Karnataka High Court
Chandrakanth H P vs Sri Paramesh on 29 October, 2024
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF OCTOBER, 2024
BEFORE
THE HON'BLE MRS JUSTICE M G UMA
WRIT PETITION NO. 51568 OF 2018 (GM-RES)
BETWEEN:
CHANDRAKANTH H.P.
AGED 30 YEARS
S/O LATE BASAVAIAH
R/AT HANIKE VILLAGE
MADIHALLI HOBLI, BELUR TALUK
HASSAN DISTRICT - 573 216.
... PETITIONER
(BY SRI. P.P. HEGDE, SR. ADVOCATE FOR
SRI. VENKATESH SOMAREDDI, ADVOCATE)
AND:
1. SRI. PARAMESH
SON OF LATE MADAIAH
AGED ABOUT 30 YEARS
RESIDING AT HANIKE VILLAGE
MADEHALLI HOBLI, BELUR TALUK
HASSAN DISTRICT - 573 216.
Digitally 2. SRI. SIDDARAJU
signed by
NANDINI B G AGED ABOUT 43 YEARS
Location: high SON OF LATE MADAIAH
court of
karnataka RESIDING AT HANIKE DALITHA
COLONY, MADEHALLI HOBLI
BELUR TALUK, HASSAN
DISTRICT - 573 216.
3. THE STATE OF KARNATAKA
REPRESENTED BY UNDER SECRETARY
HOME DEPARTMENT PRISONS AND
CINEMA, GOVERNMENT OF KARNATAKA.
4. THE SUPERINTENDENT OF POLICE
ASHOKA ROAD, MYSORE - 570 007.
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5. THE SUPERINTENDENT OF POLICE
RANGOLI HALLA, HASSAN DISTRICT
HASSAN - 573 201.
6. THE STATION HOUSE OFFICER
HALEBEEDU POLICE STATION
HALEBEEDU, HASSAN
DISTRICT - 573 121. ... RESPONDENTS
(BY SRI. SIVAMANITHAN .S., ADVOCATE FOR R1 & R2
SMT. K.P. YASHODHA, HCGP FOR R3 TO 6)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
IMPUGNED ORDER DATED 31.08.2018 PASSED BY THE R-3 IN SO
FAR AS IT PERTAINS TO THE PREMATURE RELEASE OF R-1 AND 2 IS
CONCERNED AND PRODUCED AS ANNEXURE-A AND ETC.,
THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED
ON 01.10.2024 AND COMING ON FOR PRONOUNCEMENT OF ORDERS
THIS DAY, THE COURT MADE THE FOLLOWING:
CORAM: HON'BLE MRS JUSTICE M G UMA
CAV ORDER
The petitioner has filed this petition invoking Articles 226
and 227 of Constitution of India, seeking writ in the nature of
certiorari to quash the impugned order dated 31.08.2018
produced as per Annexure-A, passed by respondent No.3 in so
far as it pertains to premature release of respondent Nos.1 and
2 and also to quash the Government order dated 23.08.2016
produced as per Annexure-R1, passed by respondent No.3
insofar as providing for premature release for convicted
prisoners undergoing life imprisonment even though they have
not completed the actual imprisonment of 14 years, as violative
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of mandate of Section 433A of Cr.P.C. and to grant such other
reliefs as the Court thinks fit.
2. Brief facts of the case are that, the petitioner is the
son of late Basavaiah and late Eramma who were brutally
murdered on 03.03.2006 by respondent Nos.1 and 2. A
criminal case in Crime No.4 of 2006 of Halebeedu Police Station
came to be registered against them. After investigation, the
charge sheet came to be filed. Respondent Nos.1 and 2 being
accused Nos.1 and 3 were tried in SC No.140 of 2006 on the
file of the learned Additional Sessions Judge and Fast Track
Court at Hassan. During the pendency of trial, accused No.2
died and the Trial Court convicted accused Nos.1 and 3 for the
offences punishable under Section 302 read with Section 34 of
IPC, sentenced them to undergo imprisonment for life and to
pay a fine of Rs.5,000/- each, in default to pay fine, to undergo
imprisonment for a period of one year.
3. Being aggrieved by the same, accused Nos.1 and 3
have challenged the judgment of conviction and order of
sentence passed by the Trial Court in Criminal Appeal No.883 of
2010 before this Court. The Division Bench vide judgment
dated 21.06.2013 dismissed the appeal, confirming the
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impugned judgment of conviction and order of sentence passed
by the Trial Court, which has reached finality.
4. It is stated by the petitioner that even though
respondent Nos.1 and 2 being accused Nos.1 and 3 who are the
convicts have not served 14 years of imprisonment, the order
as per Annexure-A was passed by the Government granting
remission to respondent Nos.1 and 2 and to release them. The
said order extending remission to respondent Nos.1 and 2 is
called in question in this writ petition.
