Ramakrishna vs The Secretary Home Dept on 9 March, 2012

[Cites 20, Cited by 0]

Karnataka High Court

Ramakrishna vs The Secretary Home Dept on 9 March, 2012

Author: N.Kumar

Bench: N.Kumar

 

O R D  "

The son of a victim of brutal ;mu1jde.r', is7cryi_ng florijnsitice,

and is knocking at the door_s'«--_of this, Courtjlchallengingl the
State action, of granting pardonlltoi the perpetiiator of the said
heinous crime who is Vrroaminig streets of his Village, and

wants to know, 'is it just.i.ce'?7T. '

2.     this Writ Petition
challenging the Higher Police Chief
Director  Examiner of the Jail in Order No.
J2/CR/l as per Annexure-B1 and the

orderpassed  Vtheioﬂovemor, Karnataka State and its Chief

  ilU«rider Administrative Department (Jail and Cinema)

 'order:_'i~i§.»v'J2:/'cR-16/2006 dated 3.8.2006 and Government

'order Nlo'.7i1s_I_1f3* 140 PRA 2006, Bangalore dated 14.8.2006 vide

 Annexiii§e~B1 wherein at Sl. No. 89 the name of the third

~ irespondent~Manjunath is found.

It/'



FACTS OF THE CASE

3. The case of the petitionerfis that}. he one l' Sn' Honnegouda who was pbrutallﬁf -r_1nL1rdered-Aby 2 the "third respondent--accused No.1 andloitlier 9 accused:.'onl*llll.l5.ll998 at Maradahalli, During trial, bail"wlasllrej_ectedl order was confirmed by the Apex learned Sessions Judge, Mandyalg in "delivered a judgment holding that murder of Late Sri Honnegoudaiand.:the1'eforel'l1e«lwasvsentenced for life. The third respondentpanTappeal.p Suspension of sentence was not granted. ﬁcquittal of other accused, State preferred Appeal No. 359/2006 and the same is ~."l"he petitioner also preferred Crl. R. P. No. the acquittal of other accused which is also plendingbejfore this Court. However, the accused No.1 was Areleasedt,' on the occasion of the celebration of "Independence 2006" and "Suvarna Karnataka". The mother of the petitioner was bed ridden, after shock of her husbands murder. She died on 9.1.2007. The Government has no Xv farm house and thereby he has committed offence under Section 448 and 302 of IPC. Prosecutio:n._ha.s failed -to prove the charges levelled againsfaccuseci:~_2-:tol,:_9'--for"offence L under Section 143, 144, 14s,_ 442§;V__e§o '~ accused No.1 alone was'-v._:s*entenVced ' life imprisonment and 'also for offence punishable under also directed to undergo sentence of a fine of Rs. 1000- 00 for 1pc. Accused--2 to 9 were ll) Cr.P.C. Aggrieved by the judgrrLent__ No.1 preferred appeal before this in No.806/O6. He filed an apppﬁlicationdédlfor of sentence. This Court declined to relieiw and rejected the bail application. It is of these proceedings, the impugned order was passed granting the pardon. In View of the Appardonlgranted to the third respondent, he has withdrawn his '' 'crirhinal appeal challenging the order of conviction. The M, passed by the Government according piaidon, .3 T

5. Therefore, the question for Ac~onsi.derati'on--vbefore this' Courtis, Whether the Vmnipugnedl' orders passed are sustainable in lavi/P A l

6. the petitioner assailing the impug,ne'dv lthatvﬂnjeither the Government nor the mind to the facts of the case, the settleduplegal' and have exercised the power of colrnirnvntationlof~lsen_tence and released the convicted person i of years contrary to Section 433.A of the .CrddeA Procedure, 1973, which is patently illegal, arhitraryi 'Without jurisdiction and therefore is liable to be set J. *a:3i._de. V

-8,

7. Per contra, the l€aI"I'l€C.1:...C()_llI'1S€_:lM accused justified the order passed by learned Government Advocate«..._§11S§" VVint1pug11.ed order. I it

8. The Court Bhat, the learned counsel, to assist the VAinte5rest&ing--ouestions of law as well as provisions was involved. the Court placing all the relevant Court.

PROVISIOCNSVOF. LAW "

A;ft1e1eV72"of the Constitution of India provides for the lth"e..o:Pi'{3sident to grant pardons, etc., and to suspend, rernit ordlcornmute sentences in certain cases. It reads as V ._ under: 4:

"72. Power of President to grant pardons, etc., and to suspend, remit or M, commute sentences in certain cases.-

Governor of a State u'nde_r any. law for ih'e..._,tirne being in force. "

10. However, ('governor to grant pardons, etc.',_ to oreommute sentences in certain ea.§seslisV 161 of the Constitution ll 1 A ..of ~l Governor to grant paurc'ion$,»,_ to suspend, remit or _ co1n'f.<:ute.$éV:nte_ncés in certain cases.-

" The._VGovern0r of a State shall have the power grant reprieves, respites or remissions S. Vi9I.'l,l"ll'Sft..fTl€T'Lt or to suspend, remit or commute the of any person convicted of any offence sjyairist any law relating to a matter to the which 1' executive power of the State extends."

