TEAM CODE- A

2ND DHAWANI MANOCHA MEMORIAL NATIONAL MOOT COURT

COMPETITION, 2016

BEFORE
THE SUPREME COURT OF INDRADHWAJA
ORIGINAL JURISDICTION- 02/2016
STATE OF HANSA
PETITIONER

V.
STATE OF PANCHTARA & ORS.
RESPONDENT

W.P.(PIL) NO. 9/2016

NGO- HELP
PETITIONER

V.
STATE OF PANCHTARA
UNION OF INDIA
RESPONDENT

REVIEW PETITION NO. 3/ 2016

STATE OF HANSA
PETITIONER

V.
RIMPO, HARDO & OTHERS
RESPONDENT

MEMORANDUM ON BEHALF OF THE PETITIONER

Table of Contents

TABLE OF CONTENTS

S.NO
1.
2.

3.
4.
5.
6.
7.
8.

HEADING
TABLE OF CONTENTS

PAGE
NO.
I

INDEX OF AUTHORITIES

STATUTES

III

BOOKS REFERRED

III

DICTIONARIES

IV

WEBSITES

IV

CASE LAWS

IV

LIST OF ABBREVIATIONS

VII

STATEMENT OF JURISDICTION

VIII

STATEMENT OF FACTS

IX

ISSUES RAISED

SUMMARY OF ARGUMENTS

XI

ARGUMENTS ADVANCED
I. WHETHER THE F.I.R. NO. 219/1998 REGISTERED IN STATE OF
HANSA WAS ILLEGAL AS THE ACTS FORMED PART OF SAME

TRANSACTION PURPORTED TO BE INVESTIGATED IN OFFENCES

REGISTERED UNDER F.I.R. NO. 298/1998?

A. No same transaction
A.1. Separate Trial is a Rule, Joint trial an exception
A.2. Supreme Court is not a Fact-finding court
A.3. Two distinct offences were committed
B. Offences committed in pursuance of criminal conspiracy
constitute different offence
C. F.I.R. no.- 219/1998 is not illegal
II. WHAT IS THE DURATION OF LIFE IMPRISONMENT WHEN THE
SENTENCE OF DEATH HAS BEEN COMMUTED INTO SENTENCE OF
LIFE? WHETHER THE IMPRISONMENT FOR LIFE MEANS TILL
THE END OF CONVICTS LIFE?
A. A. No maximum duration of life imprisonment specified

MEMORANDUM ON BEHALF OF THE PETITIONER

II

Table of Contents
A.1. Mandatory imprisonment of fourteen years in case of
Commutation of Death Sentence
A.2. Life Imprisonment is Subject to the Executives Power of
Remission no Interference of Courts in matter of Remission by
State
B. B. Travesty of Justice
III.

WHETHER THE REFUSAL OF PRESIDENT TO GRANT PARDON/

REMISSION TO CONVICTS OF F.I.R. NO. 298/1998, THE
PROVISIONS OF CRPC OF INDRADHWAJA CAN BE USED TO
GRANT REMISSION AND CAN THE UNION GIVE CONSENT TO IT
AS REQUIRED UNDER CRPC?
A. In the present case, Provisions of CrPC cannot be used to grant
remission after the exercise powers under Articles 72 And 161.
A.1. Provisions of CrPC in respect of Remission are merely
enabling
B. State of Panchtara is not an Appropriate Government for
Exercising Power of Remission under CrPC, 1974
B.1. Express power given to union by virtue of proviso to Article
162(2) of the Constitution of Indradhwaja
B.2. Courts Power to Interfere in the Grant of Remission if
outside the Jurisdiction of granting Authority
B.3. Constituent Assembly Debate on Proviso to Articles 73 and
162(2)
C. Consultation stipulated in Section 435 of the Code implies
Concurrence
IV.
WHETHER SUPREME COURTS ORDER CREATING SPECIAL
CATEGORY OF OFFENDERS AND PUTTING THAT CATEGORY
BEYOND REMISSION IS ILLEGAL AND UNCONSTITUTIONAL?
A. Judicial Activism
A.1. Impinging upon the powers of Executive
A.2. Excess of Judicial Legislation
B. Reformatory policy of India
B.1. Prisoners right to be considered for Remission

9.

THE PRAYER

10

16
11

XIII

MEMORANDUM ON BEHALF OF THE PETITIONER

III

Index of Authorities

INDEX OF AUTHORITIES
STATUTORY COMPILATIONS:
1. ARMS ACT, 1959
2. FEDERAL SPECIAL POLICE ESTABLISHMENT ACT, 1946.
3. TERRORIST AND DISRUPTIVE ACTIVITIES (PREVENTION) ACT, 1985
4. THE CODE OF CRIMINAL PROCEDURE OF INDRADHWAJA, 1973.
5. THE CONSTITUTION OF INDRADHWAJA.
6. THE EXPLOSIVE SUBSTANCES ACT, 1908
7. THE INDRADHWAJA PENAL CODE, 1860.
BOOKS REFERRED:
1. Basu, Dr. Durga Das, The Indian Constitutional Law (3rd Ed Kamal Law House, 2011).
2. Gaur, KD, Criminal Law: Cases and Materials (6th Ed. LexisNexis 2013).
3. Gour, Hari Singh, Penal Law of India (11th Ed. Law Publishers (India) Pvt. Ltd. 2011).
4.

Jain, M.P., Indian Constitutional Law (6th Ed LexisNexis Buttersworth, 2010).

5. Jethmalan, Ram, The Code of Criminal Procedure, 1973(1st Ed Thomson Reuters, 2015).
6. Kelkar, R.V, Criminal Procedure (5th Ed. Eastern Book Company 2014).
7. Lal, Batuk, The Code of Criminal Procedure, 1973 (5th Ed Orient Publishing Co., 2010).
8. Majumdar, P.K., Kataria, R.P., Commentary On Indian Constitutional Law (10th Ed
Orient Publishing Co., 2009).
9. Misra, S.N., Indian Penal Code (19th Ed. Central Law Publishing 2013).
10. Pillai, P.S.A., Criminal Law (12th Ed. LexisNexis 2015).
11. Rao, Mamta, Public Interest Litigation in India a Renaissance in Social Justice (2nd Ed
Eastern Book Company, 2004).
12. Ratanlal and Dhirajlal, The Indian Penal Code (33rd Ed. Central Law Agency 2011).

