FEW OF SUCH REFERENCES ARE -

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.454 OF 2006

Swamy Shraddananda @ Murali Manohar Mishra ... Appellant

Vs.

State of Karnataka ... Respondent

2.

Appeal (crl.) 30 of 2005

PETITIONER:

State of Haryana

RESPONDENT:

Mahender Singh & Ors

DATE OF JUDGMENT: 02/11/2007

BENCH:

S.B. Sinha & Harjit Singh Bedi

In K.M.Nanavati v. State of Bombay [AIR 1961 SC 112], the question arose for consideration before the Constitution Bench with regard to extent of power conferred on the Governor of a State under Article 161 of the Constitution; and whether the order of the Governor of Bombay dated 11.03.1960, impinges on the judicial powers of the Supreme Court and particular reference to its powers under Article 42 of the Constitution. The Hon'ble Supreme Court of India has traced the power of Constitution and held as follows:

"25. It has been strenuously urged before us that the power of granting pardon is wide and absolute and can be exercised at any time, that is to say, it can be exercised even in respect of criminal matters which are sub judice; and the argument is that the power to suspend sentence is part of the larger power to grant pardon, and is similar in character and can be similarly exercised. This argument is fallacious; it ignores the essential difference between the general power to grant pardon etc. and the power to suspend sentence in criminal matters pending before this court. The first is an exclusively executive power vesting in the Governor under Article 161; it does not vest in this court; and so the field covered by it is exclusively subject to the exercise of the said executive power; and so there can be no question of any conflict in such a case; conflict of powers; obviously postulates the existence of the same or similar power in two authorities; on the other hand, the latter some vests both in this court and the Governor, and so the field covered by the said power entrusted to this court under Article 142 can also be covered by the executive power of the Governor under Article 161, and that arises the problem of a possible conflict between the two powers. That is why we have observed earlier that concentration or even undue emphasis on the character and sweep of the larger power to grant pardon is likely to distract attention from the essential features of the power to suspend sentence with which alone we are concerned in the present proceedings.

26. As a result of these considerations we have come to the conclusion that the order of the Governor granting suspension of the sentence could only operate until the matter became sub judice in this court on the filing of the petition for special leave to appeal. After the filing of such a petition this court was seized of the case which would be dealt with by it in accordance with law. It would then be for this Court, when moved in that behalf, either to apply Rule 5 of Order 21 or to exempt the petitioner from the operation of that Rule. It would be for this court to pass such orders as it thought fit as to whether the petitioner should be granted bail or should surrender to his sentence or to pass such other or further orders as this court might deem fit in all the circumstances of the case. It follows from what has been said that the Governor had no power to grant the suspension of sentence for the period during which the matter was sub judice in this court."

26. In Satpal and Another v. State of Haryana and Others [(2000) 5 SCC 170], the Governor's power to grant pardon under Article 161 and the scope of judicial review of the said power came up for consideration and the Hon'ble Supreme Court of India, has taken into consideration Kehar Singh case and Maru Ram case and observed as follows:

"4. There cannot be any dispute with the proposition of law that the power of granting pardon under Article 161 is very wide and do not contain any limitation as to the time on which and the occasion on which and the circumstances in which the said powers could be exercised. But the said power being a constitutional power conferred upon the Governor by the Constitution is amenable to judicial review on certain limited grounds. The Court, therefore, would be justified in interfering with an order passed by the Governor in exercise of power under Article 161 of the Constitution if the Governor is found to have exercised the power himself without being advised by the Government or if the Governor transgresses the jurisdiction in exercising the same or it is established that the Governor has passed the order without application of mind or the order in question is a mala fide one or the Governor has passed the order on some extraneous consideration.

Governor cannot grant remission of sentence when appeal against sentence is pending in court of law

Governor cannot overlook govt advice and give remission of sentence

2) judgment cited by me of Satpal vs state of Haryana clearly states that governor has to act as per state govt advice

"As regards the considerations to be applied by the President to the Petition we need say nothing more as the law in this behalf have already been laid down by this Court in Marurams case [(1981) 1 SCC 107]."

