Execution, suspension, remission and commutation of sentences; mercy petitions

1. Scheme of the Chapter

Chapter XXXIV, sections 453 to 477 (formerly sections 413 to 435 of the CrPC) has five parts: (A) death sentences, (B) imprisonment, (C) levy of fine, (D) general provisions, and (E) suspension, remission and commutation. Parts A to D are about the court carrying out its sentence; Part E is about the executive reducing or postponing it.

2. Execution of sentences

Death sentences.

• A Court of Session passing a death sentence must submit it to the High Court for confirmation (section 407). On receiving the confirmation, it issues a warrant to execute it (section 453). When the High Court itself passes the death sentence in appeal or revision, the Sessions Court issues the warrant (section 454).
• The High Court must postpone execution while an appeal to the Supreme Court under Article 134, an application for a certificate under Articles 132 or 134(1)(c), or a special leave petition under Article 136 is possible or pending (section 455).
• If a woman sentenced to death is found pregnant, the High Court shall commute the sentence to life imprisonment (section 456). The old section 416 only required postponement, with a discretion to commute.

Imprisonment (sections 457 to 460). The State Government decides the place of imprisonment. The court forwards a warrant to the jail with the accused; if the accused is absent, it issues a warrant for his arrest and the sentence begins on the date of arrest.

Fine (sections 461 to 464). An unpaid fine is recovered by attachment and sale of movables, or through the Collector as arrears of land revenue, not by arresting the offender. The court may allow instalments and suspend the default sentence meanwhile (section 464).

General provisions.

• Escaped convict (section 466): a new sentence severer in kind takes effect at once; otherwise after the unexpired part of the old sentence.
• Subsequent conviction (section 467, old 427): the later sentence begins when the earlier one ends, unless the court directs that they run concurrently; a sentence on a person already serving life runs concurrently.
• Set-off (section 468, old 428): detention undergone during investigation, inquiry or trial of the same case is set off against the term of imprisonment, and in a section 475 case against the fourteen years.
• Return of warrant (section 470) and recovery of other money as a fine (section 471).

3. Mercy petitions: section 472 (new)

The pardoning power belongs to the President under Article 72 and the Governor under Article 161. The BNSS for the first time sets a statutory procedure for death row prisoners:

• the convict, his legal heir or a relative may file a mercy petition within thirty days of being told by the jail superintendent that the Supreme Court has dismissed the appeal, review or special leave petition, or that the High Court has confirmed the sentence and the time to appeal has run out;
• it may go first to the Governor and, on rejection, to the President within sixty days;
• where there are several convicts in one case, the jail superintendent must ensure that each files within sixty days, and the President decides their petitions together;
• the Central Government obtains the State’s comments and makes its recommendation within sixty days; the President’s order is conveyed within forty-eight hours;
• section 472(7) says no appeal lies against the order and no court shall inquire into how it was arrived at.

Section 472(7) cannot cut down judicial review, which flows from the Constitution. In Kehar Singh v. Union of India, 1988 INSC 368, (1989) 1 SCC 204, the Court held that the President may examine the evidence afresh, that the convict has no right to an oral hearing, and that the exercise of the power is open to limited judicial review. In Epuru Sudhakar v. Government of Andhra Pradesh, 2006 INSC 695, (2006) 8 SCC 161, a Governor’s remission was quashed; the grounds of review are non-application of mind, mala fides, extraneous or irrelevant considerations and arbitrariness. In Shatrughan Chauhan v. Union of India, 2014 INSC 46, (2014) 3 SCC 1, unexplained and inordinate delay in deciding mercy petitions was held a ground for commuting death sentences to life imprisonment.

4. Suspension and remission: section 473 (old section 432)

• The appropriate Government may at any time, with or without conditions the convict accepts, suspend the execution of a sentence or remit the whole or part of it.
• It may ask the presiding judge of the convicting court for his opinion, with reasons and the record.
• If a condition is broken, the remission may be cancelled and the convict arrested without warrant to serve the unexpired part.
• For a sentence other than fine on a person above eighteen, a petition is entertained only if the convict is in jail.
• Appropriate Government (section 473(7)): the Centre where the offence is under a law on a Union subject; otherwise the State within which the offender was sentenced.

Remission does not wipe out the conviction; it only cuts short the time to be served. In Gopal Vinayak Godse v. State of Maharashtra, 1961 INSC 6, AIR 1961 SC 600, the Court held that life imprisonment means imprisonment for the rest of the convict’s natural life, so remissions earned under prison rules do not by themselves entitle a lifer to release without an order of the government.

5. Commutation: section 474 (old section 433)

The appropriate Government may, without the consent of the convict, commute:

• (a) death to imprisonment for life;
• (b) life imprisonment to imprisonment for a term not less than seven years;
• (c) imprisonment of seven years or more to a term not less than three years;
• (d) imprisonment of less than seven years to fine;
• (e) rigorous imprisonment to simple imprisonment for any term to which he could have been sentenced.

This is a change from the old section 433, under which death could be commuted to any other punishment and life to a term not exceeding fourteen years or fine. The BNSS sets floors instead.

6. Restrictions: sections 475 to 477

• Section 475 (old 433A). Where life imprisonment is imposed for an offence for which death is also a punishment, or a death sentence has been commuted to life, the convict shall not be released until he has served at least fourteen years. In Maru Ram v. Union of India, 1980 INSC 212, (1981) 1 SCC 107, the Constitution Bench upheld the old section 433A, and held that it does not touch the constitutional power under Articles 72 and 161.
• Section 476. The Central Government may also exercise the powers of sections 473 and 474 in death sentence cases.
• Section 477 (old 435). The State must act only after concurrence with the Centre where the case was investigated by a central agency (such as the CBI), involved central government property, or was committed by a central government servant in the course of duty.

In Union of India v. V. Sriharan, 2015 INSC 886, (2016) 7 SCC 1, the Constitution Bench (Rajiv Gandhi assassination convicts) held that “consultation” with the Centre in such cases means concurrence, and that the High Court or the Supreme Court (not a trial court) may impose a fixed term of imprisonment beyond fourteen years during which no remission is to be granted. In Bilkis Yakub Rasool v. Union of India, 2024 INSC 24, the Court quashed the Gujarat Government’s remission orders releasing eleven convicts, because the trial had been transferred to and sentence passed in Maharashtra, so Gujarat was not the appropriate Government.

How this is examined

Set as a 10-mark essay in February 2025 and June 2025. Define the three terms (suspension postpones, remission reduces the quantity, commutation changes the kind of punishment), then sections 473 to 477 with the appropriate Government, then section 472 and the Article 72 and 161 cases. “Execution of sentence” as a short note needs Parts A to D and set-off under section 468.