Suspension of sentence is dealt in Chapter 32 of Criminal Procedure Code,1973. Suspension of sentence means cancellation of imposition of the sentence after plea of guilty or conviction for a period which is determinate and reasonable. It postpones the judgment or order of the court temporarily or indefinitely. The difference between reprieve and suspension of sentence is the reprieve postpones a sentence to a certain date but suspensions of sentence postpones it to a indefinite time.
Constitutional and Criminal authority ( President and the Governor )
Pardon is an act of pardon, mercy and forbearance. It is an act of grace by exempting the individual on whom the punishment is bestowed for the crime that he has committed. The law of pardon was in British India and the Government of India Act,1935 had recognized the use of pardon power and has saved the right of it with the Governor General of India. He has powers to pardon, remit, respite , reprieves the punishment.
Article 72 of Indian Constitution empowers the President to grant pardon to the convicts and it applies to all the cases where the punishment is for an offence against law to which the union’s executive power extends. It is also applicable to the sentences of court martial and death sentence. Section 432 and 435 of Criminal Procedure Code talks about the power of pardon, remission, commutation etc which is available to Central and State Government.
Section 432 of Criminal Procedure Code empowers the Government to remit or suspend a sentence. When a person is sentence for any punishment then the Government can at any time along with or without any conditions can suspend or remit sentence in whole or part of it. Section 54 and Section 55 of Indian Penal Code confers the Government to commute death sentence or life imprisonment.
The power of Government to grant remission or suspension under the Section 432 or 433 under Crpc is independent from the power of the President under Article 72 of the Constitution. Both Government and the Governor have concurrent powers with regard to suspension and remission or commutation of sentence.
Statutory Provisions
Suspension or Remission of a sentence
Under section 432, it talks about the powers to suspend or remit sentences.
- The appropriate Government at any time, when any person is sentenced to imprisonment for an offence, without any conditions or upon some condition which the sentenced person accepts then it can suspend or remit the whole or any part of the sentence.
- If any convicted person sends an application to the appropriate Government for suspending or remitting the sentence then the Government may require the opinion of the Presiding officer to grant or refuse the application with the record of the trial.
- If any of conditions given to the convict has been accepted but not fulfilled then the appropriate Government can cancel the suspension or remission of the sentence and the offender may be arrested by the police without warrant and remanded for the period of term of imprisonment which is unexpired.
- The conditions on which the sentence has been suspended or remitted can be fulfilled by the convict or on his independent will.
- The appropriate Government shall give directions for the suspension of sentences and conditions on which petition should be presented.
Proviso to this section are:
In case a sentence is passed on a male person above 18 years, the petition shall be made by the:
1. person sentenced and it is presented to the officer in charge of the jail
2. any other person and has declaration of the person sentenced.
- Appropriate government means :
It can be Central or State Government, it depends on the case.
Commutation of Sentence
Under Section 433, it talks about the powers of commuting a sentence.
Without the consent of the person sentenced, an appropriate Government can :
- Commute a death sentence to any other punishment.
- Commute life imprisonment to imprisonment for a term not exceeding 14 years or fine.
- Commute a sentence of rigorous imprisonment to simple imprisonment.
- Commute a sentence of imprisonment to fine.
Restriction on remission and commutation of sentence
Under Section 433 A, if any person gets a sentence of imprisonment for life and his offence can lead to death sentence also or his death sentence has commuted to life imprisonment then he should serve at least 14 years in the prison.
- Section 432 and 433 can be executed by Central Government also as per Section 434.
- Under 435, it talks about the Power of Central Government. A State Government before remitting or suspending a sentence has to consult the Central Government in few cases.
Illustrations
Illustration 1: Ashok Kumar Alias Golu v. Union Of India And Ors on 10 July, 1991[i]
When we interpret the Section 433 A of the Code with the help of the changes provided by the Indian Penal Code(Amendment) Bill it would result in hearing the provisions of this amendment as a part of the Indian Penal Code, which makes it impermissible. It would lead to violence in the meaning of plain language of the Section 433A of the Code.
