IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 9401 of 2007(T)
1. G.BALACHANDRAN, S/O.GOPALA PILLAI,
... Petitioner
Vs
1. STATE OF KERALA,
... Respondent
2. HOME SECRETARY, GOVT.SECRETARIAT,
3. DIRECTOR GENERAL OF POLICE,
4. CITY POLICE COMMISSIONER,
5. C.S.RAMACHANDRAN NAIR,
6. J.ABDUL KALAM, HEAD CONSTABLE,
7. E.SUBIR KUNJU, SUB INSPECTOR OF POLICE,
8. CENTRAL BUREAU OF INVESTIGATION (CBI)
For Petitioner :SRI.K.RAVEENDRAN
For Respondent :SRI.S.SREEKUMAR, SC FOR CBI
The Hon'ble MR. Justice V.RAMKUMAR
Dated :05/08/2010
O R D E R
CR
V. RAMKUMAR, J
.......................................................
W.P. C. Nos. 9401 & 27098/07
and
Crl.M.C. Nos. 1617 and 1747 of 2007
...........................................
Dated this the 5th day of August, 2010
JUDGMENT
W.P. C. 9401 of 2007 is filed by the complainant (G.
Balachandran) in C.C. 621 of 1990 on the file of J.F.C.M. II
Attingal seeking the following reliefs:-
i) To quash Ext.P2 order dated 1-1-2005 as per which the
Government in the Home Department granted remission of the
sentences of the 6th and 7th respondents herein (Abdul Kalam and E.
Subrair Kunju) who were A2 and A3 respectively in C.C. No. 621 of
1990.
ii) to direct the 3rd respondent (Director General of Police) to abide
by Ext.P1 judgment of this Court in Crl.Appeal 343 of 1997
iii) to direct the eighth respondent (C.B.I.) to conduct an enquiry as
to whether any illegal methods were employed in securing Ext.P2
order of remission or to direct the 2nd respondent (Home
Secretary) to consider Exts. P4 and P5 representations filed by the
petitioner before the Home Minister.
W.P. C. 27098/07 is filed by C.S. Ramachandran Nair
(R5 in W.P.C. 9401 of 2007 and A1 in C.C. 621/1990) for a
direction to the State of Kerala to consider Ext.P6 application
W.P. C. Nos. 9401 & 27098/07
& Crl.M.C. Nos. 1617 &1747 of 2007
-:2:-
filed by the petitioner under Sec. 433 Cr.P.C. for commutation
of his sentence. (Pending the said Writ Petition, the
Government as per Ext.R1 (a) order dated 13-3-2008
rejected his application).
Crl.M.C. 1617 of 2007 is filed by Subair Kunju (R7
in W.P.(C) 9401 of 2007 and A3 in C.C. 621/1990) under
Sec. 482 Cr.P.C. to quash the non-bailable warrants of arrest
issued against him by J.F.C.M. II (Attingal) ignoring
Annexure – A1 (Ext.P2 in W.P.C. 9401 of 2007) order of
remission and to direct the Director General of Police not to
take any action against the petitioner in execution of the
sentence in C.C. 621 of 1990.
Crl.M.C. 1747 of 2007 is filed by Abdul Kalam (R6
in W.P.C. 9401/2007 and A2 in C.C. 621/1990) under Sec.
482 Cr.P.C. for reliefs similar to those prayed for in
Crl.M.C. 1617 of 2007.
THE FACTUAL FLASHBACK
2. The events leading to the filing of the above Writ
Petitions and Crl. M.Cs are as follows:-
W.P. C. Nos. 9401 & 27098/07
& Crl.M.C. Nos. 1617 &1747 of 2007
-:3:-
THE PROECUTION CASE
The petitioner in W.P. (C ) 9401 of 2007 is one
Balachandran hailing from Puthenchanthai,
Varkala. His wife is one Meena belonging to
Vamanapuram Village in Nedumangad Taluk. Their
marriage was in the year 1982. There was a
property dispute between the said Meena and her
brother Baiju and her paternal uncle Vidhyadhara
Kurup. On a complaint preferred by the said
Vidhyadhara Kurup against the said
Balachandran and his wife Meena, the husband and
wife were summoned to the Venjaramoodu Police
Station as per a written notice issued to them by the
Sub Inspector of Police, Venjaramoodu.
