{"id":249209,"date":"2010-08-05T00:00:00","date_gmt":"2010-08-04T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/g-balachandran-vs-state-of-kerala-on-5-august-2010"},"modified":"2014-11-03T09:47:24","modified_gmt":"2014-11-03T04:17:24","slug":"g-balachandran-vs-state-of-kerala-on-5-august-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/g-balachandran-vs-state-of-kerala-on-5-august-2010","title":{"rendered":"G.Balachandran vs State Of Kerala on 5 August, 2010"},"content":{"rendered":"
Kerala High Court<\/div>\n
G.Balachandran vs State Of Kerala on 5 August, 2010<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nWP(C).No. 9401 of 2007(T)\n\n\n1. G.BALACHANDRAN, S\/O.GOPALA PILLAI,\n                      ...  Petitioner\n\n                        Vs\n\n\n\n1. STATE OF KERALA,\n                       ...       Respondent\n\n2. HOME SECRETARY, GOVT.SECRETARIAT,\n\n3. DIRECTOR GENERAL OF POLICE,\n\n4. CITY POLICE COMMISSIONER,\n\n5. C.S.RAMACHANDRAN NAIR,\n\n6. J.ABDUL KALAM, HEAD CONSTABLE,\n\n7. E.SUBIR KUNJU, SUB INSPECTOR OF POLICE,\n\n8. CENTRAL BUREAU OF INVESTIGATION (CBI)\n\n                For Petitioner  :SRI.K.RAVEENDRAN\n\n                For Respondent  :SRI.S.SREEKUMAR, SC FOR CBI\n\nThe Hon'ble MR. Justice V.RAMKUMAR\n\n Dated :05\/08\/2010\n\n O R D E R\n                                                                                     CR\n\n\n\n                              V. RAMKUMAR, J\n                   .......................................................\n\n                      W.P. C. Nos. 9401 & 27098\/07\n                                           and\n                  Crl.M.C. Nos. 1617 and 1747 of 2007\n                  ...........................................\n\n                     Dated this the 5th day of August, 2010\n\n                                 JUDGMENT\n<\/pre>\n
     W.P. C. 9401 of 2007                   is filed by the complainant               (G.<\/p>\n
Balachandran) in C.C. 621 of 1990 on the file of J.F.C.M. II<\/p>\n
Attingal seeking the following reliefs:-<\/p>\n
      i)   To quash      Ext.P2 order dated            1-1-2005       as per which the
\n      Government in the Home Department                     granted remission of the
\n      sentences of the 6th and 7th respondents herein (Abdul Kalam and E.
\n      Subrair Kunju) who were A2 and A3 respectively in C.C. No. 621 of
\n      1990.\n<\/p><\/blockquote>\n
      ii) to direct the 3rd respondent (Director General of Police) to abide
\n      by Ext.P1 judgment of this Court in Crl.Appeal 343 of 1997<\/p>\n<\/blockquote>\n
      iii) to direct the eighth respondent (C.B.I.) to conduct an enquiry as
\n      to whether any illegal methods were employed in securing Ext.P2
\n      order of remission         or       to direct the 2nd respondent         (Home
\n      Secretary) to consider Exts. P4 and P5 representations filed by the
\n      petitioner before the Home Minister.<\/p><\/blockquote>\n
\n
            W.P. C. 27098\/07 is filed by C.S. Ramachandran Nair<\/p>\n
     (R5 in W.P.C. 9401 of 2007 and A1 in C.C. 621\/1990) for a<\/p>\n
     direction to the State of Kerala to consider Ext.P6 application<\/p>\n
W.P. C. Nos. 9401 & 27098\/07
\n& Crl.M.C. Nos. 1617 &1747 of 2007
\n                                         -:2:-<\/span><\/p>\n
        filed by the petitioner under Sec. 433 Cr.P.C<\/a>. for commutation<\/p>\n
        of his sentence.         (Pending the said Writ Petition, the<\/p>\n
        Government           as per Ext.R1 (a)    order dated 13-3-2008<\/p>\n
        rejected his application).\n<\/p>\n
\n
              Crl.M.C. 1617 of 2007 is filed by Subair Kunju (R7<\/p>\n
       in W.P.(C) 9401 of 2007 and A3 in C.C. 621\/1990) under<\/p>\n
       Sec. 482 Cr.P.C<\/a>. to quash the non-bailable warrants of arrest<\/p>\n
       issued against him by           J.F.C.M. II (Attingal) ignoring<\/p>\n
       Annexure – A1 (Ext.P2 in W.P.C. 9401 of 2007) order of<\/p>\n
       remission and to direct the Director General of Police not to<\/p>\n
       take any action against the petitioner in execution of the<\/p>\n
       sentence in C.C. 621 of 1990.\n<\/p>\n
\n
              Crl.M.C. 1747 of 2007 is filed by Abdul Kalam (R6<\/p>\n
       in W.P.C. 9401\/2007 and A2 in C.C. 621\/1990) under Sec.<\/p>\n
       482 Cr.P.C<\/a>. for reliefs        similar to those   prayed for in<\/p>\n
       Crl.M.C. 1617 of 2007.\n<\/p>\n
\n
                      THE FACTUAL FLASHBACK<\/p>\n
        2.     The events        leading to the filing of the above Writ<\/p>\n
Petitions and Crl. M.Cs are as follows:-<\/p>\n
W.P. C. Nos. 9401 & 27098\/07
\n& Crl.M.C. Nos. 1617 &1747 of 2007
\n                                       -:3:-<\/span><\/p>\n
                        THE PROECUTION CASE<\/p>\n
               The petitioner in W.P. (C ) 9401 of 2007 is one<\/p>\n
               Balachandran        hailing   from    Puthenchanthai,<\/p>\n
               Varkala.      His wife is  one Meena    belonging to<\/p>\n
               Vamanapuram Village in Nedumangad Taluk. Their<\/p>\n
               marriage was in the year 1982.          There was a<\/p>\n
               property dispute between the said Meena and her<\/p>\n
               brother Baiju and her paternal uncle Vidhyadhara<\/p>\n
               Kurup. On a complaint          preferred by the said<\/p>\n
               Vidhyadhara        Kurup     against   the      said<\/p>\n
               Balachandran and his wife Meena, the husband and<\/p>\n
               wife were summoned to the Venjaramoodu Police<\/p>\n
               Station as per a written notice issued to them by the<\/p>\n
               Sub      Inspector     of    Police,   Venjaramoodu.<\/p>\n
               Balachandran and his wife Meena appeared before<\/p>\n
               the Sub Inspector of Police , Venjaramoodu at 9 a.m.<\/p>\n
               on 16-9-1988 as directed in the notice served on<\/p>\n
               them.        The Sub Inspector directed them to meet<\/p>\n
               the Circle Inspector .       One C.S. Ramachandran<\/p>\n
               Nair (the petitioner in W.P.(C.) 27098 of 2007) was<\/p>\n
W.P. C. Nos. 9401 & 27098\/07
\n& Crl.M.C. Nos. 1617 &1747 of 2007
\n                                       -:4:-<\/span><\/p>\n