Illustration 2: Government cannot reduce or commute the term of 14 years of imprisonment foe any reasons because the crime was serious.[ii]
Illustration 3: Ram Shankar v. State Of Madhya Pradesh on 23 September, 1980[iii]
When the amount was robbed by a primary school teacher and the amount is a trivial amount with no bad antecedent and there was resistance in revealing his identity while arresting. The Government can reduce or commute the sentence on the basis of power of clemency.
Illustration 4 : Rajiv Gandhi Assassination[iv]
The appellant along with others were charge sheeted by the CBI for involvement in the assassination of Rajiv Gandhi, then Prime Minister of India. They were convicted under the Arms Act, Foreigners Act, Section 302 and other provisions of IPC, Explosive Substance Act and Wireless Telegraph Act. The death sentence was commuted by the Supreme Court later. It was converted into life imprisonment. the Government of Tamil Nadu sent a letter to the Central Government on 19th February 2014, The letter contained the proposal to remit the life sentence of the appellant and six others who were convicted for the assassination. The Union of India challenged the proposal for remitting the life sentence. The power of State Government to give remission under Section 432 of Criminal Procedure Code with regard to the Section 435(A) is challenged.
1. Whether the ” Appropriate Government ” is permitted to exercise the power to suspension or remission under Section 432 and 433 of the Criminal Procedure Code with the parallel power exercised by the President under Article 72 of the Constitution or the Governor under Article 161 of the Constitution or the court’s power under Article 32 of the constitution ?
It is statutory power of the appropriate government, then can exercise the power under Section 432 and 433 of Criminal Procedure Code even though there are parallel power being exercised by the President or the Governor or the Court. It is always left to the appropriate government to decide.
2. Can there be a suo moto action be exercised in the power of remission ?
No, there can be no suo moto action can be exercised under Section 432(1) of the Criminal Procedure Code. It can be initiated based on an application by the convict as provided under Section 432 (2) of the Code. It should be attached with opinions of the Presiding officer and record of the trial.
Nalini’s claim was that after commutation of her death sentence, around 3700 convicts has been released by the Tamil Nadu Government. But she is not eligible of that scheme because of a specific clause in the order. Since she was convicted by the CBI investigation, she became ineligible to the premature release under the scheme.
Frequently asked questions
1. Difference between suspension, remission and commutation of sentence?
Suspension means to withdraw the sentence for a time being. If a person is found guilty then the execution can be stayed for a period of time , so it is called temporary postponement of the sentence.
Remission implies the reduction of the period of sentence without changing its original character.
Commutation implies the substitution of the rigorous punishment to lighter one.
2. Which is the appropriate government?
The appropriate Government can be Central or State Government. If the order passed in which the Union has extensive power then the Central Government is appropriate Government or else in other cases the State Government becomes the appropriate government.
3. What happens when a sentence is suspended?
If a sentenced is suspended before execution then it means that the Judge has decided not to take up the sentence and has restrained it from execution. If defendant or the offender violates any of the conditions then the Judge may either impose or execute the sentence.
4. How is the power of suspension is exercised?
Firstly there is an application made to the appropriate Government and there can be no suo moto action by the Government. The Government takes opinion with the reasons of the Judge of the Court as to whether accept or reject the application. If the conditions are fulfilled by the offender then the suspension of the sentence takes place.
Conclusion
The appropriate Government decides whether to give suspension of sentence of not. Suspension or remission is given by the appropriate Government to the convicts through a application made by the convicts. If the conditions are satisfied by the convict then the Government gives suspension or remission in his sentence. If the conditions are accepted but not fulfilled then the Government can resume his remaining term of imprisonment which not experienced. Appropriate Government means it can be Central or State Government. If any convict’s death sentence has been reduced to life imprisonment then he should serve at least a term of 14 years in prison. In few exceptional cases, the State Government has to consult the Central Government to suspend or remit a sentence .
Edited by Pragash Boopal
Approved & Published – Sakshi Raje
References:
[i] 1991 SCR (2) 858
[ii] Shidagauda Nilgappa Ghandakar v. State of Karnataka
[iii] AIR 1981 SC 644
[iv] S.Nalini v. The State Of Tamil Nadu on 27 April, 2018
