EXECUTION, SUSPENSION, REMISSION AND COMMUTATION OF SENTENCES

EXECUTION OF SENTENCES

It means the enforcement or implementation of a judgment or order or direction passed by the court of judicature. The process of execution of the sentence depends on the nature and type of the sentence pronounced by the Judge or the Magistrate.

SUSPENSION, REMISSION AND COMMUTATION OF SENTENCES

Suspension means to postpone the sentences without changing its duration.

Remission is the basic term owes to the reduction of the duration of the term of the sentence of judgment.

Commutation, in specific means, replacement or change of a legal penalty or punishment to a comparatively lesser period than the former sentence. These powers are the prerogatives of any sovereign power do not depend on the nature of the sentence pronounced.   

It was believed and followed that the Judicial System shall function with due care, appropriateness and diligence. The Judges while rendering a judgment will try to choose the most appropriate punishment (with discretion of the Court specified therein), or render the same specified in law (without discretion of the Court), in case of a Criminal Case. But in some instance the judgment delivered may seem to be wrong or with more gravity than of the offence. In such cases, in order to maintain social justice and human rights into consideration, the judicial and executive authorities are given powers as specified in law to change the sentences or judgments accordingly. In the process of execution, the judicial authorities are only involved. In cases of suspension, remission and commutation of sentences the Appropriate Governments are made as authorities and empowered with such powers as may be specified.

PART – B

IMPRISONMENT

POWER TO APPOINT PLACE OF IMPRISONMENT (SECTION 417)

  • The State Government may direct an order of confinement upon any person at the place he is liable to be imprisoned or committed to custody under this Code.
  • The State Governments power upon this provision is limited with the exceptions provided under this Code or any other law (Sub – section (1)).
  • If any person liable to be imprisoned or committed to custody under this Code is in confinement in a civil jail, by the order of the Court or Magistrate the imprisonment or committal may be directed to remove that person to a criminal jail (sub – section (2)).
  • When a person is removed to a criminal jail under sub-section (2), he shall, on being released therefrom, be sent back to the civil jail, unless either
  • three years have elapsed since he was removed to the criminal jail, in which case he shall be deemed to have been released from the civil jail under Section 58 of the Code of Civil Procedure, 1908, or Section 2,3 of the Provincial Insolvency Act, 1920.
  •  the Court which ordered his imprisonment in the civil jail has certified to the officer in charge of the criminal jail that he is entitled to be released under Section 58 of the Code of Civil Procedure, 1908, or under Section 23 of the Provincial Insolvency Act, 1920.

EXECUTION OF SENTENCE OF IMPRISONMENT (SECTION 418)

  • The provision gives directions for the person who is convicted and sentenced to imprisonment either for a term or for life under section 413.
  • In such a case, the Court passing the sentence shall forthwith forward a warrant to the jail or other place in which he is, or is to be, confined, and, unless the accused is already confined in such jail or other place, shall forward him to such jail or other place, with the warrant: Provided that where the accused is sentenced to imprisonment till the rising of the Court, it shall not be necessary to prepare or forward a warrant to a jail, and the accused may be confined in such place as the Court may direct (Sub – section (1)).
  • In Bhanja Naik v. Somnath[1] the sentence of imprisonment would commence from the time it is passed. 
  • If the accused is not present in Court when the sentence id delivered, a warrant may be issued for his arrest and forward him to the jail or other place in which he is to be confined (Sub – section (2)).
  • In the case of Sub – section (2), the sentence of imprisonment shall commence on the date of his arrest.

PROVISIONS REGARDING DEFINITION, ISSUES, DIRECTION, LODGING AND RETURN OF WARRANT.

  • DEFINITION: A warrant is an order that serves as a specific type of authorization may be in a format of writ issued by a competent officer, usually a Judge or a Magistrate.
  • WARRANT CASE (SECTION 2(X)): A warrant case means a case relating to an offence punishable with death, imprisonment for life or imprisonment for a term exceeding two years.
  • ISSUE OF WARRANT (Section 425): Every warrant for the execution of a sentence may be issued either by the Judge or Magistrate who passed the sentence, or by his successor – in – office.
  • DIRECTION OF WARRANT FOR EXECUTION (Section 419):  Every warrant for the execution of a sentence of imprisonment shall be directed to the officer in charge of the jail or other place in which the prisoner is, or to be confined.
  • WARRANT WITH WHOM TO BE LODGED (SECTION 420): When the prisoner is to be confined in a jail, the warrant shall be lodged with the jailor.
  • RETURN OF WARRANT ON EXECUTION OF SENTENCE (SECTION 430): When a sentence has been fully executed, the officer executing it shall return the warrant to the court from which it is issued, with an endorsement under his hand certifying the manner in which the sentence has been executed.
  • EFFECT OF WARRANT (Section 422): A warrant issued under section 421(1)(a) by any Court may be executed within the local jurisdiction of such Court, and it shall authorize the attachment and sale of any such property outside such jurisdiction, when it is endorsed by the District Magistrate within whose local jurisdiction such property is found.