               the Circle Inspector, Venjaramoodu. In the office of<\/p>\n
               the   Circle Inspector, besides Ramachandran Nair,<\/p>\n
               the Circle Inspector of Police,         three police<\/p>\n
               Constables by name          Abdulkalam (petitioner in<\/p>\n
               Crl.M.C. 1747 of 2007, Subair Kunju (the petitioner<\/p>\n
               in Crl.M.C. 1617 of 2007) and Chandran            and<\/p>\n
               Vidhyadhara Kurup the paternal uncle of Meena<\/p>\n
               and Baiju , the brother of Meena were also present .<\/p>\n
               As soon as Balachandran accompanied by his wife<\/p>\n
               Meena (who was seven months pregnant) entered<\/p>\n
               the room          of the Circle Inspector, the Circle<\/p>\n
               Inspector (C.S. Ramachandran Nair) caught hold<\/p>\n
               of the lap of Balachandran together with the cloth<\/p>\n
               and slapped him on his cheek and chest asking<\/p>\n
               him whether he would prefer a complaint against<\/p>\n
               him.    Seeing this when Meena,        the wife of the<\/p>\n
               complainant went to the rescue of her husband, the<\/p>\n
               Circle Inspector kicked her on the stomach with his<\/p>\n
               boots resulting in Meena falling on the floor. Then<\/p>\n
               Abdul Kalam, Subair Kunju and Chandran the<\/p>\n
               police     constables         wrongfully   restrained<\/p>\n
W.P. C. Nos. 9401 & 27098\/07
\n& Crl.M.C. Nos. 1617 &1747 of 2007
\n                                      -:5:-<\/span><\/p>\n
               Balachandran and beat him on various parts of his<\/p>\n
               body. The said police constables then caught hold<\/p>\n
               of Meena and snatched away her mangalyasoothra<\/p>\n
               and slapped her on the face. The above atrocities<\/p>\n
               were done in the presence of Vidhyadhara Kurup<\/p>\n
               and Baiju who had lodged the complaint before the<\/p>\n
               Sub Inspector .     Hearing the    hue and cry     of<\/p>\n
               Balachandran and his wife the persons who were<\/p>\n
               waiting outside came rushing into the room . The<\/p>\n
               Circle Inspector     along with Vidhyadhara Kurup<\/p>\n
               and Baiju abused Balachandran and his wife in<\/p>\n
               filthy language and threatened them with         dire<\/p>\n
               consequences in case Meena was not prepared to<\/p>\n
               relinquish her rights over the property in question<\/p>\n
               in favour of Vidhyadhara Kurup and Baiju. A false<\/p>\n
               case was foisted against Balachandran and his wife<\/p>\n
               Meena.        Abdul Kalam, the police Constable who<\/p>\n
               had       taken Rs. 4,800 from         Balachandran<\/p>\n
               subsequently produced only Rs. 1,800\/- along with<\/p>\n
               the Mangalyasoothra and other gold ornaments<\/p>\n
               which were taken from Meena.        After getting bail<\/p>\n
W.P. C. Nos. 9401 & 27098\/07
\n& Crl.M.C. Nos. 1617 &1747 of 2007
\n                                           -:6:-<\/span><\/p>\n
               Meena was got admitted as an inpatient in S.A.T.<\/p>\n
               Hospital, Thiruvananthapuram for treatment                for<\/p>\n
               three days .\n<\/p>\n
 Crl.M.P. No. 7452 of 1988             was a private complaint      filed by<\/p>\n
 Balachandran before the Judicial Magistrate of the Second Class,<\/p>\n
 ( “J.S.C.M” . for short) Nedumangad against<\/p>\n
            1) C.S. Ramachandran Nair, Circle Inspector of Police,<\/p>\n
                 Venjaramoodu (A1)<\/p>\n
            2) Abdul Kalam, Police Constable, Venjaramood (A2)<\/p>\n
            3) Subair Kunju, Police Constable,( Writer), Venjaramoodu (A3)<\/p>\n
             4) A Chandran , Police Constable, Venjaramoodu (A4)<\/p>\n
             5) Vidhyadhara Kurup, (A5)<\/p>\n
             6) Baiju (A6)           –      alleging offences punishable under<\/p>\n
                 Sections 323<\/a>, 324<\/a>, 341<\/a> and 379<\/a> read with Sec. 34 I.P.C<\/a>.<\/p>\n
        A4 Chandran was subsequently deleted from the array of accused.<\/p>\n
   27-09-1989         :       J.S.C.M. Nedumangad dismissed the complaint
\n                              under Sec.203 Cr.P.C<\/a>.\n<\/p>\n
   23-11-1989         :       Crl.R.P. 145\/1989 filed by Balachandran before
\n                              the Sessions Court, Kozhikode, challenging the
\n                              dismissal of his complaint.\n<\/p>\n
W.P. C. Nos. 9401 & 27098\/07
\n& Crl.M.C. Nos. 1617 &1747 of 2007
\n                                           -:7:-<\/span><\/p>\n
   18-01-1990          :      Sessions Court allowed the Crl.R.P. and set aside
\n                              the trial Court’s order. Cognizance of offences
\n                              punishable under Sections 341<\/a> and 323<\/a> read with
\n                              Sec. 34 I.P.C<\/a>. was taken against A1 to A3 and A5
\n                              and A6.\n<\/p>\n
                              After    the   case  went    back   to   J.S.C.M.,
\n                              Nedumangad the case was numbered as C.C. 151
\n                              of 1990
\n     08\/10\/1990       :       M.C. (T.P.) No. 725 of 1990 was filed          by
\n                              Balachandran       before the Sessions Court,
\n                              Thiruvananthapuram seeking a transfer of the
\n                              case from the J.S.C.M. Nedumangad
\n     13-11-1990       :       Sessions Court allowed M.C. (T.P.) 725 of 1990
\n                              and transferred the Case to J.F.C.M. II Attingal
\n                              where it was taken on file as C.C. 621 of 1990.
\n                              The trial was conducted by the        J.F.C.M. II
\n                              Attingal.\n<\/p>\n
                               P.Ws 1 to 7 were examined on the side of the
\n                              complainant, Exts. P1 to P7 were marked . On the
\n                              side of the defence Exts. D1 to D3 were marked.