What has been stated in relation to the Presidents power under Article 72 equally applies to the power of Governor under Article 161 of the Constitution. In Marurams case (supra) the Court came to the conclusion that the power under Articles 72 and 161 can be exercised by the Central and State Governments and not by the President or Governor on their own. The advice of the appropriate Government binds the head of the State. The Court also came to the conclusion that considerations for exercise of power under Articles 72 or 161 may be myriad and their occasions protean, and are left to the appropriate Government, but no consideration nor occasion can be wholly irrelevant, irrational, discriminatory or malafide. Only in these rare cases will the Court examine the exercise.

I want SC case laws regarding remission of sentence, especially those where Governor of a state had exercised his power under 161 of constitution and set somebody free.

A sentence of simple imprisonment, for fine. F The Sections above quoted relate to remission and commutation of sentences. There were similar provisions in the earlier Code corresponding to ss. 432 and 433 (ss. 401 and 402 of the 1898 Code), but s. 433A is altogether new. 'Ay, there's the rub'. It is obvious that s. 432 clothes the appropriate Government with the power to remit the whole or part of any sentence. The mechanics for exercising this power and the conditions subject to which the power is to be exercised are also imprinted in the Section. This is a wide power which, in the absence of s. 433A, extends to remission of the entire life sentence if Government chooses so to do.

Besides the above which is "Maru Ram Etc. Etc vs Union Of Lndia & Anr on 11 November, 1980" -DATE OF JUDGMENT11/11/1980

SUPREME COURT BENCH:

KRISHNAIYER, V.R. CHANDRACHUD, Y.V. ((CJ) BHAGWATI, P.N. FAZALALI, SYED MURTAZA KOSHAL, A.D

There are plenty of such judgments: .

Swamy Shraddananda@Murali ... vs State Of Karnataka on 22 July, 2008;

Tarachand Kapari @ Taranand ... vs The State Of Bihar Through The ... on 19 January, 2016

Can Governor or President pardon or give remission of a sentence under 161 even when the appeal against the sentence is pending in higher courts like HC n SC. Plz cite latest SC case laws;

Central Government Act

Article 161 in The Constitution Of India 1949

161. Power of Governor to grant pardons, etc, and to suspend, remit or commute sentences in certain cases The Governor of a State shall have the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence against any law relating to a matter to which the executive power of the State extends

It is to be known that for what offences the conviction was made and whether the appeal is pending. If there is an appeal pending then the question of remission of sentence may not arise.

A Two Judge Bench of the Supreme Court Today has held that a writ of Mandamus can be issued to authorities to grant remission. The Bench of Justices Dipak Misra and Shiva Kirti Singh has dismissed a writ petition preferred under Article 32 of Constitution of India, by the petitioners, who have been convicted for the offence punishable under Section 21 of the Narcotic Drugs and Psychotropic Substances Act, and sentenced to undergo rigorous imprisonment for more than 10 years and to pay a fine of Rs.1 lakh and in default of payment of fine, to suffer further rigorous imprisonment for six months, praying for issue of writ of mandamus to the authorities commanding them to grant remission to them as per the provisions contained in Chapter XIX of the New Punjab Jail Manual, 1996. It is the case of the petitioners that Chapter XIX of the Manual lays down remission and award to the convicts depending upon good conduct and performance of duties allotted to them while they are are undergoing sentence, but the benefit under the Chapter XIX of the Manual is not made available to the convicts under the NDPS Act on the ground that Section 32-A of the NDPS Act bars entitlement to such remission. It is asserted in the writ petition that the constitutional validity of Section 32-A of the NDPS Act has been upheld in Dadu @ Tulsidas v. State of Maharashtra. It is contended by the learned counsel for the petitioners that in Maru Ram v. Union of India and others , the constitutional validity of Section 433-A of Code of Criminal Procedure, 1973 was under challenge and the larger Bench of this Court has clearly held that it does not curtail the power of the executive under Articles 72 and 161 of the Constitution. Relying on the said decision, it is submitted that the Court can remit the sentence and the said power cannot be curtailed by any legislation. The Government of Punjab, Department of Home Affairs and Justice through Governor has issued an order in in exercise of powers conferred by Section 432 of CrPC and Article 161 of the Constitution of India on 13th day of April, 2007 for grant of remission of sentence to certain types of convicts. The said order contains that instructions contained in the.order shall not apply to the persons sentenced under the Foreigners Act, 1946 and the Passport Act, 1967 and the Narcotic Drugs and Psychotropic Substances Act, 1985. Constitutional power exercised under Articles 72 and 161 is quite different than than the power exercised under a statute.

