Remission

Introduction

• Remission generally refers to the reduction or mitigation of a sentence that has been imposed on a person who has been convicted of a crime and allows for the reduction of the period of imprisonment or other penalties based on numerous factors and considerations in other words, without affecting the nature of sentence it is just a reduction in period of sentence to be served.

Objectives of Remission

• The primary object of remission is to take into consideration certain aspects of the case which do not arise during proceedings in a court of law and the executive can show the convict mercy by way of remission, suspension or commutation as per law.
• In remission, the duration of the sentence is reduced without changing the nature of the sentence. The prisoner is released with or without conditions, and in the eyes of the law, he would be a free man.
• However, in case of breach of any of the conditions of remission, it will be cancelled, and the convict would have to serve the entire term for which he/she was originally sentenced.
• The exercise of power of releasing a prisoner on remission must not be looked upon as an act of charity or compassion, but as an act in the discharge of a legal duty required to be performed upon the fulfillment of the prescribed conditions, since remission is earned by a prisoner based on his/her good conduct in the prison.

Statutory Provision for Remission

• The Code of Criminal Procedure, 1973 (CrPC) provides for remission of prison sentences, which means the whole or a part of the sentence may be cancelled.
• Section 432 of CrPC deals with the power to suspend or remit sentences.
• Section 432 of CrPC applies to any punishment for an offence.
• This section empowers the Government to remit wholly or in part the sentence of fine which is a substantive sentence but not the sentence of imprisonment in default of payment of fine.
• Under Section 432 of CrPC, the appropriate government may suspend or remit a sentence, in whole or in part, with or without conditions.

1. When a person has been sentenced to punishment for an offence, it may at any time, unconditionally or on conditions which are acceptable to the person, suspend the execution of a sentence or remit the whole/part of the punishment.
2. When the government receives an application for the suspension/remission of a sentence, it may require the court concerned to state its opinion (with reasons) as to whether the application should be granted or refused, and also forward with the statement of such opinion a certified copy of the record of the trial.
3. It may cancel the suspension/remission, if in its opinion the condition for granting such suspension/remission is not fulfilled. The offender may thereupon be arrested (without a warrant) and remanded to undergo the unexpired portion of the sentence.
4. The condition on which the sentence is suspended/remitted may be one to be fulfilled by the offender or one independent of his will.
5. It may give directions as to the suspension of sentences and the conditions on which petitions should be presented and dealt with. In the case of any sentence (other than a sentence of fine) passed on a male (above 18), no such petition shall be entertained unless the person sentenced is in jail, and the petition is presented through the officer in charge of the jail/any other person.
6. The above provisions shall also apply to any penal order passed by a criminal court under this Code/any other law.

• The Appropriate Government means: -

(i) 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, the Cental Government.

(ii) In other cases, the Government of the State within which the offender is sentenced.

• The power of remission is an executive action and should be exercised fairly and not arbitrarily.
• Section 433A of the CrPC restricts the power of the President and the Governor such that they can’t commute death sentences to less than 14 years of life imprisonment.

Constitutional Provisions

• Both the President and the Governor have been vested with sovereign power of pardon by the Constitution of India, 1950 (COI).
• Under Article 72 of the COI, the President has the power to grant pardon, reprieve, respite or remission of punishment or to suspend, remit or commute the sentence of any person convicted of any offence, on consultation with the Council of Ministers.
• Similarly, under Article 161 of the COI, these powers are conferred on the Governors of States.

Case Laws

• In the case of State of Haryana v. Mahender Singh (2007), the Supreme Court observed that, even though no convict has a fundamental right of remission, but the State in exercise of its executive power of remission must consider each individual case keeping in view the relevant factors. Further, the Court was also of the view that a right to be considered for remission must be held to be legal one.
• In the case of Hitesh @ Bavko Shivshankar Dev v. State of Gujrat (2023), the Supreme Court observed that a life convict's right to ask for remission of sentence would be under the law as was prevailing on the date on which the judgment of conviction and sentence was passed.