K. Rajamanickam vs State of Tamil Nadu

P.S. Mishra, J.—The question whether, this Court''s power under Section 482 of the Code of Criminal Procedure. 1973 (hereinafter referred to as the Code), extends over to any order of an appropriate Government passed under Section 432 of the Code, or, in other words, whether this Court can issue a direction to the appropriate Government exercising its inherent power under Section 482 of the Code to release a convict on Parole, has been brought before us on a reference by Janarthanam, J., who has said:

"The phraseology `to secure the ends of justice'', if properly interpreted, as adverted to earlier, would mean in the context that it is in relation to a proceeding in the High Court or any Subordinate Court and that proceeding too must have a judicial character and not of an Executive or Administrative one.

Thus, Janarthanam, J., expressed his agreement with the view expressed by a learned Judge of this Court in Rajan R. v. State of Tamil Nadu, 1987 LW (Crl.) 43. and lus disagreement with the statement of law in Ramakrishnan v. The State of Tamil Nadu, 1983 LW (Crl ) 181, by another learned Single Judge of this Court."

Chapter 32 of the Code contains provisions with respect to execution, suspension, remission and commutation of sentences and in Section 432, it states.

"Power to suspend or remit sentences.-

"(1) When any person has been sentenced to punishment for an offence, the appropriate Government may, at any time, without conditions or upon any conditions which the person sentenced accepts, suspend the execution of his sentence or remit the whole or any part of the punishment to which he has been sentenced.

(2) Whenever an Application is made to the appropriate Government for the suspension or remission of a sentence, the appropriate Government may require the Presiding Judge of the Court before or by which the conviction was had or confirmed, to state his opinion as to whether the application should be granted or refused, together with his reasons for such opinion and also to forward with the statement of such opinion a certified copy or the record of the trial or of such record thereof as exists.

(3) If any condition on which a sentence has been suspended or remitted is, in the opinion of the appropriate Government, not fulfilled. the appropriate Government may cancel the suspension or remission, and thereupon the person in whose favour the sentence has been suspended or remitted may, if at large, be arrested by any Police Officer, without warrant and remanded to undergo the unexpired portion of the sentence."

Section 482 of the Code occurs in Chapter 37, which contains Miscellaneous provisions and says inherent powers of the High Court in these words :

Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code or to prevent abuse of the process of any Court or otherwise to secure the ends of justice."

This provision thus defines inherent powers of the High Court to make such order as may be necessary:

(1) to give effect to any order under this Code.

(2) to prevent abuse of the process of any Court, or

(3) otherwise to secure the ends of justice.

It is not difficult, thus, to confine the exercise of inherent powers of this Court in cases where it is necessary to give effect to any order or to prevent the abuse of process, it should relate to an order under the Code or to a proceeding in the High Court or in a Court subordinate thereto. The difficulty, however, arises, how to fix the words `otherwise to secure the ends of justice'' If this is not read as a part of the whole, namely, `to prevent abuse of the process of any Court or otherwise to secure the ends of justice'' and separated, it will give to the Court a wide discretion to act de hors `to give effect to any order under the Code'' or `to prevent the abuse of process of any Court'' In essence, de hors any proceeding of any Court in cases where the Court finds that the ends of justice are not secured unless it intervenes. The Section, at a glance, shows that, `to make such orders as may be necessary'' to give effect to any Order under the Code, or to prevent the abuse of process of any Court or otherwise to secure the ends of justice is intervened by the disjunctive ''or'' A closer look, however, shows that while the first `to give effect to any order under this Code'' is followed by a comma or closed by a comma, the latter `to prevent the abuse of process of any Court or otherwise to secure the ends of justice are left without a comma to disjoin them. Thus viewed, the High Court''s inherent power is, confined. (1) To make such orders as may be necessary to give effect to any order under the Code, (2) To make such orders as may be necessary to prevent the abuse of process of any Court or otherwise to secure the ends of justice.

The first part or the first clause, understood as above, conveys that the inherent power of the High Court can come into play when it is necessary to give effect to any Order under the Code, if there is no express bar and if there is no other provision of the Act to ensure the implementation of the Order The second part or the clause will be available if in any proceeding of a Court, whether the High Court or a Court subordinate to it, any abuse of process is found or otherwise it is felt that to secure the ends of justice certain Order of the High Court is necessary, it may act thus to prevent the abuse of process of any Court or otherwise to secure the ends of justice.

Before we advert to Section 432 of the Code once more, we think it necessary to take stock of the judicial pronouncements on this subject and the extent and ambit of the exercise of the inherent power saved under Section 482 of the Code. The Code of Criminal Procedure, 1898 contained no provision saving the High Court''s inherent power, yet Courts in India recognised the existence of such inherent power. Section 561-A, however, was added to the Code in 1923 providing that nothing in the Code shall be deemed to limit or affect the inherent power of the High Court to make such Orders as may be necessary to give effect to any Order under the Code or to prevent the abuse of process of the Court or otherwise to secure the ends of justice The Supreme Court considered the scope of this provision in T.H. Hussain v. M.P Mondkar, AIR 1958 SC 376, and stated :

It is obvious that this inherent power can be exercised only for either of the three purposes specifically mentioned in the Section. Thus inherent power cannot naturally be invoked in respect of any matter covered by the specific provisions of the Code. It cannot also be invoked if its exercise would be inconsistent with any of the specific provisions of the Code. It is only if the matter in question is not covered by any specific provisions of the Code that Section 561-A, can come into operation, subject further to the requirement that the exercise of such power must serve either of the three purposes mentioned in the said Section In prescribing rules of procedure, legislature undoubtedly attempts to provide for all cases that are likely to arise; but it is not possible that any legislative enactment dealing with procedure, however carefully it may be drafted, would succeed in providing for all cases that may possibly arise in future. Lacunae are sometimes discovered in procedural law and it is to cover such lacunae and to deal with cases where such lacunae are discovered that procedural law invariably recognises the existence of inherent power in Courts. It would be noticed that it is only the High Courts whose inherent power is recognised by Section 561-A, and even in regard to High Court''s inherent power definite salutary safeguards have been laid down as to its exercise. It is only where the High Court is satisfied either that an Order passed under the Code would be rendered ineffective or that the process of any Court would be abused or that the ends of justice would not be secured that the High Court can and must exercise its inherent power under Section 561-A. There can, thus, be no dispute about the scope and nature of the inherent power of the High Courts and the extent of its exercise."

