Suspension of a Sentence

⚠ What suspension does, and does not do

The sentence remains. What is halted is its execution. The conviction stands, the sentence stands, and the period of the sentence does not run down while it is suspended.

It is revocable. Where a condition on which a suspension was granted is not fulfilled, the appropriate Government may cancel the suspension, and the person may thereupon be arrested without warrant by any police officer and remanded to undergo the unexpired portion of the sentence.

It is the least of the three powers. Remission reduces the sentence; commutation substitutes a sentence of a different kind; suspension does neither.

And time spent on a judicial suspension pending appeal does not count. Section 430(4) provides that where the appellant is ultimately sentenced to imprisonment, the time during which he was released is excluded in computing the term.

Section 473, BNSS 2023

(1) When any person has been sentenced to punishment for an offence, the appropriate Government may, at any time, without conditions or upon any conditions which the person sentenced accepts, suspend the execution of his sentence or remit the whole or any part of the punishment to which he has been sentenced.

(2) Whenever an application is made to the appropriate Government for the suspension or remission of a sentence, the appropriate Government may require the presiding Judge of the Court before or by which the conviction was had to state his opinion as to whether the application should be granted or refused, together with his reasons, and also to forward with the statement of such opinion a certified copy of the record of the trial or of such record thereof as exists.

And further: where a condition on which a sentence has been suspended or remitted is, in the opinion of the appropriate Government, not fulfilled, it may cancel the suspension or remission, whereupon the person may, if at large, be arrested by any police officer without warrant and remanded to undergo the unexpired portion of the sentence.

📖 Union of India v. V. Sriharan @ Murugan, (2016) 7 SCC 1 (five Judges)

Facts: A Constitution Bench was required to decide a series of questions on the powers of remission and commutation — among them, which Government is the “appropriate Government” where an offence was investigated by a central agency, whether a court may impose a fixed-term sentence in excess of fourteen years in substitution for a death sentence, and how the statutory powers stand with the constitutional power of clemency.

Held: The Constitution Bench held that the expression “appropriate Government” is to be determined by reference to the law under which the offence was committed and the executive power to which that law relates: where the sentence is for an offence against a law relating to a matter to which the executive power of the Union extends, the Central Government is the appropriate Government, and in every other case the State Government within which the offender is sentenced. The Court held that the requirement of consultation in the cases the statute specifies is mandatory, and that an order passed by a Government which is not the appropriate Government is without authority. It further held that a court may, in substitution for a death sentence, impose a fixed-term sentence exceeding fourteen years which must be served without the benefit of remission, and that the statutory power of remission is subject to the restriction the Sanhita imposes. It emphasised that the statutory power is executive, distinct from the constitutional power of clemency, which stands above and is unaffected by the statutory restrictions.

Ratio: The appropriate Government is determined by the law under which the offence was committed and the executive power to which it relates; an order by the wrong Government is without authority. The statutory power is executive and distinct from the constitutional power of clemency.

📖 Sangeet v. State of Haryana, (2013) 2 SCC 452

Facts: The Court examined, among other questions, the manner in which the power to remit or suspend sentences was being exercised, it appearing that remissions were being granted by general orders covering classes of prisoners rather than on a consideration of individual cases.

Held: The Supreme Court held that the power under the statute is to be exercised on a case-by-case basis, with the mind applied to the individual convict, his conduct, and the circumstances of his offence. It is not a power to be exercised wholesale: a blanket order remitting the sentences of a class of prisoners, without consideration of the individual case, does not amount to an exercise of the power the statute confers. The Court held that the appropriate Government must consider the application of the particular convict, take into account the opinion of the presiding Judge where it is obtained under the statute, and apply its mind to whether remission is justified in that case. It observed that the practice of granting remissions by general orders circumvents the judicial sentence without any consideration of why it was imposed, and that the exercise must be informed and reasoned.

Ratio: The power to suspend or remit must be exercised on a case-by-case basis, with the mind applied to the individual convict and his offence. A blanket order covering a class of prisoners is not an exercise of the statutory power.

The position stated shortly

1. To suspend a sentence is to stop its execution without touching the sentence. The conviction stands and the sentence stands.

2. The Sanhita confers the power in three places: section 430 (appellate court, pending appeal), section 464 (the convicting court, during execution), and section 473 (the appropriate Government, at any time).

3. Two are judicial and one is executive. The executive power under section 473 is exercisable independently of any appeal.

4. A suspension under section 473 may be unconditional or upon conditions which the person sentenced accepts.

5. Where a condition is not fulfilled, the Government may cancel the suspension; the person may be arrested without warrant and remanded to undergo the unexpired portion.

6. Section 473(2): the Government may require the presiding Judge of the convicting Court to state his opinion with reasons and to forward a certified copy of the record.

7. The appropriate Government is determined by the law under which the offence was committed and the executive power to which it relates. An order by the wrong Government is without authority: V. Sriharan.

8. Section 477 requires the State Government to act only after consultation with the Central Government in the cases it specifies, and section 476 gives the Central Government a concurrent power in death sentence cases.

9. The power must be exercised case by case, with the mind applied to the individual convict. A blanket order covering a class of prisoners is not an exercise of it: Sangeet.

10. Suspension is the least of the three powers: it neither shortens the sentence, as remission does, nor changes its kind, as commutation does.