The power of the Governor under Article 161 of the Constitution is not restricted by the provisions of Section 433-A, Cr. P. C. The Governor has jurisdiction to pass an order under Article 161 of the Constitution of India in spite of provisions of Section 433-A, Cr. P. C.

This petition has been filed for issuing a writ of certiorari quashing the order dated 9-2-1991 passed by respondent No. 1, State of U. P. in exercise of powers under Article 161 of the Constitution of India.

2. The facts in brief are that opposite party No. 3 Doodnath was tried on a charge of murder under Sections 302/149,1. P. C. alongwith other co-accused in Sessions Trial No. 102 of 1980 by the 3rd Additional District Judge, Jaunpur was convicted and sentenced for life imprisonment vide judgment

dated 9-2-1982. Criminal Appeal No. 402 of 1982 was filed by Chinika and others against the aforesaid judgment which was dismissed by a Division Bench of this High Court on 21-5-1988. A Special Leave to Appeal (criminal petition No. 2229 of 1988) was dismissed by the Supreme Court vide order dated 31-3- 1989. Thereafter respondent No. 3 Doodnath moved the petition through his wife for grant of reprieve and remission which was, however, dismissed by the State of U. P. on 7-6-1990. Meanwhile, respondent No. 3 Doodnath was granted parole on 16-12-1989 which expired on 16-5-1990. Yet another application for grant of reprieve and remission was moved under Article 161 of the Constitution of India by respondent No. 3 which was allowed by the Governor of U. P. vide order dated 9-2-1991 (Annexure-E to the writ petition ). This order dated 9-2-1991 has been sought to be quashed through this petition moved by Swarn Singh who is the son of the deceased Jogendra Singh for whose murder respondent No. 3 was convicted and sentenced to life imprisonment.

3. We have heard the learned counsel for the petitioner as well as the learned counsel for respondent No. 3 and the learned State Counsel. The impugned order has been challenged on the ground, firstly, that the order in question is claimed to be against the provisions of Section 433-A, Cr. P. C. Secondly, it has been argued that the Governor has absolutely no jurisdiction to pass any such order because his power is restricted to the sphere to which the executive power of the State exists. Again the order is sought to be quashed on the ground that it has not been passed on the advice of the Council of Ministers. Next it has been argued that the order was passed on extraneous considerations and is politically motivated and has been passed under political pressure. Again, it is claimed that respondent No. 3 Doodnath was not in jail on the date of making the petition and the petition for remission was, therefore, barred by Section 432, Cr. P. C. It has also been argued that the petition for remission was directly sent to the Governor and was not for warded by the Officer Incharge of the Jail and, as such, it was not maintainable in law.

4. Learned counsel for respondent No. 3 has argued that the power exercised by the Governor under Article 161 of the Constitution id not res tricted by the provisions of Section 433-A, Cr. P. C. and therefore, the forma lities and the restrictions mentioned in Sections 432, 433 and 433-A, Cr. P. C. are not applicable in the present case because the Governor has exercised jurisdiction vested in him under Article 161 of the Constitution of India while granting remission to respondent No. 3. It has also been argued that princi ples of res judicata do not apply and, therefore, a second application was main tainable and could be considered by the Governor for grant of remission. It has further been argued that under Article 163 (3) of the Constitution of India, the advice tendered by the Council of Ministers to the Governor shall not be enquired into in any court and, therefore, it cannot be said that the advice was politically motivated or the Governor was under political pressure. It has also been contended that there is no allegation of mala fide exercise of juris diction by the Governor and, therefore, the impugned order is valid and within jurisdiction.

5. The leading case on the question of powers of the Governor under Article 161 of the Constitution and