Bharat Vs State of Chhattisgarh & others

Chhatisgarh High Court (Single Judge)

ACQA->ACQUITTAL APPEAL [ APPEAL U/S 378 ], 3939 of 2004 of 2015, Judgment Date: Feb 10, 2015

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HIGH COURT OF CHHATTISGARH: BILASPUR
WP No.3939 of 2004
PETITIONER: Bharat
-Versus-
RESPONDENTS: State of Chhattisgarh
& others
----------------------------------------------------
Present:
Shri Vimlesh Bajpai, counsel for the petitioner.
Shri Arun Sao, Deputy Advocate General for the
State.
----------------------------------------------------
O R D E R
(Passed on 10th February, 2015)
PRASHANT KUMAR MISHRA, J.
1. In this petition under Article 226/227 of the
Constitution of India, the petitioner has
assailed the legality and validity of the orders
Annexure-P/11 & P/12 whereby the Hon'ble
Governor of Chhattisgarh has pardoned
respondents 5 & 6 in exercise of powers under
Article 161 of the Constitution of India and has
directed their release from jail.
2. Facts of the case, briefly stated, are that
respondents 5 & 6 along with several other
accused persons were tried for committing
offences under Sections 147 and 302 read with
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Section 149 of the IPC for committing murder of
deceased Hanua at 8.30 am on 11th July, 1975.
The trial Court acquitted Arjun, Bhikham, Nanku
and Parethan. Respondents 5 & 6 along with some
other accused persons were convicted by the
trial Court and the said conviction was affirmed
by the High Court. The Supreme Court, by
judgment dated 5.10.1990 in Cr.A.
No.168/79,allowed the appeal and set aside the
conviction and sentence of all other accused
except respondents 5 & 6, Baran and Karan.
Thus, out of 19 accused persons only 4 stood
convicted. When respondents 5 & 6 were
undergoing the jail sentence, an application for
pardon was moved before the Hon'ble Governor and
the same has been allowed by the impugned order.
3. The petitioner happens to be the son of the
deceased. It is argued on his behalf that the
sentence of life imprisonment wound mean that
the convict shall remain in jail for his entire
life, therefore, his release by granting
remission or pardon is contrary to the settled
legal position. Learned counsel would refer to
the provisions contained in Section 433-A of the
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CrPC and the law laid down by the Supreme Court
in Maru Ram Vs. Union of India and others1,Kehar
Singh and another Vs. Union of India and
another2, Swaran Singh Vs. State of U.P. and
others3.
4. Per contra, learned State counsel would submit
that Hon'ble Governor has exercised the power of
pardon under Article 161 of the Constitution and
it is not a case of remission of sentence,
therefore, Section 433-A of the CrPC has no
application in the case. He would refer to the
judgments of the Supreme Court in State of
Punjab and others Vs. Joginder Singh and others4
and Ram Deo Chauhan alias Raj Nath Chauhan Vs.
Bani Kanta Das and others5.
5. The petitioner has referred to the provisions
contained in Section 433-A of the CrPC to argue
that a person convicted for life cannot be
released from jail without serving at-least 14
years of imprisonment. Therefore, the impugned
orders are illegal.
1 (1981) 1 SCC 107
2 (1989) 1 SCC 204
3 (1998) 4 SCC 75
4 (1990) 2 SCC 661
5 (2010) 14 SCC 209
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6. Perusal of the impugned orders would indicate
that the same are based on the order passed by
the Hon'ble Governor on 17.7.2004 (in Annexure-
P/11) and 26.6.2004 (in Annexure-P/12) by the
Hon'ble Governor under Article 161 of the
Constitution.
7. The power of clemency or pardon conferred on the
Hon'ble Governor under Article 161 of the
Constitution is a plenary power and is not
circumscribed by any fetter imposed under the
Code of Criminal Procedure. It overrides
Section 433-A of the CrPC, as is settled by the
Supreme Court in Maru Ram (supra).
8. Though not argued that the impugned orders do
not satisfy the requirement for exercise of
powers under Article 161 of the Constitution and
the said exercise is perverse, this Court
proceeded to peruse the original record wherein
clemency has been granted, the same having been
supplied to the Court by learned State counsel.
9. A perusal of the record would indicate that an
application for commuting the sentence was
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earlier moved in the year 2002 which was
considered and rejected by the State Government.
In May, 2004, an application was directly sent
to the Hon'ble Governor, on which a report was
summoned from the concerned department. On this
occasion, the department recommended for pardon
which was also approved by the Hon'ble Chief
Minister. Report of the jail authorities is
also available on record wherein on account of
their good conduct and age, their applications
