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2012 Supreme(Kar) 158
High Court of Karnataka
N. KUMAR
Ramakrishna, Mandya
Versus
The Secretary, Home Dept. Bangalore & Others
Writ Petition No.6083 of 2007 (GM-RES)
Decided on : 09-03-2012
For the Petitioner:Mahantesh S Hosmath, Advocate.
For the Respondents:R1 & R2 - Veerappa, HCGP, R3 - R G Halesha, Advocate, R4 – deleted, N.B. Bhat as Amicus Curiae.
Headnote:CONSTITUTION OF INDIA - Articles 72, 161 & 226: [N. Kumar, J] Power to grant pardon or remission of sentence - Applicability - Held, Power of pardon or remission of sentence applies to all kinds of sentence. No limitation is prescribed for exercise of such power. However, Section 433-A of the Code puts restriction on exercise of such power by the appropriate Government in respect of a sentence of imprisonment for life or a sentence of death. The Parliament after taking note of the way the appropriate Governments exercised this power under Section 432 and 433 of the Code, to prevent abuse of such power, put restriction on exercise of such power, as provided under Section 433-A. After the Section became a part of the law of the land, the Government cannot exercise their power to commute sentence contrary to the aforesaid provision. If they do it, it is arbitrary, illegal. What they cannot do under the statute, they cannot advise the President or the Governor to do and thus get over the limitation imposed on them by the Parliament. Though a Governor while exercising power under Article 161 has to act, not on his own judgments, but in accordance with the aid and advise of the Ministers, the advice to be tendered by these ministers should be in accordance with law. All public power, including constitutional power, shall never be exercisable arbitrarily or mala fide. Ordinarily, guide-lines for fair and equal execution are guarantors., of the valid play of power. One such guidelines is the law governing the subject. The power should be exercised in accordance with law and not contrary to law. If the Government/Ministers advises the Governor to commute sentence in cases which do not fall under Section 433-A of the Code, probably there is no discretion left in the Governor except to act on the aid and advise of the said Ministers and the Government and give effect to their advise. But, the same cannot be said to a case which is covered under Section 433-A. If the advise given by the Ministers/Government is contrary to the Parliamentary mandate contained in the statute, which represents the will of the people, the Governor is not obliged to mechanically give effect to such advise and exercise the power of pardon. The Governor before exercise of the power conferred on him under Article 161 of the Constitution, is duty bound to apply his mind to the advise so given and the materials if any on the basis of which such advise is given. If on such application of mind, he finds that the advise tendered is contrary to law, violates a statutory provision, violates the will of the people, as reflected in the law enacted by the Parliament, he is duty bound to bring it to the notice of the Government/Ministers and give them an opportunity to retrace their steps and mould their advise in accordance with law. If the power to be exercised under Article 161 of the Constitution is to be understood in the sense that it is not open to the Governor to take independent decision or direct release or refuse release of any one of his choice, then he has no option except to put his seal to the order of the Government however illegal it is, or unconstitutional. But, that is not the legal position.
When an accused is convicted of the heinous offence of murder and is sentenced to imprisonment for 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 the germane considerations for exercise of the power. Though the Governor while exercising the power under Article 161 of the Constitution, has to exercise the same on the aid and advice of the Government, he cannot mechanically pass an order granting pardon. After such advice is given he is under an obligation to apply his mind and then exercise the power in a fair and just manner. If the advice is contrary to law, if the advice is based on facts which are extraneous to the exercise of such power and would not constitute a sufficient justification for exercise of power under Article 161 of the Constitution, he owes a duty to bring it to the notice of the Government the illegality, impropriety in the advice given. While exercising power under Article 161 of the Constitution, the Governor who acts on the advice of the Council of Ministers, or the State Government, can overlook the object, spirit and philosophy behind Section 433-A so as to create a conflict between the legislative intent and the executive power. Where a power is vested in a very high authority, it must be presumed that the said authority would act properly and carefully after an objective consideration of all aspects of the matter. The order of the Governor cannot be subject to judicial review on its merits except within the strict limitations defined in Maru Ram vs Union of India & ors., [AIR 1980 SC 2147:1981 (1) SCC 107:1980 Cri LJ 1440]. The function of determining whether the act of a constitutional or statutory functionary falls within the constitutional or legislative conferment of power, or is vitiated by self-denial on an erroneous appreciation of the full amplitude of the power is a matter for the Court. Therefore, the area of the Governor’s power under Article 161 falls squarely within the judicial domain and can be examined by the Courts by way of judicial review.
CONSTITUTION OF INDIA - Articles 72, 161, 226: [N. Kumar, J] Grant of pardon/commutation of sentence - Validity - 285 persons sentenced for life granted commutation of sentence only on completion of 8 yrs. of sentence on occasion of Independence Day, and Golden Jubilee Celebration of Karnataka Rajyothsava - Held, Section 433-A, imposed an embargo on the power of the State Government to commute the sentence, in the case of sentence of death and sentence of life, unless he has served fourteen years of imprisonment. In the instant case 285 persons sentenced for life, but who had completed only eight years of imprisonment, were granted commutation of sentence, which on the face of it was illegal, against the will of the people.
