Rajasthan High Court - Jaipur
The Union Of India & Ors vs Smt Sushma Soni & Anr on 2 July, 2013
In The High Court Of Judicature For Rajasthan Bench At Jaipur D.B. Civil Writ Petition No.5467/2003 The Union of India & others v. Smt. Sushma Soni & anr Date of judgment July 2, 2013 Hon'ble Mr. Justice Narendra Kumar Jain Hon'ble Dr. Justice Meena V. Gomber Mr. Anil Mehta } for appellants Ms. Pallavi Mehta } Mr. Sumit Khandelwal, for respondent
By the Court (per Hon'ble Dr. Gomber, J.) This writ petition under Articles 226/227 of the Constitution of India, by Union of India, seeks to challenge an order dated 24.2.2003 in OA No.224/2001 passed by the Division Bench of Central Administrative Tribunal, Jaipur, directing it to take a fresh decision in the matter of compassionate appointment to respondent no.1 and to pass an appropriate order treating her late husband to be in service till the date of his death in respect of his salary, gratuity, family pension and other benefits within a period of three months, in view of order dated 3.12.1999 passed by the Governor, State of Rajasthan under Article 161 of the Constitution of India granting pardon to her late husband.
2. The petition raises an important and a substantial question of law of far reaching consequences, particularly in service jurisprudence and in election disputes, which prescribe disqualification for holding a public post under the Union or the State and from contesting elections on the ground of previous conviction and sentence by the Courts. The question that has drawn our attention, is What is the effect of the exercise of power of pardon by the President or the Governor under Articles 72 and 161 of the Constitution of India on the conviction and sentence of a person held guilty of an offence under the Indian laws.
3. The facts of the case insofar as they are relevant for addressing the aforementioned questions, are capsulated hereunder :-
In 1982, the late husband of respondent no.1, while posted as Custom Inspector at Jalore, was accused of committing the murder of one Abu Khan, the truck driver by firing a shot from his revolver. He was tried under Section 302 IPC and was convicted by the Sessions Court vide judgment dated 22.12.1983 under Section 304 Part II IPC and was sentenced to undergo rigorous imprisonment for three years and to pay fine of Rs.200/-. This conviction and sentence of late husband of respondent no.1 became final upto the Apex Court as his appeal was dismissed by this Court vide its judgment dated 29.8.1997 and the SLP also came to be dismissed by Supreme Court vide order dated 9.10.1998. Because of his conviction, the competent authority passed an order of his removal from service under Rule 19(1) of Central Civil Services (Classification, Control and Appeal) Rules, 1965 (herein-after for short referred to as 'the Rules of 1965') vide communication dated 6.10.1998. This order of removal passed by the competent authority against the late husband of respondent no.1 was not assailed by him in any proceeding before any authority. However, the late husband of respondent no.1, after his conviction and sentence for offence under Section 304 Part II had become final upto the Supreme Court, filed a mercy petition before the Governor of Rajasthan, who, in exercise of his powers under Article 161 of the Constitution of India and on the recommendation of the then Commissioner of Customs, allowed the mercy petition and vide communication dated 3.12.1999 informed that the late husband of respondent no.1 has been granted pardon. It may be mentioned here that the husband of respondent no.1, who was a convict and was granted pardon, had died on 3.10.1999 i.e. two months before communication of order of pardon was received by his widow. Thereafter the respondent made a representation to the petitioners for grant of pensionary benefits of her husband and also to provide her appointment on compassionate ground. The said representation of respondent no.1 was rejected by the petitioners vide order dated 28.11.2000 (Annexure 3 at page 24 of writ petition). Being aggrieved by the rejection of the representation, she filed an application before the Central Administrative Tribunal, Jaipur and prayed for recall of order dated 28.11.2000 and to grant the pensionary benefits of her late husband and also for directions to the petitioners to appoint her on compassionate ground. The foundation of the application filed by respondent no.1 before Central Administrative Tribunal, Jaipur Bench, was based on her plea that after her late husband was granted pardon by the Governor of State of Rajasthan in exercise of his powers under Article 161 of the Constitution of India, the same has the effect of blotting out the consequences flowing from his conviction. The application in this regard made by respondent no.1 was opposed tooth and nail by the petitioners, inter alia, on the ground that the pardon was granted to the late husband of respondent no.1 by the Governor under mistake of fact. It was pleaded that the husband of respondent no.1 had expired before passing of pardon order and therefore, according to the petitioner, the mercy petition pending before the Governor on the date of his death stood abated. It was stated that the fact of death of late husband of respondent no.1 was not brought to the notice of Governor at the time of passing of pardon order. It was further pleaded that the late husband of respondent no.1 had never worked under Mr. S.P. Singh, the then Commissioner, Customs, who had recommended his case to the Governor for grant of pardon and according to the petitioner, he had no occasion to write that the service record of late husband of respondent no.1 was outstanding or that he had an unblemished record. It was stated that the rating of the late husband of respondent no.1 in the ACR of the previous years was poor and that number of disciplinary inquiries were pending against him which were to be prematurely dropped in view of his conviction by the Court for offences under Section 304 Part II IPC, which was admittedly a misconduct under Rule 19(1) of the Rules of 1965.