In Khushi Ram v. Hashim, AIR 1959 SC 542. the Supreme Court considered a case where the matter as to the quashing of a Committal proceedings was asked to which was directly covered by Section 215 of the Code of Criminal Procedure, 1898 and noticed:

The Judgment delivered by the learned Judge in exercising his jurisdiction under Section 561-A, shows that Section 215, had been cited before him by the Complainant and it was urged before him that it was not competent to the learned Judge to entertain the Application for quashing the Commitment proceedings under Section 561-A of the Code The argument was that under the Code of Criminal Procedure the commitment once made under Section 213, can be quashed only by the High Court and that also only on a point of law. The learned Judge, however, was not impressed by this argument He held that the absence of evidence was a question of law pure and simple and since in his opinion, there was no evidence to justify the Order of Commitment, he was entitled to quash the said Order "

The Supreme Court finally pronounced :

It is clear that under the Code of Criminal Procedure it is only on a question of law that the Order of Commitment can be reversed and reading the Judgment of the learned Judge as a whole we are unable to see even a trace of a point of law on which his jurisdiction under Section 215 could have been validly invoked. It is unnecessary to emphasise that the inherent power of the High Court under Section 561-A, cannot be invoked in regard to matters which are directly covered by the specific provisions of the Code; and the matter with which the learned Judge was concerned in the present proceedings is directly covered by Section 215. Therefore in our opinion, the learned Judge was clearly in error in allowing his inherent power to be invoked under Section 561-A. and in setting aside the Order of Commitment."

The Supreme Court in R.P. Kapur v. State of Punjab, AIR 1960 SC 866. however considered the scope of Section 561-A of the 1898 Code in a case in which the First Information Report had been lodged against the Appellant that he and his mother-in-law had committed offences. When the Appellant, however, found that for several months no further action was taken on the said Report which was hanging like a sword over his head, he filed a Criminal Complaint under Sections 204, 211 & 385 of the Indian Penal Code and thus took upon himself the onus to prove that the First Information Report lodged against him was false the First Informant then moved the Court that the proceedings in the Complaint case would he stayed as the Police had not made any Report on the First Information Report lodged by him. The learned Magistrate ordered that the Appellant''s Complaint should stand adjourned. The Appellant thereupon moved the Punjab High Court under Section 561-A of the Code of Criminal Procedure for quashing the proceeding so initiated by the First Information Report in question Pending the hearing of the said Petition in the said High Court, the Police Report was submitted under Section 173 of the Code on July 25, 1959 The High Court upon that held that no case had been made out for quashing the proceedings under Section 561-A. The Supreme Court dismissed the Appeal, but stated about the scope of Section 561-A in the following words:

"Before dealing with the merits of the Appeal it is necessary to consider the nature and scope of the inherent power of the High Court under Section 561-A of the Code The said section saves the inherent power of the High Court to make such Orders as may be necessary to give effect to any order under this Code or to prevent abuse of the process of any Court or otherwise to secure the ends of justice. There is no doubt that this inherent power cannot be exercised in regard to matters specifically covered by the other provisions of the Code In the present case, the Magistrate before whom the Police Report has been filed under Section 173 of the Code has yet not applied his mind to the merits of the said Report and it may be assumed in favour of the Appellant that his request for the quashing of the proceedings is not at the present stage covered by any specific provision of the Code. It is well established that the inherent jurisdiction of the High Court can be exercised to quash proceedings in a proper case either to prevent the abuse of the process of any Court or otherwise to secure the ends of justice Ordinarily, Criminal proceedings instituted against an Accused person must be tried under the provisions of the Code, and the High Court would be reluctant to interfere with the said proceedings at an interlocutory stage It is not possible, desirable or expedient to lay down any inflexible rule which would govern the exercise of this inherent jurisdiction. However, we may indicate some categories of cases where the inherent jurisdiction can and should be exercised for quashing the proceedings. There may be cases where it may be possible for the High Court to take the view that the institution or continuance of Criminal proceedings against an Accused person may amount to the abuse of process of the Court or that the quashing of the impugned proceedings would secure the ends of justice If the Criminal proceeding in question is in respect of an offence alleged to have been committed by an Accused person and it manifestly appears that there is a legal bar against the institution or continuance of the said proceeding, the High Court would be justified in quashing the proceeding on that ground Absence of the requisite sanction may, for instance, furnish cases under this category Cases may also arise where the allegations in the First Information Report or the Complaint, even if they are taken at their face value and accepted in their entirety, do not constitute the offence alleged, in such cases no question of appreciating evidence arises; it is a matter merely of looking at the Complaint or the First Information Report to decide whether the offence alleged is disclosed or not In such cases, it would be legitimate for the High Court to hold that it would be manifestly unjust to allow the process of the Criminal Court to be issued against the Accused person. A third category of cases in which the inherent jurisdiction of the High Court can be successfully invoked may also arise In cases falling under this category the allegations made against the Accused person do constitute an offence alleged but there is either no legal evidence adduced in support of the case or evidence adduced clearly or manifestly fails to prove the charge. In dealing with this class of cases, it is important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence which is manifestly and clearly inconsistent with the accusation made and cases where there is legal evidence which on its appreciation may or may not support the accusation in question. In exercising its jurisdiction under Section 561-A, the High Court would not embark upon an enquiry as to whether the evidence in question is reliable or not That is the function of the Trial Magistrate, and ordinarily it would no, be open to any party to invoke the High Court''s inherent jurisdiction and contend that on a reasonable appreciation of the evidence the accusation made against the Accused would not be sustained."

The cases above however generally dealt with the scope of Section 561-A of the Code and suggested the limitations under which the High Court should exercise, its inherent power. These cases either related to proceedings in Court or brought before the Court as a Police Report, thus at the threshold deciding whether a Criminal proceeding already initiated in Curt or likely to be initiated should be quashed or not In State of West Bengal v. S.N. Basak, AIR 1963 SC 447 : 1963 (2) SCR 52, the Supreme Court examined the scope of Section 561-A of the Old Code and stated:

"At the time the Respondent filed the Petition in the High Court only a Written Report was made to the Police by the Sub-Inspector of Police, Enforcement Branch, and on the basis of that report a First Information Report was recorded by the Officer in-charge of the Police Station and investigation had started. There was no case pending at the time excepting that the Respondent had appeared before the Court, had surrendered and had been admitted to bail The powers of investigation into cognisable offences are contained in Chapter XIV of the Code of Criminal Procedure Section 154, which is in that Chapter deals with information in cognisable offences and Section 156, with investigation into such offences and under these sections the Police has the statutory right to investigate into the circumstances of any alleged cognisable offence without authority from a Magistrate and this statutory power of the Police to investigate cannot be interfered with by the exercise of power under Section 439 or under the inherent power of the Court under Section 561-A of the Code of Criminal Procedure"

To support the above conclusion, the Supreme Court referred to the Judgment of the Privy Council in King Emperor v. Khwaja Nazir Ahmad, 1944 LR 71 Ind Ap 203, 212 and quoted its observations with approval :

"The functions of the Judiciary and the Police are complementary, not overlapping, and the combination of individual liberty with a due observance of law and order is only to be obtained by leaving each to exercise its own function, always, of course, subject to the light of the Court to intervene in an appropriate case, when moved under Section 491 of the Code of Criminal Procedure to give directions in the nature of Habeas Corpus In such a case as the present, however, the Court''s functions begin when a charge is preferred before it, and not until then It has sometimes been thought that Section 561-A, has given increased powers to the Court which it did not possess before that section was enacted. But this is not so, the section gives no new powers, it only provides that those which the Court already inherently possesses shall be preserved and is inserted as their Lordships think, lest it should be considered that the only powers possessed by the Court are those expressly conferred by the Code of Criminal Procedure and that no inherent powers had survived the passing of that Act.