MEMORANDUM ON BEHALF OF THE PETITIONER

IV

Index of Authorities
13. Sarkar, S.C., The Code of Criminal Procedure, 1973 (10th Ed Dwivedi Law Agency
2010).
14. Sarkar, S.C., The Indian Penal Code,1860 (3rd Ed Dwivedi Law Agency 2011).
15. Sarvaria, SK., Indian Penal Code (10th Edition LexisNexis 2009).
16. Sathe, S.P., Judicial Activism in India (Oxford University Press, 2002).
17. Sen, D.N., The Code of Criminal Procedure, 1973 (Premier Publishing Co., 2008)
18. Sohoni, Vishwas Shridhar, Criminal Referencer (2nd Ed Orient Publishing Company,
2008).
DICTIONARIES:
1. BRYAN A. GARNER, BLACKS LAW DICTIONARY (8TH ED. 2001)
2. OXFORD ENGLISH DICTIONARY, (2ND ED. 2009)
3. WEBSTERS NEW INTERNATIONAL DICTIONARY (1926)
WEBSITES:
1. www.manupatra.com
2. www.judis.nic.in
3. www.supremecourtcaselaw.com
4. www.scconline.com
5. www.lawstudentshelpline.com
CASES REFERRED:
CASE

PAGE

Ashok kumar v Union of India AIR 1991 SC 1792

11

Avinash Singh v. State, 2006 Cr LJ 4152 (Chhatisgarh)

Babubhai vs. State of Gujarat (2010) 12 SCC 254

Bakhshish Singh Dhaliwal v. State of Punjab, AIR 1967 SC 752;

MEMORANDUM ON BEHALF OF THE PETITIONER

Index of Authorities
Bhagwan v. Delhi Admn., AIR 1975 SC 1309

Bishnu Dayal v State Of West Bengal; AIR 1979 SC 964

18

Dalmia v. Delhi Admn., AIR 1962 SC 1600

Dhula v. State of Rajasthan, AIR 2004 SC 423

Divisional Manager, Aravali Golf Course v. Chander Haas (2008) 1

SCC 683

17

G.V. Ramanaiah v. The Superintendent of Central Jail, Rajahmundry

and others AIR 1974 SC 31

13

Gopal Vinayak Godse vs The State Of Maharashtra AIR 1961 SC 600

H.S. Sadasiva v. M.S. Muthappa, 1992 CrLJ 2424 (Kant) DB

Hukam Singh v. State of Punjab, AIR 1975 P & H 148

14

Jarnail Singh v. State of Punjab & Others, 1990 CriLJ 2310

Kadiri Kunhahammad v. State of Madras, AIR 1960 SC 661

Kanwari v State of UP, AIR 1962 SC 1198

Kuljeet Singh v. Lt. Governor (famous Ranga-Billa Case), AIR 1982

SC 774

Lalu Prasad @ Lalu Prasad Yadav vs State Through C.B.I., 2003 Cri
LJ 4452

Maru Ram v. Union of India AIR 1980 SC 2147

6,10

Mohamudul Hassan v. Union of India and Ors AIR 2011 SC 165

Mohinder Singh v. State of Punjab, (1998) 7 SCC 390

Most. Sudama Devi v. State of Bihar, AIR 2013 SC 388

8,18

Nirmal Singh Kahlon vs. State of Punjab (2009) 1 SCC 441

Prakash Dhawal Khairnar v. State of Maharashtra, AIR 2002 SC 340

Ramraj @ Nanhoo @ Bihnu Vs. State of Chhattisgarh, AIR 2010 SC

420

Sambha Ji Krishan Ji. v. State of Maharashtra, AIR 1974 SC 147

MEMORANDUM ON BEHALF OF THE PETITIONER

VI

Index of Authorities
Sarat Chandra Rabha v. Khagendranath Nath, AIR 1961 SC 334

16

Shatrughan Chauhan and another v. Union of India and others, (2014)

3 SCC 1

11

Shri Bhagwan v. State of Rajasthan AIR 2001 SC 2342

Shyokaran and Ors. v State Of Rajasthan and Ors; 2008 CriLJ 1265

19

State (Government of NCT of Delhi) vs. Prem Raj, (2003) 7 SCC 121

16

State of A.P. v. Ganeswara Rao, AIR 1963 SC 1850

State of A.P. v. Kandimalla Subbaiah, AIR 1961 SC 1241

State of Gujarat and Anr. v. Justice R.A. Mehta (Retired) (2013) 3

SCC 1

15

State of Haryana v. Jagdish, AIR 2010 SC 1690

11,18

State of Haryana v. Mahender Singh,(2007) 13 SCC 606

18

State Of Kerala v. Soma Thomas, 2004 Cri LJ 2222 at 2224 (Ker).

13

State of M.P. v. Ratan Singh AIR 1976 SC 1552

State of Punjab and others vs. Joginder Singh and others AIR 1990
SC 1396

State of Punjab v. Rajesh Syal, AIR 2002 SC 3687

State v. M. Balakrishna, 1980 Cri Lj 1145 (Kant)

Subash Chander v. Krishan Lal and others, AIR 2001 SC 1903

Supreme Court Advocates on Record Association and ors. v. Union of

India (1993) 4 SCC 441

15

Swaran Singh v. State of U.P., AIR 1998 SC 2026

13

T.T.Anthony vs. State of Kerala (2001) 6 SCC 181

Union of India v. V. Sriharan @ Murugan & Ors, (2014) SCC

13

Union of India v. V. Sriharan @ Murugan & Ors., WRIT PETITION

(CRL.) NO. 48 OF 2014

12

Upkar Singh vs. Ved Prakash & Ors. (2004) 13 SCC 292

MEMORANDUM ON BEHALF OF THE PETITIONER

VII

List of Abbreviations

LIST OF ABBREVIATIONS

Section

A.I.R.

All India Reporter

B.P.C

Indradhwaja Penal Code

Cal

Calcutta High Court

Cri LJ

Criminal Law Journal

CrPC

Code of Criminal Procedure

E.R.

England Reporter

Ed.

Edition

F.I.R.

First Information Report

Honble

Honourable

I.P.C.

Indradhwaja Penal Code

K.B.

Kings Bench

Ltd.

Limited

M.P.

Madhya Pradesh

Mad

Madras High Court

P&H

Punjab & Haryana Court

Raj

Rajasthan High Court

S.C.

Supreme Court

S.C.C.

Supreme Court Cases

S.C.R.

Supreme Court Reporter

Vs

Versus

W.B.

West Bengal

W.P.