4. In the teeth of opposition by the petitioners to the OA of respondent no.1, the Central Administrative Tribunal, Jaipur Bench, relying upon two judgments one of the Hon'ble Supreme Court in K.M. Nanavati v. State of Bombay, AIR 1961 SC 112, and the other of Andhra Pradesh High Court in the case of Deputy Inspector General of Police North Range, Waltair & another v. D. Rajaram & others, AIR 1960 Andhra Pradesh 259, allowed the OA vide its impugned order upon taking a view that the grant of pardon by the Governor to the late husband of respondent no.1, has wiped out the effect of his conviction and thereby removed the disqualification flowing therefrom. The petitioners, aggrieved by the impugned order of Central Administrative Tribunal, Jaipur Bench, seek to assail the said order, as according to them, there is no law either enacted or contained in any judgment which provide that a public servant shall be entitled to reinstatement after pardon although his conviction and sentence were confirmed by the Apex Court of the country. Further case of the petitioners is that by order dated 3.12.1999 the Governor, State of Rajasthan, has only pardoned the punishment and sentence awarded to him by the Court and has not either expressly or implicitly exonerated him from his guilt.
5. The question referred hereto-above, that craves for an answer from us, is in the factual backdrop delineated herein-above over which there is no dispute between the parties.
6. Before we embark upon an inquiry into the constitutional provisions and the judicial precedents, available in the arena of grant of pardon by the President or the Governor, we deem it necessary to refer to and reproduce the order of pardon dated 3.12.1999 passed by the Governor, State of Rajasthan, as its construction and interpretation will have a great bearing on the issue we have to delve with. The order of pardon dated 3.12.1999 is reproduced herein-below :-
"???? ?????????, ????? ?????? ???? ??? ??? 21?/?? ??? ???? ???? ???? ????? ???? ??? ???, ????????, ???????? ???? ????? ????? (????????) ???? ?????,????? ?? ?? ?? ?? ?? ??? 304 ?? ??????? ?????? 22.12.1983 ?? ??? ???? ?? ???? ??????? ??? 200/- ????? ?? ???????? ??? ?????? ???????? ?? ??? ?? ???? ??????? ?? ?????? ???? ??? ?? ? ?? ????? ??? ???? ???? ???? ?????? ???????? ?? ???????? ????? ?? ???????? ??? ?????? ?? ???????????? ???????? ????? ??????? ?? ??? 161 ?? ??????? ???? ???? ???? ?? ??? ?????? ??????? ???? ??? ?????? ???? ?????? ??? ???? ?????????, ????? ?????? ???? ??? ???? ?? ????? ???? ??? ?"
A plain reading of the above order of the Governor of State of Rajasthan by which pardon was granted to the late husband of respondent no.1 shows that what had been done by the Governor was to grant pardon to him in regard to the punishment and sentence awarded by the Court for his conviction for offence under Section 304 Part II IPC. The order of the Governor is completely silent on the aspect of the conviction of the convict which stood affirmed upto the Apex Court.
