Putting A Condition On Convict To Behave ‘Decently’ After Release From Jail Is Manifestly Arbitrary: SC Clarifies Scope Of Remission Powers Under CrPC & BNSS
The Supreme Court observed that, putting a condition on the convict to behave ‘decently’ after release from jail is manifestly arbitrary in nature and defeats the object of remitting the sentence under Section 432(1) of the Criminal Procedure Code (CrPC).
The Court observed thus in a criminal appeal in which the issue was the legality of the conditions imposed while remitting the life sentence of the convict under Section 432(1) of CrPC i.e., Section 473 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS).
The two-Judge Bench comprising Justice Abhay S. Oka and Justice Augustine George Masih said, “The first part of this condition requires the convict to behave decently for a period of two years after release from jail. The convict must submit two respectable sureties to ensure that he does not commit the breach of peace and harmony of the society and does not threaten the complainant and the witnesses. The words ‘decent’ or ‘decently’ are not defined in the CrPC or any other cognate legislation. The concept of decency of each human being is likely to be different. The idea of decency keeps on changing with time. As the term ‘decency’ is not defined in the CrPC or any other cognate legislation, every person or authority may interpret the same differently. Therefore, such a condition while granting remission becomes too subjective. Putting such a vague condition while exercising the power under sub-section (1) of Section 432 of the CrPC will give a tool in the hands of the executive to cancel the remission at its whims and fancies. Therefore, such a condition is arbitrary and will be hit by Article 14 of the Constitution of India. Such a condition cannot be imposed as it will defeat the very object of remitting the sentence in the exercise of powers under sub-section (1) of Section 432 of the CrPC.”
The Bench added that such a condition cannot be sustained and if a condition imposed is unclear or ambiguous, it can have different meanings. It further said that it becomes very difficult to enforce such conditions and thus, the condition imposed while granting remission must be such that it is capable of being complied with and enforced.
Senior Advocate Rauf Rahim appeared for the appellant while AOR Swati Ghildiyal appeared for the respondents.
Brief Facts -
The appellant was convicted for the offence punishable under Section 302 read with Sections 147 and 148 of the Indian Penal Code, 1860 (IPC) and was sentenced in February 2008 to undergo life imprisonment. The conviction of the appellant attained finality. The appeal arose out of an order passed by the Gujarat High Court on an application made by the appellant for grant of parole under Rule 19 of the Prisons (Bombay Furlough and Parole) Rules, 1959. As the prayer was rejected by the impugned order, the appeal was filed before the Supreme Court. While arguing the appeal before the Court, in June 2023, a submission was made on behalf of the appellant that the application for remission made by him under Section 432(2) of the CrPC was not being considered by the State Government.
Therefore, a notice was issued on that limited aspect, and a direction was issued to expeditiously decide the pending application for grant of remission. In September 2023, the Home Department of the State Government passed an order granting remission to the appellant. His remaining sentence was remitted. As the appellant was aggrieved by the first two conditions, the Court permitted him to amend the appeal and challenge conditions nos.1 and 2 instead of driving him to file a fresh writ petition before the High Court.
The Supreme Court in view of the above facts, noted, “The effect of remitting the sentence is the restoration of the liberty of a convict. If the order granting remission is to be cancelled or revoked, it will naturally affect the convict's liberty. The reason is that when an action is taken under sub¬section (3) of Section 432 of the CrPC or sub-section (3) of Section 473 of the BNSS, it results in the convict being taken to prison for undergoing the remaining part of the sentence. Thus, the benefit of remission stands withdrawn. Therefore, this drastic power cannot be exercised without following the principles of natural justice.”
The Court emphasised that a show cause notice must be served on the convict before taking action to withdraw/cancel remission and that the show cause notice must contain the grounds on which action under Section 432(3) of the CrPC or Section 473(3) of the BNSS is proposed to be taken.
“The concerned authority must give the convict an opportunity to file a reply and of being heard. After that, the authority must pass an order stating brief reasons. The principles of natural justice must be read into sub-section (3) of Section 432 and sub-section (3) of Section 473 of the BNSS. The convict whose remission has been cancelled can always adopt a remedy under Article 226 of the Constitution of India”, it further observed.
The Court remarked that registration of a cognizable offence against the convict, per se, is not a ground to cancel the remission order and every case of breach cannot invite cancellation of the order of remission.
“The appropriate Government will have to consider the nature of the breach alleged against the convict. A minor or a trifling breach cannot be a ground to cancel remission. There must be some material to substantiate the allegations of breach”, it also said.
The Court, therefore, summarised its conclusions as under –
(i) Under sub-section (1) of Section 432 of the CrPC or sub-section (1) of Section 473 of the BNSS, the appropriate Government has the power to remit the whole or any part of the punishment of a convict. The remission can be granted either unconditionally or subject to certain conditions;
(ii) The decision to grant or not to grant remission has to be well-informed, reasonable and fair to all concerned;
(iii) A convict cannot seek remission as a matter of right. However, he has a right to claim that his case for the grant of remission ought to be considered in accordance with the law and/or applicable policy adopted by the appropriate Government;
(iv) Conditions imposed while exercising the power under sub-section (1) of Section 432 or sub-section (1) of Section 473 of the BNSS must be reasonable;
(v) The effect of remitting the sentence, in part or full, results in the restoration of liberty of a convict. If the order granting remission is to be cancelled or revoked, it will naturally affect the liberty of the convict; and
(vi) Registration of a cognizable offence against the convict, per se, is not a ground to cancel the remission order.
Accordingly, the Apex Court struck down the condition no.1 and partly allowed the appeal.
Cause Title- Mafabhai Motibhai Sagar v. State of Gujarat & Ors. (Neutral Citation: 2024 INSC 806)
Appearance:
Appellant: Senior Advocate Rauf Rahim, AOR Shekhar Kumar, and Advocate Ali Asghar Rahim.
Respondents: ASG Aishwarya Bhati, AOR Swati Ghildiyal, Advocates Devyani Bhatt, and Shreya Jain.