\n     03\/01\/1993        :      J.F.C.M. II Attingal       pronounced judgment
\n                              acquitting A5 and A6 (Vidhyadhara Kurup and
\n                              Baiju) but convicted A1 to A3 ( Circle Inspector
\n                              Ramachandran Nair        and Constables     Abdul
\n                              Kalam and Subair Kunju) of offences punishable
\n                              under Sections 341<\/a> and 324<\/a> read with Sec. 34
\n                              I.P.C<\/a>. and sentenced each of them to        simple
\n                              imprisonment     for one     month   and    simple
\n                              imprisonment for one year respectively.       The
\n                              sentences were directed to run concurrently.
\n     09\/02\/1993        :      A1 to A3 filed Crl. Appeal 46 of 1993 before the
\n                              Sessions Court, Thiruvanantnapuram, challenging
\n                              the conviction entered and the sentence passed
\n                              against them.\n<\/p>\n
     21-12-1996      :        As per Ext.R7 ( c ) judgment in Crl.Appeal 46 of
\n                              1993 the Sessions Judge acquitted A1 and A3<\/p>\n
W.P. C. Nos. 9401 & 27098\/07
\n& Crl.M.C. Nos. 1617 &1747 of 2007
\n                                           -:8:-<\/span><\/p>\n
     21-05-1997      :        Balachandran the complainant filed Crl. Appeal
\n                              343 of 1997 before the High Court of Kerala
\n                              under Sec. 378 (4) Cr.P.C<\/a>.\n<\/p>\n
     25-05-2004      :        The   High    Court   passed   Ext.P1   judgment
\n                              allowing the appeal filed by Balachandran. The
\n                              conviction recorded by the trial court under Sec.\n<\/p>\n
                              323 I.P.C<\/a>. was sustained.      A2 and A3 were\n                              directed to undergo rigorous imprisonment      for\n                              three months each      and to pay a fine of Rs.\n<\/pre>\n
                              1,000\/- each and on default to pay the fine, to
\n                              suffer simple imprisonment for two weeks under
\n                              Sec. 323 I.P.C<\/a>.\n<\/p>\n
     08\/09\/2004      :        Abdul Kalam (A2) and Subair Kunju (A3) filed
\n                              separate petitions before the     Government of
\n                              Kerala   seeking    remission of   their sentence
\n                              under Sec. 432 Cr.P.C<\/a>.\n<\/p>\n
     06\/10\/2004               On receipt of Ext.P1 judgment        the learned
\n                              Magistrate issued non-bailable warrants of arrest
\n                              against A1 to A3 .\n<\/p>\n
     13-12-2004      :        A1 filed Crl. M.C. 3442 of 2004 before the High
\n                              Court of Kerala challenging the warrant of arrest
\n                              issued against him contending that    A2 and A3
\n                              alone were sentenced to     imprisonment by the
\n                              High Court.\n<\/p>\n
     01\/01\/2005      :        The Government issued Ext.P2 G.O.       remitting
\n                              the sentence imposed on A2 and A3 . (This is the
\n                              order impugned in W.P. (C ) 940 of 2007).<\/p>\n
\n     05\/09\/2005      :        The High Court, noticing that       the operative\n                              portion of Ext.P1 judgment           was not in\n                              consonance with the conclusion    reached in the\n                              earlier part of the judgment and that          an\n<\/pre>\n
                              inadvertent mistake had crept into the judgment,
\n                              directed the matter    to be placed before the
\n                              learned Judge who passed Ext.P1 judgment.     The
\n                              said direction was complied with by the Registry.<\/p>\n
W.P. C. Nos. 9401 & 27098\/07
\n& Crl.M.C. Nos. 1617 &1747 of 2007
\n                                           -:9:-<\/span><\/p>\n
     31\/10\/2005      :        The learned Judge who passed Ext.P1 judgment
\n                              held    that  A1 to A3 shall undergo rigorous
\n                              imprisonment for three months and to pay a fine of
\n                              Rs. 1,000\/- each under Sec. 323 each.\n<\/p>\n
      A1 to A3 filed S.L.P. before the Hon’ble Supreme Court against Ext.P1
\n                                 judgment as modified.\n<\/p>\n
     06\/02\/2006      :        Supreme       Court passed Ext.R7 (b) order
\n                              dismissing the S.L.P. filed by A1 to A3   against
\n                              Ext.P1 judgment. The Supreme Court observed
\n                              that the petitioners in the S.L.P. had not
\n                              surrendered .\n<\/p>\n
     10\/02\/2006      :        Ramachandran Nair (A1)            also filed an
\n                              application   before the State Government     for
\n                              remission of his sentence under Sec. 432 Cr.P.C<\/a>.
\n     19-03-2007      :        Complainant Balachandran filed W.P.C. 9401 of
\n                              2007 before the High Court
\n     23-04-2007      :        A1 filed W.P.(C ) 13760\/2007 before the High
\n                              Court of Kerala seeking a direction to J.F.C.M. II
\n                              Attingal not to execute the sentence imposed on
\n                              him pending his application for remission before
\n                              the Government.\n<\/p>\n
     08\/05\/2007      :        High    Court dismissed W.P. (c ) 13760\/07 as
\n                              misconceived    (Ext.P5 judgment in    W.P. ( C)
\n                              27098\/07 ) holding that no such direction could
\n                              be issued by the High Court and that in view of
\n                              the     proviso to Sec. 432 (5) Cr.P.C<\/a>.       the
\n                              application of A1 under Section 432<\/a> could not
\n                              have been entertained unless the applicant was
\n                              in jail.\n<\/p>\n
     11\/05\/2007      :        Subair Kunju (A3)     filed Crl.M.C. 1617 of 2007
\n                              before the High Court.\n<\/p>\n
\n     30-05-2007      :        Abdul Kalam (A2) filed Crl.M.C. 1747 of 2007<\/p>\n
W.P. C. Nos. 9401 & 27098\/07
\n& Crl.M.C. Nos. 1617 &1747 of 2007
\n                                           -:10:-<\/span><\/p>\n
     11\/06\/2007      :        A1 filed another application before the State
\n                              Government under Sec. 433 Cr.P.C<\/a>. seeking
\n                              commutation of his sentence.\n<\/p>\n
     11\/09\/2007      :        Ramachandran Nair (A1) filed W.P.(C) 27098\/07
\n                              before the High Court.\n<\/p>\n
     13-03-2008      :        Government dismissed A1’s application      under
\n                              Sec. 433 Cr.P.C<\/a>. as per Ext.R1 (a) G.O. after
\n                              noticing that   his application dated 10-2-2006
\n                              filed under Sec. 432 Cr.P.C<\/a>. was not maintainable
\n                              in the light of the judgment in W.P.C 13760\/07.
