When any person subject to this act has been convicted by a court martial of any offence, the [federal government]or the [chief of the army staff] or any officer not below the rank of brigadier empowered in this behalf by the [chief of the army staff] may–
either without conditions or upon any conditions which the person sentenced accepts, pardon the person or remit the whole or any part of the punishment awarded; or
mitigate the punishment awarded or commute such punishment for any less punishment or punishments mentioned in this act;
provided that a sentence rigorous imprisonment for a term exceeding the term of transportation awarded by the court, and a sentence of rigorous imprisonment shall bot be commuted for a sentence of a detention for a term exceeding the term of rigorous imprisonment awarded by the court.
Provided further that a person to whom a sentence has been awarded as hadd under an ISLAMIC LAW shall not be pardoned, no such sentence shall be mitigated, remitted or commuted to any less punishment or punishments otherwise than in accordance with such law.
If any condition on which a person has been pardoned or a punishment has been remitted, is in the opinion of the authority which granted the pardon or remitted the punishment, not fulfilled such authority may cancel the pardon or remission and thereupon or such punishment had not been remitted.
Provided that in the case of a person sentenced to [imprisonment for life] imprisonment or detention such person shall undergo only the unexpired potion of his sentence.
When under the provisions of sub-section 5 of section 62 a non-commissioned officer is deemed to be reduced to the ranks, such reduction shall for the purposes of this section be treated as a punishment awarded by sentence of a court martial.
Specific provision of army act and being special law. Power of supreme court cannot assume such jurisdiction and that too in its review jurisdiction.
Where a person to this act has been sentenced by a court martial to [imprisonment for life]. [imprisonment, whipping] or detention the [federal government] or the chief of the army staff, or any officer empowered to convene a general or field general court martial may suspend the sentence whether or not the offender has already been committed to prison or custody.
The authority or officer specified in subsection 1 may in the case of an offender so sentenced direct that until the orders of such authority or officer have been obtained the offender shall not be committed to prison or custody.
The powers conferred by subsections 1 and 2 may be exercised in the case of any such sentence which has been confirmed, mitigated or commuted.
Where the sentence referred to in section 144 is imposed by a court martial other than a summary court martial the confirming officer may when confirming the sentence direct that the offender be not committed to prison or to custody until the orders of the authority or officer specified in section 144 have been obtained.
Where sentence is rigorous imprisonment or detention is awarded by a summary court martial the officer holding the trial or the officer authority to approve the sentence under the proviso to to section 127 may make the direction referred to in subsection 1.
where in accordance with any order passed under section 144 a sentence is suspended the offender shall whether he has been committed to prison or custody or not be released forthwith.
Any period during which a sentence is under suspension shall be reckoned as part of term of such sentence.
The authority or officer specified in section 144 may at any time whilst a sentence suspended order,–
that the offender be committed to undergo the unexpired portion of the sentence, or
that the sentence be remitted.
Where a sentence has been suspended the case may at any time and shall at intervals of not more than four months, he reconsidered by the authority or officer specified in section 144 or by an officer not below the rank of field officer duly authorized or officer specified in section 144. Which such reconsideration by the officer authorized in this behalf under subsection 1, it appears to him that the conduct of the offender since his conviction has been such as to justify a remission of the sentence, he shall refer the case to the authority or officer specified in section 144.
where an offender while a sentence on him is suspended is sentenced for any other offence then,
if the further sentence is also suspended under this act, the two sentences shall run concurrently.
If the further sentence is for a period of three months of more and is to suspended under this act the offender shall also be committed to prison or military custody on the unexpired portion of the previous sentence, but both sentences shall run concurrently, and
if the further sentence is for a period of less that three months and is not suspended under this act, the offender shall be committed on that sentence only, and the previous sentence shall subject to any order which may be passed under section 148 or 149 continue to be suspended.
The powers conferred by section 144 or section 148 shall be in addition to and not in derogation of the powers of mitigation, remission and commutation of sentences. Where in addition to any other sentence the punishment of dismissal has been awarded by a court martial and such other sentence is suspended under section 144 then such dismissal shall not take effect until so ordered by the authority or officer specified in section 144. if such order sentence is remitted under section 148 the punishment of dismissal shall also be remitted.
The Code of Criminal Procedure, 1898 has devoted full chapter on the subject of execution, suspension, remission and commutation of sentences. Indian legal mechanism provides pardoning power sourcing from both statuary and constitutional authorities. By virtue of article 72 and 161 of the Constitution of India, the President and Governor can grant pardon, to suspend, remit or commute a sentence passed by the court. In addition to the above constitutional provisions the Criminal Procedure Code, 1973 provides for Suspension, remission and commutation of sentences. Sections 432, 433, 433A, 434 and 435, empower the government to suspend or remit or commute sentences.
Suspension means to take or withdraw the sentence for the time being. It is the temporary postponement of the sentence. Remission implies reducing the period of sentence without changing its character. Commutation denotes the substitution of a form of punishment for a lighter one. Execution of sentences implies that court shall cause any order to be carried into effect by issuing a warrant or taking such other steps as may be necessary.
‘Suspension’ means a stay of the execution of the sentence or postponement of a judicial sentence while ‘Remission’ means reducing the amount of sentence without changing its character. Remission and suspension are different in their extent and meaning. ‘Remission’ means that the rest of the sentence needs not to be undergone; leaving the order of conviction and the sentence passed by the court untouched i.e. reduction of the amount of sentence without changing its character, for example, a sentence of one year may be remitted to six months. The effect of an order of remission is to entitle the prisoner to his freedom on a certain date. Therefore, once that day arrives, he is entitled to be released, and in the eye of law he is a free man from that moment. If there is any breach of condition of such remission, the remission can be cancelled and the prisoner committed to custody to undergo the unexpired portion of the sentence.