Balachandran and his wife Meena appeared before
the Sub Inspector of Police , Venjaramoodu at 9 a.m.
on 16-9-1988 as directed in the notice served on
them. The Sub Inspector directed them to meet
the Circle Inspector . One C.S. Ramachandran
Nair (the petitioner in W.P.(C.) 27098 of 2007) was
W.P. C. Nos. 9401 & 27098/07
& Crl.M.C. Nos. 1617 &1747 of 2007
-:4:-
the Circle Inspector, Venjaramoodu. In the office of
the Circle Inspector, besides Ramachandran Nair,
the Circle Inspector of Police, three police
Constables by name Abdulkalam (petitioner in
Crl.M.C. 1747 of 2007, Subair Kunju (the petitioner
in Crl.M.C. 1617 of 2007) and Chandran and
Vidhyadhara Kurup the paternal uncle of Meena
and Baiju , the brother of Meena were also present .
As soon as Balachandran accompanied by his wife
Meena (who was seven months pregnant) entered
the room of the Circle Inspector, the Circle
Inspector (C.S. Ramachandran Nair) caught hold
of the lap of Balachandran together with the cloth
and slapped him on his cheek and chest asking
him whether he would prefer a complaint against
him. Seeing this when Meena, the wife of the
complainant went to the rescue of her husband, the
Circle Inspector kicked her on the stomach with his
boots resulting in Meena falling on the floor. Then
Abdul Kalam, Subair Kunju and Chandran the
police constables wrongfully restrained
W.P. C. Nos. 9401 & 27098/07
& Crl.M.C. Nos. 1617 &1747 of 2007
-:5:-
Balachandran and beat him on various parts of his
body. The said police constables then caught hold
of Meena and snatched away her mangalyasoothra
and slapped her on the face. The above atrocities
were done in the presence of Vidhyadhara Kurup
and Baiju who had lodged the complaint before the
Sub Inspector . Hearing the hue and cry of
Balachandran and his wife the persons who were
waiting outside came rushing into the room . The
Circle Inspector along with Vidhyadhara Kurup
and Baiju abused Balachandran and his wife in
filthy language and threatened them with dire
consequences in case Meena was not prepared to
relinquish her rights over the property in question
in favour of Vidhyadhara Kurup and Baiju. A false
case was foisted against Balachandran and his wife
Meena. Abdul Kalam, the police Constable who
had taken Rs. 4,800 from Balachandran
subsequently produced only Rs. 1,800/- along with
the Mangalyasoothra and other gold ornaments
which were taken from Meena. After getting bail
W.P. C. Nos. 9401 & 27098/07
& Crl.M.C. Nos. 1617 &1747 of 2007
-:6:-
Meena was got admitted as an inpatient in S.A.T.
Hospital, Thiruvananthapuram for treatment for
three days .
Crl.M.P. No. 7452 of 1988 was a private complaint filed by
Balachandran before the Judicial Magistrate of the Second Class,
( “J.S.C.M” . for short) Nedumangad against
1) C.S. Ramachandran Nair, Circle Inspector of Police,
Venjaramoodu (A1)
2) Abdul Kalam, Police Constable, Venjaramood (A2)
3) Subair Kunju, Police Constable,( Writer), Venjaramoodu (A3)
4) A Chandran , Police Constable, Venjaramoodu (A4)
5) Vidhyadhara Kurup, (A5)
6) Baiju (A6) – alleging offences punishable under
Sections 323, 324, 341 and 379 read with Sec. 34 I.P.C.
A4 Chandran was subsequently deleted from the array of accused.
27-09-1989 : J.S.C.M. Nedumangad dismissed the complaint
under Sec.203 Cr.P.C.
23-11-1989 : Crl.R.P. 145/1989 filed by Balachandran before
the Sessions Court, Kozhikode, challenging the
dismissal of his complaint.
W.P. C. Nos. 9401 & 27098/07
& Crl.M.C. Nos. 1617 &1747 of 2007
-:7:-
18-01-1990 : Sessions Court allowed the Crl.R.P. and set aside
the trial Court’s order. Cognizance of offences
punishable under Sections 341 and 323 read with
Sec. 34 I.P.C. was taken against A1 to A3 and A5
and A6.
After the case went back to J.S.C.M.,
Nedumangad the case was numbered as C.C. 151
of 1990
08/10/1990 : M.C. (T.P.) No. 725 of 1990 was filed by
Balachandran before the Sessions Court,
Thiruvananthapuram seeking a transfer of the
case from the J.S.C.M. Nedumangad
13-11-1990 : Sessions Court allowed M.C. (T.P.) 725 of 1990
and transferred the Case to J.F.C.M. II Attingal
where it was taken on file as C.C. 621 of 1990.
The trial was conducted by the J.F.C.M. II
Attingal.
P.Ws 1 to 7 were examined on the side of the
complainant, Exts. P1 to P7 were marked . On the
side of the defence Exts. D1 to D3 were marked.