The celebration of Independence Day or Golden Jubilee Celebrations of the State cannot constitute a ground or reason to exercise the prerogative power of commutation of sentences. The reason is obvious. The Independence Day is celebrated throughout the country to mark the great occasion when the country and its people became free from the shackles of the foreign rule. That is the day we have to remember, respect and salute the noble, courageous souls who sacrificed everything belonging to them including their life for freedom of the country and for the future of this country. Certainly on such a great occasion one cannot think of setting free those persons who committed heinous crimes against humanity, society and who took away the life of law abiding citizens of the country. It would be an insult to those great men who sacrificed their life for liberation of this country, if independence is to be celebrated in the aforesaid manner. Similarly, Karnataka Rajyothsava Day is the day on which Kannada speaking people who were scattered in five different places in the country were brought together and unification was done, as a result of which the present State of Karnataka came into existence. That is the day when Kannada speaking people rejoice about their language, culture and their achievements. Certainly that day cannot be turned into a day of granting freedom to people who killed Kannada speaking people and rendered their family members destitutes. Therefore, there is no nexus between these two days and exercise of power of commutation of sentence.
Merely because the conduct of a prisoner is satisfactory, is no justification for commuting his sentence to a period less than what is imposed. If the conduct of a person is satisfactory for the period prescribed under Section 433-A, may be that is one of the factors., which has to be taken into consideration while granting the remission. That by itself cannot be a ground for remission.
Therefore, it is clear that the Governor has not applied his mind. He has simply acted on the advise of the cabinet and proceeds on the assumption that before coming to the conclusion that these prisoners should be released, the Government has followed all the procedure that is prescribed under the Rules without actually verifying the same personally which he ought to have done. The order has been passed on extraneous or wholly irrelevant considerations, 285 prisoners who were undergoing life imprisonment, who had completed just 8 years of imprisonment are released by commutation of sentence contrary to the mandate of Section 433-A of the Code of Criminal Procedure. Therefore, the order passed is non est in the eye of law and required to be quashed.
1. The son of a victim of brutal murder, is crying for justice, and is knocking at the doors of this Court, challenging the State action, of granting pardon to the perpetuator of the said heinous crime who is roaming in the streets of his Village, and wants to know, “is it justice?”.
2. The petitioner has preferred this Writ Petition challenging the order passed by the Higher Police Chief Director and Karnataka Chief Examiner of the Jail in Order No.J2/CR/16-2006 dated 3.8.2006 as per Annexure-B1 and the order passed by the Governor, Karnataka State and its Chief Secretary, Under Administrative Department (Jail and Cinema) Order No.J2/CR-16/2006 dated 3.8.2006 and Government Order No. HD 140 PRA 2006, Bangalore dated 14.8.2006 vide Annexure-B1 wherein at Sl.No.89 the name of the third respondent-Manjunath is found.
FACTS OF THE CASE
3. The case of the petitioner is that, he is the son of one Sri Honnegouda who was brutally murdered by the third respondent-accused No.1 and other 9 accused on 11.5.1998 at Maradahalli. During trial, bail was rejected which order was confirmed by the Apex Court. After trial, the learned Sessions Judge, Mandya, in S.C. No.4/1999 delivered a judgment holding that the first accused committed murder of Late Sri Honnegouda and therefore he was sentenced for life. The third respondent preferred an appeal. Suspension of sentence was not granted. In so far as acquittal of other accused, State preferred Criminal Appeal No.359/2006 and the same is pending. The petitioner also preferred Crl. R. P. No. 1079/2006 against the acquittal of other accused which is also pending before this Court. However, the accused No.1 was released, on the occasion of the celebration of “Independence Day 2006” and “Suvarna Karnataka”. The mother of the petitioner was bed ridden, after shock of her husband’s murder. She died on 9.1.2007. The Government has no courtesy at the victimized family. They have arbitrarily released the accused. The Government which had opposed the bail in the High Court and the Supreme Court has now released the accused holding that he is reformed. Therefore, the said action of the respondents is arbitrary, illegal and therefore he was sought for setting aside the same.
4. A perusal of the judgment rendered by the Sessions Judge at Mandya in S.C. 4/1999, discloses that the accused and eight others assaulted the deceased Honnegowda with a chopper, on his face, neck and hands, causing bleeding injuries and he was murdered. He was aged about 65 years. The Sessions Court recorded evidence of 14 witnesses on behalf of prosecution, looked into 39 documents and 11 M.Os. Eight witnesses were examined on behalf of the defence and 83 documents were marked. 8 photographs were produced. It is on appreciation of the aforesaid oral and documentary evidence on record. The Sessions Court held that accused No.1 committed the murder of Honnegouda by entering into the farm house and thereby he has committed offence punishable under Section 448 and 302 of IPC. Prosecution has failed to prove the charges levelled against accused-2 to 9 for offence under Section 143, 144, 148, 448, 301, 144 IPC. Therefore, accused No.1 alone was sentenced to undergo life imprisonment and also pay fine of Rs.5,000-00 for offence punishable under Section 302 IPC. He was also directed to undergo sentenced of one year and also to pay a fine of Rs.1000-00 for offence punishable under Section 448 IPC. Accused-2 to 9 were acquitted under Section 235(1) Cr.P.C. Aggrieved by the judgment of conviction, accused No.1 preferred appeal before this Court in Criminal Appeal No.806/06. He filed an application for suspension of sentence. This Court declined to grant interim relief and rejected the bail application. It is during the pendency of these proceedings, the impugned order at Annexure-B1 was passed granting the pardon. In view of the pardon granted to the third respondent, he was withdrawn his criminal appeal challenging the order of co