The Supreme Court recognised that the judiciary should not exercise the functions of the Police and confine to its own functions when a charge is preferred before it and not until then. In this Judgment, the Supreme Court, thus, lecognized a rule that the Court''s inherent powers are limited to the proceedings in Court and do not go beyond it The Supreme Court reiterated this law in several other cases including Jehan Singh v. Delhi Administration, AIR 1974 SC 1146 : 1974 3 SCR 794."

The cases of Sharda Prasad v. State of Bihar, AIR 1977 SC 1754, and Bindeshwari Prasad v. Kali Singh, AIR 1977 SC 2432) are not exactly on point, but they do say that the power of the High Court under Section 561-A of the Code should be sparingly used and that there is absolutely no provision in the Code of Criminal Procedure of 1898 empowering a Magistrate to review or recall an Order passed by him The Code of Criminal Procedure does contain a provision for inherent powers, namely. Section 561-A, which however confers these powers on the High Court and the High Court alone. Unlike Section 151 of the Code of Civil Procedure, the Subordinate Criminal Courts have no inherent powers Sharda Prasad v. State of Bihar, AIR 1977 SC 1754, was one of a proceeding in Court for commission of certain offences taken against him.

We do not propose to multiply by citing further more decisions in our Judgment, but to say that when faced with a situation to decide whether the Court should interfere with the investigation of a case or not in the exercise of its inherent power, the Supreme Court has almost invariably said that the scheme of the Code of Criminal Procedure is that the power of the Police to investigate cognisable offences is not to be interfered with by the Judiciary and in this regard, the law as stated in the case of Emperor v. Nazir Ahmad, AIR 1945 PC 18, has been reiterated almost every time. To name a few, S.N. Sharma v. Bipen Kumar Tewari, AIR 1970 SC 786, Hazari Lal Gupta v. Rameshwar Prasad, AIR 1972 SC 484; Jehan Singh v. Delhi Administration, AIR 1974 SC 1146. and Kurukshetra University v. State of Haryana, AIR 1977 SC 2229, in which the Supreme Court has said:

"It surprises us in the extreme that the High Court thought that in the exercise of its inherent powers under Section 482 of the Code of Criminal Procedure, it could quash a First Information Report The Police had not even commenced investigation into the Complaint filed by the Warden of the University and no proceeding at all was pending in any Court in pursuance of the FIR It ought to be realised that inherent powers do not confer any arbitrary jurisdiction on the High Court to act according to whim or caprice. The Statutory power has to be exercised sparingly with circumspection and in the rarest of rare cases."

In the case of State of Bihar v. J.A.C. Saldanna, AIR 1980 SC 326, it has been observed:

"There is a clear-cut and well demarcated sphere of activity in the field of Criminal detection and crime punishment Investigation of an offence is the field exclusively reserved for the Executive through the Police Department, the superintendence over which vests in the State Government The Executive, which is charged with a duty to keep vigilance over law and order situation is all obliged to prevent crime and if an offence is alleged to have been committed, it is its bounden duty to investigate into the offence and bring the offender to book Once it investigates and finds an offence having been committed it is its duty to collect evidence for the purpose of proving the offence Once that is completed and the Investigating Officer submits Report to the Court requesting the Court to take cognizance of the offence under Section 190 of the Code its duty comes to an end. On a cognizance of the offence being taken by the Court the Police function of investigation comes to an end subject to the provision contained in Section 173(8), there commences the adjudicatory function of the Judiciary to determine whether an offence has been committed and if so whether by the person or persons charged with the crime by the Police in its report to the Court, and to award adequate punishment according to law for the offence proved to the satisfaction of the Court There is, thus, a well defined and well demarcated function in the field of crime detection and its subsequent adjudication between the Police and the Magistrate."

Similarly, in the case State of West Bengal v. Sampat Lal, 1985 (1) SCC 317 AIR 1985 SC 195, it is stated:

"The next aspect to be considered is whether it is open to the Court to interfere with the investigation which is still proceeding. It has been conceded before us and rightly in our view. that investigation is a matter for the Police under the scheme of the Code. Judicial opinion seems to be settled and we have several Authorities of this Court where interference by the Court into Police investigation has not been approved."

Thus, it seems to be the settled law that the power of the Police to investigate into a Report which discloses the commission of a cognisable offence is unfettered and cannot be interfered with by the High Court in the exercise of its inherent powers under Section 482 of the new Code.

Courts, however were not unaware of the exceptions when a First Information Report was lodged to harass the Accused named therein or the allegations that were made against the Accused named therein were found actuated by malice In the case of S.N. Sharma v. Bipen Kumar Tiwari, AIR 1979 SC 786, the Supreme Court recognised that in proper cases, the aggrieved person can always seek the remedy by invoking the powers of the High Court under Article 226 of the Constitution under which if the Court could be convinced that the power of investigation has been exercised by the Police Officer mala fide, the High Court can always issue a Writ of Mandamus restraining the Police Officer from misusing his legal power The Supreme Court, referred to a Judgment of the Calcutta High Court in an Appeal on behalf of the State of West Bengal in State of West Bengal v. Swapan Kumar, AIR 1982 SC 949, in which the Calcutta Court had exercised its power of Writ in the nature of Certiorarified Mandamus to quash the First Information Report and the investigation observed these words:

"The decisions relied on by Mr. Chatterjee, do not lay down, as it cannot possibly be laid down as a broad proposition of law that an investigation must necessarily be permitted to continue and will not be prevented, by the Court at the stage of investigation, even if no offence is disclosed. While adverting to this specific question as to whether an investigation can go on even if no offence is disclosed, the Judicial Committee in the case of King Emperor v. Khwaja Nizam Ahmed. AIR 1945 PC 18 (supra) and this Court in R.P Kapur v State of Punjab, AIR 1960 SC 866 Jehan Singh v. Delhi Administration. AIR 1974 SC 1146 (supra), S.N Sharma v. Bipen Kumar Thwari, AIR 1970 SC 786 (supra) have clearly laid down that no investigation can be permitted and have made the observations which I have earlier quoted and which were relied on by Mr. Sen. As I have earlier observed this proposition is not only based on sound logic but is also based on fundamental principles of justice, as a person against whom no offence is disclosed, cannot be put to any harassment by the process of investigation which is likely to put his personal liberty and also property which are considered sacred and sacrosanct into peril and jeopardy."