Writ Petition

MEMORANDUM ON BEHALF OF THE PETITIONER

VIII

Statement of Jurisdiction

STATEMENT OF JURISDICTION
The Petitioners have filed separate petitions in the Honble Supreme Court Of Indradhwaja
under the following Articles of The Constitution of IndradhwajaThe Petitioner State of Hansa has approached the Honble court under Article 131 clause (c)131.Original jurisdiction of the Supreme Court.Subject to the provisions of this Constitution, the Supreme Court shall, to the exclusion of any
other court, have original jurisdiction in any dispute(c) between two or more States, if and in so far as the dispute involves any question (whether
of law or fact) on which the existence or extent of a legal right depends.
The petitioner NGO-Help has approached the Honble court under Article 32(2)32. Remedies for enforcement of rights conferred by this Part.(2) The Supreme Court shall have power to issue directions or orders or writs, including
writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari,
whichever may be appropriate, for the enforcement of any of the rights conferred by this
Part.
The petitioner Union Of India has approached the Honble court under Article 137137.Review of judgments or orders by the Supreme Court.Subject to the provisions of any law made by Parliament or any rules made under Article
145, the Supreme Court shall have power to review any judgment pronounced or order made
by it.
All the three petitions have been clubbed together.
Accordingly the Petitioners invoke the jurisdiction of the Honble Supreme Court of
Indradhwaja under Articles 131, 32 and 137 of The Constitution of Indradhwaja.

MEMORANDUM ON BEHALF OF THE PETITIONER

IX

Statement of Facts

STATEMENT OF FACTS
1. Political Setup
Indradhwaja is an Asian country whose socio-politico-legal order is similar to India.
Majority of the population (60%) follows Pihu religion while Soham religion
constitutes about 25% of the population and the rest belong to different religions. The
Constitution provides that the country shall be secular, democratic republic.
2. Incident occurred at State of Panchtara
On August 2, 1998, the religious leader of Pihus was killed by two persons identified as
Rimpo and Hardo belonging to Soham religion in Panchtara. An FIR No. 298/1998 was
registered under various statutes against 12 persons. The case was handed over to FBI.
Supreme Court confirmed death sentence of Special Court in October 2005. Governor
rejected their mercy petition and thereafter the President rejected it in April 2014. The SC
commuted it into life imprisonment on grounds of delay. Panchtara wrote a letter for
consultation to Union for remission of the sentence.
3. Riots in State of Hansa
Following the assassination, riots broke out in state of Hansa and 3000 people died. The
investigation led to discovery of highly explosive substances and conspiracy to spread
communal hatred. An FIR No. 219/1998 was registered against 7 persons including
Rimpo and Hardo. Supreme Court confirmed their conviction and passed an order to
sentence convicts beyond remission.
4. Clubbing of three petitions
Review filed by Union of Indradhwaja challenging SCs decision under FIR 219/1998,
Petition filed by Hansa to stay remission of convicts and PIL filed by an NGO to grant
remission are clubbed and are to be decided by 7 judge bench of the SC of Indradhwaja.

MEMORANDUM ON BEHALF OF THE PETITIONER

Issues Raised

ISSUES RAISED
ISSUE-I
Whether F.I.R. No. 219/1998 Registered In Hansa State Was Illegal As The Acts Formed
Part Of The Same Transaction Which Were Purported To Be Investigated In Offences
Registered Under F.I.R. No. 298/1998 Of Panchatara State?
ISSUE- II
What Is The Duration Of Life Imprisonment When Sentence Of Death Has Been Commuted
Into Sentence Of Life? Whether The Imprisonment For Life Means Till The End Of
Convict's Life?
ISSUE- III
Whether After The Refusal Of The President To Grant Pardon/Remission To The Convicts
Of F.I.R. No. 298/1998, The Provisions Of Criminal Procedure Code Of Indradhwaja Can Be
Used To Grant Remissions And Can The Union Give Consent It?
ISSUE-IV
Whether The Supreme Court Order Creating Special Category Of Sentence And Putting That
Category Beyond Remission Is Illegal And Unconstitutional?

MEMORANDUM ON BEHALF OF THE PETITIONER

XI

Summary of Arguements

SUMMARY OF ARGUMENTS
I. WHETHER F.I.R. NO. 219/1998 REGISTERED IN HANSA STATE WAS ILLEGAL AS THE
ACTS FORMED PART OF THE SAME TRANSACTION WHICH WERE PURPORTED TO BE
INVESTIGATED IN OFFENCES REGISTERED UNDER F.I.R NO. 298/1998 OF
PANCHATARA STATE?
The determination of the Magistrate must, be prima facie in nature; it cannot be
challenged in appeal or revision with reference to the evidence or the findings.
The charge of conspiracy is only an allied charge and that the main charges are in respect
of separate and distinct acts, these cases could not be amalgamated.
The second FIR lies where the first FIR does not contain allegations of conspiracy.
II. WHAT IS THE DURATION OF LIFE IMPRISONMENT WHEN SENTENCE OF DEATH HAS
BEEN COMMUTED INTO SENTENCE OF LIFE? WHETHER THE IMPRISONMENT FOR LIFE
MEANS TILL THE END OF CONVICT'S LIFE?

Convict has to pass the remainder of his life in person, but for remission and
commutations granted in exercise of the aforesaid powers.

The legal position is that if a person is sentenced to imprisonment for life, he may be
detained for life in the prison but court cannot interfere on the ground of remission.

Heinousness of crime is a factor to be considered while awarding the sentence however

it is not relevant in deciding the case of premature release.

III. WHETHER AFTER THE REFUSAL OF THE PRESIDENT TO GRANT PARDON/REMISSION TO

THE CONVICTS OF F.I.R. NO. 298/1998, THE PROVISIONS OF CRIMINAL PROCEDURE
CODE OF INDRADHWAJA CAN BE USED TO GRANT REMISSIONS AND CAN THE UNION
GIVE CONSENT TO IT?
The president and the Governor while functioning as the Executive Head of the respective
bodies, only have to act based on the advice of the Council of Ministers of the Union or
the State. While exercising power under Section 432, it is to be exercised by the same
ministers.
The court may interfere if the authority, which purported to have exercised the power had
no jurisdiction to exercise it or when the impugned order went beyond the power

MEMORANDUM ON BEHALF OF THE PETITIONER

XII

Summary of Arguements
conferred by the law upon the authority who made it.
IV. WHETHER THE SUPREME COURT ORDER CREATING SPECIAL CATEGORY OF SENTENCE
AND
PUTTING
THAT
UNCONSTITUTIONAL?

CATEGORY

BEYOND

REMISSION

IS

ILLEGAL

AND

Judicial review is strictly judicial and thus quite different from the policy-making
functions of the executive and legislative branches. In performing their duties, judges
must take care not to intrude upon the domain of the other branches of government.
These prisons or correctional homes as they are termed humanly treat the inmates and
release them as soon as they feel that they are fit to mix up with the other members of the
community.

