J PAULRAJ JOSEPH Vs. STATE OF TAMIL NADU

JUDGEMENT

(1.) THE petitioner in W. P. No. 16140 of 1990 is the appellant in this writ appeal. THE respondents in the writ petition are the respondents in this writ appeal. For the sake of convenience, we are referring to the parties as per their nomenclature in the writ petition.

(2.) THE petitioner along with his father was convicted for an offence under Sec. 302 read with Sec. 34, I. P. C. and sentenced to undergo imprisonment for life by the Additional Sessions Court, Tirunelveli in s. C. No. 86 of 1981, on 23. 9. 1981. This Court confirmed their conviction and sentence in C. A. No. 612 of 1981 on 21. 12. 1983. As against the judgment of this court in C. A. No. 12 of 1981, the petitioner and his father filed a petition before the Supreme Court of India for Special Leave to Appeal in S. L. P. (Criminal)No. (2) 891 of 1986. THE petitioner is the second petitioner in S. L. P. No. 891 of 1986 filed before the Supreme court. THE S. L. P. filed by the petitioner and his father was disposed of by the Supreme Court on 14. 3. 1988. While disposing of the S. L. P. the Supreme Court recommended to the State of Tamil Nadu to consider the petitioner's claim for remission of the balance of sentence in the following terms: "ordinarily in this background the Special Leave petition would have been dismissed. Special case seems to have been made out so far as Palraj, petitioner No. 2, is concerned and the Supreme Court Legal Aid committee has highlighted this aspect by filing this petition. While in custody undergoing sentence the petitioner No. 2 was permitted to take the L. LB. as also m. Sc. (Maths) examination. He appears to have come out successfully in both the examinations and has secured first rank in the law examination and in M. Sc. he has passed in the first class. Proper certificates have been placed on records. His conduct in the jail during the period he has been undergoing the sentence appears to have been exemplary. Taking these into consideration, and the fact that the petitioner has undergone seven years of the sentence, we would recommend to the State of Tamil Nadu to consider the petitioner's claim for remission of the balance sentence. We hope and trust that the claim of the petitioner would receive favourable consideration of the State.' THE first respondent after considering the recommendation of the. Supreme Court made in S. L. P. No. 891 of 1986 and the petitioner's claim for remission 01 the balance of sentence, passed an order in g. O. Rt. No. 4800, Home (Pri. IV) Department, dated 27. 12. 1988 and the operative portion of the said order reads thus: 'the Government, considered the above views and recommendations of the Supreme Court of India with reference-to the provisions under Art. 161 of the Constitution of India, His Excellency, the Governor of tamil Nadu considers that there are no sufficient grounds to release the convict who has been found guilty of grave offence of murder. 5. THE Government accordingly reject the request for remission of sentence of the above convict.'

(3.) THE learned counsel for the petitioner further contended that the first respondent has not properly exercised its discretionary powers under Art. 161 of the Constitution and that the conclusion of the first respondent that there are no sufficient grounds to order premature release of the petitioner is erroneous and untenable. We are unable to accept the above contention of the learned counsel for the petitioner. It is well settled position of law that the power to grant pardon or remission of sentence under Arts. 72/161 of the Constitution is in essence an executive function to be exercised by the Head of the State after taking into consideration various matters which may not be germane for consideration before a court of law enquiring into the offence. THE Court in the proceedings under Art. 226 of the constitution is precluded from examining the wisdom or expediency of exercise of the power under Arts. 72/161 of Constitution in a particular case and the court cannot go into the merits of the case and interfere with the order passed under Arts. 72/161 of Constitution on the ground that the executive, improperly refused to exercise the clemency power. In Kehar Singh v. Union of India, a. I. R. 1989 S. C. 653, the Supreme Court of India while dealing with the question whether the order passed under Art. 72 is justiciable on merits held that the order of the President of India cannot be. subjected to judicial review on its merits except within certain limitations. THE Apex Court further held that the Courts are the Constitutional instrumentalities to go into the area and scope of the President's power under Art. 72 of the Constitution, but cannot analyse the exercise of the power under Art. 72 on its merits.