03/01/1993 : J.F.C.M. II Attingal pronounced judgment
acquitting A5 and A6 (Vidhyadhara Kurup and
Baiju) but convicted A1 to A3 ( Circle Inspector
Ramachandran Nair and Constables Abdul
Kalam and Subair Kunju) of offences punishable
under Sections 341 and 324 read with Sec. 34
I.P.C. and sentenced each of them to simple
imprisonment for one month and simple
imprisonment for one year respectively. The
sentences were directed to run concurrently.
09/02/1993 : A1 to A3 filed Crl. Appeal 46 of 1993 before the
Sessions Court, Thiruvanantnapuram, challenging
the conviction entered and the sentence passed
against them.
21-12-1996 : As per Ext.R7 ( c ) judgment in Crl.Appeal 46 of
1993 the Sessions Judge acquitted A1 and A3
W.P. C. Nos. 9401 & 27098/07
& Crl.M.C. Nos. 1617 &1747 of 2007
-:8:-
21-05-1997 : Balachandran the complainant filed Crl. Appeal
343 of 1997 before the High Court of Kerala
under Sec. 378 (4) Cr.P.C.
25-05-2004 : The High Court passed Ext.P1 judgment
allowing the appeal filed by Balachandran. The
conviction recorded by the trial court under Sec.
323 I.P.C. was sustained. A2 and A3 were directed to undergo rigorous imprisonment for three months each and to pay a fine of Rs.
1,000/- each and on default to pay the fine, to
suffer simple imprisonment for two weeks under
Sec. 323 I.P.C.
08/09/2004 : Abdul Kalam (A2) and Subair Kunju (A3) filed
separate petitions before the Government of
Kerala seeking remission of their sentence
under Sec. 432 Cr.P.C.
06/10/2004 On receipt of Ext.P1 judgment the learned
Magistrate issued non-bailable warrants of arrest
against A1 to A3 .
13-12-2004 : A1 filed Crl. M.C. 3442 of 2004 before the High
Court of Kerala challenging the warrant of arrest
issued against him contending that A2 and A3
alone were sentenced to imprisonment by the
High Court.
01/01/2005 : The Government issued Ext.P2 G.O. remitting
the sentence imposed on A2 and A3 . (This is the
order impugned in W.P. (C ) 940 of 2007).
05/09/2005 : The High Court, noticing that the operative
portion of Ext.P1 judgment was not in
consonance with the conclusion reached in the
earlier part of the judgment and that an
inadvertent mistake had crept into the judgment,
directed the matter to be placed before the
learned Judge who passed Ext.P1 judgment. The
said direction was complied with by the Registry.
W.P. C. Nos. 9401 & 27098/07
& Crl.M.C. Nos. 1617 &1747 of 2007
-:9:-
31/10/2005 : The learned Judge who passed Ext.P1 judgment
held that A1 to A3 shall undergo rigorous
imprisonment for three months and to pay a fine of
Rs. 1,000/- each under Sec. 323 each.
A1 to A3 filed S.L.P. before the Hon’ble Supreme Court against Ext.P1
judgment as modified.
06/02/2006 : Supreme Court passed Ext.R7 (b) order
dismissing the S.L.P. filed by A1 to A3 against
Ext.P1 judgment. The Supreme Court observed
that the petitioners in the S.L.P. had not
surrendered .
10/02/2006 : Ramachandran Nair (A1) also filed an
application before the State Government for
remission of his sentence under Sec. 432 Cr.P.C.
19-03-2007 : Complainant Balachandran filed W.P.C. 9401 of
2007 before the High Court
23-04-2007 : A1 filed W.P.(C ) 13760/2007 before the High
Court of Kerala seeking a direction to J.F.C.M. II
Attingal not to execute the sentence imposed on
him pending his application for remission before
the Government.
08/05/2007 : High Court dismissed W.P. (c ) 13760/07 as
misconceived (Ext.P5 judgment in W.P. ( C)
27098/07 ) holding that no such direction could
be issued by the High Court and that in view of
the proviso to Sec. 432 (5) Cr.P.C. the
application of A1 under Section 432 could not
have been entertained unless the applicant was
in jail.
11/05/2007 : Subair Kunju (A3) filed Crl.M.C. 1617 of 2007
before the High Court.
30-05-2007 : Abdul Kalam (A2) filed Crl.M.C. 1747 of 2007
W.P. C. Nos. 9401 & 27098/07
& Crl.M.C. Nos. 1617 &1747 of 2007
-:10:-
11/06/2007 : A1 filed another application before the State
Government under Sec. 433 Cr.P.C. seeking
commutation of his sentence.
11/09/2007 : Ramachandran Nair (A1) filed W.P.(C) 27098/07
before the High Court.
13-03-2008 : Government dismissed A1’s application under
Sec. 433 Cr.P.C. as per Ext.R1 (a) G.O. after
noticing that his application dated 10-2-2006
filed under Sec. 432 Cr.P.C. was not maintainable
in the light of the judgment in W.P.C 13760/07.