MEMORANDUM ON BEHALF OF THE PETITIONER

Body of Pleadings

BODY OF PLEADINGS
UNDER ORIGINAL JURISDICTION-02 /2016
I. WHETHER FIR NO. 219/1998 REGISTERED IN HANSA STATE WAS ILLEGAL AS THE
ACTS FORMED PART OF THE SAME TRANSACTION WHICH WERE PURPORTED TO BE
INVESTIGATED IN OFFENCES REGISTERED UNDER FIR NO. 298/1998 OF PANCHATARA
STATE?
1. It is humbly submitted before the Honble Bench that the FIR No. 219/1998 registered in
Hansa against the spreading of communal hatred leading to riots, was not illegal as the act
of assassination of Sasha, registered under FIR no. 298/1998 of Panchatara State did not
form part of the transaction occurred at State of Hansa.
A. NO SAME TRANSACTION
2. Sir James Stephen defines transaction as a group of facts so connected as to be referred
to by a single name, as a crime, a contract, a wrong or any other subject of enquiry which
may be in issue.1 The connections between a series of acts are the essential ingredients
for those acts to constitute a same transaction and if some of them stand out
independently, they would not form part of the same transaction but would constitute
different transaction or transactions. 2
3. Where in case different persons were alleged to had been defrauded by accused, such act
could not be regarded as constituting a single series of transaction as each offence was a
distinct one. Therefore, such cases would not be covered under Section 2203 of Code of
Criminal Procedure of Indradhwaja.4

Batuk Lal, Commentary on The Code of Criminal Procedure, 1973-1213(3rd Ed Orient Publishing
Company, 2005)
2

State of A.P. v. Ganeswara Rao, AIR 1963 SC 1850 ; State v. M. Balakrishna, 1980 Cri Lj 1145 (Kant)

220.Trial for more than one offence.(1) If, in one series of acts so connected together as to form the same transaction, more offences than one are
committed by the same person, he may be charged with, and tried at one trial for, every such offence.
(2) xxx
4
State of Punjab v. Rajesh Syal, AIR 2002 SC 3687

MEMORANDUM ON BEHALF OF THE PETITIONER

Body of Pleadings
4. When the offences are distinct pertaining to different periods, evidence of each case
should be recorded separately and clubbing of the several cases together should be
avoided.5
A.1. Separate Trial Is A Rule, Joint Trial An Exception
5. Section 2236 of Code of Criminal Procedure of Indradhwaja being an enabling provision,
no illegality is committed where the court choose, to try different offences committed in a
series of acts, separately.7 The word may at the beginning of the section does not make
it obligatory to hold a joint trial, even if the conditions of the section are satisfied.8
6. The Court may, in the exercise of its discretion, refuse a joint trial where, owing to the
number of persons involved and the long period covered by a conspiracy, a joint trial
would- (a) prolong the trial, or (b) cause unnecessary waste of judicial time, or (c)
confuse or cause prejudice to those accused who had taken part only in some minor
offence.
7. Where three charge-sheets were filed by the police and the magistrate passed three
separate orders of commitment for trial by the Court of Session, it was held that joint trial
of three cases by the Court of Session is not justified under s. 220.9
A.2. Supreme Court Is Not A Fact-Finding Court

H.S. Sadasiva v. M.S. Muthappa, 1992 CrLJ 2424 (Kant) DB

223.What persons may be charged jointly.

The following persons may be charged and tried together, namely:(a) xxx
(b) xxx
(c) xxx
(d) persons accused of different offences committed in the course of the same transaction;
(e) xxx
(f) xxx
(g) xxx
7

Mohinder Singh v. State of Punjab, (1998) 7 SCC 390

Bhagwan v. Delhi Admn., AIR 1975 SC 1309

Kanwari v State of UP, AIR 1962 SC 1198

MEMORANDUM ON BEHALF OF THE PETITIONER

Body of Pleadings
8. The point of time in the proceedings at which it is to be determined whether the
conditions of any of the clauses of this section10 have been fulfilled or not is the time
when the accusation is made and not when the trial is concluded and the result known,
and in making this determination, the Court should examine the nature of the accusation.
The determination of the Magistrate must, be prima facie in nature; it cannot be
challenged in appeal or revision with reference to the evidence or the findings.11
A.3. Two Distinct Offences Were Committed
9. Where the versions of the prosecution in two cases are diametrically opposite and
mutually exclusive, merely because five accused persons of one case are common in the
subsequent case, both the trials could not be consolidated and be tried together more so,
when the role attributed to those five accused persons was also different.12
10. It is submitted that in the present case, offence committed in State of Hansa did not form
the part of the offence committed in State of Panchtara. Both being distinct offences
committed at distinct places and reported under two different FIRs viz. No. 219/1998 and
No. 298/1998 were rightly investigated and tried by the States separately. Hence, no
irregularity or illegality had been caused by State of Hansa.
B. OFFENCES COMMITTED IN PURSUANCE OF CRIMINAL CONSPIRACY CONSTITUTE
DIFFERENT OFFENCE
11. Criminal Conspiracy is a separate offence under Section-120B, distinct from the offences
committed or attempted to be in pursuance of such conspiracy, e.g., murder, cheating,
criminal breach of trust or the like.13

10

Supra Note 3

11

Kadiri Kunhahammad v. State of Madras, AIR 1960 SC 661

12

Avinash Singh v. State, 2006 Cr LJ 4152 (Chhatisgarh)

13

State of A.P. v. Kandimalla Subbaiah, AIR 1961 SC 1241; Bakhshish Singh Dhaliwal v. State of Punjab, AIR

1967 SC 752; Dalmia v. Delhi Admn., AIR 1962 SC 1600

MEMORANDUM ON BEHALF OF THE PETITIONER

Body of Pleadings
12. Where the charge of conspiracy is only an allied charge and that the main charges (under
Prevention of Corruption Act) are in respect of separate and distinct acts, i.e. money
siphoned out of different treasuries at different times, these cases could not be
amalgamated.14
C. FIR NO.- 219/1998 IS NOT ILLEGAL
13. The principle that was laid down with regard to the bar of filing of the second FIR was
only in respect of the same incident or occurrence. The court held that whether the
offences are distinct or same would necessarily have to be examined in the facts and
circumstances of each case.15
14. The court in the case of Babubhai vs. State of Gujarat16, held that in case the contrary is
proved, where the version in the second FIR is different and is in respect of the two
different incidents/crimes, the second FIR is permissible.
15. In the case of Nirmal Singh Kahlon vs. State of Punjab17 court has carved out an
exception for filing a second FIR. As per the exception carved out in the said case, the
second FIR lies in a case where the first FIR does not contain any allegations of criminal
conspiracy.
16. Thus, in the light of above arguments, it is humbly submitted that the investigation and
trial conducted under F.I.R No. 219/1998 is legal and justified in the eyes of law.