7. In view of the nature of the order passed by the Governor granting pardon of punishment and sentence to the late husband of respondent no.1, the first and the foremost question that arises for our consideration is whether the learned Central Administrative Tribunal was right in its view that the punishment and sentence have been pardoned by the Governor even after the death of the convict. We will revert back and address on this issue after we first examine the nature, extent and scope of the powers exercisable by the President and the Governor under Articles 72 and 161 of the Constitution of India. In India, the power of pardon has been vested in the President and the Governor by the People through the Constitution, not as an act of grace but as part of the Constitutional Scheme. The power of the President and of the Governor to grant pardon and to suspend, remit or commute sentences in certain cases is limited and controlled by the Constitution, both expressly and impliedly. The sweep of this power, therefore, has to be gauged with the Constitutional Scheme in mind and not by repeated references to the power enjoyed by the British Crown. The language of the provision in American Constitution is substantially different from ours, since it talks about pardoning offences against the United States and not the punishment and sentence for the persons convicted of an offence, as is the case in India. The power of pardon has been a privilege enjoyed by the Sovereign around the World since time immemorial. In India, the power of pardon has been vested with the President and the Governors through Articles 72 and 161 respectively of the Constitution of India.
Article 72 reads as follows :-
72. Power of President to grant pardons, etc, and to suspend, remit or commute sentences in certain cases-
(1) The President shall have the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence-
(a) in all cases where the punishment or sentence is by a Court Martial;
(b) in all cases where the punishment or sentence is for an offence against any law relating to a matter to which the executive power of the Union extends;
(c) in all cases where the sentence is a sentence of death.
(2) Noting in sub-clause (a) of clause (1) shall affect the power conferred by law on any officer of the Armed Forces of the Union to suspend, remit or commute a sentence passed by a Court martial.
(3) Nothing in sub-clause (c) of clause (1) shall affect the power to suspend, remit or commute a sentence of death exercisable by the Governor of a State under any law for the time being in force.
Although the power of pardon in England and the US is deemed to include the powers of remission, reprieve and suspension, the Constitution of India, specifically confers these latter powers upon the President. Sub-clauses (a), (b) and (c) of clause 1 of Article 72 reproduced hereto-above, specify that power of pardon extends only to punishments and the sentences. (emphasis supplied) Article 161 of the Constitution of India reads as follows :-
161. Power of Governor to grant pardons, etc., and to suspend, remit or commute sentences in certain cases - The Governor of a State shall have the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence against any law relating to a matter to which the executive power of the State extends.
8. It may be seen from the above that the Governor's power to grant pardon etc. also extends to only punishments and sentences imposed under any law relating to a matter to which the Executive power of the State extends. It is evident from a reading of Articles 72 and 161 that the President and the Governor have the exclusive power to pardon only in regard to punishments and sentences awarded by the Court to a person found guilty of a criminal offence. The Constitutional Scheme as contained in our Constitution would reveal that the President and the Governors in India do not pardon the offence but pardon the punishments and the sentences. The power being one of an executive nature, cannot tamper or supersede the judicial record and the consequence of its exercise is merely that the punishment or the sentence would not be executed either fully or in part, even though the offender has been judicially convicted and held guilty.
