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CASE NO.: Review Petition (crl.) 1105  of  2000

PETITIONER: RAM DEO CHAUHAN @ RAJ NATH CHAUHAN

       Vs.

RESPONDENT: STATE OF ASSAM                                                           .RESPONDENT

DATE OF JUDGMENT:       10/05/2001

BENCH: S.N. Phukan

JUDGMENT:

Phukan, J L...I...T.......T.......T.......T.......T.......T.......T..J

   After  reading draft judgments by my learned Brothers, I record  my  separate views on the sentence to be imposed  on the accused-petitioner in this Review Petition.

   Review as the expression itself shows is a fresh view of matters  already  examined.   As my  learned  Brothers  have elaborately   delineated   the  scope  of  review,   it   is unnecessary to traverse the path again.  Suffice it would be to  say  that  power of review is a restricted  power  which authorises  the  Court which passed the order sought  to  be reviewed,  to  look  over and go through the order,  not  in order to substitute a fresh or a second order;  but in order to  correct it or improve it because some materials which it ought  to have considered has escaped its consideration.  As my  learned Brothers have agreed on the scope of review, the sentence of death imposed cannot be reopened.  With respect, I agree with my learned Brother Mr.  Justice R.P.  Sethi.

   But, a question that remains to be considered further is the  effect  of conclusion arrived at by my learned  Brother Mr.   Justice  Thomas.   Is the  accused  remediless;   that remains  to be seen.  Few provisions in the Code of Criminal Procedure   (for  short  the  Code)   and  other  in   the Constitution  deal  with such situation.  Sections 432,  433 and  433A  of  the  Code  and Articles 72  and  161  of  the Constitution   deal   with  pardon.    Article  72  of   the Constitution  confers  upon the President power to grant  of pardons,  reprieves, respites or remission of punishment  or to  suspend, remit or commute sentence of any person of  any offence.  The power so conferred is without prejudice to the similar  power  conferred  on  the Governor  of  the  State. Article 161 of the Constitution confers upon the Governor of a State similar powers in respect of any offence against any law relating to a matter to which the executive power of the State  extends.  The power under Article 72 and Article  161 of  the  Constitution is absolute and cannot be fattered  by any  statutory provision such as Sections 432, 433 and  433A of the Code or by any Prison Rules.

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   Section  432  of  the   Code  empowers  the  appropriate Government  to  suspend or remit sentences.  The  expression appropriate  Government  means the Central  Government  in cases  where the sentences or order relates to the matter to which  the  executive  power of the Union extends,  and  the State  Government  in  other  cases.   The  release  of  the prisoners  condemn  to  death  in  exercise  of  the  powers conferred  under  Section  432  and   Article  161  of   the Constitution  does  not amount to interference with due  and proper  course  of  justice, as the power of  the  Court  to pronounce  upon  the validity, propriety and correctness  of the  conviction  and sentence remains  unaffected.   Similar power as those contain in Section 432 of the Code or Article 161  of the Constitution can be exercised before, during  or after  trial.  The power exercised under Section 432 of  the Code is largely an executive power vested in the appropriate Government  and  by  reducing the  sentence,  the  authority concerned thereby modify the judicial sentence.  The Section confines  the  power of the Government to the suspension  of the  execution of the sentence or remission of the whole  or any  part of the punishment.  Section 432 of the Code  gives no  power  to the Government to revise the judgment  of  the court.   It  only provides power of remitting the  sentence. Remission  of  punishment  assumes the  correctness  of  the conviction  and  only reduces punishment in part  or  whole. The  word  remit as used in Section 432 is not a  term  of art.   Some  of  the meanings of the word  remit  are  to pardon,  to  refrain  from inflicting to give  up.   It  is therefore  no  obstacle  in  the way  of  the  President  or Governor,  as  the case may be in remitting the sentence  of death.  A remission of sentence does not mean acquittal.

   The  power to commute a sentence of death is independent of  Section 433A.  The restriction under Section 433A of the Code comes into operation only after power under Section 433 is  exercised.  Section 433A is applicable to two categories of  convicts :  (a) those who could have been punished  with sentence  of  death and (b) those whose sentence  have  been converted  into imprisonment for life under Section 433.  It was  observed in Mura Ram vs.  Union of India [ 1981 (1) SCC 106] that Section 433A does not violate Article 20(1) of the Constitution.

   In  the circumstances, if any motion is made in terms of Sections  432, 433 and 433A of the Code and/or Article 72 or Article 161 of the Constitution as the case be, the same may be appropriately dealt with.  It goes without saying that at the  relevant stage, the factors which have weighed with  my learned  Brother Mr.  Justice Thomas can be duly taken  note of in the context of Section 432(2) of the Code.