This article is written by Nishtha Pandey (batch 2023), student of Dr. Ram Manohar Lohiya National Law University, Lucknow. This article seeks to explain various Constitutional and Statutory provisions relating to Execution, suspension, remission and commutation of sentences.
In the country, there are various constitutional and statutory provisions which suspend, remit or commute sentences, given to the convict. Under the Indian Constitution, 1950, Article 72 and Article 161 empower the Governor and the President to grant pardon, suspend, remit or commute the sentence. Meanwhile in the Criminal Procedural Code, 1973, there is a whole Chapter XXXII dedicated to the suspension, remission and commutation of sentence.
Object and scope of the topic
The power to remit, suspend or commutate a sentence is exercised by the head of the state. The executive can show mercy on the convict by way of remission, suspension or commutation etc. The basic purpose of the suspension, remission, commutation and other forms of showing mercy, is to take into consideration certain aspects of the case which do not arise during the proceedings in the court of law. Just like the other Chapters of CrPC, this is applicable to the whole of India.
Execution of sentence of death
Execution of order passed under Section 368
Under Section 366 of the CrPC,1973, a session judge cannot execute a death sentence without the confirmation of the High Court, till that time the convict has to be in jail custody. The High Court, under Section 368 of the CrPC, looks into the case. The High Court can:
- Confirm the sentence given by the Session Court.
- Annul the conviction and convict the accused of the same charges as that of the Session Court or may order for fresh proceedings on the same or altered charges.
- May acquit the person, as the time for the appeal has not lapsed yet or the appeal has been disposed of.
Any order received by the Session Court from the High Court has to be executed by the Session Court by way of issuance of a warrant. (Section 413 of the CrPC).
Execution of sentence of death passed by High court
Under Section 414 of the CrPC, if the High Court, passes the order of death sentence in appeal or revision, the Session Court has to carry on the order by issuing a warrant.
Duty of the jail superintendent in certain cases
When the High Court certifies to the Sessions Judge, any information regarding the confirmation, annulment of charges of the accused in the case that was sent by way of an appeal or revision, the Session judge will send a warrant to the Superintendent of Jail of which the prisoner was originally committed. If the prisoner is transferred to another jail, then, in that case, the Superintendent of Jail has to send back the warrant to the Sessions Judges who in turn will give the warrant to the Superintendent of the Jail in which the prisoner is transferred.
In case of alteration of the charges by the appellate courts by way of an appeal or revision, the same would be informed to the Superintendent of Jail to which the prisoner is committed. Even in the case of immediate release of the prisoner from the jail, the Sessions Judge by way of a warrant would inform the Superintendent of the Jail. the superintendent after such execution will give the original warrant, duly filled to the district magistrate in which the trial was held.
Postponement of execution of death sentence
In case of appeal to the Supreme Court
Under Section 415 of the CrPC, 1973, the High Court may order for the postponement of the execution of death sentence, if the case has been sent to the Supreme Court for appeal (Article 134 of the Indian Constitution). The postponement would be until the time for preferring such appeal has been lapsed or the appeal has been disposed of, altogether.
If the death sentence has been confirmed by the High Court, the person so sentenced may ask the High Court, by way of an application for the grant of a certificate under article 134 or 132 of the Indian Constitution. The High Court has to postpone the execution of the death sentence until such demand is disposed of by the High Court or such certificate of appeal has been granted before the time of considering such appeal by the Supreme Court has not lapsed.
When the death sentence has been confirmed by the High Court, but the High Court is satisfied that the person so sentenced intends to file a Special Leave Petition to the Supreme Court under Article 136 of the Indian Constitution. The High Court will order the postponement of the execution of the death sentence till the time which is reasonable for the person who is sentenced, to file such appeal in the Supreme Court.
Postponement of capital sentence on a pregnant woman
Under Section 416 of the CrPC, if the woman who is sentenced is found to be pregnant, then the High Court, in that case, can postpone the sentence or if it deems fit, the High Court can also commute the sentence to life imprisonment.
Place of imprisonment
The State Government unless provided has the power to direct the place of imprisonment for any person who is convicted under CrPC.
Moreover, if the person who is convicted under the provisions of CrPC, is confined in the civil jail, then the magistrate of the court shall order that the person so convicted, should be shifted to a criminal jail. However, if the person who was transferred to the criminal jail from the civil jail, will be sent back to the civil jail unless-
- Three years have lapsed, the person, in this case, shall be released under Section 58 of the CPC, 1908 or Section 23 of the Provincial Insolvency Code.
