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The Supreme Court on October 21, 2024 said registration of a cognizable offence against the convict, per se, is not a ground to cancel the remission order.

The apex court said the allegations of breach of condition cannot be taken at their face value, and whether a case for cancellation of remission is made out will have to be decided in the facts of each case.

Every case of breach cannot invite cancellation of the order of remission. The appropriate government will have to consider the nature of the breach alleged against the convict, court added.

"A minor or a trifling breach cannot be a ground to cancel remission There must be some material to substantiate the allegations of breach. Depending upon the seriousness and gravity thereof, action can be taken under sub¬section (3) of Section 432 of the CrPC or sub¬section (3) of Section 473 of the BNSS of cancellation of the order remitting sentence," a bench of Justices Abhay S Oka and Augustine George Masih said.

In its judgment, the court said a convict cannot seek remission as a matter of right, however, he has a right to say that his case for the grant of remission ought to be considered in accordance with the law.  

The court emphasised the power under sub-section (1) of Section 432 of the CrPC has to be exercised in a fair and reasonable manner. 

"Therefore, conditions imposed while exercising the power under sub-section (1) of Section 432 must be reasonable. The conditions must stand the test of scrutiny of Article 14 of the Constitution of India. If the conditions imposed are arbitrary, the conditions will stand vitiated due to violation of Article 14. Such arbitrary conditions may also violate the convict's rights under Article 21 of the Constitution," the bench said.

The court said under sub-section (1) of Section 432 of the CrPC or subsection (1) of Section 473 of the BNSS, the appropriate government has the power to remit the whole or any part of the punishment of a convict. The remission can be granted either unconditionally or subject to certain conditions.

The decision to grant or not to grant remission has to be well-informed, reasonable, and fair to all concerned, it said.

"The effect of remitting the sentence, in part or full, results in the restoration of liberty of a convict. If the order granting remission is to be cancelled or revoked, it will naturally affect the liberty of the convict. The reason is that when action is taken under sub¬section (3) of Section 432 of the CrPC or sub section (3) of Section 473 of the BNSS, it results in the convict being taken to prison for undergoing the remaining part of the sentence. Therefore, this drastic power cannot be exercised without following the principles of natural justice," the bench said.

A show cause notice must be served on the convict before taking action to withdraw/cancel remission. The concerned authority must give the convict an opportunity to file a reply and of being heard. After that, the authority must pass an order stating the reasons in brief.   

The convict can always challenge the order of cancellation of remission by adopting a remedy under Article 226 of the Constitution, the court said.

Court was dealing with a criminal appeal filed by Mafabhai Motibhai Sagar, questioning the legality of the conditions imposed while remitting the life sentence of the appellant in the exercise of powers under sub-section (1) of Section 432 of the Code of Criminal Procedure, 1973.

The appellant, a life-term convict in a murder case since 2008, approached the apex court after the Gujarat High Court declined to interfere with the rejection of his parole. 

During the hearing, his counsel submitted that his application for remission was not considered.

On a notice and a direction to decide the application expeditiously, the state government on September 15, 2023, granted remission to the remaining sentence.

The state government imposed conditions that after the release from jail, the prisoner shall behave "decently for two years". 

Among others, another condition was that if the prisoner after the release from the jail carries out any cognizable offence or inflict any serious injury to any citizen or property then he will be arrested again and he will have to serve the remaining period of sentence in jail.

With regard to behaving decently, the bench said putting such a vague condition while exercising the power under sub¬section (1) of Section 432 of the CrPC will give a tool in the hands of the executive to cancel the remission at its whims and fancies. 

"Therefore, such a condition is arbitrary and will be hit by Article 14 of the Constitution of India. Such a condition cannot be imposed as it will defeat the very object of remitting the sentence in the exercise of powers under sub¬section (1) of Section 432 of the CrPC," the bench said.

The court said the words ‘decent’ or ‘decently’ are not defined in the CrPC or any other cognate legislation. The concept of decency of each human being is likely to be different. The idea of decency keeps on changing with time. As the term ‘decency’ is not defined in the CrPC or any other cognate legislation, every person or authority may interpret the same differently. Therefore, such a condition while granting remission becomes too subjective, it added.

If a condition imposed is unclear or ambiguous, it can have different meanings. Consequently, it becomes very difficult to enforce such conditions. Thus, the condition imposed while granting remission must be such that it is capable of being complied with and enforced," the bench said.

The court also clarified the condition with regard to registration of a case of cognisable offence. It also explained the order of remission should not be revoked on the ground of breaches of conditions without compliance with the principles of natural justice.

Case Title: Mafabhai Motibhai Sagar Vs State of Gujarat & Ors