11. The Code of Criminal Procedure, 1973 (hereinafter Alfor short called the "Code") -- the procedural law of the land also deals with power to commute sentences. Section 432 V, -14- executive power of the Unionu''extesnds',''i .

the Central Government; it {b} in other cases, the State within which the Q[)'"te'r:d'er sentenced oirthe said order passed. "

to 12. However, Section 4,_£3If%» of the Corde deals with power commute sentence. alt éis:u_nder:; V'Powéi«-ffto.' =c.omi§1u'te sentence.- The viappropriaiiétg Gt-ye-rnni"e'r:t may, without the :!consent"':f..tVhey sentenced commute-

.q"\'$e7':te'nce of death, for any other A. punishment provided by the Indian & «Penal Code (45 of 1860):

a sentence of imprisonment for life, for "V imprisonment for a term not exceeding fourteen years or for fine;

(c) a sentence of rigorous imprisonment, for: simple imprisonment for any term to which that person might have been V. sentenced, or for fine;

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(d) a sentence of simple imprisonnzent,' fine. V

13. By Act 45/1978. Section 4335. w_aéj_injSert€_dVhwhii'eh came into force with,' effect from 18:1h2'.=1978.f7.Itivprovijddes dfor restriction on power; of remissiori or co'm_rri'utatioh in certain cases. It reads as und.er:~;

"f13§'3A, ton.' powers of remissfiontffor irizhweertain cases,- contained in section V.g}32'.lohereixfaséntencehofimprisonment for liJ'e is of a person for an offence for ujizichrrdeath the punishments provided by . _Vlau)s,"' w.h.ere'*ahsentence of death imposed on a person hasbeeri commuted under Section 433 into _one of-.irnprisonment for ly'e, such person shall not from prison unless he had served at leasthfourteen years of imprisonment."

z 14. hi 'Section 435 of the Code deals with the power of the . it ., State Government to exercise powers conferred on them under 27VShection 432 and 433 in cases where the offences are V. A _ ,~ ., . .

name of His Majesty. Thus, in theory, His 4' Majesty continues to appoint the Judges T the members of the Government and who hold office during the Dleasﬁté thesovereign'. historical processes p_emerged:ﬂ=.a r._clea'1'~' iidivision of governmental functions«-._into 'legislative and judicial. Thus was established has been the pride of highlighted by Prof. Dicey. The to the rule of man, includes the absence of arbitrary power!lsubmislsioﬁiftoi:_'th_c"tSrdinary law of the land, and the equal. protectionirof 'jthev laws. As a result of the historical O pfociess"afbresaidiﬂmthe absolute and arbitrary power of the "mph-ar_'¢<1:;_ Caurnejto be canalised into three distinct wings of the GQvernrnent.'"l'here 'has been a progressive increase in the power, authority and jurisdiction of the three wings of the Government and a corresponding diminution of absolute and 'arbitrary power of the King. It may, therefore, be said that the prerogatives of the Crown in England, which were wide and l»/ -20- discretionary or arbitrary' authority which at any is ' legally left in the hands of the resource of the executive, and when provision covering precisely "samel ground any room for the exercise of has been taken away by necessary? impli2::;avtJbilfgécause the two rights cannot live together. by a learned constitution_al_.:v of discretionary or arbitrary time is legally left in the the Crown is a party to every of logical enough to consider that when the deals withfslomething which before the Act could V. l3e*i__effeCted xpby thlewplrerogative, and specially empowers the same thing, but subject to conditions, the to that, and by that Act, to the prerogative being curtailed. The prerogative is thus created and limited by the"~common law, and the Sovereign can claim no prerogatives 'except such as the law allows, nor such as are contrary to V "HMagna Carta, or any other statute, or to the liberties of W ,27- was contended by Mr. Seeruai that the words the Constitution, namely, Art. 161 do _.__ the conclusion that the power was limited or fettered. In our opifiion'*there is.

in the argument in so far as postulates_ what 76 ' to be established, namely, thaxtl' the .

power was absolute and*ariot fettered in go long as the judicia1'y,---ha:s--theyypower'to a particular order in pendir;itg»vl.case~l tiorthat extent the power of the Exeeuti1.2e limi'ted'».,'in._lfview of the words _either_~.of the Code of Criminal up;%:§¢¢duf_¢__y_a,x;d Artjs, '14'é"Vand 161 of the tiiat":vis correct interpretation to order to harmonise it "that what is covered in Art.

14'1I2yliSt'T1OliV'C'Ol')l'Cl"€€i': .'bymA.rt.161 and similarly what is . ,(:overued..,by~s". 426 not covered by s.401. On that i_n,te7fpretation------Mr. Seeruai. Would be right in his .eonteritio_n that there is no conflict between the power of the sovereign state to grant the power of the courts to deal with a l .. pending cage judicially.

24. It has been strenuously urged before us that the power of granting pardon is wide and h/, _32_ other statutory, are coextensive. But may be similar but not the sa_me._That' 'ts' , the difference. We cannot agree...4yfbhjat'.yythe' powe.r__W which is the creature of V the Codexcan be_~v_equa'ted:.r'~~ it with a high prerogativeVii.a_es~ted the in the highest functionariesof the Union the States. The source. lithe substance is different, the strength although the stream be fQltzo'wii:ig bed. We see the identical, and obvioiusly.i'."-- is 'untouchable' 'ctftdi cannot suffer the vicissiftudes..of<simplelegislative process. Therefore invalidated as indirectly violative of and 161. What the Code gives, it caritake. and so, an embargo on Sections and in within the legislative power of " ' Parlia n':en't.