5. Respondent No.3 has filed the statement of
objections and contended that as per the guidelines formulated
by the Government produced as per Annexure-R1, respondent
Nos.1 and 2 were granted remission and it is in accordance
with law. It is also contended that the Guideline I(b) in
Annexure-R1 empowers the Government to release respondent
Nos.1 and 2 before completion of 14 years of imprisonment and
therefore, sought for dismissal of the petition.
6. In light of the statement of objections and
production of Annexure-R1, the petitioner has amended the
petition seeking writ of certiorari to quash the order dated
23.08.2016 produced at Annexure-R1.
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7. Heard Sri P.P. Hegde, learned senior advocate for
Sri Venkatesh Somareddi, learned counsel for the petitioner, Sri
S Sivamanithan, learned counsel for respondent Nos.1 and 2
and Smt K P Yashoda, learned High Court Government Pleader
for respondent Nos.3 to 6. Perused the materials on record.
8. Learned senior advocate for the petitioner
contended that Section 433A of Cr.P.C. puts restriction on the
powers of remission or commutation of sentence. The Section
begins with non-obstante clause, which will have overriding
effect on any other provisions of law. A bare reading of Section
433A of Cr.P.C. makes it clear that when a person is convicted
with sentence of imprisonment for life, where the sentence of
death is one of the punishment provided by law, he shall not be
released from prison unless he has served 14 years of
imprisonment.
9. Learned senior advocate placed reliance on the
decision of the Hon'ble Apex Court in Maru Ram Vs Union of
India and Others1, to contend that the Constitution Bench has
concluded by formulating its findings at paragraph 72. He also
submitted that the Court has made it very clear that when
1
(1981) 1 SCC 107
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sentence prescribed in IPC is either death or imprisonment for
life and the convict is sentenced to undergo imprisonment for
life, restriction under Section 433A of Cr.P.C,. is not ultra vires.
Thus supremacy of Section 433A of Cr.P.C. was upheld.
However, advised to formulate necessary Rules for remission or
for short sentence by various States. Placing reliance on the
findings at paragraph 72 (8) to (10), learned senior advocate
would contend that the power under Articles 72 and 161 of
Constitution of India could be exercised only by the Central or
State Governments and not by the President or the Governor
on their own. Learned senior advocate would contend that even
as per conclusion arrived at by the Hon'ble Apex Court, the
Government is at liberty to formulate the Rules overriding
Section 433A of Cr.P.C., but such Rules if framed has to be
followed in letter and spirit.
10. Learned senior advocate also placed reliance on the
decision of the Hon'ble Apex Court in State of Haryana and
Others Vs Raj Kumar Alias Bittu2, where there is reference
to the decision of the Hon'ble Apex Court in State of Haryana
2
(2021) 9 SCC 292
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Vs Nauratta Singh3, wherein, there is reference to Maru Ram
(supra) and it is held that period of 14 years as specified under
Section 433A of Cr.P.C., is the actual period of imprisonment to
be undergone by the prisoner without including any period of
remission. Placing reliance on these decisions, learned senior
advocate would contend that the position of law is very well
settled that Constitution Bench of the Hon'ble Apex Court has
formulated the guidelines directing the Government to
formulate its own Rules to govern the remission and early
release or short sentence.
11. Learned senior advocate contended that such Rules
were framed by the State Government and Annexure-R1 is the
modified guidelines as per the Government order dated
21.07.2016. As per the modified Rules, the male prisoner
undergoing life sentence who has attained the age of 65 years
and has served actual imprisonment for 12 years, with
remission, after 9 years of actual imprisonment, without
remission, is qualified for getting such remission and it violates
Section 433A of Code. He further contended that Government
order dated 23.08.2016, where the revised guidelines were
3
(2000) 3 SCC 514
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incorporated by modifying the Rules for premature release of
life convicts, the Government has formulated the guidelines
I(a) and (b). These guidelines formulated by the Government
is perfectly in accordance with the dictum laid down by the
Constitution Bench of the Hon'ble Apex Court. Guideline I(b)
makes it very clear that it applies only to those convicted made
prisoners not covered by Section 433A of Cr.P.C. Similarly,
guideline I(c) refers to the female prisoners, who are not
covered under Section 433A of Cr.P.C.
12. Placing reliance on these guidelines, learned senior
advocate contends that even though guidelines do not permit
the Government to exercise the power to remit the sentence
even in respect of convict prisoners, who have not actually
completed 14 years of actual imprisonment without remission,
proceeded to interpret to its own advantage for the purpose of
release of respondent Nos.1 and 2 to whom Section 433A of
Cr.P.C was very much applicable.
