STATE OF HARYANA AND ORS. versus JAGDISH

Citation: [2010] 3 S.C.R. 716 · Decided: 22-03-2010 · Supreme Court of India · Bench: K.G. BALAKRISHNAN · Disposal: Dismissed

Cited by 11 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

A 
B 
[2010] 3 S.C.R. 716 
STATE OF HARYANA AND ORS. 
v. 
JAGDISH 
(Criminal Appeal No. 566 of 2010) 
MARCH 22, 2010 
,• 
[K.G. BALAKRISHNAN, CJI., J.M. PANCHAL AND 
DR. B.S. CHAUHAN, JJ.] 
Constitution of India, 1950 - Articles 161 and 72 - Life 
C convict - Pre-mature release - Powers of clemency -
Respondent convicted and sentenced to life imprisonment as 
a Class 3 prisoner - He sought pre-mature release after 
serving more than 10 years of imprisonment - Case for pre-
mature release of respondent -
To be considered as per 
o policy prevailing on date of his conviction, i.e. policy dated 
4-2-~993 or as per short sentencing policy subsequently 
introduced on 13-8-2008 - Policy dated 04-02-1993 referred 
to exercise of powers under Article 161 of the Constitution 
whereas policy dated 13-8-2008 was in exercise of powers 
E under s.432 rlw ss.433 and 433-A CrPC - Held: The power 
exercised under Article 161 of the Constitution is a mandate 
of the Constitution while the policy dated 13-8-2008 is under 
a rule of procedure which is subordinate to the Constitution -
Policy dated 13-8-2008 therefore cannot override the policy 
F dated 4-2-1993 - Also, the State authority is under an 
obligation to at least exercise its discretion in relation to an 
honest expectation perceived by the convict, at the time of his 
conviction that his case for pre-mature release would be 
considered after serving the sentence, as prescribed in the 
G short sentencing policy existing on that date - Thus, on facts, 
the case of respondent was to be considered on the strength 
of policy dated 4-2-1993 and not in terms of policy dated 13~ 
8-2008 - Code of Criminal Procedure, 1973 - ss.432, 433 
and 433-A - Prisons Act, 1894 - s.59(5). 
H 
716 
STATE OF HARYANA AND ORS. v. JAGDISH 
717 
Doctrines -
Doctrine of "legitimate expectation" -
A . 
Applicability of. 
Constitution of India, 1950 - Articles 161 and 72 -
Clemency power of the Executive. - Held: Is absolute and 
unfettered - The provisions contained under Article 72 or 161. 
8 
of the Constitution cannot be restricted by ss.432, 433 and 
433-A CrPC - Even if, a life convict does not satisfy the 
requirement of remission rules/short sentencing schemes, 
there can be no prohibition for the President or the Governor 
of the State, as the case may be, to exercise the power of C 
clemency under Arlicle 721161 of the Constitution - Code of 
Criminal Procedure, 1973 - ss. 432, 433 and 433A. 
Administration of Justice - Criminal Justice - Exercise 
of clemency powers - Held: Considerations of public policy 
and humanitarian impulses supporl the concept of executive 
D 
power of clemency. 
Maxims -"Vana est ii/a potentia quae nunquam venit in 
actum" and "Veniae facilitas incentivum est delinquendi" -
Discussed. 
Sentencing - Object and relevancy of - Discussed. 
Respondent was convicted under ss.302, 148 and 
149 IPC and sentenced to life imprisonment in 1999. 
After having served 
more 
than 
10 
years 
imprisonment, respondent filed application before the 
High Court praying for consideration of his case for grant 
of clemency as per the policy prevailing on the date of 
E 
F 
his conviction, i.e. policy dated 4-2-1993. Respondent 
G 
contended that his case for pre-mature release was not 
being considered in view of the policy of short 
sentencing· introduced on 13-8-2008 under s.432 rlw 
ss.433 and 433-A, CrPC. 
The High Court held in favour of the respondent 
H 
. 718 
SUPREME COURT REPORTS 
[2010] 3 S.C.R. 
A holding that his case for pre-mature release was required 
to be considered in the light of the policy existing on the 
date of his conviction and thus, issued direction to the 
State Authorities to consider his case for pre-mature 
release in terms of the policy dated 4-2-1993. 
B 
In appeal to this Court, the appellant-State contended 
that it has unfettered power to lay down a policy in regard 
to remission of sentence; that short sentencing policies 
are merely executive instructions havi11g no statutory 
C force, therefore, do not create any legal/vested right in 
favour of the convict; that having regard to the provisions 
of ss.54, 55 IPC and s.433A CrPC, no interference was 
required by the High Court and the case of respondent 
for pre-mature release had to be considered in view of the 
policy dated 13-8-2008. 
D 
Respondent, on the other hand, contended that all 
remission schemes are issued making reference to Article 
161 of the Constitution; that the clemency power of t

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