SUO MOTU Vs. STATE OF KERALA

JUDGEMENT

(1.) These writ petitions have been placed before us pursuant to a reference order of a Division Bench of this Court dated 22.3.2011 in I.A.No.3474/2011 in W.P.(C).No.32078/2010. The W.P.(C).No.32078/2010 was filed by the wife of a convict for an offence under Section 302 of the Indian Penal Code [hereinafter referred to as the 'IPC'], who was sentenced to imprisonment for life and serving the sentence. It was the case of the petitioner therein that the convict had been in jail for more than 16 years of actual imprisonment, and together with the period of remission earned by him, the period of sentence suffered by him would be approximately 23 years. In the writ petition, the petitioner was aggrieved by the non-consideration of her husband's case for the benefit of remission of sentence or grant of pardon, while granting such benefit to other prisoners, who, according to the writ petitioner, were either not entitled to such benefit or were equally placed as the petitioner's husband for the grant of the benefit under Section 432 of the Code of Criminal Procedure [hereinafter referred to as the 'Cr.P.C.'] or under Article 161 of the Constitution of India. The petitioner also impugned the Government Order - G.O.(MS) No.47/11/Home dated 18.2.2011, by which the State of Kerala directed the premature release of 209 prisoners, all of whom were convicted for offences under Section 302 IPC, and in some cases for other offences also, in purported exercise of the power under Article 161 of the Constitution of India.

(2.) During the pendency of the said writ petition, I.A.No.3474/2011 came to be filed by a third party [Smt.Ani Joseph K.A.] with a prayer as follows:

(3.) The Division Bench that considered the Writ Petition, as also the aforementioned I.A., took note of the averments therein, and was of the prima facie opinion that a periodic exercise of the constitutional authority of the Governor, under Article 161 of the Constitution, in a large number of cases, which are otherwise not eligible for consideration, in view of the mandate of the Parliament under Section 433A Cr.P.C., is itself an arbitrary exercise of the constitutional discretion vested in the Governor. It was felt that, although it was held that the restriction contained under Section 433A per se does not limit the constitutional authority of either the Governor or the President acting under Articles 161 or 72 as the case may be, the Supreme Court had opined in State of Haryana and Others v. Jagadish, 2010 4 SCC 216 that the authority either under Article 72 conferred on the 'President' or Article 161 conferred on the 'Governor', is meant to be used sparingly. The Division Bench therefore directed I.A.No.3474/2011 in W.P.(C).No.32078/2010 to be numbered separately as a 'Writ Petition', and having regard to the nature of the controversy and the constitutional issues involved, the Division Bench though it fit to refer the matter before a Full Bench of this Court for consideration. It is accordingly that I.A.No.3474/2011 in W.P.(C).No.32078/2010 came to be numbered as W.P. (C).No.14628/2011 and was referred before us.