PART – C

LEVY OF FINE

WARRANT FOR LEVY OF FINE (SECTION 421)

(1) When an offender has been sentenced to pay a fine, the Court passing Warrant for levy of the sentence may take action for the recovery of the fine in either or both of the following ways, that is to say, it may,

(a) issue a warrant for the levy of the amount by attachment and sale of any movable property belonging to the offender;

(b) issue a warrant to the Collector of the district, authorizing him to realize the amount as arrears of land revenue from the movable or immovable property, or both, of the defaulter: Provided that, if the sentence directs that in default of payment of the fine, the offender shall be imprisoned, and if such offender has undergone the whole of such imprisonment in default, no Court shall Issue such warrant unless, for special reasons to be recorded in writing, it considers it necessary so to do, or unless it has made an order for the payment of expenses or compensation out of the fine under Section 357.

In Ali Khan v. Hajrambi[2], it was held that, the proceedings for the recovery of fine under Section 421, the attachment of future salary of the offender is not permissible.

(2) The State Government may make rules regulating the manner in which warrants under clause (a) of sub-section (1} are to be executed, and for the summary determination of any claims made by any person other than the offender in respect of any property attached in execution of such warrant.

(3) Where the Court issues a warrant to the Collector under clause (b) of sub-section (1), the Collector shall realize the amount in accordance with the law relating to recovery of arrears of land revenue, as if such warrant were a certificate issued under such law: Provided that no such warrant shall be executed by the arrest or detention in prison of the offender.

Where a warrant for the recovery of the fine was issued before the whole term of imprisonment in default of payment of the fine was served, it is not necessary to record special reasons as the proviso is not applicable in such a case, specified in Nilkantha Pal v. Bisakha Pal[3]. 

WARRANT FOR LEVY OF FINE ISSUED BY A COURT IN ANY TERRITORY TO WHICH THIS CODE DOES NOT EXTEND (SECTION 423)

Notwithstanding anything contained in this Code or any other law for the time being in force, when an offender has been sentenced to pay a fine by a Criminal Court in any territory to which this Code does not extend and the Court passing the sentence issues a warrant to the Collector of District in the territory to which this Code extends, authorizing him to realize the amount as if it were an arrear of land revenue, such warrant shall be deemed to be a warrant issued under section 421(1)(b) by a Court in the territories to which this Code extends, and the provisions of sub – section (3) of the said section as to the execution of such warrant shall apply accordingly.

SUSPENSION OF EXECUTION OF SENTENCE OF IMPRISONMENT (SECTION 424)

(1) When an offender has been sentenced to fine only and to imprisonment in default of payment of the fine, and the fine is not paid forthwith, the Court may,

(a) order that the fine shall be payable either in full on or before a date not more than thirty days from the date of the order, or in two or three instalments, of which the first shall be payable on or before a date not more than thirty days from the date of the order and the other or others at an interval or at intervals, as the case may be, of not more than thirty days;

(b) suspend the execution of the sentence of imprisonment and release the offender, on the execution by the offender of a bond, with or without sureties, as the Court thinks fit, conditioned for his appearance before the Court on the date or dates on or before which payment of the fine or the instalments thereof, as the case may be, is to be made; and if the amount of the fine or of any instalment, as the case may be, is not realized on or before the latest date on which it is payable under the order, the Court may direct the sentence of imprisonment to be carried into execution at once.

In Alt Hussain v. Emperor[4], it was interpreted that, this section applies if the court has imposed a sentence of fine only and has awarded a term of imprisonment in default of payment of fine; it does not apply where a substantive sentence of imprisonment has been awarded and also a fine and a term of imprisonment in default have been awarded by the court.