Hukam Singh vs The State Of Punjab And Ors. on 12 November, 1974;

Ajaib Singh vs State Of Punjab And Others on 25 July, 2011 of Punjab and Haryana high court;

Suo Motu Proceedings Under ... vs State Of Kerala on 4 June, 2002 of Kerala High court;

The Union Of India & Ors vs Smt Sushma Soni & Anr on 2 July, 2013 of Rajasthan High court;

S.Nalini vs State Of Tamil Nadu Rep. By Its on 24 September, 2008 of Madras high court

Plz give SC case laws where SC overturned Governor order for remission of sentence. If possible then please give citation of such cases where Governor had overlooked Govt advice and given remission of sentence.

There has always been a debate as to whether the power of the executive to pardon should be subjected to judicial review or not. Supreme Court in a catena of cases has laid down the law relating to judicial review of pardoning power.

In Maru Ram v Union of India [6] , the Constitutional Bench of Supreme Court held that the power under Article 72 is to be exercised on the advice of the Central Government and not by the President on his own, and that the advice of the Government binds the head of the Republic.

In Dhananjoy Chatterjee alias Dhana v State of West Bengal [7] , the Supreme Court reiterated its earlier stand in Maru Ram’s case and said:

“The power under Articles 72 and 161 of the Constitution can be exercised by the Central and State Governments, not by the President or Governor on their own. The advice of the appropriate Government binds the Head of the state."

The Supreme Court in Ranga Billa case [8] was once again called upon to decide the nature and ambit of the pardoning power of the President of India under Article 72 of the Constitution. In this case, death sentence of one of the appellants was confirmed by the Supreme Court. His mercy petition was also rejected by the President. Then, the appellant filed a writ petition in the Supreme Court challenging the discretion of the President to grant pardon on the ground that no reasons were given for rejection of his mercy petition. The court dismissed the petition and observed that the term “pardon" itself signifies that it is entirely a discretionary remedy and grant or rejection of it need not to be reasoned.

Supreme Court once again in Kehar Singh v Union of India [9] reiterated its earlier stand and held that the grant of pardon by the President is an act of grace and, therefore, cannot be claimed as a matter of right. The power exercisable by the President being exclusively of administrative nature, is not justiciable.

In Swaran Singh v State of U.P. [10] , the Governor of U.P. had granted remission of life sentence awarded to the Minister of the State Legislature of Assembly convicted for the offence of murder. The Supreme Court interdicted the Governor’s order and said that it is true that it has no power to touch the order passed by the Governor under Article 161, but if such power has been exercised arbitrarily, mala fide or in absolute disregard of the “finer cannons of constitutionalism", such order cannot get approval of law and in such cases, “the judicial hand must be stretched to it." The Court held the order of Governor arbitrary and, hence, needed to be interdicted.

In the early case of K.M. Nanavati v State of Bombay [11] , Governor granted reprieve under Article 161 which was held unconstitutional as it was in contrast with the Supreme Court rulings under Article 145.

In a landmark judgment Epuru Sudhakar & Anr vs Govt. Of A.P. & Ors [12] , it was held by the Supreme Court that it is a well-set principle that a limited judicial review of exercise of clemency powers is available to the Supreme Court and High Courts. Granting of clemency by the President or Governor can be challenged on the following grounds:

The order has been passed without application of mind.

The order is mala fide.

The order has been passed on extraneous or wholly irrelevant considerations.

Relevant material has been kept out of consideration.

The order suffers from arbitrariness.

Now, it is a well settled principle that power under Articles 72 and 161 is subject to judicial review.

The pardoning power of Executive is very significant as it corrects the errors of judiciary. It eliminates the effect of conviction without addressing the defendant’s guilt or innocence. The process of granting pardon is simpler but because of the lethargy of the government and political considerations, disposal of mercy petitions is delayed.

Regarding the judicial review debate, pardoning power should not be absolute as well as Judiciary should not interfere too much in exercise of this power. As judicial review is a basic structure of our Constitution, pardoning power should be subjected to limited judicial review. If this power is exercised properly and not misused by executive, it will certainly prove useful to remove the flaws of the judiciary.