BACHCHEY LAL MEETA RAM IN JAIL Vs. STATE OF U P HONBLE JUDICIAL SECRETARY GOVERNMENT OF U P AND GENERAL

JUDGEMENT

(1.) In these proceedings, which commenced on a letter petition by a convict from jail, we have been given valuable and impartial assistance by the learned Government Advocate Sri Vijay Shankar Misra, considering that the petitioner is not represented and the issue is of public importance. The Issue

(2.) In Mirza Mohammad Husayn v. State of U.P., [2002 (1) JIC 342 (All)], a Division Bench of this Court comprising Hon'ble G.P. Mathur and Hon'ble S.K. Jain JJ. struck down two GO.s, dated 11.1.2000 and 25.1.2000 issued by the Governor, mulct Article 161, which inter alia directed release of all life imprisonment male prisoners over 60 years in age, and female prisoners over 50 years, if they had undergone an actual period of 3 year, imprisonment on 26.1.2000. The main reasons for this order were that irrespective of the differences and seriousness of the cases, release of all prisoners, over 60, in the case males and 50 years in the case of females, who had undergone only 3 years sentence, in cases of life imprisonment by one stroke by a blanket order without examining the individual cases amounted to an arbitrary and mala fide exercise of the governor's Constitutional powers, as it set at naught well considered judicial orders.

(3.) In paragraph 23 the Bench has expressed its views thus: "However by the Government Order, the sentence awarded to all the prisoners have been drastically reduced and virtually set aside by one stroke. This has not been done in favour an individual or a small group of prisoners but for all the convicts who were undergoing imprisonment and were confined in jail in the State of U.P. The sentence had been imposed upon them as a result of judgments delivered by Courts including superior Courts, High Court and Supreme Court on sound judicial principles. Where pardon is granted to a named individual or a small group of persons having common or identical features whose identity is known it is a case of mercy as it only affects the execution of their sentence.. Where, however, a general order is passed whole hog without identifying the persons and its applicability being dependent entirely upon the period of imprisonment suffered, it cannot be termed as an act of mercy or pardon, as in reality it impinges upon the judicial orders passed by the Court imposing sentences upon the convicts. The release of prisoners under this order does not take place on a particular fixed day which would normally he the case in a pardon hut on different dates depending upon when they fulfil the criteria fixed in the order, namely, undergoing of 2 or 3 years sentence. The power of pardon under Article 161 cannot be exercised in a manner which completely negates the scheme of constitution regarding division of powers. An essential function performed by the judiciary cannot he altered or modified or its effect taken away in the garb of power of pardon by the Governor under Article 161 of the Constitution. It is a clear misuse of power which cannot be countenanced and must be struck down."