\n                              Ext.R1 (a) order has been passed      during the
\n                              pendency of W.P. ( C) 27098\/2007 filed by A1.<\/p>\n
        3.     I heard Advocate Sri. K. Raveendran, the learned<\/p>\n
counsel appearing for Balachandran, Adv. Sri. Abdul Salam, S.<\/p>\n
the learned counsel appearing for Subair Kunju and Abdul Kalam,<\/p>\n
Adv. Sri. Mathew B. Kurian the learned counsel appearing for<\/p>\n
Ramachandran Nair and                Adv. Sri. C.S. Hrithwick the learned<\/p>\n
Government Pleader\/ Public Prosecutor.                     I also perused the<\/p>\n
Government files leading to Ext.P2 in W.P. ( C) 9401 of 2007 and<\/p>\n
the connected files.\n<\/p>\n
                     ARGUMENTS OF A1 TO A3<\/p>\n
        4 . Adv. Sri. Abdul Salam, the learned counsel appearing for<\/p>\n
Subair Kunju and Abdul Kalam and Advocate Sri. Mathew B.<\/p>\n
Kurian appearing for Ramachandran Nair made the following<\/p>\n
submissions before me               opposing W.P. (C ) 9401\/07 and in<\/p>\n
W.P. C. Nos. 9401 & 27098\/07
\n& Crl.M.C. Nos. 1617 &1747 of 2007
\n                                    -:11:-<\/span><\/p>\n
support of the other three cases:-\n<\/p>\n
        One of the prayers in       W.P. (C )    9401 \/07 filed by<\/p>\n
Balachandran is for a direction to the 2nd respondent Home<\/p>\n
Secretary to consider Ext.P4 petition and a direction to the Home<\/p>\n
Minister to consider Ext.P5 representation both filed by<\/p>\n
Balachandran.           Those representations were dismissed by the<\/p>\n
Government and Balachandran has not produced those orders.<\/p>\n
After Balachandran and his wife Meena fell out, Meena had given<\/p>\n
Ext.R7 (a) statement dated 12-10-2006          before the    Home<\/p>\n
Minister to the effect that it was on account of the continuous<\/p>\n
harassment by her former husband Balachandran that she was<\/p>\n
constrained to give evidence against the accused policemen, that<\/p>\n
she was giving false statement before the Court on account of the<\/p>\n
compulsion of her husband, that no injury was caused to her or<\/p>\n
the child in her womb. The Governor has been kind enough to<\/p>\n
show mercy to Subair Kunju and Abdul Kalam. Balachandran<\/p>\n
who was attributing malafides and foul play behind the order of<\/p>\n
remission passed by the Government             has not been able to<\/p>\n
substantiate the said allegation.      The power exercised by the<\/p>\n
Government is a statutory and constitutional power. The right to<\/p>\n
grant      remission is governed by the provisions of Sec. 432<\/p>\n
W.P. C. Nos. 9401 & 27098\/07
\n& Crl.M.C. Nos. 1617 &1747 of 2007
\n                                       -:12:-<\/span><\/p>\n
Cr.P.C<\/a>. which          vests the said power       with the appropriate<\/p>\n
Governemnt          and not in any Court . (Vide para 7          of  K.<\/p>\n
Pandurangan v. S.S. R. Velusamy and another<\/a> – (2003) 8<\/p>\n
SCC 625.         Except for the fact that Abdul Kalam and         Subair<\/p>\n
Kunju       who were A2 and A3 respectively         were roped in    by<\/p>\n
resort to      Sec. 34 I.P.C<\/a>., no specific    allegation of torture was<\/p>\n
made against them. Hence, the benign Government in exercise of<\/p>\n
its clemency powers was inclined to               extend the benefit of<\/p>\n
remission to A2 and A3. But the very same Government went<\/p>\n
wrong in not granting commutation to A1 (Ramachandran Nair)<\/p>\n
who was also similarly placed as A2 and A3. This Court should,<\/p>\n
therefore,      direct the       Government to   extend the benefit of<\/p>\n
commutation to A1 and should refuse to               interfere with the<\/p>\n
discretion exercised           by the Government     under its    mercy<\/p>\n
jurisdiction as against A2 and A3 after evaluating all the relevant<\/p>\n
circumstances including their family background.<\/p>\n
           JUDICIAL RATIOCINATION<\/p>\n
        5.     I am afraid that I find myself unable to agree with the<\/p>\n
above submissions made on behalf of A1 to A3.<\/p>\n
W.P. C. Nos. 9401 & 27098\/07
\n& Crl.M.C. Nos. 1617 &1747 of 2007
\n                                       -:13:-<\/span><\/p>\n
                     THE POLICE ATTROCITIES<\/p>\n
        6.      During the trial before the Magistrate the complainant<\/p>\n
besides examining            himself as P.W.1 also examined his wife<\/p>\n
Meena as P.W.4 . P.Ws 2 and 3 were the independent occurrence<\/p>\n
witnesses.       P.W. 5 was the doctor who had        examined P.W.4<\/p>\n
Meena and issued Ext.P6 wound certificate. P.Ws 6 and 7 were the<\/p>\n
Sub Inspectors of Police, Venjaramoodu Police Station at the time<\/p>\n
of occurrence and at the time of trial respectively.          A1 had<\/p>\n
clasped at the loin of the complainant (P.W.1) together with his<\/p>\n
clothes shouting whether he would prefer a complaint against A1<\/p>\n
and slapped him on the face and chest. Seeing this when P.W.1’s<\/p>\n
wife Meena (PW4) went to the rescue of her husband, A1 kicked<\/p>\n
her on the back with his boots and she fell down. She was in an<\/p>\n
advanced stage of pregnancy. A2 and A3 had beaten up P.W.1.<\/p>\n
They also snatched the mangalyasootra of P.W.4 and had slapped<\/p>\n
her on the face. All these brutalities were committed after securing<\/p>\n
the attendance of P.Ws 1 and 4 in the room of A1, the Circle<\/p>\n
Inspector. After a careful evaluation of the oral and documentary<\/p>\n
evidence, the learned Magistrate who had the unique advantage of<\/p>\n
seeing the witnesses and assessing their demeanour and credibility<\/p>\n
held in paragraph 22 of the judgment that both the complainant<\/p>\n
W.P. C. Nos. 9401 & 27098\/07
\n& Crl.M.C. Nos. 1617 &1747 of 2007
\n                                       -:14:-<\/span><\/p>\n
and his wife were manhandled by A1 to A3 and that A1 had<\/p>\n
stamped with his boots the complainant’s wife who was seven<\/p>\n
months pregnant and she had fallen down.               The evidence of<\/p>\n
P.W.4 Meena was fully believed to hold that             she was brutally<\/p>\n
manhandled by A1 to A3 . After referring to the admission by<\/p>\n
P.W.6 (Sub Inspector) that he had issued Ext.P3 notice to Meena<\/p>\n
calling upon her to appear before the Police Station, the learned<\/p>\n
Magistrate observed that the Sub Inspector was acting in utter<\/p>\n
disregard of         the prohibition under Sec. 160 Cr.P.C<\/a>. against<\/p>\n
