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5. The learned counsel in order to hammer forth his aforesaid submission places reliance upon a judgement of Hon'ble Supreme Court reported as 2010(4) RCR(Crl) 782 Samjuben Gordhanbhai Koli vs. State of Gujrat, wherein it has been held that section 433-A Cr.P.C. can restrict powers under section 432 or 433 Cr.P.C. but it cannot restrict the powers of the President under Article 72 or of the Governor under Article 161 of Constitution of India, being constitutional powers.

"8. 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 433A Criminal Procedure Code Section 433A Criminal Procedure Code can restrict the power under Section 432 Criminal Procedure Code or Section 433 Criminal Procedure Code but it cannot restrict the constitutional powers under Article 72 or 161 of the Constitution, just as no limitation statute can restrict 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"

"208. We see no hindrance or prohibition in second or subsequent exercise of power under Section 432/433 Cr.P.C. As stated above, such exercise is in fact contemplated under Section 433A. An exercise of such power may be required and called for depending upon 13 of 37 ( 14 ) CRWP- 2025- 2019 exigencies and fact situation. A person may be on the death bed and as such the appropriate Government may deem fit to grant remission so that he may breathe his last in the comfort and company of his relations. Situations could be different. It would be difficult to put the matter in any straight jacket or make it subject to any guidelines, as was found in Kehar Singh. The aspects whether "the convict had lost his potentiality in committing the crime and whether there was any fruitful purpose of confining the convict any more" as stated in State of Haryana v. Jagdish (supra) could possibly yield different assessment after certain period and can never be static. Every case will depend on its individual facts and circumstances. In any case, if the repeated exercise is not for any genuine or bona fide reasons, the matter can be corrected by way of judicial review. Further, in the light of our decision as aforesaid, in any case an approach would be required to be made under Section 432(2) Cr.P.C. to the concerned court which would also result in having an adequate check.

"42. We have already noticed that the earlier policies including the policy dated 04.02.1993 refers to the exercise of powers under Article 161 of the Constitution whereas the policy dated 13.08.2008 is in exercise of the powers under Section 432 read with Sections 433 and 433A of Criminal Procedure Code The restriction under Section 433-A is only to the extent of the powers to be exercised in respect of offences as referred to under Section 432 Criminal Procedure Code The notification dated 13.08.2008 is, therefore, under a rule of procedure, which is subordinate to the Constitution. The power exercised under Article 161 of the Constitution is obviously a mandate of the Constitution and, therefore, the policy dated 13.08.2008 cannot override the policy dated 04.02.1993."