14

Lalu Prasad @ Lalu Prasad Yadav vs State Through C.B.I., 2003 Cri LJ 4452

15

T.T.Anthony vs. State of Kerala (2001) 6 SCC 181

16

(2010) 12 SCC 254

17

(2009) 1 SCC 441; Upkar Singh vs. Ved Prakash & Ors. (2004) 13 SCC 292

MEMORANDUM ON BEHALF OF THE PETITIONER

Body of Pleadings
UNDER W.P. (PIL) NO. 8/2016
II. WHAT IS THE DURATION OF LIFE IMPRISONMENT WHEN SENTENCE OF DEATH HAS BEEN
COMMUTED INTO SENTENCE OF LIFE? WHETHER THE IMPRISONMENT FOR LIFE MEANS
TILL THE END OF CONVICT'S LIFE?

A. NO MAXIMUM DURATION OF LIFE IMPRISONMENT SPECIFIED

17. It is humbly submitted before the Honble Bench that there has been no specific mention
of maximum duration of life imprisonment in either of the Indradhwaja Penal Code or the
Code of Criminal Procedure. The only limit prescribed is that of the minimum duration of
life imprisonment in case it has been commuted from death sentence to that of life
imprisonment under Section-433A of the CrPC.
A.1. Mandatory Imprisonment Of Fourteen Years In Case Of Commutation Of
Death Sentence
18. Here it is pertinent to refer to Section-433A of the CrPC which says that433A. Restriction on powers of remission or Commutation in certain cases.
Notwithstanding anything contained in section 432, where a sentence of imprisonment
for life is imposed on conviction of a person for an offence for which death is one of the
punishments provided by law, or where a sentence of death imposed on a person has been
commuted under section 433 into one of imprisonment for life, such person shall not be
released from prison unless he had served at least fourteen years of imprisonment.
19. In State of Punjab and others vs. Joginder Singh and others18, this Court held that
Remission schemes have been introduced to ensure prison discipline and good behaviour
and not to upset sentences. If the sentence is of imprisonment for life, ordinarily the
convict has to pass the remainder of his life in person, but for remission and
commutations granted in exercise of the aforesaid powers. Even in such cases, Section
433-A of the Code of Criminal Procedure do not insist that the convict pass the remainder
18

AIR 1990 SC 1396; Ram Raj v State of Chattisgarh AIR 2010 SC 420

MEMORANDUM ON BEHALF OF THE PETITIONER

Body of Pleadings
of his life in prison but merely insists that he shall have served time for at least 14 years.
20. The Parliament in its wisdom chose to act in order to prevent criminals committing
heinous crimes from being released through easy remissions or substituted form of
punishments without undergoing at least a minimum period of imprisonment of fourteen
years which may in fact act as a sufficient deterrent which may prevent criminals from
committing offences.19
21. On a conjoint reading of Sections 4520 and 5321 of the Indian Penal Code and Sections
432, 433 and 433A Cr.P.C., it is now well established that a convict awarded life sentence
has to undergo imprisonment for at least 14 years. While Sections 432 and 433 empowers
the appropriate Government to suspend, remit or commute sentences, including a
sentence of death and life imprisonment, a fetter has been imposed by the legislature on
such powers by the introduction of Section 433A.22
A.2. Life Imprisonment Is Subject To The Executives Power Of Remission
22. In State of M.P. v. Ratan Singh23, this Court has held that A sentence of imprisonment
for life means a sentence for the entire life of the prisoner unless the Appropriate
Government chooses to exercise its discretion to remit either the whole or a part of the

19

Maru Ram Etc. Etc vs Union Of Lndia & Anr, AIR 1980 SC 2147

20

45. "Life"
The word "life" denotes the life of a human being, unless the contrary appears from the context
21

53. Punishment
The punishments to which offenders are liable under the provisions of this Code areFirst- Death;
39
[Secondly- Imprisonment for life;]
40
[***]
Fourthly- imprisonment, which is of two descriptions, namely:(1) Rigorous, that is, with hard labor;
(2) Simple,
Fifthly- Forfeiture of property;
Sixthly- Fine
22

Ramraj @ Nanhoo @ Bihnu Vs. State of Chhattisgarh, AIR 2010 SC 420

23

AIR 1976 SC 1552

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Body of Pleadings
sentence under Section 432 of the Code of Criminal Procedure.
23. In yet another case, the court by following Gopal Vinayak Godse vs The State Of
Maharashtra24 held that to hold that imprisonment for life lasts until the last breath, and
whatever the length of remissions earned, the prisoner can claim release only if the
remaining sentence is remitted by Government.25
24. In Shri Bhagwan v. State of Rajasthan26, court held that ....therefore, in the interest of
justice, we commute the death sentence imposed on the appellant and direct that the
appellant should undergo the sentence for imprisonment for life. We further direct that the
appellant should not be released from the prison unless she had served out atleast 20 years
of imprisonment including the period already undergone by the appellant.27
25. In the above case, the honble Supreme Court has expressly provided that the convicts
must undergo a period of 20 years imprisonment incarceration creating a bar on the power
of the executive to grant remission till 20 years. After that the executive can exercise its
power after the said period of 20 years. Hence, nowhere it is assumed that he should be in
prison till the end of his natural life.
B. NO INTERFERENCE OF COURTS IN MATTER OF REMISSION BY STATE
26. The legal position is that if a person is sentenced to imprisonment for life, he may be
detained for life in the prison but the court cannot interfere on the ground of earning
remission.28
27. The Hon'ble Apex Court in Mohamudul Hassan v. Union of India and Ors29 while
24

25

AIR 1961 SC 600

Subash Chander v. Krishan Lal and others, AIR 2001 SC 1903

26

AIR 2001 SC 2342

27

See also Prakash Dhawal Khairnar v. State of Maharashtra, AIR 2002 SC 340

28

Sambha Ji Krishan Ji. v. State of Maharashtra, AIR 1974 SC 147

29

AIR 2011 SC 165

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identifying the application of Section-432 of CrPC, held that it is the privilege available
before the State and the option lies before the State to exercise the same in appropriate
case. This is a judicial Court and hence this Court has no power which the executive has
under Section 432, Cr.P.C. or which the Governor has under Article 161 of the
Constitution.
28. In order to check all arbitrary remissions, the Code itself provides several conditions
under subsections-(2) to (5) of Sections 432 of the Code laying down basic procedure for
making an application to the appropriate Government for suspension or remission of
sentence either by the convict or someone on his behalf.30
29. The Constitution has identified equal status of all the three institutions that means to say
the judiciary, the executive, and the legislative but by prescribing check and balance
theory, certain powers have exclusively been vested to be exercised by the sovereign
authority even having finality on the score of judicial pronouncement. Article 72 and
Article 161 vest exclusive powers of pardon with President and Governors, respectively.
In likewise manner the executive machinery has also been vested with power to issue
such administrative circulars under the guise of different enactments. The theme of short
sentencing policy happens to be an outcome of one of such sincere effort.31
C. TRAVESTY OF JUSTICE
30. Life without liberty is lasting but not living as liberty is a lifeline of every human
being. It is therefore not a matter of surprise that liberty is considered one of the most
cherished and precious possession of every human being. No one likes fetters on his
personal liberty.
31. The courts usually held it a salutary principle that to shut up a man in prison longer than