summoning           women to the Police Station. A1 to A3 were<\/p>\n
accordingly found guilty under Sec. 341 and 323 read with Sec. 34<\/p>\n
I.P.C<\/a>. and sentenced as mentioned earlier.              The conviction<\/p>\n
entered against A1 to A3           for the offence punishable under Sec.<\/p>\n
323 I.P.C<\/a>. was confirmed by the High Court which, however,<\/p>\n
reduced the sentence to rigorous imprisonment for three months as<\/p>\n
against one year awarded by the trial Court.<\/p>\n
     THE ILLEGALITIES BEHIND THE REMISSION ORDER<\/p>\n
        7.       It was at a time when the S.L.P. filed by A1 to A3<\/p>\n
against Ext.P1 judgment of this Court was pending consideration<\/p>\n
W.P. C. Nos. 9401 & 27098\/07
\n& Crl.M.C. Nos. 1617 &1747 of 2007
\n                                       -:15:-<\/span><\/p>\n
of the Supreme Court that            A2 and A3 filed separate petitions<\/p>\n
before the State Government on 8-9-2004 seeking remission of<\/p>\n
their sentence under Sec. 432 Cr.P.C<\/a>. and the Government issued<\/p>\n
Ext.P2 G.O. dated 1-1-2005 completely remitting the sentence<\/p>\n
imposed on A2 and A3. It is pertinent to note that the Supreme<\/p>\n
Court of India on 6-2-2006 dismissed the S.L.P. filed by A1 to A3<\/p>\n
on the ground that they had not surrendered to the jail concerned<\/p>\n
in    pursuance of the sentence passed against them. There is no<\/p>\n
dispute that it was without entering the portels of the prison even<\/p>\n
for a day        that   A2 and A3       submitted their applications for<\/p>\n
remission which was entertained by the Government in flagrant<\/p>\n
violation of clause (a) of the Proviso to Sec. 432 (5) Cr.P.C<\/a>. as<\/p>\n
per which the application for premature release can be filed and<\/p>\n
entertained only if the applicant is in prison.          Ext.P2 order of<\/p>\n
remission was         passed without      calling for the opinion of the<\/p>\n
presiding Judge who confirmed the conviction as provided under<\/p>\n
sub section (2) of Section           432<\/a>    Cr.P.C. All that apart, the<\/p>\n
concerned file was          circulated to the Governor without the aid<\/p>\n
and advice of the Council of Ministers in blatant violation of the<\/p>\n
mandate under Article 163 (1)<\/a> of the Constitution of India as<\/p>\n
detailed herein below .\n<\/p>\n
W.P. C. Nos. 9401 & 27098\/07
\n& Crl.M.C. Nos. 1617 &1747 of 2007
\n                                           -:16:-<\/span><\/p>\n
        8.     I have perused File No. 52055\/B1\/2004\/Home leading<\/p>\n
to the issue of G.O. (Rt) No. 04\/2005\/Home dated 1-1-2005<\/p>\n
(Ext.P2). The order of remission was passed mainly relying on the<\/p>\n
Report of the Dy.S.P., Attingal                as endorsed by the Director<\/p>\n
General of Police, favouring two members of their own tribe. The<\/p>\n
report of the District Probation Officer or the remarks of the<\/p>\n
convicting Judge was not obtained. The recommendations of the<\/p>\n
Jail Advisory Board or the State Prison Review Committee were<\/p>\n
not obtained before forwarding the file to the Governor.                    The<\/p>\n
aforementioned file is seen circulated by the Home Department to<\/p>\n
the Governor through the Chief Minister (Vide page 22 of the<\/p>\n
Note File). The points highlighted at paragraphs 22 and 23 at<\/p>\n
page 21 of the Note File are as follows:-\n<\/p>\n
             “22. In this connection the following points are also to<\/p>\n
             be considered magnanimously .\n<\/p><\/blockquote>\n
                        (a)    Police is the most important link in the criminal<\/p>\n
                               justice system    and have the primary duty of<\/p>\n
                               safeguarding human rights.\n<\/p><\/blockquote>\n
                         (b) They should have the skill in mediating and settling<\/p>\n
                               problems at the Station House itself.\n<\/p><\/blockquote>\n
                         (c ) The offence had been committed while they were<\/p>\n
                               doing their duty as policemen.\n<\/p><\/blockquote>\n
W.P. C. Nos. 9401 & 27098\/07
\n& Crl.M.C. Nos. 1617 &1747 of 2007
\n                                           -:17:-<\/span><\/p>\n
                         (d) The Section under which the punishments had been<\/p>\n
                               awarded is 323 Indian Penal Code<\/a>. This Section is<\/p>\n
                               applicable for the offence of “causing hurt ” and is<\/p>\n
                               compoundable. The person by whom         the offence<\/p>\n
                               can be compounded       is the person to whom    the<\/p>\n
                               hurt is caused<\/p>\n
                         (e) The Court had imposed only a minor punishment but<\/p>\n
                               that may cease their service as policemen of the<\/p>\n
                               State.\n<\/p>\n
                         (f)   Government have the power       for remission of the<\/p>\n
                               sentence under Sec. 432 Cr.P.C<\/a>.\n<\/p>\n
\n
               23. In these circumstances for orders whether<\/p>\n
                          (a)    The requests of     Sri. E. Subair Kunju and Sri.<\/p>\n
                          Abdul Kalam for remission of imprisonment and fine<\/p>\n
                          awarded by the      Honourable High Court of Kerala in<\/p>\n
                          Crl. Appeal      343\/1997 may be recommended         and<\/p>\n
                          forwarded to His Excellency the Governor for granting<\/p>\n
                          full pardon to the petitioners.”\n<\/p>\n
\nAt page 22 of the Note File                   the Under Secretary of Home<\/p>\n
Department who put up the notes, her superior,                        the Addl.<\/p>\n
Secretary of Home Department and the                      Principal    Secretary,<\/p>\n
Home have signed. Below that the then Chief Minister                           has<\/p>\n
W.P. C. Nos. 9401 & 27098\/07
\n& Crl.M.C. Nos. 1617 &1747 of 2007
\n                                       -:18:-<\/span><\/p>\n
signed on 7-12-2004 with the endorsement “para 23 is approved”.<\/p>\n
The file was then circulated to the Governor who has put his<\/p>\n
signature on 10-12-2004 after making the following endorsement:<\/p>\n
               “I   have     considered  the    recommendations    in<\/p>\n
               paragraph 23 and the foregoing notes.\n<\/p><\/blockquote>\n