Ext.R1 (a) order has been passed during the
pendency of W.P. ( C) 27098/2007 filed by A1.
3. I heard Advocate Sri. K. Raveendran, the learned
counsel appearing for Balachandran, Adv. Sri. Abdul Salam, S.
the learned counsel appearing for Subair Kunju and Abdul Kalam,
Adv. Sri. Mathew B. Kurian the learned counsel appearing for
Ramachandran Nair and Adv. Sri. C.S. Hrithwick the learned
Government Pleader/ Public Prosecutor. I also perused the
Government files leading to Ext.P2 in W.P. ( C) 9401 of 2007 and
the connected files.
ARGUMENTS OF A1 TO A3
4 . Adv. Sri. Abdul Salam, the learned counsel appearing for
Subair Kunju and Abdul Kalam and Advocate Sri. Mathew B.
Kurian appearing for Ramachandran Nair made the following
submissions before me opposing W.P. (C ) 9401/07 and in
W.P. C. Nos. 9401 & 27098/07
& Crl.M.C. Nos. 1617 &1747 of 2007
-:11:-
support of the other three cases:-
One of the prayers in W.P. (C ) 9401 /07 filed by
Balachandran is for a direction to the 2nd respondent Home
Secretary to consider Ext.P4 petition and a direction to the Home
Minister to consider Ext.P5 representation both filed by
Balachandran. Those representations were dismissed by the
Government and Balachandran has not produced those orders.
After Balachandran and his wife Meena fell out, Meena had given
Ext.R7 (a) statement dated 12-10-2006 before the Home
Minister to the effect that it was on account of the continuous
harassment by her former husband Balachandran that she was
constrained to give evidence against the accused policemen, that
she was giving false statement before the Court on account of the
compulsion of her husband, that no injury was caused to her or
the child in her womb. The Governor has been kind enough to
show mercy to Subair Kunju and Abdul Kalam. Balachandran
who was attributing malafides and foul play behind the order of
remission passed by the Government has not been able to
substantiate the said allegation. The power exercised by the
Government is a statutory and constitutional power. The right to
grant remission is governed by the provisions of Sec. 432
W.P. C. Nos. 9401 & 27098/07
& Crl.M.C. Nos. 1617 &1747 of 2007
-:12:-
Cr.P.C. which vests the said power with the appropriate
Governemnt and not in any Court . (Vide para 7 of K.
Pandurangan v. S.S. R. Velusamy and another – (2003) 8
SCC 625. Except for the fact that Abdul Kalam and Subair
Kunju who were A2 and A3 respectively were roped in by
resort to Sec. 34 I.P.C., no specific allegation of torture was
made against them. Hence, the benign Government in exercise of
its clemency powers was inclined to extend the benefit of
remission to A2 and A3. But the very same Government went
wrong in not granting commutation to A1 (Ramachandran Nair)
who was also similarly placed as A2 and A3. This Court should,
therefore, direct the Government to extend the benefit of
commutation to A1 and should refuse to interfere with the
discretion exercised by the Government under its mercy
jurisdiction as against A2 and A3 after evaluating all the relevant
circumstances including their family background.
JUDICIAL RATIOCINATION
5. I am afraid that I find myself unable to agree with the
above submissions made on behalf of A1 to A3.
W.P. C. Nos. 9401 & 27098/07
& Crl.M.C. Nos. 1617 &1747 of 2007
-:13:-
THE POLICE ATTROCITIES
6. During the trial before the Magistrate the complainant
besides examining himself as P.W.1 also examined his wife
Meena as P.W.4 . P.Ws 2 and 3 were the independent occurrence
witnesses. P.W. 5 was the doctor who had examined P.W.4
Meena and issued Ext.P6 wound certificate. P.Ws 6 and 7 were the
Sub Inspectors of Police, Venjaramoodu Police Station at the time
of occurrence and at the time of trial respectively. A1 had
clasped at the loin of the complainant (P.W.1) together with his
clothes shouting whether he would prefer a complaint against A1
and slapped him on the face and chest. Seeing this when P.W.1’s
wife Meena (PW4) went to the rescue of her husband, A1 kicked
her on the back with his boots and she fell down. She was in an
advanced stage of pregnancy. A2 and A3 had beaten up P.W.1.
