New Delhi: The Supreme Court on Wednesday held that power of remission under provision of CrPC cannot be exercised suo motu by the Centre and states and it can only be initiated on the application of convicts.


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A five-judge constitutional bench, headed by Chief Justice HL Dattu, said that ultimate order of suspension or remission should be guided by the opinion to be rendered by presiding officer of the concerned court.


"We, therefore, answer the said question to the effect that the suo motu power of remission cannot be exercised under Section 432(1), that it can only be initiated based on an application of the persons convicted as provided under Section 432(2) and that ultimate order of suspension or remission should be guided by the opinion to be rendered by the Presiding Officer of the concerned Court," the bench, which concurred on this issue, said.


"Therefore, it can safely be held that the exercise of power under Section 432(1) should always be based on an application of the person concerned as provided under Section 432(2) and after duly following the procedure prescribed under Section 432(2)," the bench said.


The apex court said this while settling various questions arising out of Tamil Nadu government's decision to free killers of former Prime Minister Rajiv Gandhi.


The observation came while answering a question whether suo motu exercise of power of remission under section 432 (1) of CrPC is permissible in the scheme of the section and if yes, whether the procedure prescribed in sub section (2) of the same section is mandatory or not.


Section 432 (1) empowers the appropriate government either to suspend the execution of a sentence or remit the whole or any part of punishment to which a convict has been sentenced.


Similarly, section 432 (2) pertains to the opinion to be secured from the presiding judge of the court who convicted the person and imposed sentence or the court which ultimately confirmed such conviction.


The apex court held that nature of opinion to be rendered by the presiding officer of the concerned court would throw much light on the nature of crime committed, the record of the convict, his background and other relevant factors which would enable the government to take the right decision on the issue.


"Keeping the above principles in mind, when we analyze Section 432(1), it must be held that the power to suspend or remit any sentence will have to be considered and ordered with much more care and caution, in particular the interest of the public at large," it noted.


"Extent of power is one thing and the procedure to be followed for the exercise of the power is different thing. There is no indication in Section 432(1) that such power can be exercised based on any application. What is not prescribed in the statute cannot be imagined or inferred.


"Therefore, when there is no reference to any application being made by the offender, it cannot be taken to mean that such power can be exercised by the authority concerned on its own," the bench said.


It further said that "after all, such exercise of power of suspension or remission is only going to grant some relief to the offender who has been found to have committed either a heinous crime or at least a crime affecting the society at large."