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PETITIONER: SWARAN SINGH

       Vs.

RESPONDENT: STATE OF U.P. & ORS.

DATE OF JUDGMENT:       05/03/1998

BENCH: K.T. THOMAS, M. SHRINIVASAN

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T Thomas, J.      Shri Doodh  Nath, third  respondent in this appeal, was found  guilty  of  murdering  one  Joginder  Singh.  He  was convicted and  sentenced to imprisonment for life along with some other  persons  who  too  were  involved  in  the  same offence. His  appeal to  the High  Court and  Special  Leave petition to  this Court  did not  give any help to extricate himself from the penal clutches of the offence. But within a period of less than two years, he succeeded in escaping from prison as the Governor of Uttar Pradesh granted remission of the remaining long period of his life sentence. That step of the Constitutional  functionary was far beyond the tolerance capacity of  the bereaved  members of the family of deceased Joginder Singh  and hence  his son  (the present  appellant) moved the  Allahabad High  Court challenging  the  aforesaid action of  the Governor. A division bench of the High Court, which heard  his writ  petition dismissed  it on the premise that a  decision of  the Governor  under Article  161 of the Constitution of  India is not justiciable. That necessitated the appellant  to reach  this  Court  with  this  appeal  by special leave.      Shri Doodh Nath was an M.L.A. of the U.P. Assembly when he was  convicted of  the offence of murder. He was unseated as a sequel to the said conviction and his wife succeeded in becoming his  successor in  the same constituency. Appellant alleged  that   when  Governor  passed  the  order  granting remission of sentence Shri Doodh Nath was already accused in five other  criminal cases  involving serious offences. That and many other relevant materials were not posted before the Governor  when   he  considered  the  question  of  granting reprieve to the convict, according to the appellant.      In fact,  the same Governor had, on an earlier occasion (on 7.6.1990)  dismissed a petition filed by shri Doodh Nath for grant  of reprieve  and remission of the sentence passed on him  by the  Court in  the very  same case  of murder  of Joginder Singh.  Undaunted by  the rejection  of his earlier clemency motion,  shri Doodh  Nath  ventured  to  present  a second petition  for the  same purpose  within a  period  of about five months, that too on almost the same grounds which

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were not  found favour  with the  Governor  on  the  earlier occasion.  When   he  moved  for  remission  on  the  second occasion, he  was out  on parole.  It is  the  case  of  the appellant that Doodh Nath did not even mention in his second petition for  pardon that  an earlier  petition for the same purpose was rejected by the Governor.      The police  officials whose  report was  called for  in connection with  the consideration of the second application for  grant   of  remission   sent  up  a  report  which  was unfavourable to  Doodh Nath.  But the  same police officials after  one   week,  forwarded   another  report   containing recommendation for  remitting the  sentence as prayed for by Doodh Nath on "humanitarian grounds".      On 4.1.1991, the widow of Joginder Singh (mother of the present appellant)  made a  representation to  the  Governor pointing  out   facts  which  she  considered  relevant  for rejecting the  clemency petition.  On 9.2.1991, the Governor passed  the   impugned  order   under  Article  161  of  the Constitution in the following terms:      "The  Governor   of  Uttar  Pradesh      under the  special circumstances by      exercising the  power under Article      161   of    the   Constitution   of      remaining sentence  of the  convict      Doodh Nath,  son  of  Shri  Deoraj,      resident  of   Khairuddinpur,  P.S.      Mariahun, District  Jaunpur, who is      undergoing     punishment     under      sections 302/148/149  IPC  in  S.T.      No. 102  of 1980  passed  by  Third      Additional Sessions  Judge, Jaunpur      sentencing  life   imprisonment  on      9.2.1982,  and   directs  that  the      aforesaid   convict    accused   be      released from  jail  on  furnishing      two sureties  and personal  bond in      the same amount to the satisfaction      of   the    District    magistrate,      Jaunpur".      In the  High Court, when challenge was made against the said order,  an affidavit  was filed  by Shri  Brij  Bhushan Chaturvedi who  was then  the Joint Secretary of Home (Jail) in the  State of  U.P. in  which he admitted that a petition filed by Doodh Nath in April, 1990 was dismissed on 5.6.1990 and that  next application  was filed in November, 1990. The Joint Secretary  conceded that Shri Doodh Nath has undergone only a  very small portion of the life term, i.e., two years and three months when he secured the remission.      It is  interesting to  note that  another affidavit was filed by  Shri Sunil  Agarwal who  held the  same office  of Joint Secretary,  Home (Jail),  in the same High Court, when the  writ   petition  filed   by  the  appellant  was  under consideration. (perhaps,  Shri Sunil Agarwal would have been the successor  in office  of the  other   deponent Shri Brij Bhushan Chaturvedi).  In the  second  affidavit,  the  Joint Secretary conceded that the five criminal cases mentioned by the appellant involving serious offences  against Doodh Nath were still  pending at  the time  of grant  of remission and that Governor was not apprised of that fact. He also pointed out that  the fact  of the  rejection of  the earlier  mercy petition was  not brought to the notice of the Governor. The deponent of that affidavit has further stated that:      "In fact  the Governor’s acceptance      was obtained  on the basis of false      and   misleading    recommendation,