They also snatched the mangalyasootra of P.W.4 and had slapped
her on the face. All these brutalities were committed after securing
the attendance of P.Ws 1 and 4 in the room of A1, the Circle
Inspector. After a careful evaluation of the oral and documentary
evidence, the learned Magistrate who had the unique advantage of
seeing the witnesses and assessing their demeanour and credibility
held in paragraph 22 of the judgment that both the complainant
W.P. C. Nos. 9401 & 27098/07
& Crl.M.C. Nos. 1617 &1747 of 2007
-:14:-
and his wife were manhandled by A1 to A3 and that A1 had
stamped with his boots the complainant’s wife who was seven
months pregnant and she had fallen down. The evidence of
P.W.4 Meena was fully believed to hold that she was brutally
manhandled by A1 to A3 . After referring to the admission by
P.W.6 (Sub Inspector) that he had issued Ext.P3 notice to Meena
calling upon her to appear before the Police Station, the learned
Magistrate observed that the Sub Inspector was acting in utter
disregard of the prohibition under Sec. 160 Cr.P.C. against
summoning women to the Police Station. A1 to A3 were
accordingly found guilty under Sec. 341 and 323 read with Sec. 34
I.P.C. and sentenced as mentioned earlier. The conviction
entered against A1 to A3 for the offence punishable under Sec.
323 I.P.C. was confirmed by the High Court which, however,
reduced the sentence to rigorous imprisonment for three months as
against one year awarded by the trial Court.
THE ILLEGALITIES BEHIND THE REMISSION ORDER
7. It was at a time when the S.L.P. filed by A1 to A3
against Ext.P1 judgment of this Court was pending consideration
W.P. C. Nos. 9401 & 27098/07
& Crl.M.C. Nos. 1617 &1747 of 2007
-:15:-
of the Supreme Court that A2 and A3 filed separate petitions
before the State Government on 8-9-2004 seeking remission of
their sentence under Sec. 432 Cr.P.C. and the Government issued
Ext.P2 G.O. dated 1-1-2005 completely remitting the sentence
imposed on A2 and A3. It is pertinent to note that the Supreme
Court of India on 6-2-2006 dismissed the S.L.P. filed by A1 to A3
on the ground that they had not surrendered to the jail concerned
in pursuance of the sentence passed against them. There is no
dispute that it was without entering the portels of the prison even
for a day that A2 and A3 submitted their applications for
remission which was entertained by the Government in flagrant
violation of clause (a) of the Proviso to Sec. 432 (5) Cr.P.C. as
per which the application for premature release can be filed and
entertained only if the applicant is in prison. Ext.P2 order of
remission was passed without calling for the opinion of the
presiding Judge who confirmed the conviction as provided under
sub section (2) of Section 432 Cr.P.C. All that apart, the
concerned file was circulated to the Governor without the aid
and advice of the Council of Ministers in blatant violation of the
mandate under Article 163 (1) of the Constitution of India as
detailed herein below .
W.P. C. Nos. 9401 & 27098/07
& Crl.M.C. Nos. 1617 &1747 of 2007
-:16:-
8. I have perused File No. 52055/B1/2004/Home leading
to the issue of G.O. (Rt) No. 04/2005/Home dated 1-1-2005
(Ext.P2). The order of remission was passed mainly relying on the
Report of the Dy.S.P., Attingal as endorsed by the Director
General of Police, favouring two members of their own tribe. The
report of the District Probation Officer or the remarks of the
convicting Judge was not obtained. The recommendations of the
Jail Advisory Board or the State Prison Review Committee were
not obtained before forwarding the file to the Governor. The
aforementioned file is seen circulated by the Home Department to
the Governor through the Chief Minister (Vide page 22 of the
Note File). The points highlighted at paragraphs 22 and 23 at
page 21 of the Note File are as follows:-
“22. In this connection the following points are also to
be considered magnanimously .
(a) Police is the most important link in the criminal
justice system and have the primary duty of
safeguarding human rights.
(b) They should have the skill in mediating and settling
problems at the Station House itself.
(c ) The offence had been committed while they were
doing their duty as policemen.
W.P. C. Nos. 9401 & 27098/07
& Crl.M.C. Nos. 1617 &1747 of 2007
-:17:-
(d) The Section under which the punishments had been
awarded is 323 Indian Penal Code. This Section is
applicable for the offence of “causing hurt ” and is
compoundable. The person by whom the offence
can be compounded is the person to whom the
hurt is caused
(e) The Court had imposed only a minor punishment but
that may cease their service as policemen of the
State.
(f) Government have the power for remission of the
sentence under Sec. 432 Cr.P.C.
23. In these circumstances for orders whether
(a) The requests of Sri. E. Subair Kunju and Sri.
Abdul Kalam for remission of imprisonment and fine
awarded by the Honourable High Court of Kerala in
Crl. Appeal 343/1997 may be recommended and
forwarded to His Excellency the Governor for granting
full pardon to the petitioners.”
At page 22 of the Note File the Under Secretary of Home
Department who put up the notes, her superior, the Addl.
Secretary of Home Department and the Principal Secretary,
Home have signed. Below that the then Chief Minister has
W.P. C. Nos. 9401 & 27098/07
& Crl.M.C. Nos. 1617 &1747 of 2007
-:18:-
signed on 7-12-2004 with the endorsement “para 23 is approved”.