9. We have not come across any judgment decided either by the Hon'ble Supreme Court or by any of the High Courts nor any such judgment is cited by either of the parties at Bar in which the disqualification suffered by any person because of his conviction might have been removed consequent upon an order being passed either under Article 72 or 161 of the Constitution of India by the President or Governor. We are clear in our mind that the powers exercisable by the President and the Governors under Articles 72 and 161, extend only to grant of pardon of and to suspend, remit or commute only the punishment and the sentence inflicted by the Court upon a convict upon his conviction for a criminal offence. The President and the Governors, while exercising powers under Articles 72 and 161, cannot go beyond the powers expressly given to them by the Constitution in connection with punishment and sentence only. We find it relevant and useful to refer to an old mercy petition dealt with by our first President of India Dr. Rajendra Prasad, who had a very sound legal background. In that case, we are referring to, a person was convicted on charge of murder and was sentenced to death by the Court. In the course of dealing with his mercy petition, Dr. Rajendra Prasad had a doubt in his mind whether the convict had the requisite knowledge that 'pedhas' given by him to the victim of crime were laced with arsenic or not. The President had received an advice from the then Home Minister Dr. Sardar Vallabh Bhai Patel to dismiss his mercy petition. Since the President, on reading of papers, entertained a doubt he sent the file back to the Home Ministry for reconsideration with a proposal to commute the death sentence to life imprisonment. Despite the President entertained a doubt on the aspect of knowledge of the convict that the 'pedhas' given to the victim were laced with arsenic, he, in his wisdom, did not pardon the guilt of the convict and remained content only with commuting the death sentence into life imprisonment. This discretion exercised by the then President was completely in line with the Constitutional Scheme provided in Article 72 of the Constitution of India. We deem it appropriate to quote the noting of the President and of the Home Minister in the above case for its fullest appreciation and the same is reproduced herein-below :-
The question whether the poison was wrongly administered by the petitioner has not received the attention it deserves. In the first court, there is no mention or discussion at all, as to whether the accused had any knowledge of the 'pedhas' containing poison or whether he gave the pedhas with the knowledge that they contained poison and with the intention of killing the deceased persons. The motive also seems to be rather remote because the relationship of the petitioner with the party who may be said to have a grudge against the deceased, is not quite evident or near. The High Court refers to this point but its inference drawn from certain facts which do not necessarily lead to the conclusion that he was aware of the presence of arsenic in the pedhas.
I have, therefore, a substratum of doubt in my mind about the knowledge of petitioner and it may be that either under wrong advice or out of sheer fear, he did not disclose the source from which he got the pedhas and did not implicate anyone else as that would have been the necessary result if he had mentioned how he got the pedhas and whether anyone else had any hand in giving him the pedhas or in giving him instructions about giving pedhas to the deceased persons. The facts provided do not include the possibility that he was an innocent agent who administered the pedhas at someone else's instance and without knowing the contents of the sweets.
In the absence of evidence of direct knowledge on his part that the pedhas contained poison, the chain of evidence remains incomplete and the inference of guilt on circumstantial evidence is not wholly justified. I would ask H.M. (Home Minister) to recosider the question of sentence from this point of view.
After giving a detailed explanation on the proof of guilt, the President wrote a precise yet an assertive note on the mercy petition requesting the Home Minister to reconsider the whole case on the basis of the points raised by him and in the end, the President had recommended that the sentence be commuted to life imprisonment from death sentence.
The note which was prepared by the President of India for reconsideration by the Home Minister, reads as under :-
President's note on mercy petition:-
After reading the two judgments and the note of the Minister, I have substratum of doubt left in my mind. I would state the reason; In the first place the only witness who has consistently spoken of the commission of the offence by the petitioner, is witness no.1 in the FIR, the names of prosecution witness nos.2 to 4, were not mentioned.
They stated in the Committing Magistrate's Court that they had seen the commission of offence. Before the Sessions Court they went back upon their previous statement and they were declared hostile and cross examined PW.6, wife of the deceased also seems to have gone back from the statement made by her in the Committing Court. I think that the omissions of the names of three witnesses from the FIR, is an important matter in this case, because it is not only that their names are not mentioned, but they have made inconsistent and contradictory statements in the committing Court and the Sessions Court. This fact distinguishes this case from cases in which a witness was not mentioned in the FIR but made consistent statement at the subsequent stages. On the whole, considering the contradictory nature of the evidence of these three witnesses, the omission of their names from the FIR and the fact that even the wife of the deceased does not support the prosecution case, there is some little substratum of doubt in my mind and I think it would be desirable to commute the death sentence. But I would also ask the Home Minister to look into the points indicated by me and consider the case once again.
