Swarn Singh vs State of U.P. and Others

S.K. Verma, J.—This petition has been filed for issuing a writ of certiorari quashing the order dated 9-2-1991 passed by Respondent No. 1, State of U.P. in exercise of powers under Article 161 of the Constitution of India.

The facts in brief are that opposite party No. 3 Doodhnath was tried on a charge of murder under Sections 302/149 IPC along with other co-accused in Sessions Trial No. 102 of 1980 by the 3rd Additional District Judge, Jaunpur and was convicted and sentenced for life imprisonment vide judgment dated 9-2-1982. Criminal Appeal No. 402 of 1982 was filed by Chanika and others against the aforesaid judgment which was dismissed by a Division Bench of this High Court on 21-5-1988. A special Leave to Appeal (criminal petition No. 2229 of 1988) was dismissed by the Supreme Court vide order dated 31-3-1989 Thereafter Respondent No. 3 Doodhnath moved the petition through his wife for grant of reprieve and remission which was however, dismissed by the State of U.P. on 7-6-1990. Meanwhile, Respondent No. 3 Doodhnath was granted parole on 16-12-1989 which expired on 16-5-1990. Yet another application for grant of reprieve and remission was moved under Article 161 of the Constitution of India by Respondent No. 3 which was allowed by the Governor of U.P. vide order dated 9-2-1991 (Annexure-B to the writ petition). This order dated 9-2-1991 has been sought to be quashed through this petition moved by Swarn Singh who is the son of the deceased Yogendra Singh for whose murder Respondent No. 3 was convicted and sentenced to life imprisonment.

We have heard the learned Counsel for the Petitioner as well as the learned Counsel for Respondent No. 3 and the learned State Counsel. The impugned order has been challenged on the ground, firstly, that the order in question is claimed to be against the provisions of Section 433A Code of Criminal Procedure. Secondly, it has been argued that the Governor has absolutely no jurisdiction to pass any such order because his power is restricted to the sphere to which the executive power of the State exists. Again the order is sought to be quashed on the ground that it has not been passed of the advice of the Council of Ministers. Next it has been argued that the order was passed on extraneous considerations and is politically motivated and has been passed under political pressure. Again, it is claimed that Respondent No. 3 Doodhnath was not in jail on the date of making the petition and the petition for remission was therefore, barred by Section 432 Code of Criminal Procedure. It has also been argued that the petition for remission was directly sent to the Governor and was not forwarded by the Officer Incharge of the jail and, as such, it was not maintainable in law.

Learned Counsel for Respondent No. 3 has argued that the power exercised by the Governor under Article 161 of the Constitution is not restricted by the provisions of Section 433-A Code of Criminal Procedure and therefore, the formalities and the restrictions mentioned in Sections 432, 333 and 433A Code of Criminal Procedure are not applicable In the present Case because the Governor has exercised jurisdiction vested in him under Article 161 of the Constitution of India while granting remission to Respondent No. 3. It has also been argued that principles of res-judicata do not apply and, therefore, a second application was maintainable and could be considered by the Governor for grant of remission. It has further been argued that under Article 163(3) of the Constitution of India, the advice tendered by the Council of Ministers to the Governor shall not be enquited into in any Court and, therefore, it cannot be said that the advice was politically motivated or the Governor was under political pressure. It has also been contended that there is no allegation of malafide exercise of jurisdiction by the Governor and, therefore, the impugned order is valid and within jurisdiction.

The leading Case on the question of powers of the Governor under Article 161 of the Constitution and the powers of the appropriate Government under Sections 432, 433 and 433A Code of Criminal Procedure. Maru Ram v. Union of India AIR 1980 SC 2147 makes it clear that the two powers are separate and distinct. Paragraphs 59 and 60 of the aforesaid judgment can be quoted with advantage as follows-

59 It Is apparent that superficially viewed, the two powers, one constitutional and the other statutory, are co-extensive. But two things may be similar but not the same. That is precisely the difference. We cannot agree that the power which is the creature of the Code can be equated with a high prerogative vested by the Constitution in the highest functionaries of the Union and the States, The source it different, the substance is different, the strength is different although the stream may be flowing along the same bed. We sec the two powers as far from being identical and, obviously, the constitutional power is untouchable'' and unapproachable and cannot suffer the vicissitudes of simple legislative processes. Therefore, Section 433A cannot be invalidated as indirectly violative of Articles 72 and 161. What the Code gives, it can take and so, on embargo on Sections 432 and 433(a) is within the legislative power of Parliament.