for pardon were recommended for acceptance.
10. In Ram Deo Chauhan alias Raj Nath Chauhan
(Supra),the Supreme Court considered the extent
of judicial review in respect of exercise of
power by the Hon'ble Governor under Article 161
of the Constitution and held in paras-65 to 69
thus:-
“65.However, on the extent of
judicial review in respect of
exercise of power by the Governor
under Article 161, or by the
President under Article 72, there
are authoritative pronouncements
by this Court and the matter is
no longer res integra.
66. In G. Krishta Goud v. State
of A.P.6 this Court while
construing the extent of judicial
6 (1976 ) 1 SCC 157
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review in connection with
exercise of clemency power by the
President or the Governor
respectively under Articles 72
and 161 held that even though the
power granted to the highest
executive authority is not
totally immune from judicial
review, but the Court makes an
almost extreme presumption in
favour of bona fide exercise of
such power (SCC para 8). However,
in SCC para 9 the Court sounded a
note of caution that where the
exercise of power is just by way
of a rule of thumb and totally
arbitrarily or out of personal
vendetta, the Court is not
helpless (see SCC para 9).
67. This question again came up
for detailed consideration before
the Constitution Bench in Maru
Ram v. Union of India {(1981)1
SCC 107}. In SCC para 72 at p.153
of the Report, this Court was
summarising its conclusions and
in sub-para 9 it was held that
only in rare cases the Court
would examine the exercise of
power by the appropriate
authority. Subsequently, in
Kehar Singh v. Union of India
{(1989) 1 SCC 204}, again by a
Constitution Bench of this Court,
the extent of exercise of this
power of clemency was considered.
68. In SCC para 13 of Kehar Singh
case (supra), Pathak, C.J.,
speaking for the Constitution
Bench, held: (SCC pp.216-17)
“13....Nor do we dispute that
the power to pardon belongs
exclusively to the President and
the Governor under the
Constitution. There is also no
question involved in this case of
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asking for the reasons for the
President's Order. And none of
the cases cited for the
respondents beginning with
Mohinder Singh {Mohinder Singh v.
State of Punjab, (1977) 3 SCC
346} advance the case of the
respondent any further.”
It also appears from para 11 of
Kehar Singh (supra)that it relies
on the formulations of principles
in Maru Ram (Supra). SCC paras 7
and 15 of Kehar Singh (supra)
would also show that Maru Ram
ratio was followed in Kehar Singh
(supra).
69.In view of such consistent
view of the two Constitution
Benches of this Court clearly
stating that unless the exercise
of power by the Governor under
Article 161, is ex facie perverse
or is based on a rule of thumb,
the Court should not interfere
for mere non-disclosure of
reason, the finding to the
contrary in the judgment under
review, by relying on a two-Judge
Bench decision in Epuru Case
{Epuru Sudhakar v. Govt. of A.P.,
(2006) 8 SCC 161} is vitiated by
errors apparent on the face of
the record. Even in SCC para 37
in Epuru (supra), the observation
of Kehar Singh (supra),
underlined hereinabove was
noted.”
11. In the case at hand, the record would
indicate that an application for clemency/pardon
was processed in the department and report was
called from the jail authorities. Based on the
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report, their cases were recommended by the
department as also by the Hon'ble Chief Minister
and thereafter Hon'ble Governor exercised the
power under Article 161 of the Constitution. No
material has been placed before this Court as to
how exercise of power is vitiated on account of
being malafide, perverse or in excess of power
conferred under Article 161. There is
absolutely no pleading or material even to
allege that what kind of political influence was
exerted by respondents 5 & 6 or their relatives
to secure their release. Therefore, it is not
a case where power has been exercised in an
arbitrary or unreasonable manner. Since there
exists presumption in favour of bona fide
exercise of power under Article 161 of the
Constitution, as observed by the Supreme Court
in G. Krishta Goud (supra) and reiterated in Ram
Deo Chauhan alias Raj Nath Chauhan (Supra) and
in the absence of any material to rebut the said
presumption or to compel this Court to take view
that exercise of power is vitiated for any good
or sound reason, this Court does not find any
infirmity in the impugned orders.
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12. The writ petition being bereft of any
substance deserves to be and is hereby
dismissed.
J U D G E
10.2.2015
Barve
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Headlines
Order by Governor u/Art. 161 of
Constitution pardoning and releasing a convict
is not illegal, if order based on relevant
material.
131