REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.2058 OF 2011

(Arising out of Special Leave Petition (C) No.11544/08

Narayan Dutt & others ...Appellant(s)

- Versus -

State of Punjab & another ...Respondent(s)

With

Civil Appeal No.2059 of 2011

[Arising out of SLP (C) No.5910/11 (CC No.3090/10)]

State of Punjab ...Appellant(s)

-Versus –

Rajinder Pal Singh & others ...Respondent(s)

J U D G M E N T

GANGULY, J.

1.Delay condoned.

2.Leave is granted in both the special leave

petitions. They are heard together as common

questions of facts and law are involved.

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3.One Kiranjit Kaur, daughter of a handicapped

school master, was abducted when she was

returning from school on 29.07.1997, and then

gang-raped and murdered by Gurprit Singh,

Jagraj Singh, Desh Raj and Partap Singh. The

Hon’ble Additional Sessions Judge, Barnala,

after holding the trial convicted and sentenced

them to undergo life imprisonment. In the area

an Action Committee was formed to ensure that

accused persons, involved in the gang-rape and

murder of that girl, were brought to book.

That committee consisted, inter-alia, of Manjit

Singh, Prem Kumar and Narayan Dutt, accused in

the present case, as its members. Ultimately,

the accused persons in the case of gang-rape

and murder of Kiranjit Kaur were punished, as

aforesaid.

4.On 3.03.2001, Beant Singh (father of Jagraj

Singh), Dalip Singh (grandfather of Jagraj

Singh), Gurnam Singh and Rajinder Pal Singh

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(nephew of Dalip Singh), while coming out of

Court, after hearing a criminal case, were

attacked by a mob consisting of 7 persons,

namely- Sukhwinder Singh, Labh Singh and Avtar

Singh (all armed with kirpans), Bakhtaur Singh

(armed with a ghop), Manjit Singh (armed with a

kirch), along with Prem Kumar and Narayan Dutt

(both without any weapon in their hands).

Apparently, Bakhtaur Singh gave a blow to the

head of Dalip Singh, who was being allegedly

held by Prem Kumar and Narayan Dutt, which

resulted in his death.

5.Beant Singh lodged an FIR on the same day under

Sections 307, 148, 149 and 120-B of IPC and

investigation commenced in the matter. During

the course of investigation Dalip Singh had

passed away, and thus, the charge under Section

302 IPC was added. After investigation, the

police, in its report under Section 173 Cr.P.C,

found that Manjit Singh, Prem Kumar and Narayan

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Dutt were innocent. Thus, charge sheet was

filed by the police only against the remaining

four accused under Sections 302/34, 326, 325,

324 and 323 IPC and the case was committed to

the Court of Sessions for trial. At the stage

of trial, Beant Singh moved an application on

11.9.2001 under Section 319 Cr.P.C., whereupon

the Sessions Judge by an order dated 19.9.2001

summoned Manjit Singh, Prem Kumar and Narayan

Dutt. The Sessions Judge found a prima-facie

case against them and framed charges against

all accused, including those three, under

Sections 302, 148, 326, 325, 324 and 323 of IPC

on 6.2.2002.

6.However, the prosecution then filed an

application dated 29.10.2002 under section 321

Cr.P.C., seeking to withdraw the case against

Manjit Singh, Prem Kumar and Narayan Dutt and

that was disallowed by the Trial Court vide

order dated 7.11.2002.

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7.Aggrieved, the accused filed criminal revision

petitions (No. 2248/2002 and 2413/2002), which

were dismissed by the High Court of Punjab and

Haryana vide common order dated 14.10.2003. A

Special leave petition filed by the State of

Punjab against the order of the High Court

dated 14.10.2003 was also dismissed by this

Court.

8.Accordingly, the trial commenced against all

the 7 accused.

9.The Additional Sessions Judge, Barnala,

convicted all the accused by judgment and order

dated 28.03.2005 and convicted them under

Sections 148 IPC and Sections 302, 302/149,

323, 149, 324, 325 and 326 on various counts

and passed an order of life sentence on

30.03.2005.

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10.All the accused appealed before the High Court

of Punjab and Haryana. During the pendency of

the appeals, Narayan Dutt, Manjit Singh and

Prem Kumar also filed petitions under Article

161 of the Constitution of India before the

Governor of Punjab.