Even so, we must remember the «constitutional status of Articles 72 and 161 and it he ; isvcommon ground that Section 433A does not and cannot affect even a wee bit the pardon power of the Governor or the President. The necessary sequel to this logic is that notwithstanding Section \/ -34- to take independent decision to direct refuse release of anyone of their own choiéte. '7' 7 fundamental to the Westminister system_u_:that=7.the Cabinet rules and the Queen reign--s _ toot' deeply rooted as fundarrzental 7 our Zsyistegrrit :7 serious encounter was -.._met V'fr_om the"

Solicitor General sure~._ of fundamentals did not per'-mi.tVg_:to colntrovert the proposition, that the Governor, be they ever so are but functional'«..euphemis_ms' on and only gorax'the;:aaZi)icé:_Qf' the 'Cou_ncil» of Ministers have in The subject is now Court having autfloriiativwelyf the law in Sharnsher Singh case." So, »we'_.~sVagree, even without reference ~ to_Article. .35-'7'(1) and Sections 3(8](b) and 3(60)(b) of General'Ci'ause Act, 1897, that, in the matter "eXe_rcis__e of the powers under Articles 72 and the two highest dignitaries in our constijtutional scheme act and must act not on their «own judgment but in accordance with the aid and " advice of the ministers. Article 74, after the 42nd " Amendment silences speculation and obligates compliance. The Governor vis-a-vis his Cabinet is \/ -45- reasons of State as well as the desire to saf:eg'ua.rd.. -1- against judicial error. It is an act of from the Sovereign. In the Un'ited'States, _:howe_ver,CI after the founding of the RepubliC,'_"aA~ pardon 7 A President has been regarded not private of; grace but as a part of the'co'nstitutionalsrfherne, an opinion, remarkable ~erud'itiontand clarity, Mr. Justice Holmes,:7spe'aki.ng.._Court in W.I. Biddle v. Vuco Perovich view, and it has 'been '_jotherVj'decisions. The power p_a,-toj' constitutional scheme, doubtfin our mind, that it the Indian Republic. It y the people through the Consgtiiution of the State, and enjoys w -high .7It aiconstitutional responsibility of great_ Asignij"ccince, to be exercised when occasion in accordance with the discretion coriteniplated by the context. It is not denied, and has been repeatedly affirmed in the .. course of argument by leanied counsel. Shri Ram dethmalani and Shri Shanti Bhushan, appearing for the petitioners that the power to pardon rests on the advice tendered by the Executive to the President, who subject to the provisions of Article \x/ -55-

(d) that relevant materials have beeri':lrep';§.pp:

out of consideration; 3 hi i it

(e) that the order SLt1:ff?I"_"S':"'~.x it arbitrariness.

CONCLUSION

27. Every civilised countryigidiecognises{aridahasﬂtherefore provided for, the pardoning exerclivsediwas an act of grace and humanity in such a power of clemency, to or functionary of a " be most imperfect and in that attribute of deity whos\li:Q\[gmentg':'gf:¢ tempered with mercy. In England, this poweurvhgas from time immemorial, and has alwaiysv been regard__e__d_vas a necessary attribute of sovereignty.

regarded as the royal prerogative of pardon the Sovereign, generally through the Home Secretary. is a power which is capable of exercise on a varietyvvof grounds, for reasons of State as well as the desire to '"safeguard against judicial error. It is an act of grace issuing AZ -56- from the Sovereign. In 'tﬁie United states, this power jils--Ve_"xtended to the President by the United States Constitu,-t1:on,,ia'1id"iin"'thep various States and territories is either".

constitutional provision or organic or'~.p'rovided"'~~foifby statute, the power usually conferred. or upon a board of which the In some instances, however, is so limited as to render an arbitrary "hlowever, after the founding of President has been regarded ligrace but as a part of the power to pardon is a part of the " "It is so treated also in the Indian Republic. hasivhvbeen lreposed by the people, through the .. «. Constitution', in thﬂelllliead of the State, and enjoys high status.

responsibility of great significance, to be discretioin contemplated by the context.

exercised "when occasion arises in accordance with the l/ -57-

28. A pardon is not a private act of an individual happening to possess power. It isfia "o:f..V_"'th'e'_ constitutional scheme. When grar_1ted.._it the"cdVetefznina'tion' u l of the ultimate authority that the welfare served by inflicting less than'v"\vzhatlltl1.e pardoning power is founded the public good, and is to be exercised' that public welfare, which is the legitimateiyorbiect of will be as well promoted by eiieciution of the sentence.

It may that justice be done by correc1tingv_'al;ter discovered facts convince the authority' power that, there was no guilt or that other 'rni'stakes were made in the operation or enVi*orce7--I"neri't_ of thewcriminal law. Executive clemency also exists t_o»--aii'oVrdvlrelief from undue harshness in the operation or enforcernerit of criminal law.

" r 4_ The object behind grant of pardon is two fold.

at/.