The seven learned Judges of the Bench of the Allahabad High Court in Rani Lal Yadav v. State of U.P, 1989 Cri.LJ 1013, also said that the Police investigation cannot be interfered with by the High Court in the exercise of its inherent powers under Section 482 of the Code and observed on the question whether there would be any remedy when the First Information Report did not disclose the commission of any offence stated thus:

Thus if the First Information Report does not disclose the commission of any offence, the investigation on the basis of such a Report is liable to be quashed under Article 226 of the Constitution and not in the exercise of the inherent powers of the High Court under Section 482, Code of Criminal Procedure. It may mentioned that Section 491, Code of Criminal Procedure. 1898 has been repealed by the Code of Criminal Procedure, 1973.

The question before the Allahabad Bench, however, was whether the High Court, exercising its inherent powers under Section 482, of the Code, can give a direction to the Police Officer regarding the arrest of a person with respect to a cognisable offence or not ? The Bench answered the question thus :

Our answer to the second question referred to us is that the High Court has no inherent power under Section 482, Code of Criminal Procedure to interfere with the investigation by the Police. The High Court has also no inherent power under Section 482, Code of Criminal Procedure, to stay the arrest of an Accused during investigation."

They set aside an earlier Full Bench Judgment of the Allahabad Court saying that such interference is permissible in these words:

The decision by the Full Bench in the case of Prashant Gaur v. State of UP. 1988 All.WC 828, does not lay down the correct law and is ever-ruled".

In one of the latest Judgments, the Supreme Court has considered the scope of Section 482 of the Code In Simrikhia v. Dolley Mukherjee, AIR 1990 SC 1605. the Supreme Court has considered the question as to the scope and ambit of the inherent power of the High Court vis-a-vis the earlier Order made by it and reminded us by referring to Section 362 of the Code which expressly provides that no Court, when it has signed its Judgment or Final order in disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error save as otherwise provided by the Code The Court has also referred to Section 482 of the Code which enables the High Court to make such Order as may be necessary to give effect to any Order under the Code or to prevent the abuse of process of any Court or otherwise to secure the ends of justice and pronounced:

The inherent jurisdiction of the High Court cannot be invoked to override bar of review under Section 362, It is clearly stated in Sooraj Devi v. Pyare Lal, 1981 (1) SCC 500 AIR 1981 SC 756, that the inherent power of the Court cannot be exercised for doing that which is specifically prohibited by the Code The law is, therefore, clear that the inherent power cannot be exercised for doing that which cannot be done on account of the bar under other provisions of the Code The Court is not empowered to review its own decision under the purported exercise of inherent power. We find that the impugned Order in this case is in effect one reviewing the earlier Order on a reconsideration of the same materials The High Court has grievously erred in doing so. Even on merits, we do not find any compelling reasons to quash the proceedings at that stage.

The Supreme Court came to the above conclusion in these circumstances In a case instituted on a Private Complaint by the Appellant for offences under Sections 452 & 323, I.P.C, the Judicial Magistrate, First Class, Patna, in the exercise of power under Section 192(2), Code of Criminal Procedure, transferred the case for enquiry under Section 202 of the Code The Court of the Second Class Magistrate after examining Witnesses, by Order dated 22.3.1985 issued process to the two Accused, the order of the Magistrate issuing process was challenged by the Respondents under Section 482 before the High Court The main ground urged before the High Court was that the First Class Magistrate had transferred the case without taking cognizance of the offence and the subsequent proceedings were, therefore, illegal The High Court, by its Order dated 20.8.1988. dismissed the Petition It was found that there was no such illegality The Respondents again made Criminal Miscellaneous Petition No.2314 of 1989 under Section 482, Code of Criminal Procedure, before the High Court. alleging,Inter alia, that the record of the proceedings on close scrutiny would indicate that the case had not been taken cognizance of before the transfer. The learned Single Judge accepted the case of the Respondents and quashed the proceedings by the impugned Order."

In State of Andhra Pradesh v. P.V. Pavithran, AIR 1990 SC 1266, however, the Supreme Court upheld an Order of the Andhra Pradesh High Court quashing the First Information Report, exercising the Court''s power under Section 482 of the Code This Judgment, however, does not refer to the ambit of Section 482 of the Code.

The conspectus of Judicial Authority of the land, therefore, is that the High Court''s inherent power to make suitable orders as envisaged under Section 482 of the Code is confined to any Order passed by a Court of law or to prevent the abuse of the process of Court and in relation to such proceedings to make any Order, which is deemed fit and necessary to secure the ends of justice. The High Courts in India however divided they may be in the matter of their judicial approach as to the scope and ambit of Section 482 of the Code, have however off and on been confronted with this vexed question and contributed their mite as well Besides the Judgment of the Allahabad High Court in Ram Lal Yadhav v. State of U.P., 1989 Cri.L.J 1013, in Mallikarjuna Rao v. State of A. P., ILR 1962 AP 755, the Andhra Pradesh High Court said that the inherent power under the provisions of Section 561-A of the Code cannot be exercised in regard to matters specifically covered by the other provisions of the Code In re Devalah, AIR 1969 AP 444, it is stated that Section 561-A of the Code preserved the inherent power of the High Court to make suitable Orders (1) to give effect to any order under the Code, and (2) to prevent abuse of the process of the Court, but (3) it does not empower the High Court to interfere with Executive Authorities, actions, and (4) the Order under the Section to secure the ends of justice must he in relation to a proceeding in the High Court or any subordinate Criminal Court and that proceeding too must have judicial character and not of an Executive or Administrative one The Patna High Court in Kula Chandra Dutt v. Emperor, AIR 1946 Pat 191. clearly said that Section 561-A (old Code) came into operation only when the impugned Order was passed by a Court'' and that if the Order moved against in the High Court is one passed by an Executive Officer at the Crown in his Administrative capacity Section 561-A was not attracted. Coming to the question of Parole, however, and the exercise of the power under Section 432(5), Code of Criminal Procedure, in K. Sudesthamma v. State of A.P., 1985 Cri.LJ 1890, a learned Judge of the Andhra Pradesh High Court considered whether Section 482, Code of Criminal Procedure enabled the High Court to grant any direction and held:

"Here in the case before us, the Parole is an Administrative Order and not even a Quasi-Judicial Order and, therefore. Section 482 of the Code of Criminal Procedure is not applicable to the facts of this case Thus, even though the Order passed by the Government in granting Parole to the Respondents is bad in law, in view of the fact that the Application before me is filed under Section 482 of the Code of Criminal Procedure, the same is liable to be dismissed, and the same is dismissed accordingly."

