REPORTABLE IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO(s). 689 OF 2005

SAMJUBEN GORDHANBHAI KOLI                   Appellant (s)

                VERSUS

STATE OF GUJARAT                            Respondent(s)

O  R  D  E  R

Heard learned counsel for the parties.

This  Appeal,  by  special  leave,  has  been  filed  

against the impugned judgment and order of the High Court  

of Gujarat dated 17.12.2003 passed in Criminal Appeal No.  

812 of 1995.

The  facts  have  been  set  out  in  the  impugned  

judgment and order and hence we are not repeating the same  

here.

Having carefully perused the impugned judgment and  

order of the High Court, we are of the opinion that there  

is no infirmity in the same.   The High Court has dealt  

with the matter in great detail and upheld the conviction  

of the appellant.  We see no reason to disagree with the  

impugned judgment and order.   

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CRIMINAL APPEAL NO(s). 689 OF 2005

The Appeal is dismissed accordingly.

By order dated 09.05.2005 this Court has granted  

bail to the appellant.  The bail bonds are cancelled. The  

appellant shall be taken into custody forthwith to serve  

out the remaining portion of sentence.

Learned counsel for the appellant submitted that  

the appellant should be granted remission of the rest of  

her  sentence.   In  our  opinion,  remission  can  only  be  

granted by the executive authorities.  

However,  the  appellant  will  be  free  to  seek  

appropriate  redress  from  the  appropriate  Government  by  

making a representation praying for pardon or remission of  

sentence in terms of Section 432 of the Code of Criminal  

Procedure or under Articles 72 or 161 of the Constitution  

of India.  We make it clear that the power of the President  

of India under Article 72 or of the Governor under Article  

161,  being  a  constitutional  power  cannot  be  under  the  

restriction imposed by Section 433-A Cr.P.C. Section 433-A  

Cr.P.C. can restrict the power under Section 432 Cr.P.C. or  

Section  433  Cr.P.C.  but  it  cannot  restrict  the  

constitutional  powers  under  Article  72  or  161  of  the  

Constitution,  just  as  no limitation statute can restrict

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CRIMINAL APPEAL NO(s). 689 OF 2005

the constitutional power of the High Court under Article  

226 of the Constitution.  This is because the Constitution  

is a higher law and the statute is subordinate to it.   

The appellant may also file a petition before the  

High Court if the appellant is entitled to the benefit of  

any Rule or G.O. of the State Government for remission of  

the sentence.

........................ J.

(MARKANDEY KATJU)

.........................J. (T.S. THAKUR)

NEW DELHI OCTOBER 07, 2010.

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