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Showing contexts for: article 161 in Om Prakash @ Israel @ Raju @ Raju Das vs Union Of India And Another on 23 August, 2019Matching Fragments
2. This issue, it has been settled in Joy's case reported in 2011(4) SCC 353, Narayan Dutt and Others v. State of Punjab and others, that the stage at which the Governor exercises the powers under Article 161 for pardoning a convict for commission of offence is a stage where the convict has already been determined and sentenced to undergo a punishment imposed by the "Court" competent under law, its at that stage that the provision contained under Article 161 is pleaded before the Governor to plead mercy from the punishment imposed on the convict by the Courts is invoked. Hence it has been held that it is exclusive administrative/executive power which could be exercised by Governor over or against, any law of the land contemplating a conviction of convict, after being sentenced by the Courts upto the level of Hon'ble Apex Court. Thus scope of judicial review after the stage under Article 161 or under Article 72(1)(c) of the Constitution of India is very limited.
"Article 72 - Power of President to grant pardons, etc., and to suspend, remit or commute sentences in certain cases (1) ...........
(a) ........4
(b) ........
(c) in all cases where the sentence is a sentence of death."
4. Reference to Article 72(1)(c) and 161 has been made prior to entering into the exact and actual controversy in order to rationally substantiate the controversy from the view point, that the stages of Article 72(1)(c) and 161, are the stages which has been invoked by the petitioner, where after the exhaustion of all the judicial proceedings and process contemplated under an Act or Law of the country, before the Court's created under law, which has attained its finality and the conviction of a person accused for commission of an offence, which has been settled down by the Courts and are proved against him upto the Hon'ble Apex Court, created under law. That means to say that the powers of the President of India under Article 72(1)(c) or those the powers of the Governor under Article 161 of the Constitution of India are the extraordinary executive powers, which has been vested with the constitutional dignitaries for the purpose of pardoning a convict who has been otherwise judicially convicted with a death sentence, hence when the proceedings reaches up to the stages of either Article 72(1)(c) or Article 161, it crosses over the proceedings or the stages of the judicial proceedings contemplated under law before the court created under it, meaning thereby in other terms it has attained its judicial finality.
33. It is relevant to submit at this stage itself that (1) after the dismissal of Jail Appeal No.108/2010 by the judgment dated 19.9.2001 by the Division Bench of this Court, and affirming of the death sentence imposed by learned Trial Court on 12.04.2001, (2) after the dismissal of SLP by the Hon'ble Apex Court on 5.12.2002, (3) After dismissal of review petition by Hon'ble Apex Court on 04.03.2003, (4) after the dismissal of Writ Petition (Crl.) by Hon'ble Apex Court under Article 32 of the Constitution of India on 16.02.2005, and (5) after the rejection of Curative Petition by the Hon'ble Apex Court on 06.02.2006. This Court is of considered view that as far as the proceedings before the Court is concerned in relation to all the aspects of the case, that has attained its judicial finality and only the proceedings which were pending consideration were the proceedings constitutionally contemplated under Article 72 (1) (c) before the President of India, which was filed on 30.04.2003 or at the most under Article 161 before the Governor of the State, which this Court is of the considered view that it is an extraordinary executive power which has been conferred upon the President of India and Governor of the State, respectively under the Constitution of India, to exercise its powers for pardoning an offence, which otherwise stands settled after the conclusion of trial and after appreciation of evidence which was brought on record. Meaning thereby, the judicial proceedings before the Courts created under law has exhausted all its conceptualized stage with the dismissal of curative petition on 06.02.2006. Thus, this Court is of the view that the proceedings at the stage of Article 161 or at the stage of Article 72(1) (c) cannot be said to be the proceedings which are pending before the "Court" for considering of the case on consideration of the vitalities of evidence or law. The proceedings before the Court, if at all it can be said to be under consideration it was only upto the stage when it had culminated finally with the dismissal of the curative petition on 06.02.2006 filed by the petitioner.
61. In order to consider the implications as to whether the provisions of Juvenile Justice (Care and Protection of Children) Act 2015, at all would come into play now for consideration in the instant case, more particularly, when the proceedings before the Court has already culminated and more particularly, when the President of India, while exercising his executive powers given under Article 72 (1) (c) has already expressed his mercy by his order dated 08.06.2012 and has converted the death sentence into a life imprisonment, the stage of Article 72(1)(c) of the Constitution of India before the President of India or stage Article 161 of the Constitution of India, before the Governor of a State, this Court is of considered view that it will not fall to be within the ambit of proceedings contemplated under the Act or law for the purposes of determination of juvenility as contemplated under the Act of 2015, because the claim of mercy or pardon under Article 72 (1) (c) before the President of India or before the Governor of a State under Article 161 of the Constitution of India, will and can never be treated as to be one of the stage of proceedings for being considered by Court has dealt with above defined under the Act itself or Courts under the Code of Criminal Procedure under Chapter II, where a claim of mercy or pity is to be determined by the President of India or by the Governor of State on consideration of evidence and on its appreciation, because that stage got over as soon as the curative petition was dismissed by the Hon'ble Apex Court on 6th April 2006, and thereafter the Act of 2015 was enforced for the first time on 31.12.2015, at that point of time when the Act was enforced there was no pending proceedings before the Court or even before the Constitutional Authorities contemplated under Article 72 or Article 161 of the Constitution of India.