The Delhi High Court in Vishwa Nath Verma v. Commissioner of Police, 1986 Cri.LJ 1800, considered whether the Order of the Government refusing or granting Parole under Section 432(5) of the Code of Criminal Procedure can be questioned under Section 482 of the Code of Criminal Procedure or not. Learned Single Judge observed.

It is contended by'' the said learned Counsel that inherent powers could be exercised for either giving effect to any Order under the Code or to prevent abuse of the process of any Court or otherwise to secure the ends of justice, that it was clear that it was with respect to the Orders of the Court only that inherent powers could be exercised, that the exercise of power of Parole or furlough tell within the domain of the Government, in the present case Delhi Administration that, therefore, the High Court cannot exercise that power by the interfering into the exercise of jurisdiction by the Government. He explained that a person aggrieved from the order of Delhi Administration could come to the High Court but that could be by way of invoking the `Writ Jurisdiction'' as given under Article 226 of the Constitution.

I, however, do not agree with the learned Counsel. The words `otherwise to secure the ends of justice'' are wide enough to cover a case when according to this Court the exercise of jurisdiction by the Government in respect of grant of Parole or furlough is not in accordance with the ends of justice. Normally, this Court will not like to interfere with the jurisdiction exercised by the Government but in some extreme and deserving cases, in the ends of justice it becomes the duty of the Court to interfere."

In this Court, also it seems that the opinion on this subject has not been consistent. In one of the Judgments delivered on 19th December 1989 in S.D Ashok Kumar v. State, rep. by the Sub-Inspector of Police, 1990 LW (Crl.) 10, a learned Single Judge of this Court found that, although in the rarest of rare cases where the liberty of an individual so sacred and sacrosanct has to be protected zealously, this Court''s jurisdiction under Section 482 of the Code can be invoked to quash a First Information Report.

On the question of Parole also, it appears that the view of this Court has not been consistent While one of the learned Single Judges of this Court in Ramakrishnan v. State of Tamil Nadu, 1983 LW (Crl.) 181. and another in Masilamani v. State of Tamil Nadu, 1987 LW Crl 26. took the view that in extraordinary situations, the Court should relegate technical and procedural matters to the background and take human factors into consideration and give relief to the parties within the bounds of law and thus exercise power under Section 482 of the Code of Criminal Procedure, another learned Single Judge in Rajan R. v. State of Tamil Nadu, 1987 LW (Crl.) 43, took the view that the Order of refusal to grant leave is final and that the Court should not sit in Appeal over the decision of the Government In his words:

"The learned Counsel for the Petitioner draws my attention to the Judgment of S. Natarajan, J. in Ramakrishnan v. The State of Tamil Nadu, 1983 LW (Crl.) 181, where it has been observed that the Court may overrule the objection raised by the Government for grant of relief to the convict and direct that there will be suspension of sentence and grant Parole to the Petitioner for a period of two weeks. That was a case, where a Life Convict approached the Government for Parole, but the Government refused to grant the same, and on such refusal, he made an Application under Section 482, Code of Criminal Procedure and 432(2) of the Tamil Nadu Suspension of Sentence Rules for the grant of Parole The learned Judge has taken the view that the giant of leave to the convicts can be under two heads (1) Ordinary leave and (2) leave under emergent circumstances.

In that case, the convict produced the Marriage Invitation of his sister, which is to take place in a few days and on that ground, the learned Judge came to the conclusion that there is an emergent circumstance which deserves the extraordinary leave to be granted to the convict But that conclusion, under the special circumstances of that case cannot be taken to be the general principle to be observed in all cases In this case, no such extraordinary circumstance is made out apart from stating that the parents are old and that the sister will have to be got married The very same Judge in the case in R. Sadasivam, Crl M.P. No. 7320 of 1983. held that Order of refusal to grant leave is final and that this Court will not sit in Appeal over the decision of the Government Again, the very same Judge, in a subsequent decision rendered in Crl. M.P No 8096 of 1985 held that this Court has ho power to entertain an Application for Parole and in the case of ordinary leave, he should approach the Government and in the case of urgency, he should approach the Prison Authority himself. Under the circumstances, it is clear that this Court has no jurisdiction to sit in Judgment over the conclusion arrived at by the Government in the matter of granting Parole, and the decision in Ramakrishnan v The State of Tamil Nadu, 1983 LW (Crl.) 181, cannot be said to be laying down the law on that point.

The Supreme Court has repeatedly pointed out, the latest of which is Madhu Limaye v. State of Maharashtra, AIR 1978 SC 47, that powers under Section 182, Code of Criminal Procedure cannot be exercised as against the express bar of law engrafted in any other provision of the Code. In this case, exercising the power of granting Parole will amount to usurping the function of the Government under Section 482, Code of Criminal Procedure. Hence, the request of the Petitioner will have to be negatived and accordingly this Petition is dismissed."

It will, thus, be a pertinent question to us to consider whether the words otherwise to secure the ends of justice" in Section 482 of the Code as pointed out in Ramakrishnan''s case 1983 LW (Crl.) 181, or in Vishwa Nath Verma''s case, 1986 Crl.LJ 1800, have the content to extend the inherent jurisdiction of the Court to situations as in the case of a First Information Report taken up for investigation by the Police and jurisdiction for grant of Parole exercisable under Section 432 of the Code would empower this Court to interfere or not It has to be first understood that the inherent power of the Court under Section 482 of the Code of Criminal Procedure is a saving and not a grant of power by a Statute. Such inherent power, this Court possessed and possesses as a Court of Record and a Court of unlimited jurisdiction as noticed in the recitals of the Letters Patent of this Court, which states:

"And that the High Court of Judicature so to be established should have and exercise all such Civil, Criminal, Admiralty and Vice-Admiralty, Testamentary, Intestate and Matrimonial Jurisdiction, Original and Appellate, and all such powers and authority for and in relation to the Administration of Justice in the Presidency as Her Majesty might, by such Letters Patent as aforesaid, grant and direct, subject, however to such directions and limitations as to the exercise of original. Civil and Criminal jurisdiction beyond the limits of the Presidency Town, as might be prescribed thereby; and save as by such Letters Patent, might be otherwise directed and subject and without prejudice to the legislative powers in relation to the matters aforesaid the High Court so to be established should have and exercise all jurisdiction, and every power and authority whatsoever in any manner vested in any of the Courts."