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Acts of leniency by pardon are adminis:te're;dVp:'l'i., by the executive branch of the gOV€1fIlII]v€1_'ll" V' V the interests of societywand education, and reform.atio:n'*'lVof convicted.' 'M 2 pp p A pardon is grantedon the the'or_v_that the convict has-ofihis ways, that society "'1ill""§3:15f1 this further land will conduct (ll an upright, law-

_abiding<citLzpei1,s _ ' llievpobjectllvof imposing deterrent sentences is three ~ lfQ_v:l_protect the community/society against . bcallous criminals for a long time; to administer as clearly as possible to others tempted to follow them into lawlessness on a war scale if they are brought to and " Hfo1d:-- ll/T ~ 59 - T T convicted, deterrent punishment will and if d V (3) to deter criminals who__aAre._forc.edltgifﬁiddergg lor1g~tem1 irnprisonment View of refOI1I1atyiV;fV$'V'I7oVir1n of"

31. Prolonged _ir1'l-._dgefibr"r1l'l.te"--detention is justified not only in the namelof preyention offender has been regarded in Vlhe"l:discharged only when a response regarded as safe. Long as the neat response to all three put the miscreants behind bars for along time; 'it"wouldw demonstrate that the game was not l"-wo'rt.h Candle formothers. Maximum penalties, upper limits a judge may impose for various kinds of crimes, Beslsential to any system which upholds the rule of law. Qhjections arise only when these penalties are illogical, V"-f_inoor;.sistent, at odds with people's sense of justice. V -60-

32. In India [116 power to remit sentenﬁe Section 433 of Code of Criminal Procedure. ' S. power is conferred on the State also conferred on the Governor o.f.theVSt_ate 13.31 the Constitution of India. sectiV§§n."p;i33;Al:'o--ﬁ{:§ls power of the State Government ferglit in where the accused is sentenced towdeathtilor life. The said provision imposes the the State to grant remission two cases, the power of State Government unless and until 14 years of sentence. It is well settled-.__'.law statutory provision cannot control the.«§e)rercise of r--..Cvon_stitutional power by the Constitutional

--l7:lfherefore Section 433A cannot control the power vest_ed under Article 161 of the Constitution. Tho'u.ghf 'lstatutorylpower contained in Section 433--A cannot coentrolvd" 3. the Constitutional power conferred on the '"Co'n'stitutional authority under the Constitution, none the less, vvhen the Constitutional authority exercises this Constitutioﬁay <61» 4, 3 power, it has to be exercised to effectuate the rule-«of-. In other words, as a Rule, such Constitutional exercised to negate the intention of...th_e pa't1i:Lm;§pt"'xx;hi¢hiii»_ turn represent the W'lll of the plepoplefolf Parliament has enacted Sec'iio'11_V..43tf'i;-All:kee_pi}§gA«.,:i11./Mmihdvthe"

public interest and after of the the power of , pardon or remission under Section 433 of the Code was mistihsed by successive Governmentsj: alféorrstiitutional authority is exercising cannot ignore the society, the behind such legislation.

If in intent as evidenced in statutory Drovision is to be exercised, it has to be '~1,.i¢;;e}§ise'a iimgrarestvllllofvrare cases or in exceptional cases. It reasons which prompted the President or 'exercise the power contrary to the statutory provis'ionis should be discemable from the order granting such "'."_Ar:errlii's~sion or pardon. Exercise of executive clemency is not a matter of privilege. It is a matter of performance of official Vi -62- duty. It is vested in the President or the Governor,' benefit of the convict only, but for the welfare~Ve.fAlthel pleoplebwlio may insist on the performance T' therefore, has to be exercised on An undue exercise of this is to' Every prerogative has to beg of That rule cannot be compromisedqvPF1l11ey'~gr=§ur1%1Vgfgyffpolitical expediency.

To go by such'considerations» be subversive of the fundamental and it would amount to Therefore, the power of executive for the benefit of the convict, but while exercising the President or the Governor, as may 'ha-sitp keep in mind the effect of his decision V of the victims, the society as a whole and the 'pré'cedeh{--"i.=: for the future.

Zi3. It is now judicially recognised that prerogative power as capable of abuse as any other power. The law has to find H means of controlling it. The prerogative has many times been -53- restricted both by judicial decision and by statute. Court to determine the legal lirf-1i'ts---.of j includes the same requirement exercise as applies to statuto:ry..V_powers with this difference, that it cannot presumed intention of Parliament}--zll5rerogatiyeliiivtthediscretionary power to be exercised forv'.the:p'ub1i:c that its exercise can be other discretionary power It is fairly well settled that the __exerci:se__F'or»'non:exercise of pardon power by the PresidelntorGovernor, case may be, is not immune from jud4iic'1alcArevievv,' wjjudicial review is available in certain of determining whether the act of a statutory functionary falls within the or legislative conferrnent of power, or is vitiated by selfgdenial on an erroneous appreciation of the full amplitude of the power is a matter for the Court. If the power __iunder Article 161 of the Constitution is exercised arbitrarily, mala fide or in absolute disregard of the finer canons of the it/c -64- constitutionalism, the "by--product order cannot» both-e:a.pprv<p5Va1k of law and in such cases, the judicial st_ret,ch3ed l' to it.