30

Most. Sudama Devi v. State of Bihar, AIR 2013 SC 388

31

Ibid

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Body of Pleadings
really necessary is not only bad for the man himself, but also it is a useless piece of
cruelty, economically wasteful and a source of loss to the community. 32
32. Heinousness of crime is a factor to be considered while awarding the sentence however it
is not relevant in deciding the case of premature release.33 Premature release, of a prisoner
cannot be withheld on vague allegation regarding apprehension of breach of peace. 34
33. Modern trends in the field of penology are reflected in the object of punishment which
is the correction of the wrongdoer and not wrecking gratuitous punitive vengeance on the
criminal whose so called criminal act, in many cases, may be mere manifestation of a
deep-rooted psycho-social maladjustment for which society itself may be responsible in a
number of ways. Also, the court has said that the gap of 14 years between the date of
crime and the application for consideration of premature release is much more a sufficient
time to heel up wound effect of the complainant party.35

32

Kuljeet Singh v. Lt. Governor (famous Ranga-Billa Case), AIR 1982 SC 774

33

(1990) All Cri. LR 342 (343) (P & H)

34

Jarnail Singh v. State of Punjab & Others, 1990 CriLJ 2310

35

Dhula v. State of Rajasthan, AIR 2004 SC 423

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UNDER ORIGINAL JURISDICTION. 02/2016
III. WHETHER AFTER THE REFUSAL OF THE PRESIDENT TO GRANT PARDON/REMISSION TO
THE CONVICTS OF FIR NO. 298/1998, THE PROVISIONS OF CRIMINAL PROCEDURE
CODE OF INDRADHWAJA CAN BE USED TO GRANT REMISSIONS AND CAN THE UNION
GIVE CONSENT TO IT?

34. It is contended that once the power of commutation/remission has been exercised in a
particular case of a convict by a Constitutional forum particularly this Court, then there
cannot be a further exercise of the Executive Power for the purpose of
commuting/remitting the sentence of the said convict in the same case by invoking
Sections 432 and 433 of Code of Criminal Procedure.
A. IN THE PRESENT CASE, PROVISIONS OF CRPC CANNOT BE USED TO GRANT
REMISSION AFTER THE EXERCISE OF POWERS UNDER ARTICLES 72 AND 161
35. In Maru Ram v. Union of India36, it was held that power under Article 72 and 161 of the
Constitution can be exercised by the Central and State Governments and not by the
President or Governor on their own. The advice of the appropriate government binds the
Head of the State. The court observed that considerations for exercise of power under Ar.
72 and 161 may be myriad and their occasions protean and are left to the appropriate
government, but no consideration nor occasion can be wholly irrelevant, irrational,
discriminatory or malafide.
36. Reading the above provisions, it is clear that the president of the Union and the Governor
of the State while functioning as the Executive Head of the respective bodies, only have
to act based on the advice of the Council of Ministers of the Union or the State. Mutatis
mutandis the power of governor. While so, when we look into the statutory prescription
contained in Sections 432 and 433 of the Code of Criminal Procedure though the exercise
of the power under both the provisions vests with the Appropriate Government either
State or the Centre, it can only be exercised by the Executive Authorities headed by the

36

AIR 1980 SC 2147

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Body of Pleadings
President or the Governor as the case may be.
37. That the provisions regarding remission contained in CrPC, 1974 are ancillary37 to the
powers conferred on the President of India and Governors of States by Article 72 and
161, respectively.38
38. The passage in Maru Rams case39 to the effect that: since Sections 432 and 433(a) are
statutory expression and modus operandi of the Constitutional power.
39. While commuting the death sentence to that of imprisonment for life, on account of delay
in disposal of the mercy petition, this Court in its jurisdiction under Article 32
concentrates purely on the factum of delay in disposal of such mercy petition.40
A.1. Provisions Of CrPC In Respect Of Remission Are Merely Enabling
40. The conclusion drawn in Ashok kumar v Union of India41 was that remissions have a limited
scope. They have no significance till the exercise of power under Section 432 of the
CrPC. It was held, in the following words: "It will thus be seen from the ratio laid down
in the aforesaid two cases that where a person has been sentenced to imprisonment for life
the remissions earned by him during his internment in prison under the relevant remission
rules have a limited scope and must be confined to the scope and ambit of the said rules
and do not acquire significance until the sentence is remitted under Section 432, in which
case the remission would be subject to limitation of Section 433-A of the Code, or
constitutional power has been exercised under Article 72/161 of the Constitution.'
B. STATE OF PANCHTARA IS NOT AN APPROPRIATE GOVERNMENT FOR EXERCISING
POWER OF REMISSION UNDER CRPC, 1974

37

State of Haryana v. Jagdish, AIR 2010 SC 1690

38

See, 41st Report, p.248, para. 29.1

39

AIR 1980 SC 2147

40

Shatrughan Chauhan and another v. Union of India and others, (2014) 3 SCC 1

41

AIR 1991 SC 1792

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Body of Pleadings
41. It is submitted that what is proposed to be done by the State of Panchtara in exercise of
power of remission under Section-432 of CrPC, 1974 is illegal and without jurisdiction
for the reason that The State Government is not the appropriate Government in the
present case.
B.1. Express Power Given To Union By Virtue Of Proviso To Article 162(2) Of The
Constitution of Indradhwaja
42. Section 432(7) of CrPC, 1974, states that:
(7) 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.
43. In the recent judgement of Union of India v. V. Sriharan @ Murugan & Ors42, with similar
facts, the Honble Supreme Court gave interpretation to different Constitutional provisions along
with provisions of IPC and CrPC and concluded the primacy of power of Union over the power of
State. It has been held that the proviso to Article 73

43

and 16244 contemplates that the

executive power of the State may be overcome by the executive power of the Union
through the provisions of the Constitution or any other law made by the Parliament. The
Code is, therefore, one avenue through which this may be done and has been exercised
through Section 432(7) to give primacy to the executive power of the Union.
42

WRIT PETITION NO. 48 of 2014

43

73. Extent of executive power of the Union.Provided that the executive power referred to in sub-clause (a) shall not, save as expressly provided in this
constitution or in any law made by Parliament, extend in any State to matters with respect in which the
Legislature of the State has also power to make laws.
44

162.Extent of executive power of State.Provided that in any matter with respect to which the Legislature of a State and Parliament have power to make
laws, the executive power of the State shall be subject to, and limited by, the executive power expressly
conferred by the Constitution or by any law made by Parliament upon the Union or authorities thereof.

