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CASE NO.: Appeal (crl.)  393-394 of 2004

PETITIONER: Dhananjoy Chatterjee alias Dhana         

RESPONDENT: State of West Bengal & Ors.      

DATE OF JUDGMENT: 26/03/2004

BENCH: K.G. Balakrishnan & B.N. Srikrishna.

JUDGMENT: J U D G M E N T

[Arising out of S.L.P. (Crl.) Nos. 497-498 of 2004]

K.G. BALAKRISHNAN, J.  

       Leave granted.

       The appellant, Dhananjoy Chatterjee  was found guilty of offences  punishable under Sections 376, 302 and 380 of the Indian Penal Code  by   judgment dated 12.8.1991 of the IInd Addl. Sessions Judge,   Alipore, who  sentenced him to death for  the main offence punishable under Section 302 IPC.   The appellant filed a criminal appeal before the High Court of Calcutta and there  was also a Reference made under Section 366 of the Code of Criminal  Procedure.   The  death penalty  imposed on the appellant was  confirmed by the  High Court and the appeal preferred by  the appellant was dismissed.   The  appellant thereafter filed a special leave petition.   Leave was granted in the  special leave petition,   but the appeal was dismissed   by this Court on  11.1.1994 and the death sentence imposed on the appellant was confirmed.    The appellant preferred a review petition and the same was rejected on  20.1.1994.   Thereupon, the appellant filed a mercy petition before the Governor  of West Bengal praying to commute the capital punishment imposed upon him to  any other sentence prescribed under law.   The appellant was informed  by  the  prison authorities that the Governor had  declined to interfere in the matter.    Aggrieved by the rejection of his mercy petition,  the appellant filed a writ petition.     The writ petition was dismissed by the learned Single Judge of the Calcutta High  Court  on 14.11.2003 while upholding the order passed by  the Governor.   The  appellant thereafter filed a writ petition seeking stay of execution and for  commutation of the death sentence.   The Division Bench of the Calcutta High  Court dismissed the writ petition on 8.1.2004.    Aggrieved by the  aforesaid  orders passed  by the High Court,  the present appeals  are filed.

       We  heard the  learned counsel  for the appellant and also the counsel for  the State of West Bengal.

       It   is brought to the notice of the court that the writ petition was filed by the  appellant at the time  when  his mercy petition was pending before the Governor.   That mercy petition was later rejected by the Governor,  but the stay of execution  was not vacated by the High Court as the  fact  of rejection of his mercy petition  by the Governor was not brought to the notice of the court either by the counsel  who appeared for the State of West Bengal or by the counsel for the appellant.

       The counsel for the appellant submitted that the   petition of the appellant  filed under Article 161 of the Constitution of India was not  properly dealt with by  the authorities.  It was contended that the Governor was not apprised of the  relevant facts and  the material and that there was no proper application of mind  in the present case.   The counsel for the appellant  also submitted that the

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appellant has been in jail since 1991 and when his petition under Article 161 of  the  Constitution came up for consideration, the mitigating  factors favourable to  the appellant should have been brought to the notice of the Governor.

       It is settled position of law that an order passed by the Governor under  Article 161  is  subject to judicial review.   In   Maru Ram   vs.  Union of India  AIR 1980 SC 2147,  a Constitution  Bench of this Court held as follows :

"72.    We conclude by formulating our findings\005. (8) The power  under Articles 72 and 161 of the Constitution can be  exercised by the Central and State Governments, not by the  President or Governor on their own. The advice of the appropriate  Government binds the Head of the State. No separate order for  each individual case is necessary but any general order made must  be clear enough to identify the group of cases and indicate the  application of mind to the whole group.

(9) Considerations for exercise of power under Articles 72/161 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 mala fide. Only in  these rare cases will the court examine the exercise."          

       In     Kehar Singh vs. Union of India    AIR 1989 SC 653  and  Satpal   vs.   State of Haryana   (2000) 5 SCC 170,   the dictum laid down in Maru  Ram’s case (supra) was followed.

       In   Swaran Singh vs. State of U.P.  (1998) 4 SCC 75,  it was held that  though this Court cannot go into the merits of the grounds which persuaded the  Governor in taking a decision in exercise of his powers, the order of the Governor  is subject to judicial review within the strict parameters laid down in Maru Ram’s  case and that the Governor shall not be deprived of an opportunity to exercise  his powers in a fair and just manner.

       In  the instant case, the counter affidavit was filed by the respondent in the  writ petition  which was sworn to by the Deputy Secretary, Judicial Department,  Government of West Bengal.  In paragraph 5,  it was  stated :

       "After examining and considering the prayer the State Government  rejected it, thereafter it was transmitted to the Governor only  because it was addressed to him, and therefore, the Governor in  his turn, rejected the convict’s prayer which was duly  communicated  to the  convict."   

       From the above averments, it is clear that the Governor was deprived of  the opportunity to exercise his power in a fair and just manner.    It is true that the  power under Article 161 of the Constitution is to be exercised by the Governor on  the basis of  the aid and advice given by the State Government.   However, the  material facts should have been placed before the Governor.  Pursuant to our  direction, the relevant file was produced before this Court.   We have also  perused the same and we feel that all material facts, including the mitigating  factors were not placed before the Governor.   The appellant’s mercy petition  was rejected on 16.2.1994 without  their being a proper consideration of all  relevant facts.

       Therefore,   we   direct  the  respondent  authorities to  put up the mercy    petition   filed by the appellant  on 2.2.1994   to the Governor again and  bring all  relevant facts to the notice of the Governor  for an appropriate decision in the  case.   It is made clear that the delay caused due to filing of the present special  leave petitions shall not be taken as a ground  by  the appellant   for commutation  of  his death sentence before any judicial fora.

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       The appeals are disposed of accordingly.