Sd/-
4.6.1959 Rajendra Prasad The note was marked to the Home Minister for reconsideration and after receiving the reply from the Home Minister, the President commuted the death sentence to one of life imprisonment. The ultimate note sent by the President to the Home Minister reads as under :-
The Home Minister has since reconsidered this case, and has now recommended , in supersession of his earlier recommendation, that the petition for mercy from Boya Gundlayya son of Gudallappagari Hanumappa, be accepted and the sentence of death passed on him commuted to one of imprisonment for life.
The sentence of death passed on the said Boya Gundlayya is accordingly commuted to one of imprisonment for life.
Sd/-
10.6.1959 Rajendra Prasad Minister MHA
10. We have referred and quoted the above case of mercy petition decided by the first President only to demonstrate that from the above deliberations and discussions between the then President and the then Home Minister, it may be seen that because both of them were well versed in the field of law and could understand the intricacies of the law of land and thus while exercising their discretion, entertained the mercy petition strictly within the fore corners of the Constitutional Scheme provided by Article 72 of the Constitution of India and thereby saved one precious human life from being sent to gallows.
11. We have noticed from the impugned judgment of the learned Central Administrative Tribunal that it has heavily placed reliance on two judgments, one of the Hon'ble Supreme Court in K.M. Nanavati's case (supra) and the other of Andhra Pradesh High Court in Deputy Inspector General v. D. Rajaram (supra), to conclude that the order of the Governor dated 3.12.1999 in the present case, has the effect of wiping out the disqualification on account of conviction provided in Rule 19(1) of the Rules of 1965. We have carefully gone through both the judgments to ascertain whether the ratio of law laid down in these cases was rightly applied by the Tribunal or not and whether these judgments have any application to the prayers made and granted to respondent no.1. With respect, we intend to disagree with the view taken by the learned Tribunal. The same is our view in regard to the observations contained in Division Bench judgment of Andhra Pradesh High Court in the case of Deputy Inspector General v. D. Rajaram(supra).
12. In K.M. Nanavati's case (supra), the validity of Governor's order suspending the sentence imposed by the Bombay High Court on Commander Nanavati was challenged on the ground that an appeal was pending before the Supreme Court, and as such, the trial had not concluded. A Full Bench of the Bombay High Court dismissed this contention on the ground that the word 'trial' did not include the proceedings in an appeal and in any case, the powers under Article 161 could be exercised at any stage. The court relied upon the judgment of the Madras High Court in Maddela Yerra Chennugadu & others, ILR (1955) Mad 92, and held that the framers of our Constitution intended to confer on the President and the Governors, within their respective spheres, the same power of pardon, reprieve and clemency, both in its nature and effect, as was possessed by the Sovereign in Great Britain and by the President in the United States. The sentence being suspended, Nanavati appealed to the Supreme Court against his conviction where a plea was taken by the appellant to exempt him from the requirement of Order 21 Rule 5 of the Supreme Court Rules which mandated that during pendency of a criminal appeal, the appellant must necessarily surrender to his sentence, before the appeal could be heard. This plea was taken on the basis of the Governor's order of suspension of sentence. A Constitution Bench decided by a majority of four against one that the power to suspend the sentence lay with the court under Article 142, and though the Governor had the power to grant a full pardon at any stage of the proceeding, including during pendency of the appeal, he could not grant a suspension of the sentence when the matter was sub judice before the Court.