The file was then circulated to the Governor who has put his
signature on 10-12-2004 after making the following endorsement:
“I have considered the recommendations in
paragraph 23 and the foregoing notes.
In view of the exceptionally deserving circumstances
explained, I am inclined to approve the proposal, as
a very special case “.
The Governor was thus approving the proposal for remission as if
it was a matter within his discretionary powers.
9. I have also perused file No. 77694/B1/06/Home in which
the representation dated 29-3-2006 submitted to the Governor by G.
Balachandran, the complainant to re-consider Ext.P2 order of
remission granted to A2 and A3. The file is seen circulated by the
Home Department to the present Chief Minister through the Minister
for Home, Vigilance and Tourism and a decision was taken on 31-7-
2007 at the level of the Chief Minister not to reconsider Ext.P2 G.O.
This file has not been circulated to the Governor.
10. The police who are ritualistically submitting negative
recommendations in cases of atrocities against women had no qualms in
giving positive recommendations in the case of A2 and A3 who are members of
their own tribe. When the complainant and his wife who were the
W.P. C. Nos. 9401 & 27098/07
& Crl.M.C. Nos. 1617 &1747 of 2007
-:19:-
injured had not shown any gesture towards compounding the
offence, the recommendation given to the Governor that the
offence was compoundable was totally irrelevant. Similarly,
the noting made in the file that the offence was committed by
the policemen while they were doing their duty was also false
and misleading since it is no part of the duty of a policeman
to summon a lady and that too in an advanced stage of
pregnancy, to the police station and assault her and her husband
from the room of the Circle Inspector. No doubt, long after the
Court verdicts in this case, the complainant and his wife appear
to have fallen out and translating the idea (which originated in
the warped mind of the police) of exploiting the situation into
reality a letter from Meena, the estranged wife of Balachandran
was procured to the effect that she was not assaulted as alleged
in the complaint and that she was merely yielding to the
pressure of her husband. Much strain is not necessary to discard
the said letter and the Government before which the said letter
(addressed to the Home Minister) was produced, rightly
eschewed the same from consideration.
11. There used to be a Jail Advisory Board constituted
under Rule 543 of the Kerala Prison Rules, 1958 with the Addl.
W.P. C. Nos. 9401 & 27098/07
& Crl.M.C. Nos. 1617 &1747 of 2007
-:20:-
Director General of Police (Prisons), as the Chairman and the
District Collector, Sessions Judge, Superintendent of Police of
the district where the Central Prison concerned is located and
some others as members. The role of the said Board was to make
recommendations to the State Government for the purpose of
passing orders of remission under Section 432 Cr.P.C. By virtue
of the Proviso to Rule 545 (a) of the Kerala Prison Rules, 1958,
the said Jail Advisory Board had no power to consider the cases
of those lifers falling under Sec. 433 A Cr.P.C. who had been
convicted for offences for which death penalty was one of the
punishments prescribed but who, either on account of judicial
generosity or on account of executive clemency were either
sentenced to life imprisonment only or whose death sentence
was commuted in to one of imprisonment for life. All lifers
convicted under Sec. 302 I.P.C. would fall under Section 433 A
Cr.P.C. and the Jail Advisory Board could not take up for
consideration, the cases of such lifers unless and until they had
actually served 14 years of imprisonment. But no such
restrictions can be placed on the Governor’s Constitutional
powers under Article 161 of the Constitution. The only bridle
on the said power of the Governor is that while exercising the
W.P. C. Nos. 9401 & 27098/07
& Crl.M.C. Nos. 1617 &1747 of 2007
-:21:-
extraordinary Constitutional power under Article 161 of the
Constitution , he should act in conformity with the Constitutional
philosophy. The Governor cannot exercise his power arbitrarily,
mala fide or in absolute disregard of the finer canons of
Constitutionalism. (See Para 12 of Swaran Singh v. State of
U.P. – AIR 1998 SC 2026). That is why a Constitution Bench
of the Apex Court in Maru Ram v. Union of India – AIR 1980
SC 2147 desired the State Governments to lay down guidelines
for the exercise of the said Constitutional power and ruled that
until such guidelines are set out, the relevant State Prison Rules
will serve as the guidelines. The need for laying down the
guidelines was emphasised by a Division Bench of this Court
also in Suo motu Proceedings under Section 482 Cr.P.C. v.
State of Kerala – 2002 (2) KLT 695, even though the view taken
therein that the power of the Governor under Article 161 of the
Constitution of India is subject to Sec. 433-A Cr.P.C. is, with due
respect, open to debate in view of the observations in Maru
Ram’s case itself and in view of the ruling of the Supreme
Court in paragraph 8 of State (Government of NCT of Delhi)
v. Prem Raj – (2003) 7 SCC 121.
