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2 days ago
18
Appeal
Question as to whether the trial court imposing life without remission is correct
3. This Court had issued notice on 08.11.2024, limited to the question as to whether the trial court was correct in imposing life imprisonment meaning that it will be till the end of his natural life and directing the accused to be not granted the benefit of remission under Section 428 of the Code of Criminal Procedure, 1973.
Case of homicide
4. Despite the limited notice, we have gone through the evidence to convince ourselves on the conviction, especially since the witnesses, including the daughter of the deceased, an eyewitness turned hostile. The crime was committed on 01.01.2014 at 11:30 pm when the accused was alleged to have entered the shanty in which the deceased was living with her daughters. The woman having not succumbed to the sexual advances made, which had been continuing for some time earlier, the accused poured kerosene over her and set her ablaze. The woman was rushed to the hospital, taken to a higher center but later, after ten days, she succumbed to death. That the death was due to 60% burns caused, has been established by the medical evidence, making a clear case of homicide.
Analysis
Question: Whether Sessions Corut is competent to award life without set-off?
8. Now, the question remains as to whether the Sessions Court was competent to award a sentence of imprisonment for life till the remainder of life and prohibit the benefit of set-off as provided under Section 428 of the Cr.PC.
Sessions Court cannot curtain provision under section 428 Cr.P.C and remission
9. The sentence of life imprisonment no doubt means the entire life, subject only to the remission and commutation provided under Cr. PC and also to Articles 72 and 161 of the Constitution of India, which cannot be curtailed by a Sessions Court. Nor can the Sessions Court, a creation of the Cr.PC curtail the provision under Section 428, Cr.PC, available in the Code which created it.
10. The learned counsel for the appellant relied on the decision in Navas Alias Mulanavas v. State of Kerala in which the principle under Swamy Shraddananda v. State of Karnataka was employed to confirm the sentence imposed by the High Court of a life sentence without remission but modifying the period of 30 years imprisonment to that of a period of 25 years of imprisonment without remission.
Life sentence operates subjected to remission and commutation
12. An alternative measure was brought in, to break the standardisation in sentencing in such cases wherein the crime is heinous, dastardly and brutal. Though life sentence literally denotes imprisonment till the last breath, it operates only as an imprisonment for 14 years with the power of remission and commutation conferred on the Government. Balancing, the need to provide proportionate punishment at least in crimes which shocks human society, with the need to avoid death; an irreversible penalty, a middle ground was found. A measure by which, in crimes possible of categorisation as ‘rarest of the rare’, the Courts even then finds a need to avoid death, on mitigating circumstances, could award life imprisonment without remission. Also, when the case falls short of the ‘rarest of the rare’ category, thus excluding imposition of death sentence, but by the nature of crime the normal sentence of life imprisonment subject to remission or commutation, working out to a term of 14 years would not suffice and would be grossly disproportionate and inadequate, again this measure could be employed. It was in such circumstances that this Court considered the possibility of expanding the options so as to cover the ‘vast hiatus between 14 years imprisonment of life and death’ (para 92). The Court thus, substituted the death sentence awarded by the Trial Court and confirmed by the High Court, with imprisonment for life and directed that the accused shall not be released till the rest of his life.
Imposing punishment of Imprisonment for life without remission was conferred only on the Constitutional courts and not on the Sessions courts
13. This Court, hence, as evident from the extract hereinabove, clearly held that in appropriate cases as a uniform policy, punishment of imprisonment for life beyond any remission can be awarded, substituting the death penalty; not only by the Supreme Court but also by the High Courts. The power to impose punishment of imprisonment for life without remission was conferred only on the Constitutional Courts and not on the Sessions Courts.
Quoting judgment for the above reference
14. In Union of India v. V. Sriharan alias Murugan and Others, a Constitution Bench of this Court by majority reaffirmed the alternative option as laid down in Swamy Shraddananda restricting the principle to be applied only by the Constitutional Courts, the Supreme Court and the High Courts. While upholding the principle of alternative sentencing, it was also held that this would not affect the power conferred under Articles 72 & 161 of the Constitution of India. It is on the same principle that we say, the Sessions Court is not competent to interfere with or curtail the effect of the provisions of the Cr.PC.