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Body of Pleadings
44. It is further submitted in the light of the preceding judgement that based on a reading of
Articles 73 and 162 read with Section 432(7) of the Code, the appropriate Government
in the present case would be the Central Government, as the Indian Penal Code falls
under the concurrent List, to which the executive power of the Union also extends. The
petitioner further pointed out that Articles 73 and 162 must also be read subject to Article
254 of the Constitution, which gives primacy to the law made by the Parliament.
45. In the case of G.V. Ramanaiah v. The Superintendent of Central Jail, Rajahmundry and
others45, this Court noted that though the offences fell under the provisions of the Penal
Code, which law was covered by Entry 1 of List III of the Seventh Schedule, having
regard to the special feature in that case, wherein, currency notes and bank notes to which
the offences related, were all matters falling under Entries 36 and 93 of the Union List of
the Seventh Schedule, it was held that the power of remission fell exclusively within the
competence of the Union.46
46. It is further contended that when the conviction and sentence is under Section 302 I.P.C.,
alongwith the aid of TADA or any other Central Act, Central Government gets
jurisdiction which will be the Appropriate Government.47
B.2. Courts Power To Interfere In The Grant Of Remission If Outside The Jurisdiction
Of Granting Authority
47. The court may interfere if the authority, which purported to have exercised the power had
no jurisdiction to exercise it48 or when the impugned order went beyond the power
conferred by the law upon the authority who made it, or the order was obtained by fraud
or by suppression of material facts, or the exercise of power has been malafide, e.g.

45

AIR 1974 SC 31

46

See also State Of Kerala v. Soma Thomas, 2004 Cri LJ 2222 at 2224 (Ker).

47

Union of India v. V. Sriharan @ Murugan & Ors., WRIT PETITION (CRL.) NO. 48 OF 2014

48

Swaran Singh v. State of U.P., AIR 1998 SC 2026

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Body of Pleadings
taking into account considerations, not germane to the power conferred. 49
B.3. Constituent Assembly Debate On Proviso To Articles 73 And 162(2)
48. In this context, it will be worthwhile to make reference to what Dr. Ambedkar explained,
when some of the Members of the Assembly moved certain amendments to enhance the
powers of the State with particular reference to Article 60 of the Draft Constitution which
corresponds to Article 73 as was ultimately passed. In the words of Dr. Ambedkar himself
it was said: The proposition which the proviso lays down is that if in any particular case
Parliament thinks that in passing the law which relates to the concurrent field the
execution ought to be retained by the Central Government, Parliament shall have the
power to do so..It is only in exceptional cases that the Centre may prescribe that the
execution of the concurrent law shall be with the Centre.50
49. Thus, the State of Panchtara is not an appropriate government under Section 432 to
grant remission to the persons convicted under FIR No. 298/1998.
C. CONSULTATION STIPULATED IN SECTION 435 OF THE CODE IMPLIES
CONCURRENCE
51
50. As per Section 435of CrPC , the power of State Government to remit or commute the
sentence under Sections 432 and 433 Code of Criminal Procedure should not be exercised
except after due Consultation with the Central Government. Since the expression shall
is used in the said sub-section, it is mandatory for the State Government to resort to the
Consultation process without which, the power cannot be exercised. Consultation
49

Hukam Singh v. State of Punjab, AIR 1975 P & H 148

50

Constituent Assembly Debates, Volume II.

51

435. State Government to act after consultation with Central Government in certain cases.
(1) The powers conferred by sections 432 and 433 upon the State Government to remit or commute a sentence,
in any case where the sentence Is for an offence(2) No order of suspension, remission or commutation of sentences passed by the State Government in relation
to a person, who has been convicted of offences, some of which relate to matters to which the executive power of
the Union extends, and who has been sentenced to separate terms of imprisonment which are to run
concurrently, shall have effect unless an order for the suspension, remission or commutation, as the case may
be, of such sentences has also been made by the Central Government in relation to the offences committed by
such person with regard to matters to which the executive power of the Union extends.

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Body of Pleadings
cannot be an empty formality and it should be an effective one.
51. If a convict is sentenced under more than one offence, one or some relating to the
executive power of the State Government and the other relating to the Executive Power of
the Union, Section 435(2) provides a clear answer.
52. The Nine-Judge Constitution Bench of this Court reported in Supreme Court Advocates
on Record Association and ors. v. Union of India52, the court said that the phraseology
used in Article-124 indicates that giving absolute discretion or the power of veto to the
Chief Justice of India as an individual in the matter of appointments was not considered
desirable, so that there should remain some power with the executive to be exercised as a
check, whenever necessary. It was for this reason that the word Consultation instead
of Concurrence was used.
53. Again in a recent decision of this Court reported in State of Gujarat and Anr. v. Justice
R.A. Mehta (Retired) and ors.53, the court said that the meaning of Consultation varies
from case to case, depending upon its fact situation and the context of the statute as well
as the object it seeks to achieve. Ordinarily, Consultation means a free and fair
discussion on a particular subject, revealing all material that the parties possess in relation
to each other and then arriving at a decision. However, in a situation where one of the
consultees has primacy of opinion under the statute, either specifically contained in a
statutory provision, or by way of implication, Consultation may mean Concurrence.

52

(1993) 4 SCC 441

53

(2013) 3 SCC 1

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Body of Pleadings
UNDER REVIEW PETITION NO. 2/2016
IV. WHETHER THE SUPREME COURT ORDER CREATING SPECIAL CATEGORY OF SENTENCE
AND
PUTTING
THAT
UNCONSTITUTIONAL?

CATEGORY

BEYOND

REMISSION

IS

ILLEGAL

AND

A. JUDICIAL ACTIVISM
54. While giving the punishment of life imprisonment beyond remission, suspending the
operation of the statutory provisions of remission and restraining the appropriate
government from discharging its statutory function and legislating a new category of
offenders, Judiciary has encroached upon the powers of Executive and Legislature
respectively.54
A.1. Impinging upon the powers of Executive
55. It was contended that giving punishment for an offence was indeed a judicial function but
once the judgment was pronounced and punishment awarded the matter no longer
remained in the hands of the Court.55 The execution of the punishment passed into the
hands of the executive and under the scheme of the statute the Court had no control over
the execution.56
56. Broadly, Section- 432 of CrPC statutorily empowers the appropriate Government to
suspend the execution of a sentence or to remit the whole or any part of the punishment of
a convict.57 But, the statute also provides for some inherent procedural and substantive
checks on the arbitrary exercise of this power.58 It appears to us that an exercise of power
by the appropriate Government under sub-section (1) of Section 432 of the Cr.P.C. cannot
54

C.J.I. Honble Mr. K.G. Balakrishnan ,Judicial Activism Under The Indian Constitution (Paper presented at
Trinity College Dublin, Ireland October 14, 2009)
55

Sarat Chandra Rabha v. Khagendranath Nath, AIR 1961 SC 334

56

State (Government of NCT of Delhi) vs. Prem Raj, (2003) 7 SCC 121.