34. It is alsolequally the power of pardon, commutation'*and_'_lreleVase\*~ cannottlrun riot. All public power, including shall never be exercisable ar'b'itr:arily br guide--lines for fair and guaifgaritors of the Valid play of powerigﬁlll thellpelople, and it is entrusted by them into it and functionaries with the intentionllllof maintaining and operating a uo'i'der..;«:'The power so entrusted is a power A ' belongingl people and reposed in the highest dignitary of the It:-has been reposed by the people through the Ctonstitutiorl in the Head of the State, and enjoys high status. It is a 'constitutional responsibility of great significance, to be exercised when occasion arises in accordance with the discretion contemplated by the context. A pardon obtained by E/, -65- fraud or granted by mistake or granted for would invite judicial review. The constitutional.-- justification for judicial review, and t e vindication: of C' constant in all areas, but the. rnechanism that justification Varies. In case[ have to ensure that the autliority nianner which is consistent with the the fundamental principle of case, the Rule of law should be' for judicial review.

The 'Article 161 of the Constitution of Indiacannotlj by the provisions contained in the Codelllliiarneljv Sectionll~*dT'433--A. They will certainly have due thel.dle"gi«s1_atei.ve intention of the Parliament evidenced ' ._the__lsaitlrprovision in the Code and would exercise the cionlsistent with the provisions of the Code; The said 'Constitutional power is to be exercised to effectuate the "rule of law and not for abrogating it.

O ~ 67 - T T the said authority would act properly and care;,fttllyﬂ'--.p. after an objective consideration of all the .

the matter."

36. In this context when we at _ti1.6V contained in Section 432 and 4__:33_of 72C and 161 of the Constitution power pardon or remission of sentence t_oirai1" sentence. In the aforesaid provisions for exercise of such powel/_ of the Code puts restriction by the appropriate Goverilment sentence of imprisonment for life or a sentenoemof »--'i'h'e.'CfPJar1iament after taking note of the wayjjfthe. appropriate Cvovernments exercised this power under

433. of the Code, to prevent abuse of such " .power","p'u,t restriction on exercise of such power, as provided un'derv--.Section 433A. After the Section became a part of the law hi ..of_the*iand, the Government cannot exercise their power to 'g_Vc'orn:mute sentence contrary to the aforesaid provision. If they i/t

-- 68 -- V .

do it, it is arbitrary, illegal. What they cannot do.«_unid.eri--Vthe statute, they cannot advise the President or and thus get over the limitation __imposed_7 on" by the' . 1 Parliament. Though a Governor while ;exercis1'..n'g power'-..u"nVr§1'er Article 161 has to act, notvoi:-.__his" Vjudgrnen.ts,V but accordance with the aid and adv_ise:_of.rthe the advice to be tendered by these in accordance with law. All public power, shall never be Ordinarily, guide-

lines for fair guarantors of the valid play guideline is the law governing the subject." be exercised in accordance with law and;i1otA.contrary"to "If the Government/ Ministers advises tocoininute sentence in cases which do not fall of the Code, probably there is no discretion leftjin vijjﬁovernor except to act on the aid and advise of the said .'Ministers and the Government and give effect to their But, the same cannot be said to a case which is U __§:overed under Section 433A. If the advise given by the x/ -59- Ministers/ Government is contrary to the Pa=rli'arneritary mandate contained in the statute, which represents, the people, the Governor is not obliged' tcf:

effect to such advise and exercise"itheﬁpower~of Governor before exercise of the under' Article 161 of the Cor;__1stitutio_r_'_11:,ﬂ'i:s__ apply his mind to the advise so JtheVp'vvmA:at.eiials if any on the basis of which such advise. application of mind, he is contrary to law, violates' the will of the people, as reﬂected the Parliainent, he is duty boundlto of the Government/Ministers and: give thuemvvan' opportunity to retrace their steps and mould in accordance with law. If the power to be Artiéle 161 of the Constitution is to be the sense that it is not open to the Governor to ntake independent decision or direct release or refuse release of 'a_nv:'one of his choice, then he has no option except to put his 15/' -70- seal to the order of the Government however unconstitutional. But, that is not thelegal G G

37. The Apex Court categorically held that, the judgment but in accordance advice of the ministers. The constitutional that the Governor is but a shorthand. Government. The State likes it or not, can advice tl:lvj.1ellGovernor being bound by the and release can thus be pursuant decision. While exercising power under the Governor who acts on the advice of the the State Government can overlook and philosophy behind Section 433A, so as to lcreateV_.~alilconﬂict between the legislative intent and the Apexecutive power. In Kehar Singh's case the Apex Court held the power to pardon rests on the advice tendered by the __Executive to the President, who subject to the provisions of ti -71- Article 74(1) of the Constitution, must act in such advice. It is apparent that the' power"