- The which ordered the imprisonment of the person in the civil jail orders the officer in charge to release of the convicted person under Section 58 of CPC or Section 23 of the Provincial Insolvency Code.
Execution of sentences of imprisonment
Under Section 418 of the CrPC, a person who is imprisoned for life or for terms other than those mentioned in Section 413 of the CrPC, the court passing such sentence has to give a warrant to the place where the person has to be confined unless such person is confined to such place. However it must be the person who is imprisoned till the court is rising, then there is no need to forward a warrant to the jail and the person shall be confined as per the direction of the court.
Under Section 418(2) of the CrPC, if the accused is not present in the court at the time when he is sentenced to such imprisonment, then, in that case, the court has to order for the arrest of that person, by way of an arrest warrant, for forwarding him to jail or any other place where he shall be confined and the sentence will start from the time of arrest of the accused.
In the case of Ishwarbhai Hirabhai Churana vs the State of Gujrat, this Section is held to be mandatory. Moreover, under this Section, the court also owes a duty to ensure that the sentence is executed, otherwise, the accused may avoid it.
The warrant issued is non – bailable, as it empowers the authority to arrest the person, after the issuance of this warrant. Such a warrant is necessary in case the sentence was pronounced in the absence of the accused.
A warrant for the execution of sentence of imprisonment
Under Section 419 of the CrPC, the warrants for the execution of the sentence of imprisonment has to be directed to the in-charge of the jail or of any place in which the accused is to be confined. But if the person is to be confined in the jail, then the warrant needs to be given to the jailor.
Execution of the sentence of fine
A warrant for the levy of fine
When the court sentences to levy the fine on the offender, it can recover it through either or both of these methods
- Issue of warrant for the levy of amount through the attachment of the movable property of the offender.
- Issue of a warrant to the district collector and order him to collect it as an arrear of land revenue accruing from a movable or immovable property or both. The collector, in this case, shall collect the arrears of revenue as per the prevailing laws with respect to the collection of revenue in the country. The warrant here will only serve the purpose of a certificate.
It is important to note that in case it is mentioned that there shall be imprisonment if default of payment happens, and if the offender has already served the default sentence, then no court shall issue such warrant, unless there are some special circumstances which have to be recorded in writing, or if there is an order for the payment of compensation of fine that arose as per the provisions of Section 357.
The state government can make rules in regards to how the execution of the recovery of the fines would take place and the summary claims made by a person other than the offender himself would be considered accordingly.
No such warrant shall be executed by the arrest or detention of the person in the prison.
Effect of such warrant
The court shall order the attachment of property for the recovery of fines within the local limits of its jurisdiction, however, it could order such attachment outside its jurisdiction too if it is endorsed by the District Magistrate of the area in which the property to be attached is present.
A warrant for the levy of fine issued by a court in any territory to which this Code does not extend
If the offender has been sentenced to pay the fine in the territory where this code does not apply, then the court would issue a warrant to the District Collector of the area where the code applies and order him to collect the fine by way of arrears of revenue. This warrant shall be treated as if it is issued under Section 421 of the Code and all the conditions would apply accordingly.
Suspension of execution of the sentence of imprisonment in default of payment of fine
When the offender has been sentenced to fine only and in case of default of payment he shall be imprisoned, and if the fine is not paid then:
- The order that the fine shall be made in full within 30 days of such order or in instalments in which the first instalments shall be made within 30 days of such order and the next instalments within the intervals of not more than 30 days.
- The court may order the suspension of imprisonment order, if the offender gives a bond with sureties or not, depending upon the court, for the payment of the fine in full or in instalments. If the offender fails to furnish the fine at the latest date on which such instalments has to be made, then the court shall order the execution of the imprisonment order.
- This shall also apply in the case where the order for the payment of money has been made for the non- recovery of which imprisonment may be made. And if the person fails to furnish a bond for the payment of the fine, the court may order the execution of the imprisonment immediately
General provisions regarding the execution
Who may issue a warrant?
Under Section 425, every warrant which is issued for execution is to be given by the Magistrate or the Judge or Magistrate who passed the sentence or by their successor in-charge.
The sentence on an escaped convict
If a sentence of death, life imprisonment or fine is passed under the provisions of this code, on an escaped convict, then the execution of such sentence should take effect immediately.
When the sentence is passed on the escaped convict then:
- When this sentence is more severe than the previous sentence from which the convict escaped, then the sentence shall take place immediately.