13. Learned senior advocate would further contend that
there is reference to Article 161 of Constitution of India as
referred to in clause (iv) of Annexure-R1 and even to exercise
power under Article 161 of the Constitution of India by the
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Government, the procedure as contemplated in the guidelines
itself is to be followed in letter and spirit. In the modified
guidelines - Annexure-R1 relied on by respondent No.3, there is
nothing which enables the Government to give permission to
the convict prematurely before actual completion of sentence of
period of 14 years by exercising the power under Article 161 of
the Constitution of India.
14. Learned senior advocate would also submit that in
the guidelines relied on by respondent No.3 vide Annexure-R1,
some exceptions are highlighted where the prisoners are not
entitled for remission as provided under clauses (iii) and (iv).
Placing reliance on these exceptions, learned senior advocate
contended that it is a case of double murder committed by
respondent Nos.1 and 2 along with deceased accused No.2,
where both the parents of the petitioner were done to death.
Under such circumstances, Rules relied on by respondent No.3
do not permit extending remission and shorten the sentence to
respondent Nos.1 and 2. Respondent No.3 has violated its own
guidelines. Under such circumstances, the order dated
31.08.2018 permitting premature release of respondent Nos.1
and 2 is liable to be quashed.
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15. Learned senior advocate further submitted that
even though clear procedure as contemplated under Annexure-
R1 requires to consider the report of the jurisdictional police
regarding conduct of the accused and probable threat to the
petitioner, the same are never considered while passing the
order impugned. Therefore, he prays for allowing the petition
by quashing Annexure-A in the interest of justice.
16. Per contra, learned High Court Government Pleader
for respondent Nos.3 to 6 submitted that the petitioner is
seeking issuance of writ of certiorari for quashing the
Government order dated 23.08.2016 produced as per
Annexure-R1 providing for premature release of convicts
undergoing life imprisonment even though they have not
completed the actual imprisonment of 14 years, but the said
Government order whereunder the Rules were framed for
giving remission is in accordance with law. Even if the decision
of the Constitution Bench of the Hon'ble Apex Court in Maru
Ram (supra) is taken into consideration, the said Rule will
withstand the test of this Court. It cannot be considered as
ultra vires of any of the legal provisions, much less, Section
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433A of Cr.P.C. Therefore, the petitioner is not entitled for the
said relief.
17. Learned High Court Government Pleader further
submitted that the petitioner is seeking to quash the order
dated 31.08.2018 produced as per Annexure-A, whereunder,
respondent Nos.1 and 2 were ordered to be released
prematurely by granting remission. The said order was passed
by His Excellency, the Governor of Karnataka as per the
recommendation by the Council of Ministers. The said order is
in accordance with the Rules. When the Rules are not liable to
be held as ultra vires, the order Annexure-A also cannot be
found fault with.
18. Learned High Court Government Pleader further
submitted that the Hon'ble Apex Court in Rajkumar @ Bittu
(supra) made the position of law very clear in paragraph 19 to
state that the power conferred on the Governor though
exercised on the aid and advice of the State is without any
restriction of the actual period of imprisonment undergone by
the prisoner. Therefore, even though respondent Nos.1 and 2
have not undergone 14 years of actual imprisonment without
remission, the Governor has the power to remit or commute
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the sentence dehors the restrictions imposed under Section
433A of Cr.P.C. Learned High Court Government Pleader
contended that such powers exercised by the Governor is the
sovereign power and the same cannot be questioned by the
petitioner, since it is in accordance with the Rules formulated
for such purpose.
19. Learned High Court Government Pleader further
submitted that after the decision of the Constitution Bench in
Maru Ram (supra) and before the decision in Rajkumar @
Bittu (supra), the Hon'ble Apex Court has referred to its
decisions in Union of India Vs. Sriharan4, where it is
specifically held that the remission under Article 161 of the
Constitution of India will override Section 433A of the Code, if
the State exercises its constitutional power.
20. Learned High Court Government Pleader further
submitted that the Hon'ble Apex Court in Rajkumar @ Bittu
(supra) also referred to its earlier decisions in Ashok Kumar
Vs. Union of India5, Maru Ram (supra) and also in Kehar
Singh Vs. Union of India6 to hold that Section 433A of Cr.PC
4
2016 7 SCC 1
5
1991 3 SCC 498
6
(1989) 1 SCC 204
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cannot and does not in anyway affect the constitutional power
conferred on the President/Governor under Articles 72 and 161
of the Constitution of India. When such categorical finding is
recorded by the Hon'ble Apex Court re-iterating the position of
law as laid down in its various decisions, the petitioner cannot
contend that the remission granted in favour of respondent
Nos.1 and 2 in any manner is unconstitutional. Learned High
Court Government Pleader further submitted that the order
under challenge, which is produced as per Annexure-A is the
order passed by the Governor exercising his Constitutional
Authority under Article 161 of the Constitution of India and
hence, the petition is liable to be dismissed. Accordingly, she
prays for dismissal of the petition.
21. Learned counsel for respondent Nos.1 and 2
adopted the submission made by learned High Court
Government Pleader and prayed for dismissal of the petition.