13. Para 21 of the judgment in K.M. Nanavati's case (supra), is relevant and is reproduced hereunder:-
In the case, the question is limited to the exercise by the Governor of his powers under Article 161 of the Constitution suspending the sentence during the pendency of the special leave petition and the appeal to this Court; and the controversy has narrowed down to whether for the period when this Court is in seizin of the case the Governor could pass the impugned order, having the effect of suspending the sentence during that period. There can be no doubt that it is open to the Governor to grant a full pardon at any time even during the pendency of the case in this Court in exercise of what is ordinarily called mercy jurisdiction. Such a pardon after the accused person has been convicted by the Court has the effect of completely absolving him from all punishment or disqualification attaching to a conviction for a criminal offence. That power is essentially vested in the head of the Executive, because the judiciary has no such 'mercy jurisdiction'. But the suspension of the sentence for the period when this Court is in seizin of the case could have been granted by this Court itself. If in respect of the same period the Governor also has power to suspend the sentence, it would mean that both the judiciary and the executive would be functioning in the same field at the same time leading to the possibility of conflict of jurisdiction. Such a conflict was not and could not have been intended by the makers of the Constitution. But it was contended by Mr. Seervai that the words of the Constitution, namely, Art. 161 do not warrant the conclusion that the power was in any way limited to fettered. In our opinion there is a fallacy in the argument in so far as it postulates what has to be established, namely that the Governor's power was absolute and not fettered in any way. So long as the judiciary has the power to pass a particular order in a pending case to that extent the power of the Executive is limited in view of the words either of Sections 401 and 426 of the Code of Criminal Procedure and Articles 142 and 161 of the Constitution. If that is the correct interpretation to be put on these provisions in order to harmonise them it would follow that what is covered in Article 142 is not covered by Article 161 and similarly what is covered by Section 426 is not covered by Section 401. On that interpretation Mr. Seervai would be right in his contention that there is no conflict between the prerogative power of the sovereign State to grant pardon and the power of the courts to deal with a pending case judicially.
It may be seen from the above that in Nanavati's case (supra) the Court had not considered the effect of pardon on disqualification on account of conviction prescribed for holding a public post under the Union or the State. Hence any observation in a judgment which came to be made out of context, cannot be used for deciding a direct issue relating to disqualification on account of previous conviction arising in a subsequent case.
14. The same was the position in the case of Deputy Inspector General v. D. Rajaram (supra), decided by the Division Bench of Andhra Pradesh High Court. That was a case in which the Court was dealing with an 'Amnesty' Scheme under which it ordered to release all the political prisoners as also the other prisoners convicted for usual crimes to enable them to celebrate declaration of new State of Andhra Pradesh. In that case also, the Court was not dealing with any disqualification on account of conviction or its removal because of general Amnesty Scheme. Hence, the observations of the Court in the said case that under Articles 72 and 161 of the Constitution, when a convicted person is pardoned, he is free both from the punishment imposed on him as also from all the penal consequences, are of no legal effect as far as present case is concerned. In Deputy Inspector General v. D. Rajaram's case (supra), the aforementioned observations were made by the Court without considering the scope and impact of powers conferred by the Constitution upon the President and the Governors under Articles 72 and 161 respectively, which relate only to grant of pardon etc. in respect of punishments and sentences and not against the judicial mandate holding a person guilty of the crime.
15. In Kehar Singh & another v. Union of India, (1989) 1 SCC 204, the question that came for consideration before the Supreme Court was regarding the procedure to be followed by the President in dealing with the mercy petition of a convict. In that case the petitioner was convicted of serious offences relating to the assassination of Indira Gandhi, the then Prime Minister of India and sentenced to death by the Sessions Court, which was upheld by all the higher Courts, including the Supreme Court. A mercy petition was filed before the President in which it was alleged that the evidence on record was insufficient and that the petitioner was wrongly convicted. A request for an oral hearing by the representative of the petitioner was also made. The mercy petition was rejected by the President and thereby a writ was filed challenging the order of the President inter alia on the ground that no oral hearing was given to the petitioner. It was also pleaded that guidelines may be laid down for regulating the exercise of the power of pardon in order to prevent its arbitrary exercise. On the first point, the Court held that since the proceedings before the President were of an executive character, the petitioner would not have any right to insist upon an oral hearing and it was at the discretion of the President to decide how he would prefer to acquaint himself with the information necessary for the effective disposal of the petition.
16. In Kehar Singh's case (supra), the Supreme Court had emphasised for reasons to be given by the President and the Governors while exercising powers under Articles 72 and 161 of the Constitution of India. It was observed in the judgment that the reasoning to be given by the President and the Governors may be brief but there must be some reasoning in the order to appreciate the same in judicial review.