entitles the President to examine the of criminal case and to deterinir-'1:e'«for hinaself jwlieth.er..Vthe_T3case one deserving the grant of thelvlvtrellief _fallin'g. power. They were of the opinionthat is to go into the merits of the case it has been judicially concluvded given to it by this Court. the Apex Court held that, when waslnot material facts such as those was apparently deprived of the oppor't--unit.ylrto'lexercise the powers in a fair and just jg CoI'1ver_s_ely, the order impugned fringes on A in Satpal's case, the Apex Court held, applied his mind to the material on record and 'mechanically passed the order just to allow the ..pri_sone*r; to overcome the conviction and sentence passed by C'-th-is'l Court. When an accused is convicted of the heinous "offence of murder and is sentenced to imprisonment for life, lxz -72- 'E the authority who has been conferred with pardon and remission of sentence under Constitution must be made aware:'of"the. period _o'f'sentei.ice=&ini f fact undergone by the said convictiaags behaviour while he has beenuliidergoving which would all be germane c.onsider.atVil:o'nslfor exercise the power. Again in Dhananjoy Apex Court held the Governor wasdepiived to exercise his pOW€r in a:.fail1* lt that the power under to be exercised by the Govern_Aor._o:iAlVtheV 'aid and advice given by the State Governrnent;r Jlrnaterial facts should have been placed iybeforeru Covernor. Therefore, they directed the mercy petition filed by the appellant Gdvernor again and bring all relevant facts tic"/'he the Governor for an appropriate decision in the case." vjigain in Epuru Sudhakar's case, the Apex Court held, A' the principles of law as noted above are considered in the efactual background, it is clear that the irrelevant and 11/ ,73_ extraneous materials entered into the decision process, thereby vitiating it. The order granting impugned in the petitions is clearlyrrurisustainable" arid_fis'f's.et' r.

aside. However, it is open to Respon"den7t_s totreat:

as a pending one for the purpo_se...of reconsideration" 'ltvshall be G open to the Governor to takepnote__of.._materialsH placed before him by the functionariesxiofrtlie also to make such enquiries as considered:.1ieces'saI"3I_:aI1ld..Televant for the purpose of ascertaining judgments of the Apex Court it is abundantly'clearthat"thoiighlllthe Governor while exercising the power underlfkrticlell 16': of the Constitution, has to exercise the on" aid advice of the Government, he cannot pass an order granting pardon. After such advice isAgiiven_.1ie:G'ijsAunder an obligation to apply his mind and then V'-~.exercise__the power in a fair and just manner. If the advice is to law, if the advice is based on facts which are V ektraneous to the -'exercise of such power and would not l/ -74- constitute a sufficient justification for exerciseof' power under' Article 161 of the Constitution, he ovv'es-a duty itﬂtov" j notice of the Government the advice given. While exercising_,:vp~owerunder ll of the Constitution, the Cxovernor on advice of the Council of Ministers; can overlook the object, spirits and 433A so as to create a 'legislative intent and the executive vested in a very high authoriltylv the said authority would act properly pandyycarefullyfafter an objective consideration of all aspects o'f.._4theV matterg' order of the Governor cannot be to on its merits except within the . defined in Maru Ram's case. The function of :vvh'ether the act of a constitutional or statutory fu'ii._ctio_1iary7' falls within the constitutional or legislative Apconferrnlent of power, or is vitiated by self--denial on an C' 'erroneous appreciation of the full amplitude of the power is a __:inatter for the Court. Therefore, the area of the Governor's It/.

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power under Article 161 falls squarely domain and can be examined by tl'ie"C'o«t,1rts.'& T ' review. It is in this background to of the case and decide whethler'..theA.Vsaid' --powei~<DVis'"properlyV exercised. it h d i ON FACTS

39. discloses that on " General of Police and Inspector . I ri.son..S, made recommendation for release a._ of 74 prisoners independence Day celebrations of the AAln.'the'recommendation, he has suggested that completed lO years of sentence, one about 65 years and who has completed 5 of two women who are aged about 50 years' and who have completed three years of imprisonment anddfanother nine prisoners who have completed 50% of their sentence, could be considered for remission of sentence. Thus, in all the recommendation was to remit sentence of 74 persons.

ll/c -76- On 10 occasions in the past, exercising the 161 of the Constitution, the prisoners were also stated that before that remission could-he.3done._lfirst; lapproyal if of the concerned deparfniental' Ministeris reqtiired.__The;:'eaiter,:

approval of the cabinet is _uAftelr-th:e'vapproval of the cabinet, the approval offthe ~'l_l'I'"i«'..Zl€I' 161 of the Constitution is required: was put up before the Home put up before the Home for a meeting in his The record discloses that there After the discussion, they informed the same to the Chief Minister over phone. The opinion. the ljeparﬁnent was explained. The Chief Minister 's.ugge_s'tedi prisoners who had completed 8 years of irnp'i'isonnlef__nt.j' are to be released. It is stated that the same should lnotvbe quoted as an exainple in future, for, remission of A sentence on the occasion of Independence Day as well as Suyarna Karnataka Day. The relevant note which is in Kannada, reads as under:

am; <7.i:oa3£5o'3oo.%Ji§3Jao'5\ri H 11"axgdaé:_gaa¢§: 0 mama ¢'J5§o.:ba$daq mag, revaaﬁaus e°2Qe:'aga5J::"a'g;~ .a"e;:.'<f;_;_:i, 5036, add' abéoczza zoc,'*:v'é3.~'371%'z'J L§59riJ_:"€3§5 a$:aﬂ~:')aia 5o.«';e5cd:<~2_, (:z3pr:<:ri".Vg mg': mg' 4 was: my e'g'{9C3e5»%C5 adséota asébgdgh aoxgesoxeg '-.s'i2:p'a'='c53¢'--- ":.ag;§og zdadaadozzj mt xoeﬁsar saarwgg-5"-..e;as:s;a~* ée easeawzsgg uoda waaacisﬁcdaaacﬁ A_eruc:§$o25és;:5.d.j. 0' '$71521, zséieu aaoeaaﬁ dealt: dc:/'H55 sdéarﬂﬁﬁ f3d'd€lZ'5----.:'iL'?':TJ;'Cc*:.?:f?397'lJ3_§3."