Even so, we must remember the Constitutional status of Articles 72 and 161 and It is common ground that Section 433-A does not and cannot effect even a wee-bit the pardon power of the Governor or the President. The necessary sequal to this logic is that notwithstanding Section 433-A the President and the Governor continue to exercise the power of commutation and release under the aforesaid articles.

Learned Counsel for the Petitioner has placed reliance on Maru Ram and Others Vs. Union of India (UOI) and Others, , Kuljeet Singh alias Ranga and Another Vs. Lt.-Governor of Delhi and Others, , Ashok Kumar v. Union of India 1992 JIC 8, Jalendhar Singh v. State of Punjab 1992 CLJ 1772 and Ramesh v. State of M.P. 1992 CLJ 2504.The law laid down in Maru Ram''s ease has already been discussed above. In Kuljit Singh''s Case (supra) the President refused to commute the sentence of death into a lesser sentence and it was found that it could not be said that in refusing to commute the sentence of death into a lesser sentence, the President had, in any manner, transgressed his discretionary power under Article 72 of the Constitution of India, what ever be the guide lines observed for the exercise of power conferred by Axtide 72. This Case does not help the Petitioner at all. In Ashok Kumar''s Case (supra) the provisions of Sections 432, 433 and 433-A Code of Criminal Procedure were examined. We have already found that in the present Case Sections 432, 433 and 433-A of the Code of Criminal Procedure are not applicable. In Jalendhar Singh''s Case (supra) the Governor had taken into consideration the heinousness of the crime while exercising power of pre-mature release or granting of pardon in a mercy petition under Article 161 of the Constitution of India and it was found that the Governor had power to take into consideration factors like heinousness of the crime while exercising that power. In Ramesh Case AIR 1992 CLJ 2504 the powers exercised by the appropriate Government u/s 433-A Code of Criminal Procedure were in question. This decision, is therefore, not applicable to the facts of the present Case.

We are therefore, of the view that there is no conflict between Section 433-A and Article 161 of the Constitution of India and the Governor had jurisdiction to pass an order under Article 161 of the Constitution of India inspite of provisions of Section 433-A Code of Criminal Procedure. We are also of the view that the petition for remission of sentence could be moved by Respondent No. 3 even if he was not in jail. Hence there was no defect in the petition for remission even if it was not forwarded by the Officer Incharge of the Jail because the provisions of Sections 432, 433 and 433-A Code of Criminal Procedure were not applicable to a petition requesting the Governor to act under Article 161 of the Constitution of India.

The argument that a second petition cannot be moved after the first petition has been rejected is also without force. The decision inHarbans Singh v. State of U.P. AIR 1982 SC 849, supports the view that even if one petition has been rejected a second petition can be entertained and decided by the President of the Governor under Article 72 or 161 of the Constitution of India- In that Case the earlier Petition of the Petitioner was rejected by the President of India under Article 72 of the Constitution of India but the Supreme Court referred beck the matter to the President for deciding commutation of the death sentence of the Petitioner to one of life Imprisonment.

The ground that the Governor acted under political pressure or took extraneous matters into consideration while deciding the petition under Article 161 of the Constitution cannot be considered by this Court In view of the decision of the Supreme Court in Kehar Singh and Another Vs. Union of India (UOI) and Another, . In paragraph 11 of this judgment it has been held that:

At the outset we think It would be clearly understood that we are confined to the question as to the area and scope of the President''s power and not with the question whether it has been truely exercised on the merits. Indeed, we think that the order of the President cannot be subjected to judicial review on its merits....

Further In the same paragraph relying on Minerva Mills Ltd. and Others Vs. Union of India (UOI) and Others, , it was held that:

...the question arises as to which authority must decide what are the limits on the power conferred upon each organ or instrumentality of the State and whether such limits transgressed or exceeded.... The Constitution has, therefore, created an independent machinary for resolving these disputes and this independent machinary is the judiciary which is vested with the power of judicial review....

It is therefore, clear that the decision of the Governor under Article 161 of the Constitution of India cannot be considered by this Court on its merits. Article 163(3) of the Constitution of India mentions that the question whether any and if so, what advice was tendered by the Ministers to the Governor shall not be enquired into in any Court. Hence this Court cannot enquire into the advice given by the Council of Ministers to the Governor nor can this Court ask for furnishing the advice for examination of this Court so as to examine the merits of the decision.

For all these reasons we do not find any force in this petition. There is no occasion for this Court to interfere in the discretion exercised by the Governor under Article 161 of the Constitution of India or to quash the order dated 9-2-1991 passed by the Governor in favour of Respondent No. 3. The petition is therefore, dismissed. There shall be no order as to costs.