Satpal & Another vs State Of Haryana & Ors on 1 May, 2000

Supreme Court of India
Satpal & Another vs State Of Haryana & Ors on 1 May, 2000
Author: Pattanaik
Bench: U.C.Banerjee, G.B.Pattanaik
           PETITIONER:
SATPAL & ANOTHER

	Vs.

RESPONDENT:
STATE OF HARYANA & ORS.

DATE OF JUDGMENT:	01/05/2000

BENCH:
U.C.Banerjee, G.B.Pattanaik




JUDGMENT:

PATTANAIK,J.

The order of the Governor dated 25.1.1999, granting
pardon remitting the un-expired portion of the sentence
passed on prisoner Shri Siriyans Kumar Jain S/o Shri Ram
Chand Jain in exercise of power conferred by Article 161 of
the Constitution of India read with Section 132 of the Code
of Criminal Procedure is being assailed, inter alia on the
ground that the power has been exercised without application
of mind, and that the said power has been exercised by the
Governor on extraneous consideration and even without the
aid and advice of the Government, namely, the concerned
Minister. The applicants are the brother and widow of the
deceased Krishan Kumar who was murdered during the election
held in the year 1987 for the post of President of Municipal
Committee, Hansi. The prosecution had alleged that a
gruesome crime was committed by the accused persons and the
entire family of the deceased suffered the agony and pain.
In the criminal trial the respondent -Siriyans Kumar Jain
alongwith four other accused persons belonging to the
Bhartiya Janta Party were tried for having committed offence
under Sections 302 read with 149 and 120B as well as under
Sections 392, 148, 452 and 323 Indian Penal Code. The
learned Sessions Judge convicted all the five accused
persons and on an appeal the High Court of Punjab and
Haryana while maintained the conviction of accused Krishan
Kumar Jakhar and Gurvinder Singh but acquitted the accused
P.K. Chaudhary, Siriyans Jain and Ram Nath Bhumla. The
State of Haryana preferred appeal against the acquittal of
the aforesaid three accused persons. The Supreme Court by
judgment dated 10.12.1998, set aside the acquittal of
accused Siriyans Kumar Jain, Ram Nath Bhumla but upheld the
acquittal of P.K. Chaudhary. The Court also directed
Siriyans Kumar Jain and Ram Nath Bhumla to surrender to
custody in order to serve out the remaining part of their
sentence. In setting aside the order of acquittal passed by
the High Court the Supreme Court had observed that all the
four accused persons had gone together to the place of
occurrence and they were armed with weapons with a definite
purpose and, therefore, there was no scope for entertaining
any doubt regarding their involvement in commission of the
crime and also as regards the said crime that the said crime
having been committed by them in prosecution of common
object of an unlawful assault consisting of them and other
persons who had come along with them upto the factory.
Immediately after the judgment of this Court dated
10.12.1998, respondent Siriyans Kumar Jain (respondent no.

3) in the present Writ Petition instead of surrendering to
serve the sentence, as directed by this Court, filed an
application before the Governor invoking his jurisdiction
under Article 161 of the Constitution and this application
was filed on 15.1.1999. The Secretary to the Governor
addressed a letter to the Secretary to the Government of
Haryana, Department of Jail requesting for a report in the
matter to be placed before His Excellency the Governor of
Haryana. The Appropriate Authority, namely, Joint Secretary
to the Government in the Home Department indicated in his
note that the opinion of the Legal Remembrancer should be
obtained as to whether this is a fit case for exercising the
power under Article 161 of the Constitution or not. The
opinion of the Legal Remembrancer was then placed before the
concerned Minister and finally the Chief Minister agreed
with the views of the Legal Remembrancer and came to the
conclusion that this is a fit case where discretion given
under Article 161 of the Constitution be exercised and
relief prayed for be granted. On the basis of the aforesaid
advise of the Chief Minister the Governor finally granted
pardon, as already stated.