17. The challenge in Epuru Sudhakar v. Govt. of A.P., (2006) 8 SCC 161, was to an order passed by the Government of Andhra Pradesh represented by its Principal Secretary, whereby the convict Gowru Venkata Reddy was granted remission of unexpired period of about seven years' imprisonment. The facts in that case were that the convict was the husband of a sitting MLA of party in power in the State. The clemency petition was filed by the wife of the convict which was allowed by the Governor on the basis of report of the District Level Officer and the Superintendent of Police. Epuru Sudhakar's case was a case of judicial review of the order passed by the Governor under Article 161 of the Constitution of India and the Hon'ble Apex Court, while deciding the limits of judicial review of such an order, held that the function of determining whether the act of a Constitutional or Statutory functionary falls within the Constitutional or legislative conferment of power or is vitiated by self denial on an erroneous appreciation of the full amplitude of the power, is the matter for the Court to examine. It was further held that the exercise or non exercise of pardon power by the President or the Governor, as the case may be, is not immune from judicial review. Limited judicial review is available in certain cases. Hon'ble Mr. Justice S.H. Kapadia (as his Lordship then was), while concurring with the view in the matter taken by Hon'ble Mr. Justice Arijit Pasayat (as his Lordship then was), had observed that the granting of pardon is in no sense an overturing of a judgment of conviction, but rather it is an executive action that mitigates or sets aside the punishment for a crime.
18. The above judgment of the Apex Court in Epuru Sudhakar's case (supra) also supports the view that the order passed by the President or the Governors under Article 72 or 161 of the Constitution of India, does not wipe out the conviction or its effect on the disqualification on account of previous conviction prescribed for holding a public office or for contesting the election.
19. The judgment of Hon'ble Supreme Court in Sarat Chandra Rabha v. Khagendranath Nath, AIR 1961 SC 334, is important and will have some bearing for deciding the issue we have to address in the present case. The appellant in that case had filed nomination papers for election to the Assam Legislative Assembly, which was rejected on the ground that he was disqualified under Section 7(b) of the Representation of the People Act, 1951 having been sentenced to three years' rigorous imprisonment under the Explosive Substances Act, 1908. The rejection was made notwithstanding the fact that his sentence was remitted by the Government of Assam under Section 401 of the Code of Criminal Procedure, and the appellant was released after serving an imprisonment of about one and a half years. The election to the Assembly was, therefore, challenged by the appellant inter alia on the ground that his nomination was wrongly rejected by the Returning Officer, who did not take into account the fact that his sentence, having been remitted to less than two years, did not disqualify him under the provisions of the Representation of the People Act. The Court, in order to answer the question raised before it regarding the effect of remission of the sentence, examined several authorities on the subject and came to the conclusion that a remission of a sentence did not in any way interfere with the order of the court; it affected only the execution of the sentence passed by the court and freed the convicted person from his liability to undergo the full term of imprisonment inflicted by the court, though the order of conviction and sentence passed by the court still stood as it was. A distinction was drawn between reduction of a sentence done by an Appellate or Revisional Court and an order of remission by an Executive Authority. The latter was held to be an executive power which could not interfere with or alter the judicial sentence, and the appellant was, therefore, held to be rightly disqualified under Section 7(b) of the Representation of the People Act.
20. It may be seen from the above judgment of the Supreme Court in Sarat Chandra Rabha's case (supra) that although the Governor had granted remission of sentence to the convict but despite that the Hon'ble Apex Court has ruled that said remission would not have the effect of wiping out the consequence of conviction and sentence of three years' inflicted on him by the Court which was a disqualification from contesting election under Section 7(b) of the Representation of People Act.