11.The Governor of Punjab, vide order dated

24.07.2007, in exercise of his powers under

Article 161, granted pardon to Narayan Dutt,

Prem Kumar and Manjit Singh and they were

directed to be released immediately.

12.Challenging that order Rajinder Pal Singh filed

a writ petition before the High Court of Punjab

and Haryana.

13.The criminal appeals of the accused and the

writ petition of Rajinder Pal Singh were heard

together by the High Court of Punjab and

Haryana. The High Court framed two questions

for consideration:

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a.Whether case of the prosecution is

proved against all the appellants by

evidence on record?

b.Whether the order of pardon is

sustainable in law?

14.Vide the impugned common judgment dated

11.03.2008, the High Court allowed the writ

petition and set aside the order of pardon of

the Governor of Punjab. It gave the benefit of

doubt to Prem Kumar and Narayan Dutt, and

allowed their appeals by acquitting them.

However, the conviction and sentence of

Sukhwinder Singh, Labh Singh, Bakhtaur Singh,

Avtar Singh and Manjit Singh was upheld by the

High Court and it was of the opinion that the

prosecution had successfully established the

offences against them.

15.Against the said impugned judgment dated

11.03.2008, the State of Punjab filed Special

Leave Petition (CC No.3090/2010) before this

Court. Accused Narayan Dutt, Prem Kumar and

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Manjit Singh also filed another Special Leave

Petition (No.11544/2008) before this Court.

Both the Special Leave Petitions were directed

against the order of the High Court whereby the

order of pardon by the Governor of Punjab was

set aside.

16.In the background of these facts, questions of

law arising before us are:

a.Whether the power under Article 161 is

subject to judicial review and if yes, to

what extent?

b.Whether the Governor had rightly

exercised his power to pardon under

Article 161?

17.The order of the Governor dated 6.8.2007, which

is relevant in the present context, reads as

follows:

“I have considered the matter carefully.

Ever since the lodging of FIR, there has

been a widespread public belief that

Sarvshri Narain Dutt, Prem Kumar and

Manjit Singh had been falsely implicated

in the murder of Dalip Singh, because of

their role as leaders of the Action

Committee set up to secure justice for the

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late Kiranjit Kaur’s family. This has been

corroborated by the investigation into the

case, during the course of which, the

above three persons were found to be

innocent. The Intelligence Wing has also

supported the innocence of these persons.

It is also noteworthy that out of the 7

persons accused and convicted for the

murder of Dalip Singh, pardon has been

sought only for the three persons that

have been found to be innocent. This

benefit has not been proposed for the

other 4 accused. Further, the

recommendation for pardon had initially

been moved by the previous government, and

has also been endorsed by the present one.

Hence, the recommendation for pardon seems

to be objective and bona fide.

The courts have held that the power under

Article 72 and 161 is a wide power,

conferred inter alia with the purpose of

doing justice in cases even where the

courts might have convicted a person.

In view of the above, I exercise my powers

under Article 161 and grant “pardon” to

Sarvshri Narain Dutt, Prem Kumar and

Manjit Singh in FIR No. 56 dated

03.03.2001 P.S- Kotwali Barnala.”

18.Article 161 of the Constitution of India

confers on the Governor of a State the right to

grant pardons, remissions, reprieves or commute

the sentence of any person convicted of any

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offence against any law relating to a matter to

which the executive power of the State extends.

19.The nature and scope of the power of pardon and

the extent of judicial review over such power

has come up for consideration in a catena of

cases and has now virtually crystallised into a

rule of law.

20.In Maru Ram & Ors. v. Union of India & Ors.

[AIR 1980 SC 2147] Krishna Iyer J, speaking for

the Constitution Bench, held that although the

power under Articles 72 and 161 were very wide,

it could not “run riot”. His Lordship held

that no legal power can run unruly like John

Gilpin on the horse, but “must keep sensibly to

a steady course”. According to His Lordship,

“all public power, including constitutional

power, shall never be exercisable arbitrarily

or mala fide and, ordinarily, guidelines for

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fair and equal execution are guarantors of the

valid play of power.” (para 62 at p. 2170)