Mr. K.T.S. Tulsi, learned senior counsel appearing
for the petitioners contended that the very order passed by
the Governor would indicate total non-application of mind
and, therefore, the said order cannot sustain the judicial
scrutiny and must be set aside. He also contended that if
the order of the Governor is examined it will indicate as to
the uncanny haste with which the entire matter was disposed
of, without scant regard for the judgment of this Court
whereunder the Court convicted the present respondent no. 3
under Section 302/149 IPC and 120-B and the final order of
the Governor emanated even before respondent no. 3
surrendered to serve the sentence though the impugned order
categorically indicates that the prisoner is in jail. Mr.
Tulsi also contended that the Governor has passed the order
without being aided and advised by the Council of Ministers
and, therefore, the order is vitiated.

Mr. R.K.Jain, learned senior counsel appearing for
the State of Haryana and Mr. D.D. Thakur, learned senior
counsel appearing for respondent no. 3, however, contended
that the power to grant pardon and remission of sentence is
essentially an executive function to be exercised by the
Head of the State after taking into consideration various
matters and the Court is precluded from examining the wisdom
or expediency of exercise of the said power. According to
the learned counsel the power of judicial review, as has
been held by this Court in Kehar Singhs case is of a very
limited nature, namely, whether the authority who had
exercised the power had the jurisdiction to exercise the
same, and whether the impugned order goes beyond the power
conferred by law upon the authority who made it, and this
being the position the grounds on which the impugned order
is being attacked essentially pertain to the propriety of
the Governor in the matter of exercising power under Article
161 after the conviction and sentence passed by this Court
and as such, it should not be interfered with.

There cannot be any dispute with the proposition of
law that the power of granting pardon under Article 161 is
very wide and do not contain any limitation as to the time
on which and the occasion on which and the circumstances in
which the said powers could be exercised. But the said
power being a constitutional power conferred upon the
Governor by the Constitution is amenable to judicial review
on certain limited grounds. The Court, therefore, would be
justified in interfering with an order passed by the
Governor in exercise of power under Article 161 of the
Constitution if the Governor is found to have exercised the
power himself without being advised by the Government or if
the Governor transgresses the jurisdiction in exercising the
same or it is established that the Governor has passed the
order without application of mind or the order in question
is a mala fide one or the Governor has passed the order on
some extraneous consideration. The extent of judicial
review in relation to an order of the President under
Article 72 of the Constitution of India was subject matter
of consideration before this Court in Kehar Singhs case
1989 (1) Supreme Court Cases 204 , where the Constitution
Bench had observed It appears to us clear that the question
as to the area of the Presidents power under Article 72 of
the Constitution falls squarely within the judicial domain
and can be examined by the Court by way of judicial review.
The Court had further indicated that as regards the
considerations to be applied by the President to the
Petition we need say nothing more as the law in this behalf
have already been laid down by this Court in Marurams case
1981 (1) Supreme Court Cases 107. What has been stated in
relation to the Presidents power under Article 72 equally
applies to the power of Governor under Article 161 of the
Constitution. In Marurams case (supra) the Court came to
the conclusion that the power under Articles 72 and 161 can
be exercised by the Central and State Governments and not by
the President or Governor on their own. The advice of the
appropriate Government binds the head of the State. The
Court also came to the conclusion that considerations for
exercise of power under Articles 72 or 161 may be myriad and
their occasions protean, and are left to the appropriate
Government, but no consideration nor occasion can be wholly
irrelevant, irrational, discriminatory or malafide. Only in
these rare cases will the Court examine the exercise. In
paragraph 62 of the judgment in Maru Rams case (supra) the
Court had observed :- An issue of deeper import demands our
consideration at this stage of the discussion. Wide as the
power of pardon, commutation and release (Articles 72 and

161) is, it cannot run riot; for no legal power can run
unruly like John Gilpin on the horse but must keep sensibly
to a steady course. Here, we come upon the second
constitutional fundamental which underlies the submissions
of counsel. It is that all public power, including
constitutional power, shall never be exercisable arbitrarily
or mala fide and, ordinarily, guidelines for fair and equal
execution are guarantors of the valid play of power. We
proceed on the basis that these axioms are valid in our
constitutional order.

It was further held that the power to pardon, grant
remission and commutation, being of the greatest moment for
the liberty of the citizen, cannot be a law unto itself but
must be informed by the finer canons of constitutionalism.