It is not necessary for us in the instant case to go into the details of the nature of this power of the Court and various changes which have been made from time to time but to add and state that a jurisdiction in relation to the administration of justice undoubtedly will be available to the Court provided it arises on account of certain act with respect to which no legislation exists When we go however to the provisions in Chapter XXXII of the Code of Criminal Procedure, we find that they appear to conform to some of the Constitutional functions, which the Executive alone can perform and not the Courts Some of the Constitutional provisions may at this stage be seen Article 72(1) in Part V, Chapter I of the Constitution states:

"The President shall have the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any poison convicted of any offence:

(a) in all cases where the punishment or sentence is by a Court Martial.

(b) in all cases where the punishment or sentence is for an offence against any law relating to a matter to which the executive power of the Union extends;

(c) in all cases where the sentence is a sentence of death.

(2) Nothing in sub-clause (a) of Clause (1) shall affect the power conferred by law on any officer of the Armed Forces of the Union to suspend, remit or commute a sentence passed by a Court Martial.

(3) Nothing in sub-clause (c) of Clause (1) shall affect the power to suspend, remit or commute a sentence of death exercisable by the Governor of a State under any law for the time being in force."

Similarly Article 161 of the Constitution in Part VI, Chapter I states. The Governor of a State shall have the power to grant pardons, reprieves, respites, or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence against any law relating to a matter to which the executive power of the State extends.

In K.M. Nanavati v. State of Bombay, AIR 1961 SC 112, a Constitution Bench of the Supreme Court had the occasion to consider the ambit of Article 161 of the Constitution and Sections 401 & 426 of the Code of Criminal Procedure, 1898 The matter had gone before the Supreme Court in connection with a case in which the Petitioner, who was Second in Command of INS Mysore had been arrested in connection with a charge of murder under Section 302 of the Indian Penal Code, produced before the Chief Presidency Magistrate, Greater Bombay, remanded to Police custody and under the Orders of the Magistrate, detained in the Naval Jail and Detention Headquarters in Bombay In due course, he was placed on trial be t ore the Sessions Judge Greater Bombay. The Judge made a reference to the High Court under Section 307 of the Code of Criminal Procedure disagreeing with the verdict of the Jury (it was a Jury Trial). The High Court accepted the Reference, convicted him and sentenced him to imprisonment for life. The Governor of Bombay on the same day passed an Order under Article 161 of the Constitution suspending the sentence until the Appeal intended to be filed by him before the Supreme Court against his conviction and sentence The Sessions Judge however issued a warrant for the arrest of the Accused and sent it to the Police Officer in charge of the City Sessions Court but the Warrant was returned unserved with the Report that it could not be served in view of the Order of the Governor of Bombay. The Sessions Judge returned the Writ together with the unexecuted warrant to the High Court In the meantime, an Application for leave to Appeal to the Supreme Court was made soon after the Judgment was pronounced by the High Court On that day the matter of the unexecuted Warrant was also placed before the Division Bench of the Court, which directed that in view of the unusual and unprecedented situation arising out of the order of the Government, the matter should be referred to a Larger Bench. A special Bench of Five-Judges of the High Court heard the matter One of the objections raised before the High Court was that it had no power to go into the validity of the Order of the Governor under .Article 161 of the Constitution of India The High Court, however, held that it had the power to examine the extent of Governor''s powers under .Article 161 and whether it had been validly exercised in that case or not One of the problems that arose before the Supreme Court however was with respect to one of the Rules in Order 21, Rule 5 of the Supreme Court Rules, which gave exclusive power to the Supreme Court and which postulated the existence of a sentence of imprisonment before any Appeal was entertained by it The Supreme Court observed:

"Let us now turn to the law on the subject as it obtains in India since the Code of Criminal Procedure was enacted in 1898. Section 401 of the Code gives power to the Executive to suspend the execution of the sentence or remit the whole or any part of the punishment without conditions or upon any conditions which the person sentenced accepts Section 402, gives power to the executive without the consent of the person sentenced to commute a sentence of death into imprisonment for life and also other sentences into sentences less rigorous in nature. In addition the Governor General had been delegated the power to exercise the prerogative power vesting in His Majesty Sub-section (5) of Section 401, also provides that nothing contained in it shall be deemed to interfere with the right of His Majesty or the Governor General when such right is delegated to him, to grant pardons, reprieves respites or remissions of punishment. This position continued till the Constitution came into force. Two provisions were introduced in the Constitution to cover the former royal prerogative relating to pardon, and they are Articles 72 & 161 Article 72, deals with the power of the President to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence Article 161 gives similar power to the Governor of a State with respect to offences against any law relating to a matter to which the executive power of the State extends Sections 401 & 402 of the Code have continued with necessary modifications to bring them into line with .Articles 72 & 161. It will be seen, however, that Articles 72 & 161, not only deal with pardons and reprieves which were within the royal prerogative but have also included what is provided in Sections 401 & 402 of the Code Besides the general power, there is also provision in Sections 337 & 338 of the Code to tender pardon to an accomplice under certain conditions Though Article 161 does not make any reference to Article 72 of the Constitution, the power of the Governor of a State to giant pardon, etc. to some extent overlaps the same power of the President, particularly in the case of a sentence of death Articles 72 & 161, are in very general terms It is therefore, argued that they are not subject to any limitations and the respective area of exercise of power under these two Articles is indicated separately in respect of the President and of the Governor of a State It is further argued that the exercise of power under these two articles is not fettered by the provisions of Articles 142 & 145 of the constitution or by any other law."

After making an elaborate discussion of the law on the subject, the Supreme Court held:

There can, therefore, be no doubt that the judicial power under Article 142 and the Executive power under Article 161 can within certain narrow limits be exercised in the same field. The question that immediately arises is one of harmonious construction of two provisions of the Constitution, as one is not made subject to the other by specific words in the Constitution itself. As already pointed out. Article 161, contains no words of limitation, in the same way, Article 142 contains no words of limitation and in the fields covered by them they are unfettered. But if there is any field which is common to both the Principle of Harmonious Construction will have to be adopted in order to avoid conflict between the two powers It will be seen that the ambit of Article 161 is very much wider and it is only in a very narrow field that the power contained in Article 161 is also contained in Article 142, namely, the power of suspension of sentence during the period when the matter is sub-judice in this Courts Therefore, on the Principle of Harmonious Construction and to avoid a conflict between the two powers it must be held that Article 161 does not deal with the suspension of sentence during the time that Article 142 is in operation and the matter is sub-judice in this Court when we compare the language of Articles 72 & 161, with the language of Section 295(21) of the Government of India Act. we find no words like "Nothing in this Constitution" or "Notwithstanding anything contained in this Constitution" in them Such words have been used in many articles of the Constitution. (See for example, Article 262(2) which provides specifically for taking away by Parliament by law the power of this Court in disputes relating to water and begins with words "Notwithstanding anything in this Constitution"). The absence thereof of any such qualifying words in Article 161 makes the power of this Court under Article 142 of the same vide amplitude within its sphere as the power conferred on the Governor under Article 161 Therefore, if there is any field where, the two powers can be exercised simultaneously the Principle of Harmonious Construction has to be resorted to in order that there may not be any conflict between them On that principle the power under Article 142, which operates in a very small part of the field in which the power under Article 161. operates, namely, the suspension and execution of sentence during the period when any matter is sub-judice in this Court, must be held not to be included in the wider power conferred under Article 161.

