the Appropriate Government may: 
    • Suspend the execution of sentence, or 
    • Remit the whole or any part of the punishment to which he has been sentenced.  
• Opinion of the Presiding Judge required (Section 473 (2)): 
  • While considering the application for remission the Appropriate Government may require the Presiding Judge of the Court who has convicted the person to state his opinion. 
  • The opinion would be with regard as to whether application for remission should be granted or not. The above shall be accompanied with the following: 
    • Reasons for the opinion 
    • A certified copy of the record of the trial  
• Cancellation of order of Remission (Section 473 (3)): 
  • If any condition on which the sentence has been remitted or suspended is not fulfilled 
  • The Appropriate Government may cancel the suspension or remission. 
  • Such a person may if at large be arrested by any police officer without warrant and remanded to undergo the unexpired portion of the sentence. 
• Conditions for Presenting the Petition (Section 473 (5)): 
  • The Appropriate Government may give directions as to suspension of sentences and the conditions on which petitions should be presented and dealt with. 
  • In case any sentence is passed on a person above 18 years of age who is sentenced no such petition shall be entertained by the person sentenced or by any other person unless the person sentenced is in jail and  
    • where such petition is made by the person sentenced, it is presented through the officer in charge of the jail; or 
    • where such petition is made by any other person, it contains a declaration that the person sentenced is in jail. 
• Meaning of the term “Appropriate Government” (Section 473 (7)): 
  • 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. 
  • in other cases, the Government of the State within which the offender is sentenced or the said order is passed. 

What are Landmark Judgments on Remission?  

• Laxman Naskar v. State of West Bengal (2000) 
  • In this case, SC stipulated the factors that govern the grant of remission namely: 
    • Whether the offence is an individual act of crime without affecting the society at large? 
    • Whether there is any chance of future recurrence of committing crime? 
    • Whether the convict has lost his potentiality in committing crime? 
    • Whether there is any fruitful purpose of confining this convict any more? 
    • Socio-economic condition of the convict’s family. 
• Epuru Sudhakar v. State of AP (2006) 
  • SC held that judicial review of the order of remission is available on the following grounds: 
    • non-application of mind; 
    • order is mala fide; 
    • order has been passed on extraneous or wholly irrelevant considerations; 
    • relevant materials kept out of consideration; 
    • order suffers from arbitrariness.