57

Section 432(1) of CrPC

58

Supra Note 19

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Body of Pleadings
be suo motu for the simple reason that this sub-section is only an enabling provision. The
appropriate Government is enabled to override a judicially pronounced sentence but
subject to the fulfilment of certain conditions.
A.2. Excess of Judicial Legislation
57. Courts cannot create rights where none exists nor can they go on making orders which are
incapable of enforcement or violative of other laws or settled legal principles. With a
view to see that judicial activism does not become judicial adventurism, the courts must
act with caution and proper restraint.59
58. Judicial review is strictly judicial and thus quite different from the policy-making
functions of the executive and legislative branches. In performing their duties, judges
must take care not to intrude upon the domain of the other branches of government.60
59. In England, the legislature itself has, by enacting Murder (Abolition of Death Penalty)
Act 1965, suspended the death penalty in England, Wales and Scotland and introduced a
mandatory life imprisonment sentence in its place.
60. In the present case, the judiciary has encroached upon the legislative function as the term
punishment for life imprisonment till the end of natural life has not been categorically
defined either in IPC or CrPC. The legislature expressly provided for such punishment by
the Amendment of 2013 in the IPC for offences relating to women u/s 376-A and 376-E
of I.P.C. It is an established rule that without any express provision the judiciary cannot
take the matter in their own hands and legislate by imposing such a sentence of life
imprisonment till the end of natural life.
A. REFORMATORY POLICY OF INDIA
61. Reformative theory forms a crucial part of the theory of criminal justice. It aims at

59

Divisional Manager, Aravali Golf Course v. Chander Haas (2008) 1 SCC 683

60

Prof James Bradley Thayer , 'The Origin and Scope of the American Doctrine of Constitutional Law' Harvard
Law Review in 1893

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transforming the law-offenders in such a way that the inmates of the peno-correctional
institutions can lead a life like a normal citizen. These prisons or correctional homes as
they are termed humanly treat the inmates and release them as soon as they feel that they
are fit to mix up with the other members of the community.61
62. The court in the case of Most. Sudama Devi vs The State Of Bihar & Ors said that- graver the
crime, longer the sentence and, longer the sentence, grater the need for set-offs and
remissions. Punishments are no longer retributory. They are reformative.62
63. Here it is pertinent to refer to Article 10(3) of International Covenant on Civil and
Political Rights to which Indradhwaja is also a signatoryThe penitentiary system shall comprise treatment of prisoners the essential aim of which
shall be their reformation and social rehabilitation. Juvenile offenders shall be
segregated from adults and be accorded treatment appropriate to their age and legal
status.
64. The system of remission, if executed properly, works wonders in the field of reformation,
can have a detrimental effect on the faith of prisoners if applied arbitrarily by corrupt
elements. It is desirable to extend the scope of remissions and to allow a great number of
days by way of remission, as that would stimulate the desire for harder work and good
behaviour. Moreover, it would help to lessen the overcrowding that otherwise becomes a
very troublesome factor to deal with.63.
B.1. Prisoners right to be considered for Remission
65. In State of Haryana v. Jagdish 64, the court said, It is true that a convict undergoing a

61

Bishnu Dayal v State Of West Bengal; AIR 1979 SC 964

62

AIR 2013 SC 388

63

M.J. Sethana, Society and the Criminal, N.M. Tripathi; 4th edition (1980), pg.- 339

64

2010) 4 SCC 216 ; State of Haryana v. Mahender Singh,(2007) 13 SCC 606

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Body of Pleadings
sentence does not have right to get a remission of sentence, but he certainly does have a
right to have his case considered for the grant of remission.
66. Reformation seeks to bring about a change in the offenders character itself so as to
reclaim him as a useful member of society. Increasing weight has been attached to this
aspect. Less frequent use of imprisonment, the abandonment of short sentences, the
attempt to use prison as training rather than a pure punishment, and the greater
employment of probation, parole and suspended sentences are evidence of this general
trend.65
67. A crime is committed as a result of the conflict between the character and the motive of
the criminal. One may commit a crime either because the temptation of the motive is
stronger or because the restrain imposed by character is weaker. The reformative theory
seems to strengthen the character of the man so that he may not become victim of his own
temptation. This theory would consider punishment to be curative or to perform the
function of medicine.66
68. The legal maxim, Veniae facilitas incentivum est delinquendi, is a caveat to the exercise
of clemency powers, as it means - Facility of pardon is an incentive to crime. The main
object of remission is to promote good conduct and encourage habits of industry.
Remission is by far the most powerful incentive to reformation in Indian Jails.67
69. The two dissenting judges, however, reasoned that a life convict so deprived of the
benefit of remission would be in a far worse situation than a death-row convict, who
would be eligible for the same benefit of remission in an event of commutation.68
65

P.J. Fitzgerald, Salmond on Jurisprudence, Universal Law Publishing Co., 12th Edition

66

Shyokaran and Ors. v State Of Rajasthan and Ors; 2008 CriLJ 1265

67

Report of the Indian Jail Committee (1999-20) Vol. I Para 248

68

Union of India v. Sriharan@Murgan, WRIT PETITION (CRL.) NO. 48 OF 2014

MEMORANDUM ON BEHALF OF THE PETITIONER

XIII

Prayer for Relief

PRAYER FOR RELIEF

In the light of the issues raised, authorities cited and arguments advanced, it is humbly
submitted that court may be pleased to hold, adjudge and declareUNDER ORIGINAL JURISDICTION. NO. 2/2016:
a. That the F.I.R No. 219/1998 registered at State of Hansa is not illegal.
b. That this court in the interest of justice, issue orders to Union Government not to consent
for grant of remission to the persons convicted under F.I.R No. 219/1998.
c. That the convicts be transferred to State of Hansa for serving rest of their sentence.
UNDER W.P. (P.I.L.) NO. 9/2016:
a. That the convicts Rimpo and Hardo be released from jail as they have already suffered 16
years of incarceration.
UNDER REVIEW PETITION NO. 2/2016:
a. That the order of Supreme Court under F.I.R No. 219/1998 be declared as illegal and
unconstitutional.
And any other relief that this Honble Court may be pleased to grant in the interest of justice,
equity and good conscience.
And for this act of kindness Your Lordships petitioners shall as duty bound ever pray.

S.D./Counsel for Petitioner

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