SWAM SINGH Vs. STATE OF U P

JUDGEMENT

(1.) 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.

(2.) THE facts in brief are that opposite party No. 3 Doodnath was tried on a charge of murder under Sections 302/149,1. P. C. alongwith other co-accused in Sessions Trial No. 102 of 1980 by the 3rd Additional District Judge, Jaunpur was convicted and sentenced for life imprisonment vide judgment dated 9-2-1982. Criminal Appeal No. 402 of 1982 was filed by Chinika 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 Doodnath 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 Doodnath 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-E 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 Jogendra Singh for whose murder respondent No. 3 was convicted and sentenced to life imprisonment.

(3.) 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 433-A, Cr. P. C. Maru Ram v. Union of India re ported in 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 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 is different, the substance is different, the strength is different, although the stream may be flowing along the same bed. We see the two powers as far from being identical, and, obviously, the constitutional power is 'untouchable' and unapproachable and cannot suffer the vicissitudes of simple legis lative processes. THErefore, Section 433-A 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. (60) 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 not withstanding Section 433-A the President and the Governor con tinue to exercise the power of commutation and release under the aforesaid articles. " Learned counsel for the petitioner has placed reliance on AIR 1980 SC 2147 (Maru Ram v. Union of India), AIR 1982 SC 774 (Kuljit Singh alias Ranga v. Lt. Governor of Delhi, 1992 Judicial Interpretation on Crimes page 8) (Ashok Kumar v. Union of India), 1992 Cr. L. J. 1772 (Jalendhar Singh v. State of Punjab ). THE law laid down in Maru Ram's case 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 Presi dent had, in any manner, transgressed his discretionary power under Article 72 of the Constitution of India, whatever be the guidelines observed for the exercise of power conferred by Article 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, Cr. P. C. were examined. We have already found that in the present cast Sections 432, 433 and 433-A of the Cr. P. C. are not applicable. In Jalandhar 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 and it was found that the Governor had power to take into con sideration factors like heinousness of the crime while exercising that power. In Ramesh's case AIR 1992 Cr. L. J. 2504 the powers exercised by the appro priate Government under Section 433-A, Cr. P. C. were in question. This decision, is therefore, not applicable to the facts of the present case. 6, 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 in spite of provisions of Section 433-A, Cr. P. C. 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 re mission even if it was not forwarded by the Officer Incharge of the Jail because the provisions of Sections 432, 433 and 433-A, Cr. P. C. were not appli cable to a petition requesting the Governor to act under Article 161 of the Constitution of India. 7. THE argument that a second petition cannot be moved after the first petition has been rejected is also without force. THE decision in Harbans 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 or 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 back the matter to the President for deciding commu tation of the death sentence of the petitioner to one of life imprisonment. 8 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 v. Union of India, AIR 1989 SC 653. 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 exer cised 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. v. Union of India, AIR 1980 SC 1789 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 instru mentality of the State and whether such limits are transgressed or exceeded. . . . . . . . . THE Constitution has, therefore, created an in dependent machinery for resolving these disputes and this indepen dent machinery is the judiciary which is vested with the power of judicial review. . . . . . . . . . . . " 9. 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. 10. 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. Petition dismissed. .