- If the present sentence is less severe than the sentence from which the convict escape then the accused has to serve the term which is remaining of the sentence he escaped from.
- The sentence of rigorous imprisonment will be more severe than the imprisonment of the simple nature.
The sentence on offender already sentenced for another offence
If a person has been previously convicted for a sentence and then is subsequently convicted for another, then the person has to serve his former punishment first and then will serve the punishment sentenced later. Or if the court orders that both the punishment are to be served concurrently. The punishment could be imprisonment or imprisonment for life. It is also to be noted that where a person who has been sentenced to imprisonment by an order under Section 122 in default of furnishing security is while undergoing such sentence, sentenced to imprisonment for an offence committed prior to the making of such order, the latter sentence shall commence immediately.
However, if a person is already sentenced to life imprisonment and then subsequently is punished for a term or for life imprisonment, then the former sentence would run concurrent to the latest imprisonment.
Period of detention undergone by the accused against the sentence of imprisonment
Where an accused is serving a sentence, other than the one on the default of payment of fine, and the term of detention undergone by him during the investigation and trial of the same case shall be set off against the term imposed on him from such conviction. The person shall be liable only for the term of imprisonment left if in case the sentence of imprisonment is given to him.
In case of a sentence given under Section 433A, such period of detention shall be set off against fourteen years referred to in that Section.
When an award of imprisonment in default of payment of a fine is added to a substantive sentence of imprisonment and the person undergoing the sentence is after its execution to undergo a further substantive sentence or substantive sentences of imprisonment. In this case, the sentence accruing to the default of payment of fine should be served by the person only after he has undergone the subsequent sentences.
Return of warrant on execution of sentence
When the sentence has been executed fully, the officer executing such a sentence will have to return the warrant to the court which has issued it. The warrant that is returned has to be undersigned by the respective officer. The method of execution of the sentence must also be specified by the officer in charge.
Money ordered to be paid recoverable as a fine
Any money which is payable (other than fine) under the provision of this act, and the method of recovery of such money is not expressly given in the Code, then it shall be collected in the manner as if it is fine.
It is to be noted that Section 421 shall, in its application to an order under Section 359, by virtue of this Section, be construed as if in the proviso to Sub-Section (1) of Section 421, after the words and figures “under Section 357”, the words and figures “or an order for payment of costs under Section 359” had been inserted.
Suspension and remission of sentences
The Constitution of India, vests a large amount of sovereign power in the President and the Governor. Centre and the State are governed in the name of President and Governor respectively. Under Article 72 of the Indian Constitution, the President has the power to pardon, remit, suspend or commute any sentence.
Under Article 72, the President has the power to pardons, reprieves, respites or remission of punishment or to suspend remit or commute the sentence of any person convicted of any offence:
- In cases where the punishment is given by the court-martial. The Governor’s power to remit, suspend or commute the sentence under the laws of the State, shall be given precedence.
- In cases where the power of executive extends.
- In cases where the punishment is a death sentence.
Similarly, under Article 161 of the Constitution of India, these powers are conferred on the Governor of the States. The Governor can pardon, reprieve, respite a punishment or suspend, remit or commute the sentence, which is given on the basis of the laws prevalent in the State, to which the executive power of the State extends.
The difference between the pardoning power of the President and that of the Governor is that the Governor does not enjoy the power to grant pardon to a death sentence.
However, this power of the President is not absolute and depends on the consultation with the council of ministers. This is not present in the Constitution but practically this process is followed. Further, the Constitution does not provide for any mechanism to check the legality of the decision taken by the President and the Governor while exercising their mercy power. However, in the case of Epuru Sudhakar vs the State of Andhra Pradesh, a small leeway is provided for judicial review of the mercy granting power of the President and the Governor to rule out any sort of arbitrariness.
Suspension or remission of sentences
The suspension is the stay or postponement of the execution of the sentence. In remission, the duration of the sentence is reduced, without changing the nature of the sentence. Remission and suspension differ to a large extent. In remission, the nature of the sentence is remained untouched, while the duration is reduced i.e. the rest of the sentence need not be undergone. For example, a person sentenced for a term of two years, his sentence is now reduced to one year. The effect of the remission is that the prisoner is given a certain date on which he shall be released and the eyes of the law he would be a free man. However, in case of breach of any of the condition of remission, it will be cancelled and the offender has to serve the entire term for which he was originally sentenced.
