Power of Criminal Court to Suspend or Remit Sentences under the Code of Criminal Procedure

Whenever an application is made to the appropriate Government for the suspension or remission of a sentence, the appropriate Government may require the presiding Judge of the Court where the conviction was passed or confirmed, to state his opinion as to whether such application should be granted or refused, together with his reasons for such opinion.

If any condition on which a sentence has been suspended or remitted is not fulfilled in the opinion of the appropriate Government, it may cancel the suspension or remission. If this is done, if the person concerned is at large, he may be arrested by any Police Officer without any warrant and remanded to undergo the unexpired portion of his sentence.

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For the purposes of S. 432 and S. 433 (which is discussed below) the expression “appropriate Government” means—

(a) In cases where the sentence is for an offence against any law relating to a matter to which the executive power of the Union extends – the Central Government; and

(b) In other cases, – the Government of the State within which the offender is sentenced.

It may be noted that the powers under S. 432 are vested in the Government, and not in an individual Minister. Therefore, all the formalities which are necessary for the release of a prisoner or the remission of his sentence are equally necessary for the cancellation of the remission order. (Venkatesh Deshpande, – 1940 Nag. 1)

In Nanavati’s case, a case which had created quite a sensation in the whole country (and particularly, in Mumbai), the Supreme Court held that it is open to the Governor of a State to grant a full pardon at any time, even during the pendency of the case in the Supreme Court in exercise of what is commonly known as “mercy jurisdiction”.

If such a pardon is given after the accused has been convicted by the Court, it has the effect of completely absolving him from all punishment or disqualification attaching to a conviction for a criminal offence. This power is essentially vested in the head of the executive, because the judiciary has no such mercy jurisdiction. (K.M. Nanavati, — 68 B.L.R. 221)