22. In reply, learned senior advocate for the petitioner
contended that in Maru Ram (supra), the Hon'ble Apex Court
formulated its finding to hold that Sections 432 and 433 of
Cr.P.C are not the manifestation of Articles 72 and 161 of the
Constitution of India, but a separate, though similar power and
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Section 433A, by nullifying wholly or partially, these prior
provisions does not violate or detract from the full operation of
the constitutional power to pardon, commute and the like.
23. Learned senior advocate contended that even
though Article 161 of the Constitution of India could be
exercised by the Governor to grant remission, it cannot be
exercised on his own, but it should be exercised as per the
advice of the Council of Ministers. When the Governor cannot
act independently but he is required to act as per the advice of
the Council, such powers are again restricted under Section
433A of Cr.P.C., unless and until, a fresh Rule in that regard is
framed by the State. Therefore, the Hon'ble Apex Court in
Maru Ram (supra) suggested to frame the Rules for
appropriate exercise of the power under Sections 432, 433 or
433A of Cr.PC. and also under Articles 72 and 161 the
Constitution of India.
24. Learned senior advocate contented that when it is
the specific contention of respondent No.3 that such Rules are
framed as per the order of the Governor on 23.08.2016, the
Governor is bound by the Rules notified by him. He cannot
violate his own Rules to give remission to the life convicts, who
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are convicted for double murder. Learned senior advocate
submitted that there is no application of mind while passing the
order as per Annexure-A, but it is passed in a mechanical way.
The order was passed without considering the seriousness of
the offence committed and without assigning any reason for
extending the benefit of remission. Learned senior advocate
referring to the decision of the Hon'ble Apex Court in Ashok
Kumar (supra) contended that any remission that could be
granted either by the State Government or by the Governor
could be subject to Section 433A of Cr.PC and also subject to
the Rules that is framed by the Government as per the order of
the Governor.
25. Learned senior advocate referring to the decision of
the Hon'ble Apex Court in Rajkumar @ Bittu (supra)
submitted that the Hon'ble Apex Court has made it very clear
that it is the consistent view of the Court that the policy
prevalent at the time of conviction shall be taken into
consideration for considering the premature release of the
prisoner and in that regard he has also referred to the decisions
of the Hon'ble Apex Court in State of Haryana Vs. Jagdish7
7
(2010) 4 SCC 216
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and State of Haryana Vs. Mahender Singh8, which are
referred to in Rajkumar @ Bittu (supra) and contended that
the order of conviction convicting respondent Nos.1 and 2 was
passed about 12 years earlier and the policy that was prevalent
at the time of conviction should have been taken into
consideration for extending the benefit of remission. Learned
senior advocate referring to paragraphs 18 and 19 of the
decision of the Hon'ble Apex Court in Rajkumar @ Bittu
(supra) contented that the Hon'ble Apex Court has made it very
clear that when the Rules in the form of statuary policy is
framed, it will have the force of the statute and the Governor
cannot override its effect to extend the benefit of remission.
26. Learned senior advocate referring to Annexure-R1 -
the Government order dated 23.08.2016 contended that the
order was passed in the name of the Governor of Karnataka
and it is the common Rules governing Sections 432, 433 and
433A of Cr.P.C and also Article 161 of the Constitution of India.
Whatever the action that is to be taken under Article 161 of the
Constitution of India by the Governor of Karnataka, there must
be a proposal approved by the Cabinet and it is to be
8
(2007) 13 SCC 606
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considered in the light of the restrictions under Section 433A of
the Code and also the Rules formulated by the Government.
Learned senior advocate contended that the Governor acting
under Article 161 of the Constitution of India will not enjoy
unbridled power to grant remission in undeserving cases, that
too, without assigning any reason and without application of
mind.
27. Learned senior advocate has placed reliance on the
decision of the co-ordinate Bench of this Court in Sri.Harsha
Vs. State of Karnataka by Yeshwanthpura Police Station9
and contended that the Bench has referred to the decision of
the Hon'ble Apex Court in Epuru Sudhakar and another Vs.
Government of Andhra Pradesh and others10 to highlight
the law of precedent about the powers of pardon envisaged
under Articles 72 and 161 of the Constitution of India. The
Bench has also referred to the decision of the Hon'ble Apex
Court in Swaran Singh Vs. State of UP11 to highlight that the
Supreme Court had held that the contention that was raised to
the effect that the Court has no power to touch the order
9
ILR 2008 KAR 290
10
(2006) 3 SCC (Cri) 438
11
(1998) 4 SCC 75
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passed by the Governor under Article 161 of the Constitution of
India is not acceptable. It is also held that if such power was
exercised arbitrarily, malafide or in absolute disregard of the
finer canons of the constitutionalism, the order cannot be
approved under law and the judicial hand must be stretched to
it.
