IMPORTANT POINT
Power to grant pardon etc. under Article 161 of the Constitution being a constitutional power conferred upon the Governor by the Constitution is amenable to judicial review on certain limited grounds.

Headnote:(i) Constitution of India-Article 161-Power of Governor to grant pardon etc.-Amenability to judicial review-Power of Governor being constitutional power is amenable to judicial review on certain limited grounds-If power is found to have exercised without being advised by Government, or Governor transgresses jurisdiction or order has been passed without application of mind or order is mala fide or order has been passed on some extraneous consideration Court would be justified in interfering with order.
       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. (Para 4)
       (ii) Constitution of India-Article 161-Governor s power to grant pardon etc.-Pardon to life convict-Legality of order-Supreme Court setting aside acquittal order of High Court and convicting accused and directing convict to surrender to serve sentence-Convicts application for clemency before Governor-Government advising Governor that it was fit case to grant pardon- Governor granting pardon-Order stating that convict was in jail while in fact convict never surrendered to serve sentence-Governor had not been made aware as to what was total period of sentence accused had undergone-File had been processed with uncanny haste and unusual interest and zeal-Governor had not been advised properly with all relevant materials-Order vitiated-Order quashed.
       Held : When we examine the case in hand, the conclusion is irresistible that the Governor had not applied his mind to the material on record and has mechanically passed the order just to allow the prisoner to overcome the conviction and sentence passed by this Court. It is indeed curious to note that the order dated 25.1.1999 clearly indicates that the Governor of Haryana is pleased to grant pardon remitting the unexpired portion of the sentence passed on prisoner Siriyans Kumar Jain confined in the Central Jail, Hissar. But the said prisoner was not confined in the Central Jail, Hissar on that date and on the other hand after obtaining the order of pardon and remission of sentence to give an appearance of compliance to the order of Supreme Court said Siriyans Kumar Jain surrendered before the Court of Sessions Judge, Hissar on 2-2-1999 and also was released on the very same day in view of the order of Governor dated 25-1-1999. If by order dated 25-1-1999 the accused has already been granted pardon and there has been a remission of the sentence then there was no reason for him to go and surrender before the District Judge on 2.2.1999. That apart, the Governor has not been made aware of as to what is the total period of sentence the accused has really undergone, and if at all has undergone any sentence. When an accused is convicted of heinous offence of murder and is sentenced to imprisonment of life the authority who has been conferred with power to grant pardon and remission of sentence under Article 161 of the Constitution must be made aware of the period of sentence in fact undergone by the said convict as well as his conduct and behaviour while he has been undergoing the sentence which would be all germane considerations for exercise of the power. Not being aware of such material facts would tend to make an order of granting pardon arbitrary and irrational, as has been held by this Court in Swaran Singh s case. The entire file had been produced before us and we notice the uncanny haste with which the file has been processed and the unusual interest and zeal shown by the authorities in the matter of exercise of power to grant pardon. We also fail to understand how the order in question could show that the prisoner is in jail while in fact he was free at large and had not surrendered to serve the sentence notwithstanding the positive direction of this Court dated 10-12-1998 disposing of the appeal filed by the State. So far as the contention that Governor passed the order on his own without being advised by the Council of Ministers, we do not find any substance in the same. We have scrutinised the relevant file that was produced before us and it clearly demonstrates that the matter was examined by the Law Department, the concerned Administrative Department and was finally endorsed by the Chief Minister after which the Governor passed the order. Consequently, there is no substance in the submission of Mr. K.T.S. Tulsi, learned senior counsel appearing for the petitioners. In the aforesaid premises, we have no hesitation to come to the conclusion that the order in question has been vitiated and the Governor has not been advised properly with all the relevant materials and, therefore, we have no other option than to quash the said order dated 5-1-1999. We accordingly quash the impugned order dated 25-1-1999. (Paras 6 & 7)

JUDGMENT

Pattanaik, J.-The order of the Governor dated 25-1-1999, granting pardon remitting the un-expired portion of the sentence passed on prisoner Shri Siriyans Kumar Jain S/o Shri Ram Chand Jain in exercise of power conferred by Article 161 of the Constitution of India read with Section 132 of the Code of Criminal Procedure is being assailed, inter alia on the ground that the power has been exercised without application of mind, and that the said power has been exercised by the Governor on extraneous consideration and even without the aid and advice of the Government, namely, the concerned Minister. The applicants are the brother and widow of the deceased Krishan Kumar who was murdered during the election held in the year 1987 for the post of President of Municipal Committee, Hansi. The prosecution had alleged that a gruesome crime was committed by the accused persons and the entire family of the deceased suffered the agony and pain. In the criminal trial the respondent- Siriyans Kumar Jain alongwith four other accused persons belonging to the Bhartiya Janta Party were tried for having committed offence under Sections 302 read with 149 and 120B as well as under Sections 392, 148, 452, and 323 Indian Penal Code. The learned Sessions Judge convicted all the five accused persons and on an appeal the High Court of Punjab and Haryana while maintained the conviction of accused Krishan Kumar Jakhar and Gurvinder Singh but acquitted the accused P.K. Chaudhary, Siriyans Jain and Ram Nath Bhumla. The State of Haryana preferred appeal against the acquittal of the aforesaid three accused persons. The Supreme Court by judgment dated 10-12-1998, set aside the acquittal of accused Siriyans Kumar Jain, Ram Nath Bhumla but upheld the acquittal of P.K. Chaudhary. The Court also directed Siriyans Kumar Jain and Ram Nath Bhumla to surrender to custody in order to serve out the remaining part of their sentence. In setting aside the order of acquittal passed by the High Court the Supreme Court had observed that all the four accused persons had gone together to the place of occurrence and they were armed with weapons with a definite purpose and, therefore, there was no scope for entertaining any doubt regarding their involvement in commission of the crime and also as regards the said crime that the said crime having been committed by them in prosecution of common object of an unlawful assault consisting of them and other persons who had come along with them upto the factory. Immediately after the judgment of this Court dated 10-12-1998, respondent Siriyans Kumar Jain (respondent No. 3) in the present Writ Petition instead of surrendering to serve the sentence, as directed by this Court, filed an application before the Governor invoking his jurisdiction under Article 161 of the Constitution and this application was filed on 15-1-1999. The Secretary to the Governor addressed a letter to the Secretary to the Government of Haryana, Department of Jail requesting for a report in the matter to be placed before. His Excellency the Governor of Haryana. The Appropriate Authority, namely, Joint Secretary to the Government in the Home Department indicated in his note that the opinion of the Legal Remembrancer should be obtained as to whether this is a fit case for exercising the power under Article 161 of the Constitution or not. The opinion of the Legal Remembrancer was then placed before the concerned Minister and finally the Chief Minister agreed with the views of the Legal Remembrancer and came to the conclusion that this is a fit case where discretion given under Article 161 of the Constitution be exercised and relief prayed for be granted. On the basis of the aforesaid advise of the Chief Minister the Governor finally granted pardon, as already stated.

2. Mr. K.T.S. Tulsi, learned senior counsel appearing for the petitioners contended that the very order passed by the Governor would indicate total non-application of mind and, therefore, th

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2000 Supreme(SC) 922

IMPORTANT POINTPower to grant pardon etc. under Article 161 of the Constitution being a constitutional power conferred upon the Governor by the Constitution is amenable to judicial review on certain limited grounds.

Cases Referred (3)

IMPORTANT POINT
Power to grant pardon etc. under Article 161 of the Constitution being a constitutional power conferred upon the Governor by the Constitution is amenable to judicial review on certain limited grounds.