               In view of the exceptionally deserving circumstances<\/p>\n
               explained, I am inclined to approve the proposal, as<\/p>\n
               a very special case “.\n<\/p><\/blockquote>\n
The Governor was thus approving the proposal for remission as if<\/p>\n
it was a matter within his discretionary powers.<\/p>\n
        9.      I have also perused file No. 77694\/B1\/06\/Home in which<\/p>\n
the representation dated 29-3-2006 submitted to the Governor by G.<\/p>\n
Balachandran, the complainant to re-consider               Ext.P2 order of<\/p>\n
remission granted to A2 and A3. The file is seen circulated by the<\/p>\n
Home Department to the present Chief Minister through the Minister<\/p>\n
for Home, Vigilance and Tourism and a decision was taken on 31-7-<\/p>\n
2007 at the level of the Chief Minister not to reconsider Ext.P2 G.O.<\/p>\n
This file has not been circulated to the Governor.<\/p>\n
        10.     The   police   who are  ritualistically submitting  negative<\/p>\n
recommendations in cases of atrocities against women had no qualms in<\/p>\n
giving positive recommendations in the case of A2 and A3 who are members of<\/p>\n
their own tribe.          When the complainant and his wife who were the<\/p>\n
W.P. C. Nos. 9401 & 27098\/07
\n& Crl.M.C. Nos. 1617 &1747 of 2007
\n                                     -:19:-<\/span><\/p>\n
injured had not shown any gesture towards compounding the<\/p>\n
offence, the recommendation given to the Governor that the<\/p>\n
offence was compoundable            was totally irrelevant. Similarly,<\/p>\n
the noting made in the file that the offence was committed by<\/p>\n
the policemen while they were doing their duty was also false<\/p>\n
and misleading since it is no part of the duty of a policeman<\/p>\n
to summon a lady and that too                in an advanced stage of<\/p>\n
pregnancy, to the police station and assault her and her husband<\/p>\n
from the room of the Circle Inspector. No doubt, long after the<\/p>\n
Court verdicts in this case, the complainant and his wife appear<\/p>\n
to have fallen out and translating the idea (which originated in<\/p>\n
the warped mind of the police) of exploiting the situation into<\/p>\n
reality a letter from Meena, the estranged wife of Balachandran<\/p>\n
was procured to the effect that she was not assaulted as alleged<\/p>\n
in the complaint and that she was merely yielding to the<\/p>\n
pressure of her husband. Much strain is not necessary to discard<\/p>\n
the said letter and the Government before which the said letter<\/p>\n
(addressed to the Home Minister)              was produced, rightly<\/p>\n
eschewed the same from consideration.\n<\/p>\n
        11. There used to be a Jail Advisory Board constituted<\/p>\n
under Rule 543 of the Kerala Prison Rules, 1958 with the Addl.<\/p>\n
W.P. C. Nos. 9401 & 27098\/07
\n& Crl.M.C. Nos. 1617 &1747 of 2007
\n                                      -:20:-<\/span><\/p>\n
Director General of Police (Prisons), as the Chairman and the<\/p>\n
District Collector, Sessions Judge, Superintendent of Police of<\/p>\n
the district where the Central Prison concerned is located and<\/p>\n
some others as members. The role of the said Board was to make<\/p>\n
recommendations to the State Government for the purpose of<\/p>\n
passing orders of remission under Section 432<\/a> Cr.P.C. By virtue<\/p>\n
of the Proviso to Rule 545 (a) of the Kerala Prison Rules, 1958,<\/p>\n
the said Jail Advisory Board had no power to consider the cases<\/p>\n
of those       lifers falling under Sec. 433 A Cr.P.C<\/a>. who had been<\/p>\n
convicted for offences for which death penalty was one of the<\/p>\n
punishments prescribed but who, either on account of judicial<\/p>\n
generosity        or on account of executive clemency were either<\/p>\n
sentenced to         life imprisonment   only or whose death sentence<\/p>\n
was commuted in to one of imprisonment for life. All lifers<\/p>\n
convicted under Sec. 302 I.P.C<\/a>. would fall under Section 433<\/a> A<\/p>\n
Cr.P.C. and the Jail Advisory Board could not take up for<\/p>\n
consideration, the cases of such lifers unless and until they had<\/p>\n
actually served          14 years of imprisonment.      But no such<\/p>\n
restrictions can be            placed on the Governor’s Constitutional<\/p>\n
powers under Article 161<\/a> of the Constitution.         The only bridle<\/p>\n
on the said power of the Governor is that while exercising the<\/p>\n
W.P. C. Nos. 9401 & 27098\/07
\n& Crl.M.C. Nos. 1617 &1747 of 2007
\n                                      -:21:-<\/span><\/p>\n
extraordinary         Constitutional power under Article 161<\/a> of the<\/p>\n
Constitution , he should act in conformity with the Constitutional<\/p>\n
philosophy. The Governor cannot exercise his power arbitrarily,<\/p>\n
mala fide or in absolute disregard of the finer canons of<\/p>\n
Constitutionalism.          (See Para 12 of Swaran Singh v. State of<\/p>\n
U.P<\/a>. – AIR 1998 SC 2026). That is why a Constitution Bench<\/p>\n
of the Apex Court in Maru Ram v. Union of India<\/a> – AIR 1980<\/p>\n
SC 2147 desired the State Governments to lay down guidelines<\/p>\n
for the exercise of the said Constitutional power and ruled that<\/p>\n
until such guidelines are set out, the relevant State Prison Rules<\/p>\n
will serve as the guidelines. The need for laying down the<\/p>\n
guidelines was emphasised by a Division Bench of this Court<\/p>\n
also in Suo motu Proceedings under Section 482<\/a> Cr.P.C. v.<\/p>\n
State of Kerala<\/a> – 2002 (2) KLT 695, even though the view taken<\/p>\n
therein that the power of the Governor under Article 161<\/a> of the<\/p>\n
Constitution of India is subject to Sec. 433-A Cr.P.C<\/a>. is, with due<\/p>\n
respect, open to debate in view of the observations in Maru<\/p>\n
Ram’s case itself          and in view of the ruling of the Supreme<\/p>\n
Court in paragraph 8 of State (Government of NCT of Delhi)<\/p>\n
v. Prem Raj<\/a> – (2003) 7 SCC 121.\n<\/p>\n
        12. Strictly speaking,        proposals for remission under<\/p>\n
W.P. C. Nos. 9401 & 27098\/07
\n& Crl.M.C. Nos. 1617 &1747 of 2007
\n                                       -:22:-<\/span><\/p>\n
Section 432<\/a> Cr.P.C.            and commutation under Sec. 433 Cr.P.C<\/a>.<\/p>\n
need not be circulated to the Governor because such proposals if<\/p>\n
forwarded to the Governor, the latter can act only on the aid<\/p>\n
and advice of the Council of Ministers as will be seen hereafter.<\/p>\n