After adverting to the facts of the case, the Supreme Court held:

There can be no doubt that it is open to the Governor to grant a full pardon at any time even during the pendency of the case in this Court in exercise of what is ordinarily called "Mercy jurisdiction". Such a pardon after the Accused person has been convicted by the Court has the effect of completely absolving him from all punishment of disqualification attaching to a conviction for a Criminal offence. That power is essentially vested in the head of the Executive, because the Judiciary has no such `Mercy jurisdiction'' But the suspension of the sentence for the period when this Court is in seizing of the case could have been granted by this Court itself. If in respect of the same period the Government also has power to suspend the sentence, it would mean that both the Judiciary and the Executive would be functioning in the same field at the same tune leading to the possibility of conflict of jurisdiction. Such a conflict was not and could not have been intended by the makers of the Constitution So long as the judiciary has the power to pass a particular order in a pending case to that extent the power of the Executive is limited in view of the words either of Sections 401 & 426 of the Code of Criminal Procedure and Articles 142 & 161 of the Constitution If that is the correct interpretation to be put on these provisions in order to harmonise them, it would follow that what is covered in Article 142 is not covered by Article 161 and similarly what is covered by Section 426 is not covered by Section 401 On that interpretation, Mr. Seervai would be right in his contention that there is no conflict between the prerogative power of the sovereign State to grant pardon and the power of the Courts to deal with a pending case judicially."

In yet another Judgment in Sarat Chandra v. Khagendranath, AIR 1961 SC 334. speaking about the effect of Order of Revision under Section 401 of the Code of Criminal Procedure, 1898, the Supreme Court said:

"Now it is not disputed that in England and India the effect of a pardon or what is sometimes called a free pardon is to clear the person from all infamy and from all consequences of the offence for which it is granted and from all statutory or other disqualifications following upon conviction It makes him, as it were, a new man (see Halsbury''s Laws of England, Vol. VII, Third Edition, p. 244 Para 529). But the same effect does not follow on a mere remission which stands on a different footing altogether. In the first place, an Order of Remission does not wipe out the conviction. All that it does is to have an effect on the execution of the sentence; though ordinarily a convicted person would have to serve out the full sentence imposed by a Court, he need not do so with respect to that part of the sentence which has been ordered to be remitted An order of remission thus does not in any way interfere with the order of the Court, it affects only the execution of the sentence passed by the Court and frees the convicted person from his liability to undergo the full term of imprisonment inflicted by the Court, though the Order of Conviction and Sentence passed by the Court still stands as it was The power to grant Remission is Executive power and cannot have the effect which the Order of an Appellate or Revisional Court would have of reducing, the sentence passed by the Trial Court and substituting in its place the reduced sentence adjudged by the Appellate or Revisional Court This distinction is well brought out in the following passage from Weather''s "Constitutional Law" on the effect of reprieves and pardons vis-a-vis the Judgment passed by the Court imposing punishment, at p. 176 Para 134:

A reprieve is a temporary suspension of the punishment fixed by law A pardon is the remission of such punishment Both are the exercise of Executive functions and should he distinguished from the exercise of Judicial power over sentences The Judicial power readily distinguishable, observed Justice Sutherland." To render a Judgment is a Judicial function To carry the Judgment into effect is an Executive function To cut short a sentence by an act of clemency is an exercise of Executive power which abridges the enforcement of the Judgment but does not alter it qua Judgment."

It will, thus, be seen that the Supreme Court considered the scope of Section 401 of the Code, 1898 and .Article 161 of the Constitution and found that the power to grant remission, suspension of sentence, etc. is an Executive act of the State and not Judicial or Quasi-Judicial and pointed out that this Executive power of the State or the Governor is wholly independent of the proceedings in Court. It, however, does not mean that there can be no Judicial Review of any kind or in other words there can be no interference of this Executive jurisdiction of the State, Governor or the President by the Courts.

A Full Bench of the Punjab and Haryana High Court in Hukam Singh v. State, AIR 1975 P&H 148, has tried to spell out when and in what circumstances an Order passed under Articles 72 & 161 of the Constitution of India and under Section 401 of the Code of Criminal Procedure, 1898 is justiciable. That was a case, in which the brother of the victim of a murder challenged the Order by the State Government under Section 401 of the Code by filing a Petition under Article 226 of the Constitution of India The Punjab Court has said:

From what has been stated above, it is clear that the powers vested in the President of India under Article 72; in the Governor under Article 161 of the Constitution and in the State Government under Section 401 of the Code of Criminal Procedure are essentially executive powers of mercy which operate in a completely different field The trial of Criminals and the passing of sentences is purely in the domain of the Judiciary whereas the execution of sentences is purely with the Executive Government. Thus, it is clear that the Order passed by the State Government under Section 401 of the Code of Criminal Procedure in this case is essentially and basically an Executive Order and the same has to operate in a completely different field and thereafter said:

From the above discussion, I therefore, conclude that an Order passed under Articles 72 & 161 of the Constitution of India and under Section 401 of the Code of Criminal Procedure, is justiciable on any of the following grounds:

That the Authority, which purported to have exercised the power, had no jurisdiction to exercise the same.

that the impugned Order goes beyond the extent of the power conferred by the provisions of law under which it is purported to be exercised.

That the Order has been obtained on the ground of fraud or that the same having been passed taking into account the extraneous considerations not germane to the exercise of the power conferred or in other words that the Order is a result of mala fide exercise of power.

It may, however, be observed that the exercise of power in this regard cannot be questioned on the ground of adequacy or inadequacy of the reasons which resulted into the passing of the said Order. the Court is not entitled to investigate the matter on merits but can certainly go into the question whether the power given has been exercised mala fide or not."

Whatever little doubt which could have been there in this regard, however, has been settled by one of the latest Judgments of the Supreme Court in Kehar Singh v. Union of India, AIR 1989 SC 653, wherein a Constitution Bench of the Supreme Court has clearly said:

The Constitution of India, in keeping with modern Constitutional practise, is a constitutive document, fundamental to the governance of the country, whereby, according to accepted political theory, the people of India have provided a Constitutional polity consisting of certain primary organs, institutions and functionaries to exercise the powers provided in the Constitution. All powers belong to the people, and it is entrusted by them to specified institutions and functionaries with the intention of working out. maintaining and operating a Constitutional Order The Preambular statement of the Constitution begins with the significant recital:

"We the people of India, having solemnly resolved to constitute India into a sovereign Socialist Secular Democratic Republic do hereby adopt, enact and give to ourselves this Constitution."