28. Learned senior advocate also referring to the
observation of the Division Bench of this Court in the light of
the decision of the Hon'ble Apex Court in Epuru Sudhakar
(supra) contended that granting of pardon is an executive
action that mitigates the punishment for a crime. Rule of law is
the basis for evaluation of all such decisions. The supreme
quality of Rule of law is fairness and legal certainty. The
principle of legality occupies the central place in this Rule of law
and every prerogative has to be subject to the Rule of law.
Such Rule cannot be compromised on the ground of political
expediency. Learned counsel submitted that the Division Bench
of this Court has considered a similar situation, where the
benefit of remission was granted by the State under a special
occasion, when the State was observing Suvarna Karnataka
celebrations and condemned such political remission to set free
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the convicts unmindful of seriousness of the offence and its
effect in patronizing the criminals by showing misplaced
sympathy.
29. Learned senior advocate contended that respondent
Nos.1 and 2 in the present case were convicted for the offence
punishable under Section 302 read with Section 34 of IPC,
where both the father and the mother of the petitioner were
brutally murdered. The judgment of conviction and order of
sentence passed by the Trial Court imposing sentence of life
imprisonment on respondent Nos.1 and 2 is confirmed by this
Court and it has reached finality. Section 433A of Cr.PC
imposes restrictions on the power of remission, where the
sentence of imprisonment for life is imposed on conviction of a
person for an offence for which death is one of the punishment
provided by law and it prescribes that such person shall not be
released from prison unless he serves at least 14 years of
imprisonment. But in the present case, respondent No.1 being
accused No.1 and respondent No.2 being accused No.3 have
hardly served 12 years of imprisonment without remission. By
passing the impugned order, several such convicts including
respondent Nos.1 and 2 were granted the benefit of remission
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at one stroke by assigning the reason that on good conduct
they are released on remission. It is nothing but misplaced
sympathy shown in favour of respondent Nos.1 and 2 for
political reasons, which is not only against Section 433A of
Cr.P.C, but also against the Rules formulated by the State
itself.
30. Learned senior advocate further submitted that
even as per Annexure - R1, the Rules dated 23.08.2016, there
is reference to Section 433A of Cr.P.C in guideline I(a),
wherein, it is stated that only after serving the sentence for 14
years of actual imprisonment without remission, the life
convicts are eligible for remission. Clause III of the Rules refers
to certain categories of prisoners to whom the guidelines shall
not be made applicable and III (iv) refers to the prisoners
convicted for two or more murders and such other heinous
offences.
31. Learned senior advocate also contended that the
procedure to be adopted for granting such remission is also
highlighted in Clause IV and even in Article 161 of the
Constitution of India, there is reference to approval by the
Cabinet, it shall be sent to the Governor of Karnataka and on
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receipt of such approval, the Governor has to apply his mind for
the purpose of taking action. The impugned order discloses that
there is absolutely no application of mind and under such
circumstances, the impugned order is liable to be set aside.
Accordingly, he prays for allowing the petition.
32. Learned senior advocate fairly conceded that even
though by way of an amendment, he has sought for issuance of
writ of certiorari to quash the Government order dated
23.08.2016 produced by respondent No.3, the same is in
accordance with Section 433A of Cr.P.C and it is not violative of
the same. Even if the said Rules is made applicable to the facts
of the case, the order impugned is liable to be set aside.
Accordingly, he prays for allowing the petition.
33. In view of the rival contentions urged by learned
counsel for both the parties, the points that would arise for my
consideration is:
"1) Whether the petitioner has made out
any grounds to quash the order dated 31.08.2018
passed by respondent No.3 vide Annexure-A?
2) Whether the petitioner has made out
any grounds to quash the Government Order
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dated 23.08.2016 passed by respondent No.3
vide Annexure-R1?"
Point No.1: Affirmative
Point No.2 : Negative
My answer to the above points are 'partly in affirmative'
for the following:
REASONS
34. The petitioner is the son of deceased Basavaiah and
his wife deceased Eramma. On the basis of first information
lodged by the informant who is none other than the sister of
the petitioner, the FIR came to be registered for the offence
punishable under Section 302 read with Section 34 of IPC.
After investigation, the charge sheet came to be filed against
accused Nos.1 to 5 for the above said offence.
35. It is the contention of the prosecution that the
deceased Basavaiah and the father of accused Nos.1 to 3 by
name Madaiah were having land dispute and the accused were
under the impression that the deceased Basavaiah had done
black magic on Madaiah and as such he was suffering from
ailments. With such impression, the accused have assaulted
the deceased Basavaiah and his wife Eramma with the club and
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stones as a result of which, both have died. The Trial Court
after holding full-fledged trial passed the judgment in SC
No.140 of 2006 to convict accused Nos.1 and 3 for the offence
punishable under Section 302 read with Section 34 of IPC and
sentenced them to undergo life imprisonment and also to pay
fine and in default to pay fine to undergo imprisonment for a
period of one year each. Accused No.2 died during the
pendency of trial and the case against him stood abated.
