Can pardon be granted to a fugitive?

Granting pardon, respites or reprieves and/or remitting, suspending, commuting any sentence awarded by a court of law are some presidential prerogatives under the Constitution of Bangladesh (Article 49). Similarly, the Government has a statutory prerogative under Section 401(1) of the Code of Criminal Procedure 1898 to suspend or remit sentences, either in whole or part. There have always been confusions, academic and otherwise, surrounding these prerogatives. One of such confusions stems from the question as to whether pardon can be granted to a fugitive. A 2012 High Court Division (HCD) judgment handed down by Justice M Enayetur Rahim and Justice SM Zakir Hossain, in the case of Sarwar Kamal v State (reported in 32 BLD), is of relevance in this regard.

One Sarwar Kamal, as a petitioner, filed an application to the HCD under section 561A of the CrPC for quashment of the orders by an Assistant Sessions Judge (trial court judge in the case concerned). To briefly state the facts, the petitioner, along with two others were found guilty under sections 304/34 of the Penal Code and sentenced to suffer rigorous imprisonment for 10 years with fine of TK 10,000. Aggrieved by the order of sentence and conviction, he preferred a criminal appeal before the HCD. While the appeal was pending, the petitioner was enlarged on bail. Eventually, a Divisional Bench of the HCD affirmed the conviction under sections 304/34, modified the sentence from 10 to 8 years, and directed the petitioner to surrender to the trial court. The petitioner without complying with the said order, went on to pursue pardon.

The President of Bangladesh remitted the sentence along with two others as passed by the trial court in exercising the power under Article 49 of the Constitution. The said order however was never communicated to the trial court judge, who then went on to issue warrant of arrest and conviction warrant against the petitioner. On coming to know about the said issuance of the warrant of arrest and warrant of commitment the petitioner filed an application in the Court of Assistant Sessions Judge for recalling the warrant of arrest and warrant of commitment in view of the order of remission of the sentence passed by the President submitting a copy of the same. The learned Assistant Sessions Judge, after hearing the said application and the respective parties rejected the application holding that the Court rightly and lawfully issued the warrant of arrest as well as the conviction warrant as the petitioner did not surrender before the trial court complying the direction of the HCD and after issuance of the warrant of arrest the petitioner became fugitive from law.

Two pertinent issues arose in connection with the said application. One whether pardon under Article 49 as well as section 401 was within the pale of judicial review or not and second, whether the remission granted in the present case to a person who in fact was a fugitive from justice was duly granted or not. To the former question, the court answered in the affirmative and to the latter, it answered in the negative.

In answering the first question, the court referred to an array of judgments from Indian jurisdiction, which, though not binding, were of immense persuasive value and of relevance too. For instance, the court gave reference to the case, Swaran Singh v state of UP (1998) where it was observed that if the power of granting remission or pardon was exercised arbitrarily, manifesting malafide intention or in absolute disregard of the finer canons of the constitutionalism, the by-product order cannot get the approval of law and in such cases, the judicial hand must be stretched to amend the situation.

Furthermore, the case of Maru Ram v Union of India (1980) was also mentioned where it has also been held that Considerations for exercise of power under Articles 72/161 (similar to our Article 49 of the Constitution) may be myriad but cannot be wholly irrelevant, irrational, discriminatory or malafide. Upon revisiting these observations, the High Court Division opined that it was unable to accept the submission that it had no power to examine or touch the order passed by the President exercising the power under Article 49 of the Constitution.

Then, the Court went on to examine whether the President or the Government can give pardon or remit the sentence of a fugitive in exercising extraordinary power under Article 49 of the Constitution or under section 401(1) of the CrPC, as the case may be.

To decide the said issue, the Court elaborately discussed the proposition of law enunciated by our Appellate Division with regard to fugitive. It is the consistent view of our Appellate Division that a man who seeks justice from the Court of law must come before the Court to agitate his grievance and must surrender first to the process of justice, otherwise he remains to be fugitive from justice and therefore, cannot seek aid or assistance of the process of justice in order to claim right of audience against the process of the Court issued against him.

Furthermore, the Court referred to the case of Anti-Corruption Commission v Dr. HBM Iqbal Alamgir, reported in 15 BLC where it has been observed by the Appellate Division that Court would not act in aid of an accused person who is a fugitive from law and justice.

While deciding the case of Sarwar Kamal, the Court held that the order dated 12.04.1993 remitting the sentence of the petition in exercising the power under Article 49 of the Constitution and section 401 (1) of the Code of Criminal Procedure has vitiated on the reasons that include, among others, the petitioner was a fugitive from law when the order of pardon was made; the petitioner without surrendering to the process of the Court, as per direction of the High Court Division succeeded to procure the order of pardon; and the alleged order is a mechanical one and product of party favouritism, extraneous and malafide factors and also not fair, reasonable and rational; which is against the spirit of the rule of law.

The most significant observation in this case was that "It is well settled that the Court cannot direct the President how he is to exercise the power under Article 49 of the Constitution. Similarly, the Court also cannot direct the Government how they exercise the power under section 401 of the Code of Criminal Procedure. But the action of the President or the Government, as the case may be, must be based on some rational, reasonable, fair and relevant principle which is non-discriminatory, and it must not be guided by any extraneous or irrelevant considerations." The judges further observed that "It is well settled that all public power including constitutional power shall never be exercisable arbitrarily or malafide and ordinarily, guideline for fair and equal execution are guarantors of the valid play of power and when the mode of power of exercising a valid power is improper or unreasonable, there is an abuse of power."

In order to avoid controversy, criticism and misuse of power under section 401 of the CrPC, the Court observed that "for fair, proper and bonafide exercise of the above power, the government may frame rule and guideline or even amend the Code, as has been done in one of our neighbouring countries."

From Law Desk, The Daily Star.