THE STATE OF HARYANA & ORS versus RAJ KUMAR @ BITTU

Citation: [2021] 8 S.C.R. 320 · Decided: 03-08-2021 · Supreme Court of India · Bench: HEMANT GUPTA · Disposal: Disposed off
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Judgment (excerpt)

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SUPREME COURT REPORTS
[2021] 8 S.C.R.
THE STATE OF HARYANA & ORS
v.
RAJ KUMAR @ BITTU
(Criminal Appeal No. 721 of 2021)
AUGUST 03, 2021
[HEMANT GUPTA and A.S. BOPANNA, JJ.]
Constitution of India: Art. 161 – Code of Criminal Procedure,
1973 – s. 432, 433, 433-A – Power of Governor to grant
pardon/remission – Order by the High Court whereby the policies
of the State Government to grant remission were decided, inter alia,
directing the State to consider the feasibility of drafting a fresh
policy particularly in respect of exercise of powers conferred
u/Art 161; that such policy may have retrospective operation,
provided the same does not lead to discrimination amongst
identically situated prisoners; and till such decision is taken, the
appropriate Government can exercise its powers u/ss. 432 and 433
in terms of policy dated 13.08.2008, strictly adhering to the
restrictions imposed u/s.433A – Sustainability of – Held: Not
sustainable – Policies have to be read keeping in view the period of
imprisonment undergone by a prisoner – Power of remission is to
be exercised by the State Government, as an appropriate
Government, if the prisoner has undergone 14 years of actual
imprisonment in the cases falling within the scope of Section 433-A
and in case the imprisonment is less than 14 years, the power of
premature release can be exercised by the Hon’ble Governor though
on the aid and advice of the State Government – Furthermore, the
policy dated 13.08.2008 is a statutory policy, which cannot and
has not tried to take over the discretion vested in the Hon’ble
Governor to grant pardons, remissions or commute sentence in
exercise of powers conferred u/Art. 161 – Thus, the directions issued
by the Single Bench of the High Court are set aside – On facts, the
prisoner has completed 12 years and 25 days as on 06.07.2021,
release of the prisoner in terms of the policy of the State Government
dated 13.8.2008, can be considered only after he completes 14 years
of actual imprisonment – However, the State Government can
consider the prisoner for premature release after undergoing
imprisonment for less than 14 years only u/Art.161.
[2021] 8 S.C.R. 320
320
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Constitution of India: Art. 161 – Power of Governor to grant
pardon/remission – Scope of – Held: Power u/Art. 161 can be
exercised by the State Governments, not by the Governor on his
own – Advice of the appropriate Government binds the Head of the
State – Policies of the State Government are composite policies
encompassing both situations u/Art. 161 and ss. 432, 433 and
433-A – Remission u/Art. 161 will override s. 433-A of the Code, if
the State Government decides to be governed of its constitutional
power.
Disposing of the appeals, the Court
HELD: 1.1 The power under Article 161 of the Constitution
can be exercised by the State Governments, not by the Governor
on his own. The advice of the appropriate Government binds the
Head of the State. No separate order for each individual case is
necessary but any general order made must be clear enough to
identify the group of cases and indicate the application of mind to
the whole group. Therefore, the policies of the State Government
are composite policies encompassing both situations under Article
161 of the Constitution and Sections 432, 433 and 433-A of the
Code. The remission under Article 161 of the Constitution will
override Section 433-A of the Code, if the State Government
decides to be governed of its constitutional power. [Para 11][337-
D-F]
1.2 A prisoner has to undergo a minimum period of
imprisonment of 14 years without remission in the case of an
offence, the conviction of which carries death sentence, to take
benefit of policy of remission framed by an appropriate
government under Section 432 of the Code in view of the
overriding provision of Section 433-A of the Code. However, the
power of the Hon’ble Governor to commute sentence or to
pardon is independent of any such restriction or limitation. The
State Government can frame a policy of grant of remissions either
under Section 432 of the Code or under Article 161 of the
Constitution. The Governor continues to exercise the power of
commutation and release under Article 161 of the Constitution,
notwithstanding Section 433-A of the Code. The action of
commutation and release can thus be pursuant to a governmental
decision and the order may be issued even without the Governor’s
approval. However, under the Rules of Business and as a matter
TH
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