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Higher courts can award 30-year jail while commuting death sentence, and limit state’s remission power-J Venkatesan
-The Hindu

 

This, however, would not apply when the accused is given life sentence

The higher judiciary can impose 20, 25 or 30 years' sentence in a murder case while commuting the death penalty of the accused to life imprisonment in cases which do not fall into the ‘rarest of rare' category. It can also limit the remission power of the State government, a Bench of Justices P. Sathasivam and M.Y. Eqbal, held, adding, however that this would apply only to commutation of the death sentence and not when the higher courts were awarding life sentence to an accused.

The Bench pointed out that for more than a decade, whenever the death sentence was commuted to life imprisonment where the offence was serious in nature, this court reiterated the minimum imprisonment of 20, 25, 30 or 35 years, mentioning thereby that if the government wanted to give the convict remission, the same would have to be considered only after the expiry of the said period.

Writing the judgment, Justice Sathasivam disagreed with the view taken by another Bench in the case of Sangeet vs. State of Haryana that such a course was impermissible if the cases did not fall in the ‘rarest of rare' category.

Justice Sathasivam said: "No doubt, the said aspect was not agreeable to this court in the case of Sangeet vs. State of Haryana in which it was said, "What this court has done in Swamy Shraddananda and several other cases, by giving a sentence for a capital offence of 20 years or 30 years' imprisonment without remission, is to effectively injunct the appropriate government from exercising its power of remission for the specified period. In our opinion, this issue needs further and greater discussion, but as at present advised, we are of the opinion that this is not permissible."

Upholding the observations made by a three-judge Bench in Swamy Shraddananda case, Justices Sathasivam and Eqbal said; "In this case, though the Division Bench raised a doubt about the decision, the same has not been referred to a larger Bench. We are of the view that the observations made in Sangeet's case are not warranted."

The Bench of Justices Sathasivam and Eqbal said, "There is a good and strong basis for the court to substitute the death sentence with life imprisonment or with a term in excess of 14 years and further to direct that the convict must not be released from the prison for the rest of his life or for the actual term as specified in the order, as the case may be."

The Bench quoted Shraddananda's case which said "a far more just, reasonable and proper course would be to expand the options and to take over what, as a matter of fact, lawfully belongs to the court, that is the vast hiatus between 14 years imprisonment and death. It needs to be emphasised that the court would take recourse to the expanded option primarily because in the facts of the case, the sentence of 14 years imprisonment would amount to no punishment at all."

In the instant case, Sahib Hussain was awarded the death sentence by a trial court in Rajasthan for causing the murder of five persons. The Rajasthan High Court, however, commuted the death sentence but directed that he be not released from prison until after he served at least 20 years of jail ncluding the period already undergone. Moreover, he should not get the benefit of any remission by either State or the Government of India on any auspicious occasion. The present appeal was directed against this judgment. The Bench upheld this judgment and dismissed the appeal.