In View of the aforesaid...suggestion'H'of the 'Chief Minister, as against 74 gfirisg3r1er_3were_v "entitled to remission, the persons who Vﬁzere in all, became 309, of wholn, 285* conrricted for life, but who had completed 8 yea.rs'ofvimpriso~nment. The file also contains the letter_w1itten the Additional Inspector General of Police and General"'of"Prisons dated 02/03-08-2006 addressed tl'1e"--vS_0ecVr'etai*-y of Prisons, enclosing the list of prisoners for 'premature:'j__ release on 15.08.2006 on the occasion of Independence Day celebration. In the column meant for ico"n.duct during prison, it is stated that it is 'satisfactory'.

A"§Thereafter, the matter was brought before the cabinet and the a/ (2) -79- agreement, the learned Governrnent Ad'Vocate;was.not"able.

to throw any light on this asp:'ect.1'_"'l'lie Goveriior it on the assumption thatthe Law :Departrr1«e'nt. been consulted. But,- he did nothave the benefitof their opinion, while he accorded apiproVl:al.2.'_' it Secondly, the Governor the basis that the Governmentiliias takein".irito"c'cnsideration the parameters laid d.-ovmoby:'2the.__«.$upre--me_' Court. It shows that the GoVeVrno1=t_dici'::,n.ot*~.personal]y_ take note of the parameters pr7esc«ribedV'lVL'y Su,pi'en1e Court, which he ought to have donel;Q_whi.chC isxa "condition precedent for exercise of the , jipreiifogatixllfe vpowerunder Article 161 of the Constitution.

"the record produced in the case do not disclose that the looked into the law laid down by the S1.1prCe--;31Ce Court, as set out, in the earlier paragraphs of " judgment.

h/,

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The Government has over looked the philosophy behind Section 433--A of the~*.4{_',:'od.e\:\\:

433--A, imposes an embargov~o'n-the theﬂSta&te'j G Government to commute sentence of death andllseiiitencélv. -he ha\x served fourteen years of,.im:pris=onment'.--_In_.ithe instant case 285 persons but who had completed only are granted the face of it illegal, of reﬂected in the said provision' enacted ' Parliament.

The though this remission of sentence 3¥.isEgg__gAn1ade.l occasion of Independence Day, and Gvolderrélubilee Celebration of Karnataka Rajyothsava, it that in future the same shall not be cited G "precedent. It is implicit in the said statement, the if "u_pcellebration of Independence Day or Golden Jubilee if Celebrations of the State cannot constitute a ground or iv -81- reason to exeréise the prerogative power of__ commutation of sentence. The reason is obvious. The 'ind.ep.endence Day, 0 is celebrated throughout thegvcou-ntrylllto.' the great l' occasion when the country andits peoplebecaigiievlfree.

from the shackles of the 'foreign the day we have to remember, re-spect. 'and salu.te..5 the noble, courageous souls sl'2.1:cf:"ificelcilt'Veverything belonging to them including their the country and for pf the beneficiaries of great occasion one cannot if -- those persons who committed heinous humanity, society and who took §'ax,yayllthe._ of" abiding citizens of the country. It an to those great men who sacrificed their liberation this Country, if independence is to be in the aforesaid manner. Similarly, Karnataka .R_aj'yothsaVa Day is the day on which Kannada speaking people who were scattered in five different places in the country were brought together and unification was done, l/ -82- as a result of which the present State of Karn*aVta:.1{a;p:i:ame into existence. That is the day when people rejoice about their la;ng1.1age,_"c'iilt11.--rc their' .

achievements. Certainly that:'day1'_cannot.be a day of granting freedoin__"tQ. people Kannada' speaking people and rendered their family members destitutes. There'forfe,A there3is"~.nvo:fi1exus between these two days and exercise of commutation of sentence?

I11" meant afo'r~'cdnduct during prison' it is stated' that":it..p4is»a.fsatisfactory'. It is on that basis this cornin1_ita.tion. of "sentence has been granted. Merely because theiconyduct of a prisoner is satisfactory, is no _p J'ustification for commuting his sentence to a period less is imposed. If the conduct of a person is satisfactory for the period prescribed under Section 433A, 'A rnay be that is one of the factors which has to be taken V. -83- into consideration while granting the _remission.: by (7) itself cannot be a ground for rzerriissyiojn.'-cog 1 _ . at A distinction is sought to be". made between _ men. "and women, i.e., on the groun:d~..of sex. Tiieugdiscrirnination men who had co_mpleteAd...:é»A'"years imprisonnient and Women who had imprisonment are held to be'.'$hti€1:ed"«:'t':':Vlg remission. It is contrary "mandate and is hit by "India.

