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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

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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

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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

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(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

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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.