12. Strictly speaking, proposals for remission under
W.P. C. Nos. 9401 & 27098/07
& Crl.M.C. Nos. 1617 &1747 of 2007
-:22:-
Section 432 Cr.P.C. and commutation under Sec. 433 Cr.P.C.
need not be circulated to the Governor because such proposals if
forwarded to the Governor, the latter can act only on the aid
and advice of the Council of Ministers as will be seen hereafter.
It is only as a measure of Constitutional courtesy that the Rules of
Business make it obligatory that the signature of the Governor
should authorise the pardon, commutation or premature release.
13. In order to enable the Governor to exercise his extra
ordinary Constitutional power under Article 161 of the
Constitution of India, the State Government had, as per executive
orders constituted a State Prison Review Committee to
recommend the premature release of life convicts who had
completed 8 years of actual incarceration as desired in Maru
Ram ‘s Case (supra) . Proposals for premature release
containing the recommendations of the State Prison Review
Committee were invariably placed before the Council of
Ministers and then forwarded to the Governor for the exercise of
his mercy jurisdiction under Article 161 of the Constitution. But
proposals for premature release of convicts based on the
recommendation of the Jail Advisory Board also used to be
circulated to the Governor through the Chief Minister, as was
W.P. C. Nos. 9401 & 27098/07
& Crl.M.C. Nos. 1617 &1747 of 2007
-:23:-
done in this case, but without the advice of the Council of
Ministers. Even if it could be said, by placing reliance upon
Section 3 (60 (b) ) of the General Clauses Act, 1897 and Article
154 of the Constitution of India and also the decisions of the
Apex Court in State of U.P. v. Mohammed Naim – AIR 1964
SC 703 and Subhash Chandra v. Municipal Corporation of
Delhi – AIR 1965 SC 1275, that the Governor, as the repository
of the executive power of the State, is the State Government
himself, then also the Governor can act in exercise of his
executive functions only on the aid and advice of the Council of
Ministers as enjoined by Article 163 (1) of the Constitution of
India, unless it be a matter falling under the discretionary power
of the Governor. In paragraphs 57 and 88 of the seven Judges’
Constitution Bench decision of the Supreme Court, in Samsher
Singh v. State of Punjab – AIR 1974 SC 2192, the Apex Court
speaking through Chief Justice Ray held that in all executive
actions the Governor can act only on the aid and advice of
Council of Ministers (the Cabinet) and that the Governor cannot
in such matters act personally without or against the aid and
advice of the Council of Ministers. In paragraphs 138 and 140
of the concurring decision rendered by Justice V.R. Krishna Iyer,
W.P. C. Nos. 9401 & 27098/07
& Crl.M.C. Nos. 1617 &1747 of 2007
-:24:-
the limited areas of the discretionary powers of the Governor
where he could act on his own judgment, have been indicated.
The clemency jurisdiction of the Governor under Article 161 of
the Constitution of India is not one falling under the discretionary
powers made mention of by the Supreme Court. Six years
later , in the celebrated Maru Ram’s case the Supreme Court,
speaking through V.R. Krishna Iyer, J. observed as follows:-
“61. Are we back to square one ? Has parliament indulged
in legislative futility with a formal victory but a real defeat ?
The answer is ‘yes’ and ‘no’. Why ‘yes’ ? Because the
President is symbolic, the Central Government is the reality
even as the Governor is the formal head and sole repository
of the executive power but is incapable of acting except on,
and according to, the advice of his Council of Ministers.
The upshot is that the State Government, whether the
Governor likes it or not, can advice and act under Article
161, the Governor being bound by that advice. The action
of commutation and release can thus be pursuant to a
governmental decision and the order may issue even without
the Governor’s approval although, under the Rules of
Business and as a matter of constitutional courtesy, it is
obligatory that the signature of the Governor should
authorise the pardon, commutation or release. The position
W.P. C. Nos. 9401 & 27098/07
& Crl.M.C. Nos. 1617 &1747 of 2007
-:25:-
is substantially the same regarding the President. It is not
open either to the President or the Governor to take
independent decision or direct release or refuse release of
anyone of their own choice. It is fundamental to the
Westminster system that the Cabinet rules and the Queen
reigns being too deeply rooted as foundational to our system
no serious encounter was met from the learned Solicitor
General whose sure grasp of fundamentals did not permit
him to controvert the proposition, that the President and the
Governor, be they ever so high in textual terminology, are
but functional euphemisms promptly acting on and only on
the advice of the Council of Ministers have in a narrow area
of power. The subject is now beyond controversy, this Court
having authoritatively laid down the law in Shemsher Singh
Case. (1974) 2 SCC 831). So, we agree, even without
reference to Article 367 (1) and Sections 3 (8) (b) and 3 (60)
(b) of the General clauses Act, 1897, that, in the matter of
exercise of the powers under Articles 72 and 161, the two
highest dignitaries in our constitutional scheme act and
must act not on their own judgment but in accordance with
the aid and advice of the ministers. Article 74, after the 42nd
Amendment silences speculation and obligates compliance.
