SATPAL Vs. STATE OF HARYANA

JUDGEMENT

(1.) The order of the Governor dated 25-1-1999, granting pardon remitting the unexpired portion of the sentence passed on prisoner Shri Siriyans Kumar Jain S/o Shri Ram Chand Jain in exercise of power conferred by Article 161 of the Constitution of India read with Section 432 of the Code of Criminal Procedure is being assailed, inter alia on the ground that the power has been exercised without application of mind and that the said power has been exercised by the Governor on extraneous consideration and even without the aid and advice of the Government, namely, the concerned Minister. The applicants are the brother and widow of the deceased Krishan Kumar who was murdered during the election held in the year 1987 for the post of President of Municipal Committee, Hansi. The prosecution had alleged that a gruesome crime was committed by the accused persons and the entire family of the deceased suffered the agony and pain. In the criminal trial the respondent Siriyans Kumar Jain along with four other accused persons belonging to the Bhartiya Janta Party were tried for having committed offence under Sections 302 read with 149 and 120B as well as under Sections 302, 148, 452 and 323 Indian Penal Code. The learned Sessions Judge convicted all the five accused persons and on an appeal the High Court of Punjab and Haryana while maintained the conviction of accused. Krishan Kumar Jakhar and Gurvinder Singh but acquitted the accused P.K. Chaudhary, Siriyans Jain and Ram Nath Bhumla. The State of Haryana preferred appeal against the acquittal of the aforesaid three accused persons. The Supreme Court by judgment dated 10-12-1998, set aside the acquittal of accused Siriyans Kumar Jain, Ram Nath Bhumla but upheld the acquittal of P. K. Chaudhary. The Court also directed Siriyans Kumar Jain and Ram Nath Bhumla to surrender to custody in order to serve out the remaining part of their sentence. In setting aside the order of acquittal passed by the High Court the Supreme Court had observed that all the four accused persons had gone together to the place of occurrence and they were armed with weapons with a definite purpose and, therefore, there was no scope for entertaining any doubt regarding their involvement in commission of the crime and also as regards the said crime that the said crime having been committed by them in prosecution of common object of an unlawful assault consisting of them and other persons who had come along with them up to the factory. Immediately after the judgment of this Court dated 10-12-1998, respondent Siriyans Kumar Jain (respondent No. 3) in the present writ petition instead of surrendering to serve the sentence, as directed by this Court, filed an application before the Governor invoking his jurisdiction under Article 161 of the Constitution and this application was filed on 15-1-1999. The Secretary to the Governor addressed a letter to the Secretary to the Government of Haryana, Department of Jail requesting for a report in the matter to be placed before his Excellency the Governor of Haryana. The appropriate authority, namely, Joint Secretary to the Government in the Home Department indicated in his note that the opinion of the Legal Remembrancer should be obtained as to whether this is a fit case for exercising the power under Article 161 of the Constitution or not. The opinion of the Legal Remembrancer was then placed before the concerned Minister and finally the Chief Minister agreed with the views of the Legal Remembrancer and came to the conclusion that this is a fit case where discretion given under Article 161 of the Constitution be exercised and relief prayed for be granted. On the basis of the aforesaid advise of the Chief Minister the Governor finally granted pardon, as already stated.

(2.) Mr. K. T. S. Tulsi, learned senior counsel appearing for the petitioners contended that the very order passed by the Governor would indicate total non-application of mind and, therefore, the said order cannot sustain the judicial scrutiny and must be set aside. He also contended that if the order of the Governor is examined it will indicate as to the uncanny haste with which the entire matter was disposed of, without scant regard for the judgment of this Court whereunder the Court convicted the present respondent No. 3 under Section 302/149, IPC and S. 120-B and the final order of the Governor emanated even before respondent No 3 surrendered to serve the sentence though the impugned order categorically indicates that the prisoner is in jail. Mr. Tulsi also contended that the Governor has passed the order without being aided and advised by the Council of Ministers and, therefore, the order is vitiated.

(3.) Mr. R. K. Jain, learned senior counsel appearing for the State of Haryana and Mr. D. D. Thakur, learned senior counsel appearing for respondent No. 3, however, contended that the power to grant pardon and remission of sentence is essentially an executive function to be exercised by the Head of the State after taking into consideration various matters and the Court is precluded from examining the wisdom or expediency of exercise of the said power. According to the learned counsel the power of judicial review, as has been held by this Court in Kehar Singh's case (supra) is of a very limited nature, namely, whether the authority who had exercised the power had the jurisdiction to exercise the same, and whether the impugned order goes beyond the power conferred by law upon the authority who made it, and this being the position the grounds on which the impugned order is being attacked essentially pertain to the propriety of the Governor in the matter of exercising power under Article 161 after the conviction and sentence passed by this Court and as such, it should not be interfered with.