(8) ~.Goye"rr2'1jneritg'and""the"Governor has not kept in mind the justice administration in the _.;j"c'osuntr.y." present the rate of conviction is hardly 7%.

reason why there is spurt in criminal the criminals who have the support of V money, power and even status, are roaming in streets without any fear of law. These criminal trials take years before an order of conviction is passed which is subject to appeal to the High Court as well as to the ﬁt/_ -85- under the Rules without actually verifying the which he ought to have done. As is clear record, it is not clear with whom 7, discussion in his charnbers and what. is-that to the Chief Minister and on basis. in turn suggested to release peryson:sV._whuo haVe~.1ind.ergone eight years of imp1'isonmentl"inlrespect:..of'-n'1ale--.. prisoners and four years imprisonment 1n,:~'esp«_é:cjr and on what basis the this is done over a phone the manner in which the prerogative.' exercised. Thereafter, the record discloselsuthat placed before the cabinet, which has; approxlfledlvitppl and only material to show the conduct of statement prepared by the Additional of Police and Inspector General of Prisons, where it .isP'i:-efcorded that their conduct in jail is "satisfactory".

42. Therefore, it is clear that the Parliament by enacting 'Section 433A has rejected refonnative character of punishment V -85- in respect of offences contemplated by it prevailing conditions in.the country. Legislature the needs and requirements of its j if Courts. If the Parliament decides benefit of the people, such aflegislatiori construed and given effect to so----asv--to"subserve._theEpurpose for which it is meant. of Section 433A has been upheld' lrefonnative theory cannot ove_rrfde provisions. It has to be parameters of law. The

-never be exercised arbitrarily or mala fide,_or.on wholly irrelevant considerations. Exercise of clemency is not a matter of privilege. It is a' of performance of official duty. Every prerogative has the Rule of Law. That Rule cannot be on the grounds of political expediency. nPrerog,at1Ve is the discretionary power to be exercised in the good. Therefore, the aforesaid material and in particular the order passed by the Governor clearly l/ -87- demonstrates that there is no application of 4_ materials have not been kept in ..mir2d, the olrdler has b'e1en'4. 8 passed on extraneous or wholly 7285 prisoners who were undergoi_n'g._life"who bhadd completed just 8 years of released by commutation of sentevnee' ._mandate of Section 433A of the Code of Therefore, the order passed is non_'Ves8tip:jin' thé._eyie 1aWv:a'nd»re<f1uires to be quashed.

try the impugned order 285 persons. ylvho «to undergo imprisonment for life have been""relea.sed Apreiriaturely on completion of 8 years of is only the commutation of sentence of respondent herein, which is Challenged before this H 284 persons are not before the Court.

8 Thereyforemthis order is to be Confined only to the third respondent.

44. That takes us to the next question, what should happen to the remaining 284 persons whose Commutation of MA/.

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in either Article 72 or Article 161 of the Constitution--«_y"'* yet by application of the provisions of :_.

Clauses Act, 1897 [in short "the oenerqij'-czagiseé Act") the same would be permissible. talsof} highlighted that similar provisiorzs are provided in Sections 432__. and " /{.33 CrPCf 'VA/lerely; 3 because Article 72 ariafAracze--- 'the Constitution have. not been provided' 'specifically that would not 'power was not intended to be exercised.

~46,__ ._l.'4 2.lWof the General Claus¢5'?:. conferred to be to a power to issue, to, amend, vary or rescind notifications, oraers;.rules or bylaws. They read as 5 - followsz: AA " V" , 'vs4..1....m' A pt. Powers conferred to be V '«..:e"xe_rcisable from time to time.-- (1) Where, by Central Act or regulation made after the ulcorruviencerrient of this Act, any power is conferred, then, unless a different intention appears, that power may be exercised from M/ time to time as occasion requires.

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{2} This section applies Central and regulations after the fourteenth day-iofo'anuciIy,_.vl§'5t3?f. A

21. Power to islsuegto. 'inclu_de_ :3 ' to add to, amencz' -pary orglg felSClnCl; it notifications, ordexi\§~{..,, rules or ' byeiaws. -- Where, by any cen,.trlaiv.Ac.t_ or regiilation, a power to no'tific_ation,s,., 'orclers, rules, or bye-laws is that power incluiies at in the like sanction and 1 amend, vary or llll H " llarigeplpriotificaiiolns, orders, rules or = A bye«llcifLvsls.o"is,sVuecl."' V. '-The."-scope and ambit of Sections 14 .21 'theu"General Clauses Act have been A _V this Court in Sampat Prakash v. State :'Jg$b;K;i'waslinter alia held in AIR para 11 as C' fol!ow:s;'iVlSCR p. 375 AB} [1 1.] This provision is clearly a rule of interpretation which has been made applicable to the Constitution in the same manner as it applies to any Central Act or regulation. On the face of it, the submission la/r -93- 3

(b) The impugned order granting COTI1IT1I;".l__f"Cll'iC'}TI:VV("2f;!' * ' sentence to the third re.f;p(5rident".is aside.

(C) ._ V _ , ._ The first respondeiitw is' directed tot; take appropriate:"'Step5_I_: g of reépiioxndent No.3 him to undergcs the gjortion of the gsézntegrice. . 1

 '..,    Sd/_;
JUDGE

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