Supreme Court questions condition for remission that convict behave ‘decently’

The Supreme Court on Tuesday (September 3) expressed surprise at a The remission of sentence is subject to the condition that the convicted person behaves “decently”. The Court stated orally that vague conditions cannot be imposed.

While reserving judgment in this case, the Court also observed that the principles of natural justice should be interpreted as being incorporated into the provisions of Article 432 of the Code of Civil Procedure.

“The principles of natural justice will have to be interpreted in Article 432(3) of the Code of Criminal Procedure. There can be no question of cancelling the remission of sentence for each failure to pay.“, Judge Abhay Oka said orally.

A bench comprising Justice Abhay Oka and Justice Augustine George Masih was dealing with an SLP regarding the conditions fixed by the State of Gujarat under Section 432 of the CrPC while granting permanent remission to a life convict.

The application for remission was filed by a murder convict, initially to complain that the State was not taking any action on his application for remission. Subsequently, by an order dated 15 September 2023, the Government of Gujarat granted permanent remission on certain conditions. On 6 October 2023, the Supreme Court held that prima facie these conditions appeared to be inappropriate.

The conditions imposed by the Gujarat government for the remission included:

1. The applicant must behave “decently” for two years and, for this purpose, present two guarantors among respectable people and must not threaten the complainant or witnesses.

2. If the applicant commits a recognizable offense or causes serious harm to a citizen or property after his release, he will be rearrested and required to serve the remainder of his sentence in prison.

3. The applicant must report to the nearest police station once a month for one year after his release.

During today’s hearing, Justice Oka questioned the conditions. He said that while Section 432(1) of the CrPC allows the state to impose conditions for surrender, such conditions must be reasonable and supported by a clear justification.

He also stressed that the state must demonstrate why specific conditions were necessary in each case.Under section 432(1), you have the power to grant a conditional or unconditional remission. When you exercise that power, you must first consider why, in a particular case, conditions should be imposed. Then the conditions must be reasonable. We must think about why these conditions are imposed. Show us how they are reasonable. Decently is a word that has no meaning.” he said.

Judge Oka also questioned the feasibility of applying the condition that the applicant behave “decently” for two years. He noted: “What does the word “decent” mean? If such vague conditions are imposed, it will be impossible for a person to obtain a guarantee. Who will be able to guarantee that the person will behave in a decent manner?

Regarding the second condition, which stipulated that the convict would be rearrested if he committed a recognizable offence, Judge Oka noted: “We understand that you are saying that after grant of permanent remission, he is convicted of a cognizable offence, we can understand that. If your interpretation of Section 2 is that registration of an FIR alleging a cognizable offence means that the remission can be set aside… How many cases of false FIRs have we come across?“

The Gujarat state’s lawyer defended the conditions, arguing that they were necessary to prevent the convict from reoffending.If we wait for a conviction, he will continue to commit crimes.“, she argued, asserting that the state has a responsibility to protect society.

However, Justice Oka stressed that even if the State has the power to impose conditions under section 432, those conditions must be reasonable since the State has full power under section 432(3) to revoke the remission.Subsection (3) can only be invoked if the police officer is subjectively satisfied that the person is not behaving properly. That is where the danger lies. The same applies to the second condition.” he added.

Justice Oka pointed out that under Section 432(3) of the CrPC, the appropriate government can cancel the surrender if the conditions are not fulfilled, but that does not mean that every violation should automatically lead to cancellation.

“Sub-section (3) provides that if the conditions are not fulfilled, the appropriate government may cancel the remission. So, any violation need not necessarily lead to cancellation. Now please look at the second condition. We understand if you say that after his release, he should not commit any offence. But to say that he will be arrested immediately is contrary to sub-section (3)… The condition may be that he will not commit any offence after being released on permanent remission. Here, condition 2 leads to automatic cancellation of the remission.“,

He also pointed out that the principles of natural justice have to be read into Section 432(3) of the CrPC, which implies that automatic cancellation of surrender for any violation would not be justifiable.

After hearing the arguments, the Supreme Court reserved its judgment on the matter,

File number – Application for special leave to appeal (Crl.) No. 6166/2023

Case Title – Mafabhai Motibhai Sagar v. State of Gujarat and others.