Accused Nos.4 and 5 were acquitted by the Trial Court.
36. Accused Nos.1 and 3 who are respondent Nos.1 and
2 herein have challenged the judgment of conviction and order
of sentence before this Court by preferring Criminal Appeal
No.883 of 2010. The Division Bench of this Court as per
judgment dated 21.06.2013 dismissed the appeal and thereby
confirmed the judgment of conviction and order of sentence
passed by the Trial Court and thus the judgment of conviction
and order of sentence reached finality. Respondent Nos.1 and
2 were serving sentence as life convicts. Respondent No.3 -
the State has passed the order dated 31.08.2018 produced as
per Annexure-A, extending the benefit of remission and
ordering release of as many as 79 life convicts including
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respondent Nos. 1 and 2. The order was passed as per the
directions of His Excellency the Governor acting under Article
161 of the Constitution of India. Since it was a remission
granted to respondent Nos.1 and 2 before completion of 14
years of sentence, the petitioner is before this Court seeking to
quash the said order extending pre-mature release of
respondent Nos.1 and 2.
37. Respondent No.3 filed the statement of objections
and contended that Annexure-R1 is the modified guidelines for
pre-mature release of life convicts issued as per order dated
23.08.2016 and extending the benefit of remission to
respondent Nos.1 and 2 was strictly in accordance with the
modified guidelines issued as per order and in the name of His
Excellency the Governor of Karnataka. Therefore, the petition is
liable to be dismissed.
38. After filing of the statement of objections and
production of Annexure-R1, the petitioner amended his petition
seeking to quash the amended guidelines dated 23.08.2016 as
it violates Section 433A of Cr.P.C.
39. As per Annexure-R1, the guidelines which were
issued earlier was modified by the order of the Governor which
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is also having exceptions as the guidelines shall not be made
applicable to certain categories of prisoners. The relevant
guidelines and the exceptions are extracted below:
"Guideline No.I(a) - Every convicted
prisoner whether male or female undergoing
sentence of life imprisonment and covered by the
provisions of Section 433A Cr.P.C. shall be eligible
to be considered for premature release from the
Prison immediately after serving out the sentence
of 14 years of actual imprisonment i.e., without
remissions."
Guideline No.I(b) - All other convicted male
prisoners not covered by section 433A Cr.P.C.
undergoing the sentence of life imprisonment
would be entitled to be considered for premature
release after they have served atleast 14 years of
imprisonment inclusive of remission but only after
completion of 10 years actual imprisonment i.e.,
without remissions.
Exception - Clause III (iv) - The prisoners
convicted for two or more murder cases,
Gangsters, contract killers, smugglers, drug
traffickers, racketeers awarded life imprisonment
for committing murders as also the perpetrators
of murder committed with pre-meditation and
with exceptional violence or perversity."
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40. The guidelines also refer to the procedure that is to
be adopted for extending the remission to the life convicts,
according to which, the Additional/Director General of Police
and Inspector General of Prison in Karnataka shall send list of
eligible convicts as per the guidelines along with
recommendation of the concerned Advisory Board in the pro-
forma which shall be scrutinized by the Life Convicts Release
Committee (for short 'the Committee') headed by
Secretary/Principal Secretary, Home Department as Chair
Person. The Committee is required to review the proposal case
by case and record the proceedings with its opinion including
the dissent note, if any. Such proposal recommended by the
Committee is to be submitted to the Cabinet for its decision.
Once the Cabinet approves the proposal, it is to be forwarded
to His Excellency the Governor of Karnataka proposing
acceptance of the same under Article 161 of Constitution of
India. On receipt of such approval from the Cabinet, the
Governor shall take action either to accept the same or to
reject it based on which, necessary action will have to be taken
by the Home Department.
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41. Section 433A of Cr.P.C. reads as under:
"433A. Restriction on powers of remission
or commutation in certain cases -
Notwithstanding anything contained in section
432, where a sentence of imprisonment for life is
imposed on conviction of a person for an offence
for which death is one of the punishments
provided by law, or where a sentence of death
imposed on a person has been commuted under
section 433 into one of imprisonment for life, such
person shall not be released from prison unless he
had served at least fourteen years of
imprisonment."
42. A bare reading of this Section makes it clear that
there is restriction on power of remission or commutation of
sentence as provided under Section 432 of Cr.P.C. where a
sentence of imprisonment for life is imposed on conviction of a
person for an offence for which death is one of the punishment
provided by law. Admittedly, in the present case, respondent
Nos.1 and 2 were convicted for the offence under Section 302
of IPC and were sentenced to undergo life imprisonment. Since
the offence under Section 302 of IPC is punishable either with
death or imprisonment for life, the restriction on power of
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remission or commutation as provided under Section 433A of
Cr.P.C. is applicable in the present case.