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    wherein it had not been stated that      the request  of the  petitioner was      rejected only six months ago and it      did not meet the various guidelines      given  for  the  purpose  were  not      taken into  consideration.  It  has      been wrongly  stated that there was      no adult  member in  the family  of      the convict  while his  wife  is  a      sitting   member   of   Legislative      Assembly. The  recommendation  also      stated that the district magistrate      and  the   police  have   requested      sympathetic consideration  but they      did  not   categorically  recommend      acceptance of  the mercy  petition.      It   is    a    fact    that    the      recommendation itself mentions that      the case  may  not  be  treated  as      precedent for  others. It has shown      that  it  was  not  recommended  on      merits. The  recommendation in  the      case was  made  on  extraneous  and      political  consideration  which  is      evident  from  the  mercy  petition      (filed  as   annexure  ‘C’  to  the      petition). The fact that the matter      was recommended  be reconsidered on      the basis  of a letter addressed to      the  chief   Minister  by   several      MLAs."      On our direction, the Standing Counsel for the State of U.P.  has   produced  the  files  concerning  the  grant  of remission of sentence to Doodh Nath. We have noted therefrom 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  which was  filed on the same grounds, the report of the jail authorities 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.      Learned counsel  for the  third respondent  Doodh  Nath resisted this appeal on the main plank that any order issued by  the   President  of   India  under  Article  72  of  the Constitution of  India or  by the  Governor of a State under Article 161  thereof is  non-justiceable and hence the Court cannot  look   into  the   reasons   which   persuaded   the Constitutional functionary to grant reprieve or remission to a prisoner.      A Constitution  Bench of  this Court has considered the scope  of  judicial  review  of  exercise  of  powers  under Articles 72  and 161  of the  Constitution of India in Kehar Singh & Anr. v. Union of India and another (1989) 1 SSC 204. The bench  after observing that the Constitution of India is a  constitutive   document  which   is  fundamental  to  the governance of  the country  under which people of India have provided  a  constitutional  polity  consisting  of  certain primary organs,  institutions and  functionaries to exercise the powers  provided in  the Constitution,  proceeded to add thus:      "All power  belongs to  the  people      and it  is  entrusted  by  them  to      specified     institutions      and

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    functionaries with the intention of      working   out,    maintaining   and      operating a constitutional order." The Constitution Bench laid down that judicial review of the Presidential order  cannot be exercised on the merits except within the  strict limitations  defined in Maru Ram v. Union of India & Ors. (1981 1 SCC 107. The limitations of judicial review over  exercise of powers under Articles 72 and 161 of the Constitution  have been  delineated in the said decision by the  constitution Bench.  It has  been observed  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 valid play  of power". The bench stressed the point that the power being  of the  greatest moment,  cannot be  a law unto itself but  it must  be informed  by  the  finer  canons  of constitutionalism.      It was  therefore, suggested by the bench to make rules for its  own guidance  in the  exercise of  the pardon power keeping a  large residuary  power to meet special situations or sudden developments.      In view  of the  aforesaid settled  legal position,  we cannot accept  the rigid  contention of  the learned counsel for the  third respondent  that this  Court has  no power to touch the  order passed by the Governor under Article 161 of the constitution.  If such  power was exercised arbitrarily, mala fide  or in  absolute  disregard of the finer canons of the constitutionalism,  the by-product  order cannot get the approval of law and in such cases, the judicial hand must be stretched to it.      In the  present case,  when the Governor was not posted with material  facts such  as those  indicated above  ,  the Governor was  apparently  deprived  of  the  opportunity  to exercise the  powers in  a fair and just manner, conversely, the order  now impugned  fringes on  arbitrariness. What the governor would have ordered if he were apprised of the above facts and  materials is  not for  us to consider now because the Court  cannot then  go into  the merits  of the  grounds which  persuaded  the  Governor  in  taking  a  decision  in exercise of  the said  power. Thus  when the  order  of  the Governor  impugned   in  these  proceedings  is  subject  to judicial review  within the  strict parameters  laid down in Mary Ram  Case (supra)  and reiterated  in Kehar  Singh Case (supra), we  feel that  the Governor  shall  reconsider  the petition of Doodh Nath in the light of those materials which he had no occasion to know earlier.      We, therefore,  quash the  impugned order to enable the Governor of U.P. to pass a fresh order in the petition filed by the  third respondent  Doodh Nath  for remission  of  the sentence in the light of the observations made above.