21. The view taken in the present case that the order of the President and the Governor passed under Articles 72 and 161 of the Constitution of India, will not have the effect of blotting out the consequence of conviction, is further amplified and supported by a three judge Bench judgment of the Hon'ble Supreme Court in the case of State of Haryana & others v. Jagdish, (2010) 4 SCC 216, where in paras 28 and 47 of the said judgment, it was observed by Hon'ble Apex Court as under :-
28. Nevertheless, we may point out that the power of the sovereign to grant remission is within its exclusive domain and it is for this reason that our Constitution makers went on to incorporate the provisions of Article 72 and Article 161 of the Constitution of India. This responsibility was cast upon the executive through a constitutional mandate to ensure that some public purpose may require fulfilment by grant of remission in appropriate cases. This power was never intended to be used or utilised by the executive as an unbridled power of reprieve. Power of clemency is to be exercised cautiously and in appropriate cases, which in effect, mitigates the sentence of punishment awarded and which does not, in any way, wipe out the conviction. It is a power which the Sovereign exercises against its own judicial mandate. The act of remission of the State does not undo what has been done judicially. The punishment awarded through a judgment is not overruled but the convict gets benefit of a liberalised policy of State pardon. However, the exercise of such powe under Article 161 of the Constitution or under Section 433-A CrPC may have a different flavour in the statutory provisions, as short-sentencing policy brings about a mere reduction in the period of imprisonment whereas an act of clemency under Article 161 of the Constitution commutes the sentence itself.
47. Consideration of public policy and humanitarian impulses supports the concept of executive power of clemency. If clemency power is exercised and sentence is remitted, it does not erase the fact that an individual was convicted of a crime. It merely gives an opportunity to the convict to reintegrate into the society. The modern penology with its correctional and rehabilitative basis emphasises that exercise of such power be made as a means of infusing mercy into the justice system. Power of clemency is required to be pressed in service in an appropriate case. Exceptional circumstances e.g. suffering of a convict from an incurable disease at the last stage, may warrant his release even at a much early stage. Vana est illa potentia quae nun quam venit in actum means vain is that power which never comes into play.
It may be seen from the above that the Hon'ble Apex Court has specifically ruled that the power of clemency conferred by the Constitution upon the President and the Governors under Articles 72 and 161 of the Constitution of India, is to be exercised cautiously, which in effect, mitigates the sentence of punishment awarded and does not, in any way, wipe out the conviction.
22. In view of the above discussion, we are of the considered view that the power of the President and the Governors under Articles 72 and 161 of the Constitution of India, extends only to grant of pardon and to suspend, remit or commute sentence in certain cases. The said power does not extend to grant of pardon etc. against conviction. Coming back to the facts of the present case, we have already noted hereto-above that the Governor, State of Rajasthan has only pardoned the punishment and sentence of the late husband of respondent no.1. The pardon was not granted to him against the conviction, which stood affirmed upto the Apex Court. We may note here that the late husband of respondent no.1, being the convict, was no more alive and had expired on 3.12.1999, two months before the passing of the impugned order by the Governor. We are of the view that since death of the convict itself had the effect of abating the remaining sentence, therefore, the order of Governor passed after two months of his death, could not have any effect. In our opinion, learned Tribunal was wrong in its view that the impugned order could have been passed even after the death of the convict and that the same had the effect of wiping out his conviction. We are further of the view that the order of the Governor dated 3.12.1999, by no means, can be said to have wiped out the effect and consequences flowing from the conviction of the late husband of respondent no.1, that stood affirmed upto the Apex Court. In our view, the learned Tribunal went totally wrong in deciding the issue in favour of respondent no.1 merely on the basis of some observations which were out of context contained in K.M. Nanavati and Deputy Inspector General's cases (supra). We may note that the late husband of respondent no.1 was a public servant and was holding a public office and he was found guilty upto the Apex Court of killing one Abu Khan, a truck driver, by firing a shot from his revolver. The conviction is prescribed as a disqualification for holding a public post under Rule 19(1) of the Rules of 1965. Merely on the strength of the order of the Governor dated 3.12.1999 by which punishment and sentence inflicted upon the late husband of respondent no.1, disqualification attached for holding a public post under Rule 19(1) of the Rules of 1965, cannot be said to have been removed. In our considered view, the impugned judgment of the Court below is based on erroneous premise, which cannot be sustained either on facts or in law. The impugned judgment is, therefore, set aside. This writ petition succeeds and is hereby allowed, but in the peculiar facts and circumstances of the case, with no order as to cost.
(Dr. Meena V. Gomber) J. (Narendra Kumar Jain) J. db
[All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.] Deepankar Bhattacharya PS