Three Judge Bench of this Court recently considered
the question of judicial review against an order granting
pardon by the Governor under Article 161 of the Constitution
in the case of Swaran Singh vs. State of U.P. and Others
(1998) 4 Supreme Court Cases 75. In that case an MLA of the
State Assembly had been convicted of the offence of murder
and within a period of less than two years he succeeded in
coming out of the prison as the Governor of Uttar Pradesh
granted remission of the remaining long period of his life
sentence. The son of the deceased moved the Allahabad High
Court challenging the aforesaid action of the Governor and
the same having been dismissed the matter had been brought
to this Court by grant of Special Leave Petition. This
Court had come to the conclusion that the Governor was not
told of certain vital facts concerning the prisoner such as
his involvement in five other criminal cases of serious
offences, the rejection of his earlier clemency petition and
the report of the jail authority that his conduct inside the
jail was far from satisfactory and out of two years and five
months he was supposed to have been in jail, he was in fact
on parole during the substantial part thereof. The Court
further held that when the Governor was not posted with
material facts the Governor was apparently deprived of the
opportunity to exercise the powers in a fair and just manner
and the order fringes on arbitrariness. The Court,
therefore, quashed the order of the Governor with a
direction to re-consider the petition of the prisoner in the
light of the materials which the Governor had no occasion to
know earlier.

Bearing in mind the parameters of judicial review in
relation to an order granting pardon by the Governor, when
we examine the case in hand, the conclusion is irresistible
that the Governor had not applied his mind to the material
on record and has mechanically passed the order just to
allow the prisoner to overcome the conviction and sentence
passed by this Court. It is indeed curious to note that the
order dated 25.1.1999 clearly indicates that the Governor of
Haryana is pleased to grant pardon remitting the unexpired
portion of the sentence passed on prisoner Siriyans Kumar
Jain confined in the Central Jail, Hissar. But the said
prisoner was not confined in the Central Jail, Hissar on
that date and on the other hand after obtaining the order of
pardon and remission of sentence to give an appearance of
compliance to the order of Supreme Court said Siriyans Kumar
Jain surrendered before the Court of Sessions Judge, Hissar
on 2.2.1999 and also was released on the very same day in
view of the order of Governor dated 25.1.1999. If by order
dated 25.1.1999 the accused has already been granted pardon
and there has been a remission of the sentence then there
was no reason for him to go and surrender before the
District Judge on 2.2.99. That apart, the Governor has not
been made aware of as to what is the total period of
sentence the accused has really undergone, and if at all has
undergone any sentence. When an accused is convicted of
heinous offence of murder and is sentenced to imprisonment
of life the authority who has been conferred with power to
grant pardon and remission of sentence under Article 161 of
the Constitution must be made aware of the period of
sentence in fact undergone by the said convict as well as
his conduct and behaviour while he has been undergoing the
sentence which would be all germane considerations for
exercise of the power. Not being aware of such material
facts would tend to make an order of granting pardon
arbitrary and irrational, as has been held by this Court in
Swaran Singhs case (supra). The entire file had been
produced before us and we notice the uncanny haste with
which the file has been processed and the unusual interest
and zeal shown by the authorities in the matter of exercise
of power to grant pardon. We also fail to understand how
the order in question could show that the prisoner is in
jail while in fact he was free at large and had not
surrendered to serve the sentence notwithstanding the
positive direction of this Court dated 10.12.1998 disposing
of the appeal filed by the State.

So far as the contention that Governor passed the
order on his own without being advised by the Council of
Ministers, we do not find any substance in the same. We
have scrutinised the relevant file that was produced before
us and it clearly demonstrates that the matter was examined
by the Law Department, the concerned Administrative
Department and was finally endorsed by the Chief Minister
after which the Governor passed the order. Consequently,
there is no substance in the submission of Mr. K.T.S.
Tulsi, learned senior counsel appearing for the petitioners.
In the aforesaid premises, we have no hesitation to come to
the conclusion that the order in question has been vitiated
and the Governor has not been advised properly with all the
relevant materials and, therefore, we have no other option
than to quash the said order dated 15.1.1999. We
accordingly quash the impugned order dated 25.1.1999 and
allow this Writ Petition, but, however quashing of the order
does not de bar the Governor in reconsidering the matter in
the light of the relevant materials and act in accordance
with the constitutional provision and discretion.

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