The procedure to be followed by government is also given in the Section 432(2), The Criminal Procedure Code, 1973. On receiving any application for the suspension or remission of a sentence, the government has to require the concerned court to state its opinion with reasons as to whether the application should be granted or refused. A certified copy of the records has to be sent along with such opinion. The government may cancel the suspension or remission of a sentence, if in its opinion the condition for granting such suspension or remission is not fulfilled: the offender may thereupon, if at large, be arrested by any police officer without a warrant and remanded to undergo the unexpired portion of the sentence. The power to remit the whole or any part of the sentence belongs exclusively to the Executive. The power given to the government by this section is purely discretionary, and the law does not enjoin upon the government to give reasons for remitting the unexpired portion of the sentence in the order of remission. However, the appropriate government must exercise this power fairly and not arbitrarily. In exercising its power of remission under Sec 432, Government should have regard to the limitation imposed by Sec 433A of Criminal Procedure Code. The remission and suspension under section 432 does not in any way interfere with the order of conviction passed by the court, but it only affects the execution of the sentence.
As a term of Criminal law, according to Black “In criminal law, the change of a punishment to one which is less severe as from execution to life imprisonment. While suspension and remission deal with postponement of sentence and reducing the period of sentence without changing its character, remission deals with substitution of a form of punishment for a less severe one.
As according to Section 433, there is nothing to prohibit the appropriate government to commutate the sentence to any sentence, though it may be lowest sentence of fine. Under this section the President and the Governor has the power in appropriate case to commute any sentences to a lesser sentence. Section 433 provides government with power to commutate the sentences. It contains many types for sentences which are eligible of commutation. One of them is commutation of death sentences i.e. mercy petition.
Section 433 reads as – The appropriate Government may, without the consent of the person sentenced commute
a sentence of death, for any other punishment provided by the Indian Penal Code (45 of 1860)
a sentence of imprisonment for life, for imprisonment for 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.
Death sentence has always been a question of controversy, while on one hand it becomes a matter of human rights with respect to the accused on the other hand it is one of weighing the gravity of the crime and its impact on the society. Section 433(a) of Criminal Procedure Code, 1973 is the provision that provides for commutation of capital punishment or death penalty.
It is on the basis of Section 433(b) of Criminal Procedure Code, that most convicts are able to get their sentence for life commuted up to 14 years. It was though wrongly also said that a sentence for life means a sentence of 14 years. The correct law is, however, otherwise. The Supreme Court in 2005 itself declared that a sentence of life imprisonment means imprisonment for life. Section 433A of the Criminal Procedure Code puts restriction on the power of President and Governor that the death sentence cannot be commutate less than imprisonment for 14 years. In absence of an order under Section 55 I PC or Section 433(b) the convict cannot be released forthwith even after expiry of 14 years.
Execution of Sentence-
Execution of sentence means to impose the sentence on the person whom it is directed. While suspension, remission, commutation deal with altering the sentence in some or other form by either imposing a stay or reducing the sentence or replacing it with some other punishment, execution is different them. In Execution the sentence is carried off into effect as it has been directed by the court without altering the form of sentence.
Execution of order passed under Section 368, Execution of sentence of death passed by High Court, Postponement of execution of sentence of death in case of appeal to Supreme Court and Postponement of capital sentence on pregnant woman are carried under Section 413, 414, 415 and 416 of Cr. P.C 1973.
Death sentences -When in a case submitted to the High Court for the confirmation of a sentence of death, the Court of Session receives the order of confirmation or other order of the High Court thereon, it shall cause such order to be carried into effect by issuing a warrant or taking such other steps as may be necessary. It is provided that when a sentence of death is passed by the High Court in appeal or in revision, the Court of Session shall, on receiving the order of the High Court, cause the sentence to be carried into effect by issuing a warrant.
Execution of sentence of imprisonment is done in cases where the accused is sentenced to imprisonment for life or to imprisonment for a term in cases other than those provided for by section 413, 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.[ix] Where the accused is not present in Court when he is sentenced to such imprisonment as is mentioned in Sub-Section (1), the Court shall issue a warrant for his arrest for the purpose of forwarding him to the jail or other place in which he is to be confined; and in such case, the sentence shall commence on the date of his arrest.
Provisions in Other Countries-
In the United States, the pardon power for offences against the United States is granted to the President of the United States under Article II, Section 2 of the United States Constitution which states that the President “shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment“. The U.S. Supreme Court has interpreted this language to include the power to grant pardons, conditional pardons, commutations of sentence, conditional commutations of sentence, remissions of fines and forfeitures, respites, and amnesties.
The Constitution of Greece grants the power of pardon to the President of the Republic (Art. 47, § 1). He/she can pardon, commute or remit punishment imposed by any court, on the proposal of the Minister of Justice and after receiving the opinion (not the consent necessarily) of the Pardon Committee.
The power to grant pardons and reprieves in the United Kingdom is known as the royal prerogative of mercy. It was traditionally in the absolute power of the monarch to pardon an individual for a crime, whether or not he or she had been convicted, and thereby commute any penalty; the power was then delegated both to the judiciary and the Sovereign’s ministers. Since the creation of legal rights of appeal, the royal prerogative of mercy is no longer exercised by the person of the sovereign, or by the judiciary, but only by the government.
The Irish constitution states (in Article 13.6) that “The right of pardon and the power to commute or remit punishment imposed by any court exercising criminal jurisdiction are hereby vested in the President, but such power of commutation or remission may also be conferred by law on other authorities”.