Supreme Court of India
Samjuben Gordhanbhai Koli vs State Of Gujarat on 7 October, 2010
Equivalent citations: 2010 AIR SCW 6564, 2011 CRI. L. J. 654, 2011 (2) AIR JHAR R 460, AIR 2010 SC (SUPP) 85, 2010 (4) CHANDCRIC 221, 2010 (13) SCC 466, (2011) 104 ALLINDCAS 231 (SC), 2010 ALLMR(CRI) 3943, 2010 CRILR(SC&MP) 895, (2010) 2 CRILR(RAJ) 895, (2011) 74 ALLCRIC 608, (2010) 4 RECCRIR 782, 2011 (1) SCC (CRI) 1180, (2011) 1 GUJ LR 699, (2010) 10 SCALE 579, 2010 CRILR(SC MAH GUJ) 895
Bench: Markandey Katju, T.S. Thakur
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO(s). 689 OF 2005
SAMJUBEN GORDHANBHAI KOLI Appellant (s)
VERSUS
STATE OF GUJARAT Respondent(s)
O R D E R
Heard learned counsel for the parties.
This Appeal, by special leave, has been filed
against the impugned judgment and order of the High Court
of Gujarat dated 17.12.2003 passed in Criminal Appeal No.
812 of 1995.
The facts have been set out in the impugned
judgment and order and hence we are not repeating the same
here.
Having carefully perused the impugned judgment and
order of the High Court, we are of the opinion that there
is no infirmity in the same. The High Court has dealt
with the matter in great detail and upheld the conviction
of the appellant. We see no reason to disagree with the
impugned judgment and order.
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CRIMINAL APPEAL NO(s). 689 OF 2005
The Appeal is dismissed accordingly.
By order dated 09.05.2005 this Court has granted
bail to the appellant. The bail bonds are cancelled. The
appellant shall be taken into custody forthwith to serve
out the remaining portion of sentence.
Learned counsel for the appellant submitted that
the appellant should be granted remission of the rest of
her sentence. In our opinion, remission can only be
granted by the executive authorities.
However, the appellant will be free to seek
appropriate redress from the appropriate Government by
making a representation praying for pardon or remission of
sentence in terms of Section 432 of the Code of Criminal
Procedure or under Articles 72 or 161 of the Constitution
of India. We make it clear that the power of the President
of India under Article 72 or of the Governor under Article
161, being a constitutional power cannot be under the
restriction imposed by Section 433-A Cr.P.C. Section 433-A
Cr.P.C. can restrict the power under Section 432 Cr.P.C. or
Section 433 Cr.P.C. but it cannot restrict the
constitutional powers under Article 72 or 161 of the
Constitution, just as no limitation statute can restrict
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CRIMINAL APPEAL NO(s). 689 OF 2005
the constitutional power of the High Court under Article
226 of the Constitution. This is because the Constitution
is a higher law and the statute is subordinate to it.
The appellant may also file a petition before the
High Court if the appellant is entitled to the benefit of
any Rule or G.O. of the State Government for remission of
the sentence.
........................
J. (MARKANDEY KATJU) .........................J. (T.S. THAKUR) NEW DELHI OCTOBER 07, 2010.
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