It is only as a measure of Constitutional courtesy that the Rules of<\/p>\n
Business make it obligatory that the signature of the Governor<\/p>\n
should authorise the pardon, commutation or premature release.<\/p>\n
        13. In order to enable the Governor to exercise his extra<\/p>\n
ordinary         Constitutional power under Article 161<\/a> of the<\/p>\n
Constitution of India, the State Government had, as per executive<\/p>\n
orders       constituted a        State Prison Review Committee     to<\/p>\n
recommend the premature release of life convicts             who had<\/p>\n
completed 8 years of actual incarceration as desired in Maru<\/p>\n
Ram ‘s Case (supra)                .   Proposals for premature release<\/p>\n
containing        the recommendations of the State Prison Review<\/p>\n
Committee           were invariably placed before the Council of<\/p>\n
Ministers and then forwarded to the Governor for the exercise of<\/p>\n
his mercy jurisdiction under Article 161<\/a> of the Constitution. But<\/p>\n
proposals for          premature release of convicts based on      the<\/p>\n
recommendation of the Jail Advisory Board             also used to be<\/p>\n
circulated to the         Governor through the Chief Minister, as was<\/p>\n
W.P. C. Nos. 9401 & 27098\/07
\n& Crl.M.C. Nos. 1617 &1747 of 2007
\n                                      -:23:-<\/span><\/p>\n
done in this case, but without the advice of the Council of<\/p>\n
Ministers. Even if it could be said, by placing reliance upon<\/p>\n
Section 3<\/a> (60 (b) ) of the General Clauses Act<\/a>, 1897 and Article<\/p>\n
154<\/a> of the Constitution of India and also the decisions of the<\/p>\n
Apex Court in State of U.P. v. Mohammed Naim<\/a> – AIR 1964<\/p>\n
SC 703 and Subhash Chandra v. Municipal Corporation of<\/p>\n
Delhi<\/a> – AIR 1965 SC 1275, that the Governor, as the repository<\/p>\n
of the executive power of the State, is the State Government<\/p>\n
himself, then also            the Governor can act in exercise of his<\/p>\n
executive functions only on the aid and advice of the Council of<\/p>\n
Ministers as enjoined by Article 163 (1)<\/a> of the Constitution of<\/p>\n
India, unless it be a matter falling under the discretionary power<\/p>\n
of the Governor. In paragraphs 57 and 88 of the seven Judges’<\/p>\n
Constitution Bench decision of the Supreme Court, in Samsher<\/p>\n
Singh v. State of Punjab<\/a> – AIR 1974 SC 2192, the Apex Court<\/p>\n
speaking through Chief Justice Ray held that in all executive<\/p>\n
actions the Governor can act only on the aid and advice of<\/p>\n
Council of Ministers (the Cabinet) and that the Governor cannot<\/p>\n
in such matters act personally without or against the aid and<\/p>\n
advice of the Council of Ministers. In paragraphs 138 and 140<\/p>\n
of the concurring decision rendered by Justice V.R. Krishna Iyer,<\/p>\n
W.P. C. Nos. 9401 & 27098\/07
\n& Crl.M.C. Nos. 1617 &1747 of 2007
\n                                          -:24:-<\/span><\/p>\n
the limited areas of the discretionary powers of the Governor<\/p>\n
where he could act on his own judgment, have been indicated.<\/p>\n
The clemency jurisdiction of the Governor under Article 161<\/a> of<\/p>\n
the Constitution of India is not one falling under the discretionary<\/p>\n
powers made mention of by the Supreme Court. Six years<\/p>\n
later , in the celebrated Maru Ram’s case the Supreme Court,<\/p>\n
speaking through V.R. Krishna Iyer, J. observed as follows:-<\/p>\n
                 “61. Are we back to square one ? Has parliament indulged<\/p>\n
                 in legislative futility with a formal victory but a real defeat ?<\/p>\n
                 The answer is ‘yes’ and ‘no’. Why ‘yes’ ?          Because the<\/p>\n
                 President is symbolic, the Central Government is the reality<\/p>\n
                 even as the Governor is the formal head and sole repository<\/p>\n
                 of the executive power but is incapable of acting except on,<\/p>\n
                 and according to, the advice of his Council of Ministers.<\/p><\/blockquote>\n
\n
                 The upshot is that       the State Government, whether the<\/p>\n
                 Governor likes it or not, can advice and act under Article<\/p>\n
                 161<\/a>, the Governor being bound by that advice. The action<\/p>\n
                 of commutation and release can thus be pursuant to a<\/p>\n
                 governmental decision and the order may issue even without<\/p>\n
                 the Governor’s approval although, under the Rules of<\/p>\n
                 Business and as a matter of constitutional courtesy, it is<\/p>\n
                 obligatory     that the signature of the      Governor should<\/p>\n
                 authorise the pardon, commutation or release. The position<\/p>\n
W.P. C. Nos. 9401 & 27098\/07
\n& Crl.M.C. Nos. 1617 &1747 of 2007
\n                                        -:25:-<\/span><\/p>\n
                 is substantially the same regarding the President. It is not<\/p>\n
                 open either     to the President or the Governor       to take<\/p>\n
                 independent decision or direct release or refuse release of<\/p>\n
                 anyone of their own choice.       It is fundamental to the<\/p>\n
                 Westminster system that the Cabinet rules and the Queen<\/p>\n
                 reigns being too deeply rooted as foundational to our system<\/p>\n
                 no serious encounter was met from the learned Solicitor<\/p>\n
                 General whose sure grasp of fundamentals did not permit<\/p>\n
                 him to controvert the proposition, that the President and the<\/p>\n
                 Governor, be they ever so high in textual terminology, are<\/p>\n
                 but functional euphemisms promptly acting on and only on<\/p>\n
                 the advice of the Council of Ministers have in a narrow area<\/p>\n
                 of power. The subject is now beyond controversy, this Court<\/p>\n
                 having authoritatively laid down the law in Shemsher Singh<\/p>\n
                 Case. (1974) 2 SCC 831).        So, we agree, even without<\/p>\n
                 reference to Article 367 (1)<\/a> and Sections 3<\/a> (8) (b) and 3 (60)<\/p>\n
                 (b) of the General clauses Act, 1897, that, in the matter of<\/p>\n
                 exercise of the powers under Articles 72 and 161, the two<\/p>\n
