The Scales of Fate
The Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS, 2023) has introduced significant changes to India’s criminal procedural framework, replacing the Code of Criminal Procedure, 1973 (CrPC). Among its important provisions are those governing the execution, suspension, remission, and commutation of sentences, which play a crucial role in the administration of criminal justice. These provisions ensure that punishment is not only carried out effectively but also allows for relief mechanisms in deserving cases. Understanding these aspects under the BNSS, 2023 is essential to grasp how the law balances retribution with reformative justice while upholding constitutional principles and human rights.
What happens when a Court of Session receives an order of confirmation of a death sentence from the High Court?
The Court of Session causes the order to be carried into effect by issuing a warrant or taking other necessary steps.
How is a death sentence passed by the High Court executed?
The Court of Session, upon receiving the High Court’s order, issues a warrant for the execution of the sentence.
What happens if a person sentenced to death by the High Court appeals to the Supreme Court?
The High Court postpones the execution of the sentence until the appeal period expires or, if an appeal is filed, until its disposal.
What happens if a person sentenced to death applies for a certificate under Article 132 or 134(1)(c) of the Constitution?
The High Court postpones execution until the application is disposed of or, if a certificate is granted, until the appeal period expires.
What if the High Court believes the sentenced person intends to seek special leave to appeal under Article 136?
The High Court postpones execution for a sufficient period to allow filing of the petition.
What happens if a woman sentenced to death is found to be pregnant?
The High Court commutes the death sentence to imprisonment for life.
Who has the power to decide the place of imprisonment for a convicted person?
The State Government decides where a convicted person shall be confined, unless specified otherwise by law.
Can a person confined in a civil jail be transferred to a criminal jail?
Yes, the Court or Magistrate may direct such a transfer. Upon release, the person is sent back to the civil jail unless conditions for release are met under the Code of Civil Procedure, 1908.
How is a sentence of imprisonment executed?
The Court forwards a warrant to the jail where the accused is to be confined. If the accused is not present, a warrant for arrest is issued, and the sentence starts from the arrest date.
Who is responsible for executing warrants for imprisonment?
The officer in charge of the jail or place of confinement executes the warrant.
Where should the warrant be lodged if the prisoner is confined in a jail?
The warrant is lodged with the jailor.
What actions can a Court take if an offender fails to pay a fine?
The Court may issue a warrant to recover the fine through attachment and sale of the offender’s movable property or authorize the Collector to recover it as arrears of land revenue.
Can a Court issue a warrant for fine recovery if the offender has already served imprisonment for default?
Generally, no. However, for special reasons recorded in writing or if the fine is meant for expenses or compensation, the Court may issue a warrant.
How is a fine recovered when the warrant is issued to the Collector?
The Collector recovers the amount as per land revenue laws, but not by arrest or detention.
Can a fine recovery warrant be executed outside the issuing Court’s jurisdiction?
Yes, if endorsed by the District Magistrate where the property is located.
How is a fine imposed by a foreign Court recovered in India?
A fine imposed by a Court outside India can be recovered as if issued under Indian law, provided a warrant is sent to the Collector.
Who may issue a warrant for execution of a sentence?
The Judge or Magistrate who passed the sentence or their successor.
When does a sentence take effect for an escaped convict?
A sentence of death, life imprisonment, or fine takes effect immediately. If sentenced to a term, it takes effect immediately if severer than the prior sentence, otherwise, it begins after the completion of the prior sentence.
What happens if a person already serving imprisonment is sentenced for another offence?
The new sentence starts after the previous one unless the Court orders it to run concurrently.
Can detention undergone during trial be set off against the final sentence?
Yes, the period of detention before conviction is deducted from the imprisonment term, except in cases of default in fine payment.
Who can file a mercy petition in death sentence cases?
The convict, their legal heir, or a relative can file a mercy petition before the President or Governor within 30 days after the Supreme Court appeal is dismissed or the High Court confirms the death sentence.
What is the process after filing a mercy petition?
The Governor considers the petition first. If rejected, it must be filed with the President within 60 days. The Central Government seeks the State Government’s comments before making a recommendation to the President.
Can the President’s or Governor’s decision on a mercy petition be challenged in Court?
No, the decision is final and cannot be appealed in any Court.
Who has the power to suspend or remit sentences?
The appropriate Government may suspend or remit a sentence, with or without conditions.
Can the Government seek judicial opinion before suspending or remitting a sentence?
Yes, the Government may ask the presiding Judge to provide an opinion and the trial record before making a decision.
What happens if conditions for suspension or remission are violated?
The Government can cancel the suspension or remission, and the person may be re-arrested to serve the remaining sentence.
Can the Government commute a sentence without the convict’s consent?
Yes, the appropriate Government may commute a sentence without the consent of the person sentenced.
What types of sentences can be commuted and to what extent?
The appropriate Government may commute:
- A sentence of death to imprisonment for life.
- A sentence of imprisonment for life to imprisonment for a term not less than seven years.
- A sentence of imprisonment for seven years or more to imprisonment for a term not less than three years.
- A sentence of imprisonment for less than seven years to a fine.
- A sentence of rigorous imprisonment to simple imprisonment for any term to which the person might have been sentenced.
Are there any restrictions on remission or commutation of a life sentence?
Yes, if a person is sentenced to life imprisonment for an offence where death is one of the punishments provided by law, or if a death sentence has been commuted to life imprisonment, they shall not be released from prison unless they have served at least fourteen years of imprisonment.
Does the Central Government have concurrent power in case of death sentences?
Yes, the Central Government also has the power to remit or commute a death sentence, in addition to the powers conferred upon the State Government.
When does the State Government require concurrence from the Central Government for remission or commutation of a sentence?
The State Government must obtain concurrence from the Central Government before remitting or commuting a sentence if:
- The offence was investigated by any agency empowered under any Central Act other than the BNSS.
- The offence involved misappropriation, destruction, or damage to property belonging to the Central Government.
- The offence was committed by a person in the service of the Central Government while acting or purporting to act in the discharge of official duty.
What happens if a person is convicted of multiple offences, some of which fall under the executive power of the Union?
If a person is convicted of multiple offences and sentenced to separate terms of imprisonment to run concurrently, an order of suspension, remission, or commutation passed by the State Government will not take effect unless a similar order has also been passed by the Central Government for the offences falling under its executive power.
Therefore, the BNSS, 2023, retains and refines the legal framework for the execution, suspension, remission, and commutation of sentences, ensuring a more structured and transparent approach to sentence modification. By maintaining judicial and executive oversight in these processes, the law upholds the principles of justice, mercy and rehabilitation. The reforms aim to enhance the efficiency of the criminal justice system while safeguarding the rights of convicts. As India transitions to this new legal regime, its practical implementation will determine the extent to which it achieves a fair and effective balance between punishment and reforms.
Muneeb Rashid Malik is an Advocate practicing before the Hon’ble Supreme Court of India, Hon’ble High Court of Delhi and Hon’ble High Court of Jammu & Kashmir and Ladakh. He tweets @muneebmalikrash.