Detailed interpretation of sentencing as to power to grant remission and commutation
15. Going by the decisions cited, it has to be held that life imprisonment awarded would be for the rest of the life, the power to grant remission and commutation under Sections 432 to 435 Cr.PC cannot be curtailed by the Sessions Court, when the remission as provided under the Constitution was declared to be not permissible of interference by the Constitutional Courts. The power of alternate sentencing to cover the hiatus between 14 years and death, cannot be applied by the Sessions Courts. Hence, the sentence of life imprisonment cannot be directed to be till the end of natural life, by the Sessions Court which direction would be in conflict with the provisions of the Cr. PC. The power of remission or commutation conferred on the State cannot be taken away and the sentence as awarded by the trial court and confirmed by the High Court for the offence under Section 302 of the Indian Penal Code, 1860 is confirmed as imprisonment for life.
Conclusion
Sessions court direction not to grant set-off is set aside
16. Now, we come to the question of set-off under Section 428, Cr. PC having been curtailed. The learned Government Advocate brought to our notice a refence made by a Division Bench of this Court, in The Superintendent of Prison and Anr. v. Venkatesan @ Senu @ Srinivasan @ Baskaran @ Radio @ Prakasam6. Therein the question referred was the principle of set-off being made applicable insofar as the period of detention with respect to other offences, suffered in the course of a separate investigation inquiry and trial. In the present case, no such question arise insofar as the direction of the trial court is not to grant the set-off for the period of detention undergone by the accused in the course of the investigation and trial of the same case. The statutory imprimatur in Section 428, Cr. PC is that the period of detention undergone by an accused during the investigation, inquiry or trial of a case, before the date of conviction in the case shall be set-off against the term of imprisonment imposed on the accused, as the sentence on such conviction. The direction of the Sessions Court not to grant set-off under Section 428, Cr. PC will stand deleted, as there is no escape from it.
Judgments cited and involved
Navas Alias Mulanavas v. State of Kerala, (2024) 14 SCC 82 – Appellant relied on this recent decision, where the Supreme Court applied Swamy Shraddananda principle to modify a 30-year non-remissible life sentence to 25 years.
Swamy Shraddananda (2) v. State of Karnataka, (2008) 13 SCC 767 – Core precedent introducing “life imprisonment without remission” as alternative to death in heinous crimes not “rarest of rare,” to bridge gap between 14-year effective life term and capital punishment; quoted extensively (para 56) for policy allowing constitutional courts to direct non-remissible life.
Union of India v. V. Sriharan alias Murugan and Others, (2016) 7 SCC 1 – Constitution Bench reaffirmed Swamy Shraddananda’s alternative sentencing (life without remission) exclusively for Supreme Court/High Courts, not Sessions Courts, without affecting Articles 72/161 powers.
The Superintendent of Prison and Anr. v. Venkatesan Senu Srinivasan Baskaran Radio Prakasam, 2025 INSC 541- Referenced for Section 428 CrPC set-off principles in multi-offence detentions; distinguished here as trial court wrongly denied set-off for investigation/trial period in same case.
Ravinder Singh v. State NCT of Delhi, (2024) 2 SCC 323 – Followed Swamy Shraddananda/Sriharan to uphold trial court’s 20-year fixed life term; distinguished as current offence did not warrant such special sentencing.
Acts and Sections
Code of Criminal Procedure, 1973 (CrPC)
- Section 428: Set-off of detention period during investigation/inquiry/trial against sentence
- Sections 432 to 435: Remission and commutation of sentences
Indian Penal Code, 1860 (IPC)
- Section 302: Murder
Constitution of India
- Article 72: President’s power of pardon, etc.
- Article 161: Governor’s power of pardon, etc.
English (US) ·