43. Both the learned counsels have placed reliance on
the decision of the Constitution Bench of the Hon'ble Apex
Court in Maru Ram (supra) in support of their contention. The
Court has considered the challenge on vires of Section 433A of
Cr.P.C. and concluded by saying that Section 433A of Cr.P.C.
cannot be attacked on the ground that it is hit by Article 14 of
Constitution of India, as it is arbitrary or irrational and thus, it
has upheld the constitutional validity of Section 433A of Cr.P.C.
The Court has also referred to the power of remission under
Articles 72 and 161 of the Constitution of India and held that in
a genuine case such powers under Constitution of India should
be exercised. It also observed that when a brutal murder takes
place and accused is sentenced to undergo life imprisonment by
highlighting the brutality of the accused, it is not just and
proper to invoke the powers under Articles 72 and 161 of the
Constitution of India to extend the benefit of remission to such
accused for political reasons. The Constitution Bench has made
it very clear that it has no hesitation to reject the notion that
Articles 72 and 161 of the Constitution of India should remain
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un-canalised as it may often lead to systematic abuse of power.
It also observed that wide power of executive clemency cannot
be bound down even by self created Rules. The Court has
concluded its findings by upholding the supremacy of Section
433A of Cr.P.C. over the remission Rules and short sentencing
statutes made by various States. It also upheld the order of
remission and short sentencing passed under Articles 72 and
161 of the Constitution of India by holding that such powers
can be exercised by Central and State Governments and not by
the President or Governor on their own. It was held that the
advice of appropriate Government binds the head of the State.
The Court made it very clear that the exercise of powers under
Articles 72 and 161 of the Constitution of India is subject to the
consideration of the Court when such orders were passed
irrationally. The Court had also suggested to formulate
Rules/guidelines under Articles 72 and 161 of the Constitution
of India and also to exercise the power of remission under
Section 433A of Cr.P.C. Until such Rules/guidelines are
formulated, it is held that Section 433A of Cr.P.C. itself is to be
treated as guidelines for exercise of the power under Articles 72
and 161 of the Constitution of India.
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44. The Hon'ble Apex Court in Rajkumar @ Bittu
(supra), considered the challenge to an order passed by the
High Court of Punjab and Haryana at Chandigarh directing the
State to consider the feasibility of drafting a fresh policy
particularly in respect of exercise of power conferred under
Article 161 of the Constitution of India, has placed reliance on
the Constitution Bench decisions in Maru Ram (supra) and
Sriharan (supra) to hold that the power under Article 161 of
the Constitution of India can be exercised by the State
Government not by the Governor on his own. It is also held
that even though no separate order for each individual case is
necessary, but the general order must be clear enough to
identify the facts of the cases and indicate the application of
mind to the whole group. It is categorically held that remission
under Article 161 of the Constitution of India will override
Section 433A of the Code, if the State Government decides to
be governed by its constitutional powers.
45. The Court has also considered it various other
decisions which were referred to by the learned counsels for
both the parties and held in paragraph 19 as under:
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"19. Section 433-A of the Code starts with a
non obstante clause restricting the right of the
appropriate Government, to suspend the sentence
of imprisonment for life imposed on conviction of
a person for an offence for which death is one of
the punishments provided by law, that such
person shall not be released from prison unless he
has served at least 14 years of imprisonment.
Therefore, the power of the appropriate
Government to release a prisoner after serving 14
years of actual imprisonment is vested with the
State Government. On the other hand, the power
conferred on the Governor, though exercised on
the aid and advice of the State, is without any
restriction of the actual period of imprisonment
undergone by the prisoner. Thus, if a prisoner has
undergone more than 14 years of actual
imprisonment, the State Government, as an
appropriate Government, is competent to pass an
order of premature release, but if the prisoner has
not undergone 14 years or more of actual
imprisonment, the Governor has a power to grant
pardons, reprieves, respites and remissions of
punishment or to suspend, remit or commute the
sentence of any person dehors the restrictions
imposed under Section 433-A of the Constitution.
Such power is in exercise of the power of the
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sovereign, though the Governor is bound to act
on the aid and advice of the State Government.
46. Therefore, it is categorically held that power of the
State under Article 161 of the Constitution of India dehors the
restrictions imposed under Section 433A of the Code as it is the
sovereign power. However, it is made clear that the Governor
is bound to act on the aid and advice of the State Government.
47. The Division Bench of this Court in Sri Harsha
(supra), considered a case where the accused is granted the
benefit of remission by the State in view of the golden jubilee
celebration of the formation of State of Karnataka. It referred
to the decisions of the Hon'ble Apex Court in Maru Ram
(supra), Kehar Singh (supra) and Swaran Singh (supra) to
conclude that the power under Articles 72 and 161 of the
Constitution of India is subject to judicial review as the same
cannot be exercised arbitrarily or with malafides. Thus, it was
concluded that if the power exercised under Articles 72 and 161
of the Constitution of India appears to have been exercised
arbitrarily with malafide intention or in absolute disregard of
the finer canons of the constitutionalism, the same shall be
subject to the judicial review to have a check over the same.