                 highest dignitaries    in our constitutional scheme act and<\/p>\n
                 must act not on their own judgment but in accordance with<\/p>\n
                 the aid and advice of the ministers. Article 74<\/a>, after the 42nd<\/p>\n
                 Amendment silences speculation and obligates compliance.<\/p>\n
                 The Governor vis-a-vis his Cabinet is no higher than the<\/p>\n
                 President save in a narrow area which does not include<\/p>\n
W.P. C. Nos. 9401 & 27098\/07
\n& Crl.M.C. Nos. 1617 &1747 of 2007
\n                                        -:26:-<\/span><\/p>\n
                 Article 161.<\/a>     The constitutional Conclusion is that the<\/p>\n
                 Governor      is but a shorthand expression for the State<\/p>\n
                 Government and the President is an abbreviation for the<\/p>\n
                 Central Government”.\n<\/p>\n
                                                        (emphasis supplied)<\/p>\n
        14.    Thus, if the order of remission or pre-mature release<\/p>\n
were to be passed at the Governor’s level whether under Section<\/p>\n
432<\/a> Cr.P.C. or under Article 161<\/a> of the Constitution of India, the<\/p>\n
Governor can do so only on the aid and advice of the Cabinet.<\/p>\n
  RULES OF BUSINESS – NOT A CONFIDENTIAL DOCUMENT<\/p>\n
        15. Rules of Business of the Government of Kerala were<\/p>\n
issued by the Governor in exercise of his powers under clauses 2<\/p>\n
and 3 of Article 166<\/a>             of the Constitution of India. It is quite<\/p>\n
strange that even after the advent of the Right to Information<\/p>\n
Act<\/a>      providing for          transparency in   the business of public<\/p>\n
functionaries, the State Government continues to treat the Rules<\/p>\n
of Business as a confidential and classified document. But<\/p>\n
notwithstanding the secrecy            maintained by the State, there are<\/p>\n
ever so many judicial verdicts                adverting to      and even<\/p>\n
interpreting one Rule or the other of the Rules of Business. It<\/p>\n
is high time that the said rules were de-classified             and made<\/p>\n
public as has been done in many other States.<\/p>\n
W.P. C. Nos. 9401 & 27098\/07
\n& Crl.M.C. Nos. 1617 &1747 of 2007
\n                                        -:27:-<\/span><\/p>\n
              RULES OF BUSINESS TO BE AMENDED<\/p>\n
        16. Going by Rules 34 (1) (i) and 34 (2) (i) of the Rules<\/p>\n
of Business of the Government of Kerala proposals for the grant<\/p>\n
of pardons, reprieves , respites or remissions of punishment or<\/p>\n
the suspension,         remission or commutation of a sentence        in<\/p>\n
pursuance of Article 161<\/a> of the Constitution of India, or for the<\/p>\n
suspension, remission             of a sentence    under Section 432<\/a> or<\/p>\n
commutation of sentence under Sec. 433 Cr.P.C<\/a>. have to be<\/p>\n
submitted to the Chief Minister who in turn has to submit the<\/p>\n
same        to the Governor         before issue of orders.   The above<\/p>\n
procedure in the Rules of Business shortcircuting the cabinet<\/p>\n
and providing for circulating the file to the Governor without<\/p>\n
the aid and advice of the Council of Ministers is unconstitutional<\/p>\n
calling for immediate amendment of the Rules of Business.              I<\/p>\n
know it for sure that a former Law Secretary to the Government<\/p>\n
had given his advice to the Government requesting to amend the<\/p>\n
Rules of Business in tune with the constitutional mandate and<\/p>\n
judicial verdicts.          It is learnt that the said advice of the Law<\/p>\n
Secretary was received with some reservation, if not resentment,<\/p>\n
by the Governor’s Office.               That explains    the need for a<\/p>\n
competent legal advisor to the Governor in addition to                 a<\/p>\n
W.P. C. Nos. 9401 & 27098\/07
\n& Crl.M.C. Nos. 1617 &1747 of 2007
\n                                     -:28:-<\/span><\/p>\n
bureaucrat        as the Secretary so that     the high office of the<\/p>\n
Governor is not exposed to the risk of easy intervention by<\/p>\n
Courts on account of palpable infirmities in law. The scope of<\/p>\n
judicial review over the gubernatorial orders in the realm of the<\/p>\n
clemency jurisdiction of the Governor has been elucidated by<\/p>\n
the Apex Court in Swaran Singh’s Case (Supra) and in Epuru<\/p>\n
Sudhakar v. Government of A.P<\/a>. – AIR 2006 SC 3385.<\/p>\n
        17. The result of the foregoing discussion is that Ext.P2<\/p>\n
order dated 1-1-2005 passed at the level of the Governor without<\/p>\n
the aid and advice of the          Council of Ministers is bad for this<\/p>\n
reason also and the same is accordingly, quashed. Consequently,<\/p>\n
the warrants,if any, of arrest issued against A1 to A3 are liable<\/p>\n
to be executed and , therefore, Crl.M.C. Nos. 1617 and 1747 of<\/p>\n
2007 are liable to be dismissed and I do so.<\/p>\n
        18.     In the case of Ramachandran Nair, the first accused,<\/p>\n
the Government have in            G.O. (Rt) No. 819\/2008 \/Home dated<\/p>\n
13-3-2008          [Ext.R1 (a) in W.P.(C). 27098\/07] given valid<\/p>\n
reasons as to why his application for commutation of sentence<\/p>\n
was liable to be rejected. I do not find any good ground to<\/p>\n
interfere with the said order and W.P.(C). 27098\/07 is accordingly<\/p>\n
dismissed.\n<\/p>\n
W.P. C. Nos. 9401 & 27098\/07
\n& Crl.M.C. Nos. 1617 &1747 of 2007
\n                                               -:29:-<\/span><\/p>\n
                                    CONCLUSION<\/p>\n
        In the result, W.P.( C) 9401 of 2007 is allowed and Ext.P2<\/p>\n
order is quashed.            W.P.( C) 27098 of 2007 and Crl.M.C. Nos.<\/p>\n
1617 and 1747 of 2007 are dismissed.\n<\/p>\n
\n
        Dated this the 5th day of August, 2010.\n<\/p>\n
\n
                                                   V. RAMKUMAR, JUDGE.<\/p>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court G.Balachandran vs State Of Kerala on 5 August, 2010 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,21],"tags":[],"class_list":["post-249209","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nG.Balachandran vs State Of Kerala on 5 August, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/g-balachandran-vs-state-of-kerala-on-5-august-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"G.Balachandran vs State Of Kerala on 5 August, 2010 - 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