Madhya Pradesh High Court
Jitendra Shrivastava vs Secretary, His Excellency The Governor on 10 May, 2013
W.P. No.8229/2013
10/5/2013
Shri J. K. Pillai, learned counsel for the petitioner.
Shri Vikas Sharma, learned Panel Lawyer for the
respondents on advance notice.
Challenging an order dated 5.1.2013 passed by respondent No.2 rejecting the mercy appeal filed under Article 161 of the Constitution, this writ petition has been filed interalia contending that a mercy appeal filed under Article 161 of the Constitution read with Rule 775 of the Jail Manual, cannot be rejected by the Secretary of the State Government, it has to be considered and decided by the Governor and without reference of the mercy appeal to the Hon'ble Governor, action taken by the Secretary of the Department for dismissal of the mercy appeal is unsustainable, this writ petition has been filed.
Petitioner was prosecuted and tried in Criminal Case No.147/98 for offences under Section 147, 148, 149, 302/120 I.P.C. and was sentenced to undergo life imprisonment. Seeking his release on mercy on the grounds as are indicated in the mercy appeal, petitioner filed mercy appeal before the Governor exercising powers under Article 161 read with Rule 775 of the Jail Manual. The same having been rejected by the department, this writ petition is filed.
It is the case of the petitioner that the mercy appeal - Annexure P/1 was submitted to His Excellency - The Governor - respondent No.1, but respondent No.2 instead of forwarding the same to the Governor for consideration, rejected it at his own level and communicated the same to the petitioner vide Annexure P/2. Inviting my attention to an order passed on 2.3.2012 under similar circumstances in Writ Petition No. 2962/2012 (Manohar Singh Vs. Secretary, His Excellency The Governor and others); and, the law laid down by the Supreme Court in the case of Dhananjoy Chatterjee Vs. State of West Bengal, 2004 (9) SCC 751.
Learned counsel for the petitioner submits that the mercy appeal has to be considered and decided by the Governor and if the same is decided by respondent No.2, right of the petitioner available under Article 161 of the Constitution is taken away and, therefore, the same is unsustainable.
Even though learned counsel for the respondent inviting my attention to the order-dated 5.1.2013 - Annexure P/2, submitted that the order has been passed by the Additional Secretary of the Department, in the name of the Governor, but a perusal of the communication available at page 20 of the writ petition, of Deputy Secretary, Governor of MP, Department of Jail, has been passed by the Law Department on the ground that it does not fulfil the requirement contemplated under Rule 775 of the Jail Manual. It is clear from the documents available on record that the mercy appeal has not been placed for consideration before His Excellency, The Governor of MP, instead it has been dismissed by the competent authority of the State Government, which is contrary to the requirement of Article 161 of the Constitution.
Accordingly, this petition is allowed. Respondent Nos. 2 and 3 are directed to place the mercy appeal of the petitioner
- Annexure P/1 before His Excellency - The Governor of Madhya Pradesh, with a request to decide it in accordance with law.
With the aforesaid, the petition stands allowed and disposed of.
Certified copy as per rules.
(Rajendra Menon) Judge mrs.mishra