(2) The provisions of sub-section (1) shall be applicable also in any case in which an order for the payment of money has been made on non-recovery of which imprisonment may be awarded and the money is not paid forthwith: and, if the person against whom the order has been made, on being required to enter into a bond such as is referred to in that sub-section, fails to do so, the Court may at once pass sentence of imprisonment.

The rules should provide for the procedure to be followed when such claims are made.

PART – D

GENERAL PROVISIONS REGARDING EXECUTION

SENTENCE ON ESCAPED CONVICT WHEN TO TAKE EFFECT (SECTION 426)

  • When a sentence of death, imprisonment for life or fine is passed under this Code on an escaped convict, such sentence shall, take effect immediately (Sub – section (1)).
  • When a sentence of imprisonment for a term is passed under this Code on an escaped convict,
  • if such sentence is severer in kind than the sentence which such convict was undergoing when he escaped, the new sentence shall take effect immediately, or
  • if such sentence is not severer in kind than the sentence which such convict was undergoing when he escaped, the new sentence shall take effect after he has suffered imprisonment for a further period equal to that which, at the time of his escape, remained unexpired of his former sentence (Sub – section (2)).
  • For the purposes of sub-section (2), a sentence of rigorous imprisonment shall be deemed to be severer in kind than a sentence of simple imprisonment (Sub – section (3)).

SENTENCE ON OFFENDER ALREADY SENTENCED FOR ANOTHER OFFENCE (SECTION 427)

  • This provision deals with concurrent conviction with imprisonment.
  • An accused person shall be in imprisonment for an offence for a particular period.
  • In such a case, the subsequent conviction to imprisonment for a term or imprisonment for life shall commence at the expiration of the previously sentenced imprisonment (Sub – section (1)).

Provided that where a person who has been sentenced to imprisonment by an order under Section 122 in default of furnishing security is, whilst undergoing such sentence, sentenced to imprisonment for an offence committed prior to the making of such order, the latter sentence shall commence immediately.

  • If the Court makes by an order for such person, the former and the latter sentences of imprisonment shall run concurrently (Sub – section (2)).  

In Miiiaim Singh v. State[5], the following was observed. It would be proper exercise of the discretion to make the sentence on a subsequent conviction to run concurrently with the previous sentence where separate trials are held for offences which, while constituting distinct offences, are inherently or intimately connected with each other.

The following has been observed in Mulaim Singh v. State[6]. There is no clear restriction in the Code itself that a direction for making the sentences to run concurrently cannot be given in exercise of inherent powers, and it would be competent for the High Court to give such a direction in exercise of its inherent power under Section 482 where it would serve any of the three purposes mentioned in that section, i.e to give effect to any order under the Code, or to prevent the abuse of the process of the court, or otherwise to secure the ends of justice.

PERIOD OF DETENTION UNDERGONE BY THE ACCUSED TO BE SET-OFF AGAINST THE SENTENCE OF IMPRISONMENT (SECTION 428)

  • The accused person should be detained for a period of time, if any, during the investigation, inquiry or trial of the same case.
  • In such a case, on conviction, been sentenced to imprisonment for a term, not being imprisonment in default of payment of fine, before the date of such conviction, shall be set-off against the term of imprisonment imposed on him on such conviction, and the liability of such person to undergo imprisonment on such conviction shall be restricted to the remainder, if any, of the term of imprisonment imposed on him.

It has been observed in joint Committee Report, p. xxix “that in many cases accused persons are kept in prison for very long period as undertrial prisoners and in some cases the sentence of imprisonment ultimately awarded is a fraction of the period spent in jail as undertrial prisoner. Indeed, there may be cases where such a person is acquitted … in many cases the accused person is made to suffer jail life for a period out of all proportion to the gravity of the offence or even to the punishment provided”.

MONEY ORDERED TO BE PAID RECOVERABLE AS A FINE (SECTION 431)

Any money (other than a fine) payable by virtue of any order made under this Code, and the method of recovery of which is not otherwise expressly provided for, shall be recoverable as if it were a fine.

The Supreme Court overturned the ruling in Kartar Singh v. State[7] of Haryana observing, “To say that a sentence of life imprisonment imposed upon an accused is a sentence for the term of his life does offence neither to grammar nor to the common understanding of the word, ‘term’.

PART – E

POWER TO SUSPEND OR REMIT SENTENCES (SECTION 432).