The procedure followed is given under Section 432 of CrPC, 1973. The government would ask the opinion of the court which gave such a sentence. The court would revert with proper records. The government can grant or reject the application for remission and suspension if in its view all the conditions necessary for such a grant are not fulfilled. the offender may if at large, be arrested by any police officer without a warrant and is to undergo the unexpired portion of the sentence. The power of remission is wholly an executive action. There is no law as such to question the legality of this action, but the government should use this power fairly and not in an arbitrary manner. However, the court must consider the limitation provided under Section 433A of the CrPC, 1973. The power of remission and suspension should not in any way interfere with the conviction of the court, it should affect the execution of the sentence.
Commutation of sentence
In contrast to Suspension and Remission, which only affect the duration of the punishment without interfering with the nature of the punishment, Commutation, on the other hand, changes the nature of the punishment and converts it into a less severe form of punishment.
There is nothing to restrict the government to commutate a sentence, even if it is as low as a fine. Under Section 433 of the CrPC, the appropriate government gets the power to commutate the sentence in an appropriate case. Various sentences are eligible for commutation, one of them is death sentence i.e.mercy plea.
- Death sentence to any other punishment provided in the IPC.
- Imprisonment for life to any other imprisonment not exceeding fourteen years or fine.
- Sentence of rigorous imprisonment for simpler imprisonment which the person has been sentenced or a fine.
- Sentence for a simple sentence to a fine.
Commutation of death sentence has always been in the controversy, it raises an issue regarding the basic human rights of the accused and on the other hand the impact of the grave crime on the society. Section 433 of the CrPC gives the power to the government to commutate the death sentence to a simpler sentence.
Most of the convicts of the death sentence, get their sentence reduced to 14 years of life imprisonment in accordance with the provisions of CrPC.
Restriction on powers of remission or commutation in certain cases
Section 433A of the CrPC puts a restriction on the power of the President and the Governor that they can’t commutate the death sentence to less than 14 years of life imprisonment. In absence of any order under Section 51 of the IPC or Section 433A of the CrPC, the convicts are not released even after the expiry of 14 years of imprisonment.
Moreover, remission can be granted under Section 432 of the CrPC in case of a definite term of sentence. The power is to grant “additional” term of imprisonment which is over and above the remission granted to convict under the jail manual or statutory rules. In case of an indefinite sentence, like that of life imprisonment, may remit or suspend the sentence of the person but not on the basis that such imprisonment is arbitrary or on the assumption that it is for twenty years.
Concurrent power of the Central Government in case of death sentences
Under Section 434 of the CrPC, it is stated that the powers under Section 432 and Section 433, which are given to the State government, can be exercised by the Central government in case of a death sentence.
State government to act after consultation with the Central Government in certain cases
Under Section 435 of the CrPC it is stated that the power given to the state government to remit or commutate a sentence in an offence:
- Which is investigated under the Delhi Special Police Establishment or by any other agency which is constituted under any Central Act other than this Code.
- Which involves misappropriation or destruction of, or damage to any property belonging to the Central government.
- Which was committed by the person who is working under the Central government and was discharging his official duty.
Such offences, as mentioned above, shall not be discharged by the state government except after the consultation of the central government. Moreover, no order of remission, commutation, or suspension by the state government shall apply where the executive power of the Central government also extends, or where the terms of imprisonment of a person have to run concurrently. Such orders will have effect only where the central government has passed the same sentence with regard to the subject matter on which the executive power of the centre extends.
According to the 41st Report of the Law Commission of India, it was stated that there are some matters on which the centre is vitally concerned although on those subject matters the laws of the State government would apply. It is thus necessary that the central government should have a say on those matters and the state government should work only in consultation of the central government otherwise the administration of law and justice would be very difficult for the central government.
The sentence awarded by the judiciary to an offender can be remitted, suspended or commutated by the executive action. The provisions of the Constitution and Criminal Procedure Code, 1973, gives various powers to the President and the Governor to alter the sentence awarded to the offender. This executive power has no legal check but after the few judicial cases, a small window for the judicial review has been available.
Remission in basic terms means to reduce the duration of the term of the sentence. Suspension, on the other hand, means to postpone the sentence without changing its duration. The above two do not interfere with the nature of the sentence. Commutation, in contrast, changes the nature of the punishment and turns it into a less severe one.
There are also various matters on which the state has to pass sentence in the consultation of the Central Government as the latter is vitally concerned with those subject matter. Under the CrPC, separate provisions are present for pregnant women.
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