21.The Court further observed that “Article 14 is

an expression of the egalitarian spirit of the

Constitution and is a clear pointer that

arbitrariness is anathema under our system. It

necessarily follows that the power to pardon,

grant of remission and commutation, being of

the greatest moment for the liberty of the

citizen, cannot be a law unto itself but must

be informed by the finer canons of

constitutionalism.” The Constitution Bench also

observed “the Government is not and should not

be as free as an individual in selecting the

recipients for its largesse. Whatever its

activity, the Government is still the

Government and will be subject to restraints,

inherent in its position in a democratic

society. A democratic Government cannot lay

down arbitrary and capricious standards for the

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choice of persons with whom alone it will deal…

Every action of the Executive Government must

be informed with reason and should be free from

arbitrariness… it makes no difference whether

the exercise of the power involves affectation

of some right or denial of some privilege… From

this angle, even the power to pardon, commute

or remit is subject to the wholesome creed that

guidelines should govern the exercise even of

Presidential power.” (para 63 at p. 2170-71)

22.The Bench cautioned that political vendetta or

party favoritism should not be the basis of

exercising such power. It also advised that the

government should make rules for its own

guidance in the exercise of the pardon power to

exclude the vice of discrimination.

23.In conclusion, the Bench observed that

considerations for exercise of power under

Articles 72/161 “may be myriad and their

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occasions protean, and are left to the

appropriate Government, but no consideration

nor occasion can be wholly irrelevant,

irrational, discriminatory or mala fide. Only

in these rare cases will the court examine the

exercise.” (para 72 at p. 2175)

24.In the subsequent Constitution Bench decision

in Kehar Singh & Anr. v. Union of India & Anr.

[AIR 1989 SC 653] on the same question, this

Court quoted the United States Supreme Court in

Ex Parte Williams Wells, (1854-57) 15 Law Ed

421, on its power to scrutinize the exercise

of this power and pointed out that it was to

be used “particularly when the circumstances of

any case disclosed such uncertainties as made

it doubtful if there should have been a

conviction of the criminal, or when they are

such as to show that there might be a

mitigation of the punishment without lessening

the obligation of vindicatory justice.” The

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Bench also quoted Chief Justice Taft in Ex

parte Philip Grossman, (1924) 267 US 87),

wherein the learned Chief Justice opined:

“Executive clemency exists to afford

relief from undue harshness or evident

mistake in the operation or the

enforcement of the criminal law. The

administration of justice by the Courts is

not necessarily always wise or certainly

considerate of circumstances which may

properly mitigate guilt. To afford a

remedy, it has always been thought

essential in popular governments, as well

as in monarchies, to vest in some other

authority than the Courts power to

ameliorate or avoid particular criminal

judgments…” (para 8 at p. 658)

25.The Bench having regard to the nature of the

power of the President under Article 72, stated

that the President under Article 72 could

scrutinize the evidence on record of a criminal

case and come to a different conclusion from

that of the court. In doing so, “the President

does not amend or modify or supersede the

judicial record. The judicial record remains

intact, and undisturbed. The President acts in

a wholly different plane from that in which the

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Court acted. He acts under a constitutional

power, the nature of which is entirely

different from the judicial power and cannot be

regarded as an extension of it.” The Bench

quoted with approval the formulations of

Sutherland, J. in U.S. v. Benz, (1930) 75 Law

Ed 354, wherein the learned Judge held:

“The judicial power and the executive

power over sentences are readily

distinguishable. To render judgment is a

judicial function. To carry the judgment

into effect is an executive function. To

cut short a sentence by an act of clemency

is an exercise of executive power which

abridges the enforcement of the judgment,

but does not alter it qua a judgment.”

26.In Kehar Singh (supra) this Court observed that

the order of the President under Article 72

could not be subjected to judicial review on

merits except within the strict limitations

defined in Maru Ram (supra). Therefore, on the

ambit of judicial review, Kehar Singh (supra)

concurred with Maru Ram (supra).

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27.In Swaran Singh v. State of U.P. & Ors. [AIR

1998 SC 2026], a three-Judge Bench held 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.” (para 12 at p. 2028)

28.Again in Satpal & Anr. v. State of Haryana &

Ors. [AIR 2000 SC 1702], this Court held that

the power of granting pardon under Article 161

was very wide and did not contain any

limitation as to the time and occasion on which

and the circumstances under which it was to be

exercised. Since the power is a constitutional

power, it is amenable to judicial review on the

following grounds:

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a.If the Governor had been found to have

exercised the power himself without being

advised by the government,

b.If the Governor transgressed his

jurisdiction in exercising the said power,

c.If the Governor had passed the order

without applying his mind,

d.The order of the Governor was mala fide, or

e.The order of the Governor was passed on

some extraneous considerations.