The Governor vis-a-vis his Cabinet is no higher than the
President save in a narrow area which does not include
W.P. C. Nos. 9401 & 27098/07
& Crl.M.C. Nos. 1617 &1747 of 2007
-:26:-
Article 161. The constitutional Conclusion is that the
Governor is but a shorthand expression for the State
Government and the President is an abbreviation for the
Central Government”.
(emphasis supplied)
14. Thus, if the order of remission or pre-mature release
were to be passed at the Governor’s level whether under Section
432 Cr.P.C. or under Article 161 of the Constitution of India, the
Governor can do so only on the aid and advice of the Cabinet.
RULES OF BUSINESS – NOT A CONFIDENTIAL DOCUMENT
15. Rules of Business of the Government of Kerala were
issued by the Governor in exercise of his powers under clauses 2
and 3 of Article 166 of the Constitution of India. It is quite
strange that even after the advent of the Right to Information
Act providing for transparency in the business of public
functionaries, the State Government continues to treat the Rules
of Business as a confidential and classified document. But
notwithstanding the secrecy maintained by the State, there are
ever so many judicial verdicts adverting to and even
interpreting one Rule or the other of the Rules of Business. It
is high time that the said rules were de-classified and made
public as has been done in many other States.
W.P. C. Nos. 9401 & 27098/07
& Crl.M.C. Nos. 1617 &1747 of 2007
-:27:-
RULES OF BUSINESS TO BE AMENDED
16. Going by Rules 34 (1) (i) and 34 (2) (i) of the Rules
of Business of the Government of Kerala proposals for the grant
of pardons, reprieves , respites or remissions of punishment or
the suspension, remission or commutation of a sentence in
pursuance of Article 161 of the Constitution of India, or for the
suspension, remission of a sentence under Section 432 or
commutation of sentence under Sec. 433 Cr.P.C. have to be
submitted to the Chief Minister who in turn has to submit the
same to the Governor before issue of orders. The above
procedure in the Rules of Business shortcircuting the cabinet
and providing for circulating the file to the Governor without
the aid and advice of the Council of Ministers is unconstitutional
calling for immediate amendment of the Rules of Business. I
know it for sure that a former Law Secretary to the Government
had given his advice to the Government requesting to amend the
Rules of Business in tune with the constitutional mandate and
judicial verdicts. It is learnt that the said advice of the Law
Secretary was received with some reservation, if not resentment,
by the Governor’s Office. That explains the need for a
competent legal advisor to the Governor in addition to a
W.P. C. Nos. 9401 & 27098/07
& Crl.M.C. Nos. 1617 &1747 of 2007
-:28:-
bureaucrat as the Secretary so that the high office of the
Governor is not exposed to the risk of easy intervention by
Courts on account of palpable infirmities in law. The scope of
judicial review over the gubernatorial orders in the realm of the
clemency jurisdiction of the Governor has been elucidated by
the Apex Court in Swaran Singh’s Case (Supra) and in Epuru
Sudhakar v. Government of A.P. – AIR 2006 SC 3385.
17. The result of the foregoing discussion is that Ext.P2
order dated 1-1-2005 passed at the level of the Governor without
the aid and advice of the Council of Ministers is bad for this
reason also and the same is accordingly, quashed. Consequently,
the warrants,if any, of arrest issued against A1 to A3 are liable
to be executed and , therefore, Crl.M.C. Nos. 1617 and 1747 of
2007 are liable to be dismissed and I do so.
18. In the case of Ramachandran Nair, the first accused,
the Government have in G.O. (Rt) No. 819/2008 /Home dated
13-3-2008 [Ext.R1 (a) in W.P.(C). 27098/07] given valid
reasons as to why his application for commutation of sentence
was liable to be rejected. I do not find any good ground to
interfere with the said order and W.P.(C). 27098/07 is accordingly
dismissed.
W.P. C. Nos. 9401 & 27098/07
& Crl.M.C. Nos. 1617 &1747 of 2007
-:29:-
CONCLUSION
In the result, W.P.( C) 9401 of 2007 is allowed and Ext.P2
order is quashed. W.P.( C) 27098 of 2007 and Crl.M.C. Nos.
1617 and 1747 of 2007 are dismissed.
Dated this the 5th day of August, 2010.
V. RAMKUMAR, JUDGE.