  • When any person has been sentenced to punishment for an offence. Power to suspend or the appropriate Government may, at any time, without conditions or upon remit sentences any conditions which the person sentenced accepts, suspend the execution of his sentence or remit the whole or any part of the punishment to which he has been sentenced.
  • 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 before or by which the conviction was had or confirmed, to state his opinion as to whether the application should be granted or refused, together with his reasons for such opinion and also to forward with the statement of such opinion, a certified copy of the record of the trial or of such record thereof as exists.
  •  If any condition on which a sentence has been suspended or remitted is, in the opinion of the appropriate Government, not fulfilled, the appropriate Government may cancel the suspension or remission, and thereupon the person in whose favour the sentence has been suspended or remitted may, if at large, be arrested by any police officer, without warrant and remanded to undergo the unexpired portion of the sentence.
  • The condition on which a sentence is suspended or remitted under this section may be one to be fulfilled by the person in whose favour the sentence is suspended or remitted, or one independent of his will.
  • The appropriate Government may, by general rules or special orders, give directions as to the suspension of sentences and the conditions on which petitions should be presented and dealt with.
  •  The provisions of the above sub-sections shall also apply to any order passed by a Criminal Court under any section of this Code or of any other law which restricts the liberty of any person or imposes any liability upon him or his property.
  • In this section and in Section 433, the expression “appropriate Government” means,

 (a) in cases where the sentence is for an offence against, or the order referred to in sub-section (6) is passed under, any law relating to a matter to which the executive power of the Union extends, the Central Government.

 (b) in other cases, the Government of the State within which the offender is sentenced or the said order is passed.

Once a person is convicted and the sentence is imposed by the court, and such person is sent to jail as a prisoner, the execution of the sentence imposed upon him is to be done by the appropriate government in accordance with the rules framed in that regard[8].

CONCURRENT POWERS OF THE GOVERNMENT

POWER TO COMMUTE SENTENCE (SECTION 433)

The appropriate Government (Central / State) may, commute the sentences of conviction allied with imprisonment of any person without the consent of such person. Such sentences are:

  • A sentence of death, for any other punishment provided by the IPC.
  • A sentence of imprisonment for life, for imprisonment of a term not exceeding fourteen years or for fine.
  • A sentence of rigorous imprisonment, for simple imprisonment for any term to which that person might have been sentenced or for fine.
  • A sentence of simple imprisonment for fine.     

CONCURRENT POWER OF CENTRAL GOVERNMENT IN CASE OF DEATH SENTENCES (SECTION 434).

The powers conferred by sections 432 and 433 upon the state government may, in the case of sentences of death, also be exercised by the Central Government.

STATE GOVERNMENT TO ACT AFTER CONSULTATION WITH CENTRAL GOVERNMENT IN CERTAIN CASES (SECTION 435).

  • In case of suspension, remission or commutation of sentences, the Central and State Government shall exercise concurrent powers over it. But, for the sentences issued under sections 432 and 433 for such specified offences, the State Government shall not solely exercise this power except after consultation with the Central Government. They are follows, (Sub – section (1)),
  • For any offence which was investigated by the Delhi Special Police constituted under the Delhi Special Police Establishment Act, 1946.
  • For any offence which was investigated by any agency empowered by the Central Government under any Central Act other than this Code.
  • For any offence involving misappropriation of or destruction of or damage to any property belonging to the Central Government.
  • For any offence committed by a person in the service of the Central Government, while acting or purporting to act in the discharge of his official duty.
  • For any offence committed by any person who has been convicted of which such matters involve the executive power of the Union.
  • For any conviction which involves separate terms of imprisonment which are to run concurrently of any person (Sub – section (2)).

BY ELAMATHY. S


[1]  1969 Cri LJ 1414, 1416: AIR 1969 Ori. 

[2] 1981 Cri Lj 682, 683.

[3] 1936 Cri Lj 1267, 1268: AIR 1935 Cal 546.

[4] (1933} 34 Cri LJ 530, 532: AIR 1933 Cal 308.

[5] 1974 Cri l.j 1597, :140c (All) (LB).

[6] 1974 Cri LJ 1397,1401 (All) (FB).

[7] (1982) 3 SCC 1: 1982 SCC (Cri) 522, 329: 1982 Cri LJ 1772.

[8]  S. Sant Singh v. State of Maharashtra.

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