To any civilised society, there can be no attributes more important than the life and personal liberty of its members That is evident from the paramount position given by the Courts to Article 21 of the Constitution These twin attributes enjoy a fundamental ascendancy over all other attributes of the political and social order, and consequently, the Legislature, the Executive and the Judiciary are more sensitive to them than to the other attributes of daily existence The deprivation of personal liberty and the threat of the deprivation of life by the action of the State is in most civilised societies regarded seriously, and recourse, either under express Constitutional provisions or through Legislative enactment is provided to the judicial organ But, the fallibility of human judgment being undeniable even in the most trained mind, a mind resourced by a harvest experience, it has been considered appropriate that in the matter of life and personal liberty, the protection should be extended by entrusting power further to some high authority to scrutinise the validity of the threatened denial of life or the threatened of continued denial of personal liberty. The power so entrusted is a power belonging to the people and reposed in the highest dignitary of the State. In England, the power is regarded as the royal prerogative of pardon exercised by the Sovereign, generally through the Home Secretary. It is a power which is capable of exercise on a variety of grounds, for reasons of State as well as the desire to safeguard against judicial error. It is an act of grace issuing from the Sovereign In the United States, however, after the founding of the Republic, a pardon by the President has been regarded not as a private act of grace but as a part of the Constitutional scheme In an opinion, remarkable for its erudition and clarity, Mr Justice Holmes, speaking for the Court in W.L. Biddle v. Vuco Perovich, 1926 (71) Law Ed 1161. enunciated this view, and it has since been affirmed in other decisions The power to pardon is a part of the Constitutional scheme, and we have no doubt, in our mind, that it should be so treated also in the Indian Republic. It has been reposed by the people through the Constitution in the Head of the State, and enjoys high status It is a Constitutional responsibility of great significance, to be exercised when occasion arises in accordance with the discretion contemplated by the context It is not denied, and indeed it has been repeatedly affirmed in the course of argument by learned Counsel Shri Ram Jethmalani and Shri Shanti Bhushan appearing for the Petitioners that the power to pardon rests on the advice tendered by the Executive to the President, who subject to the provisions of Article 74(1) of the Constitution, must act in accordance with such advice We may point out that the Constitution Bench of this Court held in Maru Ram v. Union of India, 1981 (1) SCR 119 : AIR 1980 SC 2141, that the power under Article 72 is to be exercised on the advice of the Central Government and not by the President on his own, and that the advice of the Government binds the Head of the State and thereafter observed, -

We are of the view that it is open to the President in the exercise of the power vested in him Article 72 of the Constitution to scrutinize the evidence on the record of the Criminal case and come to a different conclusion from that recorded by the Court in regard to the guilt of, and sentence imposed on the Accused In doing so, the President does not amend or modify or supersede the Judicial record The Judicial record remains in tact, and undisturbed. The President acts in a wholly different place from that in which the Court acted. He acts Under a Constitutional power, the nature of which is entirely different from the Judicial power and cannot be regarded as an extension of it And this is so. notwithstanding that the practical effect of the Presidential act is to remove the stigma of guilty from the Accused or to remit the sentence imposed on him In U.S. v. Bens, 1930 (75) Lawed 354 at p. 358, Sutherland J, observed:

The Judicial power and the Executive power over sentences are readily distinguishable To render Judgment is a Judicial function To carry the Judgment into effect is an Executive function. To cut short a sentence by an act of clemency is an exercise of Executive power which abridges the enforcement of the Judgment but does not alter it qua a Judgment To reduce a sentence by amendment alters the terms of the Judgment itself and is a Judicial act as much as the imposition of the sentence in the first instance."

The law above said thus leaves no manner of doubt that the provisions in Chapter XXXII of the Code of Criminal Procedure, 1973, which includes Section 432 are like powers under Articles 72 & 161 of the Constitution exclusively for the Executive and operate in a field which does not either affect or embrace the Judicial functions of the Courts Howsoever, extended meaning the Court may intend to give to the words in Section 482 of the Code one must always remember that any order to secure the ends of justice or to give effect to the Order under the Code does not and cannot mean a Supervisory power to the Court over the Executive functions of the State Government or the Governor of the State or the Union Government or the President of India. Although included as a provision in the Code of Criminal Procedure, the Executive power of the State to suspend or remit sentence and the power of the Governor and the President to the said extent to accord pardon, etc., are Executive powers which are beyond reach of a regular Court of law Section 483 of the Code of Criminal Procedure and Article 227 of the Constitution of India together recognize the High Court''s Supervisory power over the Courts and Tribunals including the Executive actions which affect any right or interest, but they do not cover such powers of the State Government or of the Governor which he exercises with the aid and advice of the Council of Ministers of the State or of the President which he exercises with the aid anil advice of the Council of Ministers of the Union Government Section 482 of the Code of Criminal Procedure, thus, is not available to any person or to the Court to interfere with the Order passed by the Executive Government after the conviction and sentence recorded by the Court Such orders however are not completely free from any Judicial control The Supreme Court has in several Judgments said that so long as the question arises whether an Authority under the Constitution has acted within the limits of his power or exceeded it. it can certainly be decided by the Court Indeed, it would be its Constitutional obligation to do so (See State of Rajasthan v. Union of India, AIR 1977 SC 1361, and Minerva Milts Ltd. v. Union of India, AIR 1980 SC 1789 In Kehar Singh v. Union of India (supra), the Supreme Court has pointed out that the question as to the area of the President''s power under Article 72 falls squarely within the Judicial domain and can be examined by the Court by way of Judicial Review, but cautioned that the function of determining whether the act of a Constitutional or Statutory functionary falls within the Constitutional or Legislative conferment of power, or is vitiated by self-denial on an erroneous appreciation of the full amplitude of the power is a matter for the Court but not the merits of the case upon which the Executive decision is taken In our considered view, therefore, while a Judicial Review to the limited extent indicated above will be permissible in exercise of the powers of this Court under Article 226 of the Constitution of India, it will not be so permissible in exercise of its inherent Criminal jurisdiction saved under Section 482 of the Code of Criminal Procedure, 1973 The Reference is answered accordingly.

In view of the answer of the Reference as above, it shall be open to the Petitioners to either convert instant Petitions into Petitions under Article 226 of the Constitution of India or to file fresh Petitions 34. The record of the case now should be placed before the appropriate Judge for orders accordingly.