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The Court has also referred to the decision of the Hon'ble Apex
Court in Epuru Sudhakar (supra) to highlight that while
passing the executive order granting remission under Articles
72 and 161 of the Constitution of India, there should be valid
reasons for relaxing the legislative mandate under Section 433
of Cr.P.C. and that the provisions of Section 433A of Cr.P.C. is
a part of the act of parliament and express the will of the
people unless special and justifiable circumstances exist. Only
in exceptional cases of public welfare and public good as a
prerogative power to be exercised and the Government should
necessarily keep in mind the restrictions on the power of
remission as provided under Section 433A of Cr.P.C. Thus, the
Court has condemned granting remission and letting of
criminals who have committed gruesome and heinous offences
on the pretext of some celebrations by extending the misplaced
sympathy.
48. The State Government has framed the guidelines
and modified it from time to time, the latest being Annexure-
R1. As per this guidelines, the convicted persons undergoing
sentence of life imprisonment covered by the provisions of
Section 433A of Cr.P.C. shall be eligible to be considered for
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premature release from the prison only after serving sentence
of 14 years of actual imprisonment. Moreover, the Rule itself
has an exception for extending the benefits of prisoners
convicted for two or more murders. Even though the learned
High Court Government Pleader referred to clause I(b) of
Annexure-R1, to justify the impugned order, the said clause
makes it very clear that it is applicable to the prisoners not
covered by Section 433A of Cr.P.C. When respondent Nos.1
and 2 are the convicts covered under Section 433A of Cr.P.C.,
the guidelines I(a) is applicable and not I(b). Therefore, the
contention of the learned High Court Government Pleader in
that regard, cannot be accepted.
49. When the State Government by the order of His
Excellency the Governor of Karnataka framed the guidelines as
per Annexuire-R1 which includes the guidelines to exercise the
executive power under Article 161 of the Constitution of India,
neither the Government nor the Governor could exceed the
powers to violate the guidelines formulated in that regard, that
too, without assigning any valid reasons. The power under
Article 161 of the Constitution of India is controlled by Article
162 of the Constitution of India regarding the executive powers
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to the extent to which the power of Union as well as its
authorities are expressly conferred by the Constitution. The
executive power of the State shall extend to the matters with
respect to which the legislature of the State has power to
makes laws. When admittedly such a guidelines is formulated
by the order of the Governor, I do not find any reason to
violate the same and to extend the benefit of remission to the
undeserving convicts without assigning any valid reasons.
50. If the position of law highlighted in various
decisions are taken into consideration and applied to the facts
of the case in the light of the modified guidelines referred to
above, I have no hesitation to hold that respondent Nos.1 and
2 being accused Nos.1 and 3 who are convicted for the offence
under Section 302 of IPC for having caused double murder of
both the parents of the petitioner and sentenced to serve life
imprisonment, were not entitled for remission even by
exercising the power under Article 161 of the Constitution of
India, before completion of 14 years of sentence without
remission, as it is in violation of even the Rules framed by the
State in that regard, which is as per Annexure R1.
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51. Even though the petitioner has sought for issuance
of writ of certiorari to quash the Government order dated
23.08.2016 produced as per Anenxure-R1, the same is in
accordance with Section 433A of Cr.P.C and therefore, it is not
liable to be quashed. However, the application of guidelines by
the State is whimsical, without any valid reasons and without
application of mind. Therefore, the petition filed by the
petitioner is liable to allowed in part. Accordingly, I answer the
above point No.1 in Affirmative and point No.2 in Negative s
and proceed to pass the following:
ORDER
(i) The Writ Petition is allowed in part.
(ii) The order dated 31.08.2018 passed in Government Order No.HD 158 PRA 2018 by respondent No.3, in so far as it pertains to the premature release of respondent Nos.1 and 2 vide Annexure-A, is hereby quashed.
(iii) The prayer for quashing the order dated 23.08.2016 passed in Government Order bearing No.HD 169 PRA 2016 by respondent No.3 vide Annexure - R1, is hereby rejected.
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(iv) Respondent Nos.1 and 2 are directed to surrender before the jurisdictional Magistrate within a period of four weeks from today to serve the remaining sentence.
Registry is directed to communicate this order to the Trial Court for information and to secure the presence of respondent Nos.1 and 2 and pass necessary orders.
Furnish free copies of this order to respondent Nos.1 and 2, forthwith.
Sd/-
(M G UMA) JUDGE *BGN/BH CT:VS:
List No.: 2 Sl No.: 32