Document Fragment View

Matching Fragments

9. Before Constitution of India came into force, the sovereign prerogative of pardons and reprieves was exercised in India by the Governor General as delegated under Section 295 of the Government of India Act, 1935, the other relevant provision was section 401 of the Code of Criminal Procedure. Sub-section (5) of the Section 401 of the Code of Criminal Procedure, as it stood then, provided that nothing contained in Section 401 shall be deemed to interfere with the right of His Majesty or the Governor General when such right is delegated to him to grant pardons, reprieves, respites or remission of punishments. After the enforcement of the Constitution, the relevant provisions which vest the powers of clemency and pardon are Articles 72 and 161 of the Constitution of India.

Their Lordships of the Supreme Court came to the conclusion that the powers of pardon and clemency under Articles 72 and 161 of the Constitution and so also under Section 401 of the Code of Criminal Procedure, are to be exercised in a completely different field whereas the powers of the Supreme Court under Article 142 of the Constitution and that of the Court of Appeal under Section 426 of the Code of Criminal Procedure, operate in a completely different field. Their Lordships also came to the conclusion that in order to give harmonious construction to the provisions of Article 142 of the Constitution on the one hand and Articles 72 and 161 of the Constitution on the other, and Section 401 of the Code of Criminal Procedure on one side and Section 426 of the Code of Criminal Procedure, on the other, it is to be construed that when the matter is sub judice before the Court either under Article 142 of the Constitution or under Section 426 of the Code of Criminal Procedure, during that period the field of operation of the powers under Articles 72 and 161 of the Constitution and under Section 401 of the Code of Criminal Procedure, will remain suspended and the Courts will have the final say in the matter of remission of sentence. But where there is no matter pending before the Court in reference to the above mentioned provisions, the field of operation regarding the remission etc. of the sentence appropriately vests in the authorities mentioned under Articles 72 and 161 of the Constitution and under Section 401 of the Code of Criminal Procedure. It was in this manner that the harmonious interpretation was given by their Lordships of the Supreme Court to the provisions referred to above. It was observed by their Lordships of the Supreme Court that the power of pardon and clemency is essentially vested in the Heads of the Executive because the Judiciary had no such mercy jurisdiction. It was held that so long as the Judiciary has 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 or Articles 142, 72 and 161 of the Constitution. It would thus be clear from this authoritative pronouncement of the Supreme Court that the powers granted under Articles 72 and 161 of the Constitution and under Section 401 of the Code of Criminal Procedure are subject to the other provisions of the Constitution and if a conflict takes place in the exercise of powers of clemency and pardon with the other provisions of the Constitution, the said conflict has to be resolved by giving harmonious construction and thus the power of pardon and clemency in our country is not an absolute power, in that sense. The Supreme Court, after examining the whole question, held the order of the Governor passed under Article 161 of the Constitution of India, to be ultra vires.

VI. Are the provisions of Section 401(2), Code of Criminal Procedure, manda-tory in character, the non-compliance of which vitiates the impugned order?

35. My answer to this point is that the provisions of Sub-section (2) of Section 401 of the Code of Criminal Procedure; are not mandatory. The provisions of Sub-section (2) of Section 401 of the Code of Criminal Procedure are as follows :--

"401(2). Whenever an application is made to the appropriate Government for the suspension or remission of a sentence the appropriate Government may require the Presiding Judge of the Court before or by which the conviction was had or confirmed to state his opinion as to whether the application should be granted or refused, together with his reasons for such opinion and also to forward with the statement of such opinion a certified copy of the record of the trial or of such record thereof as exists."

43. Fifthly, it may be pointed out that the powers vested in the President of India under Article 72 of the Constitution and in the Governor under Article 161 of the Constitution are much wider powers of pardon and clemency whereas the powers under Section 401 of the Code of Criminal Procedure are only limited powers for suspending the execution of the sentence or remitting the whole or any part thereof. If the framers of the Constitution intended to curb the powers of pardon and clemency given to the Heads of the respective Governments, analogous provisions of Sub-section (2) of Section 401 of the Code of Criminal Procedure would have been introduced in the Constitution, but we find that there is no such provision in the Constitution which would require the President of India or the Governor to send for the opinion of the Presiding Judge of the Court which convicted the accused person or of the Judge of the Court which confirmed conviction in appeal. If the interpretation as sought by the learned counsel for the petitioner is given, it would mean that if the order is passed under Article 161 of the Constitution, it would not be required to ask for the opinion of the Presiding Judge who recorded conviction of the accused person or of the Judge who confirmed conviction in appeal. But if the action is taken under Section 401(1) of the Code of Criminal Procedure, it should be necessary to seek the opinion of the Presiding Judge. The powers under Section 401(1) of the Code of Criminal Procedure may be narrower, but they are the same powers in nature as are contained under Article 161 of the Constitution of India. Therefore, it would not be possible to put the interpretation on the provisions of Sub-section (2) of Section 401 of the Code of Criminal Procedure that the same are mandatory. Similar view was taken by the Federal Court of Pakistan in a case reported in Muhammed Sarwar v. The Crown, (1951) 52 Cri LJ 357.