Important Point
The contention that Court has no power to touch the order passed by the Governor under Article 161 of the Constitution, cannot be accepted. If such power is exercised arbitrarily, mala fide or in absolute disregard of the finer canons of the constitutionalism, the byproduct order cannot get the approval of law and in such cases, the judicial hand must be stretched to it.

Headnote:Constitution of India-Art. 161 -Order of Governor under-Judicial review-Scope of-First mercy petition by convict-accused for reprieve and remission of sentence-Rejected by Governor - Second mercy petition within 5 months of earlier petition by convict-accused for same purpose on same grounds -Allowed by Governor-Governor, however, not apprised of certain vital facts regarding convict-accused-Order of Governor granting remission of sentence to convict-accused - Whether justiciable?-Yes, but within strict parameters laid down in Maru Ram v. Union of India and reiterated in Kehar Singh v. Union of India.
Held : In view of the settled legal position, we cannot accept the rigid contention of the learned counsel for the third respondent that this Court has no power to touch the order passed by the Governor under Article 161 of the Constitution. If such power was exercised arbitrarily, mala fide or in absolute disregard of the finer canons of the constitutionalism, the by-product order cannot get the approval of law and in such cases, the judicial hand must be stretched to it. In the present case, when the Governor was not posted with material facts such as those indicated above, the Governor was apparently deprived of the opportunity to exercise the powers in a fair and just manner. Conversely, the order now impugned fringes on arbitrariness. What the Governor would have ordered if he were apprised of the above facts and materials is not for us to consider now because the Court cannot then go into the merits of the grounds which persuaded the Governor in taking a decision in exercise of the said power. Thus, when (sic) the order of the Governor impugned in these proceedings is subject to judicial review within the strict parameters laid down in Maru Ram Case, (1981) 1 SCC 107 and reiterated in Kehar Singh Case, (1989) 1 SCC 204, we feel that the Governor shall reconsider the petition of Doodh Nath in the light of those materials which he had no occasion to know earlier. (Paras 12 and 13)

Judgment

Thomas, J. -Shri Doodh Nath, third respondent in this appeal, was found guilty of murdering one Joginder Singh. He was convicted and sentenced to imprisonment for life along with some other persons who too were involved in the same offence. His appeal to the High Court and Special Leave Petition to this Court did not give any help to extricate himself from the penal clutches of the offence. But within a period of less than two years, he succeeded in escaping from prison as the Governor of Uttar Pradesh granted remission of the remaining long period of his life sentence. That step of the Constitutional functionary was far beyond the tolerance capacity of the bereaved members of the family of deceased Joginder Singh and hence his son (the present appellant) moved the Allahabad High Court challenging the aforesaid action of the Governor. A division bench of the High Court, which heard his writ petition dismissed it on the premise that a decision of the Governor under Article 161 of the Constitution of India is not justiciable. That necessitated the appellant to reach this Court with this appeal by special leave.

2. Shri Doodh Nath was an M.L.A. of the U.P. Assembly when he was convicted of the offence of murder. He was unseated as a sequel to the said conviction and his wife succeeded in becoming his successor in the same constituency. Appellant alleged that when Governor passed the order granting remission of sentence Shri Doodh Nath was already accused in five other criminal cases involving serious offences. That and many other relevant materials were not posted before the Governor when he considered the question of granting reprieve to the convict, according to the appellant.

3. In fact, the same Governor had, on an earlier occasion (on 7.6.1990) dismissed a petition filed by Shri Doodh Nath for grant of reprieve and remission of the sentence passed on him by the Court in the very same case of murder of Joginder Singh. Undaunted by the rejection of his earlier clemency motion, Shri Doodh Nath ventured to present a second petition for the same purpose within a period of above five months, that too on almost the same grounds which were not found favour with the Governor on the earlier occasion. When he moved for remission on the second occasion, he was out on parole. It is the case of the appellant that Doodh Nath did not even mention in his second petition for pardon that an earlier petition for the same purpose was rejected by the Governor.

4. The police officials whose report was called for in connection with the consideration of the second application for grant of remission sent up a report which was unfavourable to Doodh Nath. But the same police officials after one week, forwarded another report containing recommendation for remitting the sentence as prayed for by Doodh Nath on “humanitarian grounds”.

5. On 4.1.1991, the widow of Joginder Singh (mother of the present appellant) made a representation to the Governor pointing out facts which she considered relevant for rejecting the clemency petition. On 9.2.1991, the Governor passed the impugned order under Article 161 of the Constitution in the following terms:

“The Governor of Uttar Pradesh under the special circumstances by exercising the power under Article 161 of the Constitution of India remits the remaining sentence of the convict Doodh Nath, son of Shri Deoraj, resident of Khairuddinpur, P.S. Mariahun, District Jaunpur, who is undergoing punishment under Sections 302/148/ 149 IPC in S.T. No. 102 of 1980 passed by Third Additional Sessions Judge, Jaunpur, sentencing life imprisonment on 9.2.1982, and directs that the aforesaid convict accused be released from jail on furnishing two sureties and personal bond in the same amount to the satisfaction of the District Magistrate, Jaunpur.”

6. In the High Court, when challenge was made against the said order, an affidavit was filed by Shri Brij Bhushan Chaturvedi who was then the Joint Secretary of Home (Jail) in the St

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