29.Further, if the Governor was not aware of

general considerations such as period of

sentence undergone by the convict, his conduct

and behaviour while undergoing sentence and

other such material considerations, it would

make the order of the Governor under Article

161 arbitrary and irrational.

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30.The Constitution Bench in Bikas Chatterjee v.

Union of India & Ors. [(2004) 7 SCC 634]

reiterated the same principles on the extent of

judicial review as laid down in Maru Ram

(supra) and Satpal (supra).

31.In Epuru Sudhakar & Anr. v. Government of A.P.

& Ors. [AIR 2006 SC 3385] this Court observed

that it was well settled that the exercise or

non-exercise of the power of pardon by the

President or Governor was not immune from

judicial review and limited judicial review was

available in certain cases.

32.Justice Pasayat, delivering the judgment,

summed up the ground on which judicial review

of an order passed under Articles 72 and 161

could be undertaken. Those grounds are:

(a)that the order has been passed without

application of mind;

(b)that the order is malafide;

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(c)that the order has been passed on

extraneous or wholly irrelevant

considerations;

(d)that relevant materials have been kept

out of consideration;

(e)that the order suffers from

arbitrariness.

33.Justice Kapadia (as His Lordship then was) in

his concurring opinion, observed that “granting

of pardon is in no sense an overturning of a

judgment of conviction, but rather it is an

Executive action that mitigates or set aside

the punishment for a crime. It eliminates the

effect of conviction without addressing the

defendant’s guilt or innocence. The controlling

factor in determining whether the exercise of

prerogative power is subject to judicial review

is not its source but its subject-matter.”

(para 64 at p. 3402)

34.His Lordship further added that “the exercise

of power depends upon the facts and

circumstances of each case and the necessity or

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justification for exercise of that power has to

be judged from case to case... Rule of law

should be the overarching constitutional

justification for judicial review.” (para 65,

67 at p. 3402)

35.In that case, an order of remission had been

passed, inter alia, on an inference that the

accused was not involved in the murder, was

falsely implicated and false witnesses had been

produced. This Court held such reasons to be

irrelevant and held that the order of remission

was bad.

36.From the abovementioned judicial decisions it

is clear that there is limited scope of

judicial review on the exercise of power by the

Governor under Article 161.

37.Keeping the aforesaid principles in our mind if

we look at the order of the Governor it appears

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that there has been consideration of various

aspects of the matter by the Governor in

granting pardon. The Governor’s order also

contains some reasons.

38. The Governor’s order does not contain any

reference to the order of conviction and

sentence imposed on the accused persons. It is

axiomatic that before the power of the Governor

under Article 161 of the Constitution is

invoked by any person, the condition precedent

is that such person or persons must be

convicted of any offence against any law and

will be subjected to undergo a sentence.

Therefore, an omission of any reference to an

order of conviction or sentence in the

Governor’s order in respect of the accused is

really of no consequence.

39.However, in this case before the Governor could

pass the aforesaid order of pardon, the accused

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persons filed appeals against the order of

conviction and sentence and the same were

pending before the Hon’ble High Court. This is

a relevant fact for the Governor to take into

consideration before granting his power of

pardon. But, in the instant order of the

Governor there is no reference to this fact.

This court, therefore, is inclined to infer

that all relevant facts were possibly not

placed before the Governor.

40.Apart from this, there is another vital aspect

in the order of the Governor which requires

serious consideration, in as much as, in the

order of the Governor, there are some

observations about the guilt or innocence of

the accused persons who prayed for pardon under

Article 161 of the Constitution.

41.It is well settled that to decide on the

innocence or otherwise of an accused person in

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a criminal trial is within the exclusive domain

of a Court of competent jurisdiction as this is

essentially a judicial function. A Governor’s

power of granting pardon under Article 161

being an exercise of executive function, is

independent of the Court’s power to pronounce

on the innocence or guilt of the accused. The

powers of a Court of law in a criminal trial

and subsequent appeal right upto this Court and

that of the President/Governor under Article

72/161 operate in totally different arenas and

the nature of these two powers are also totally

different from each other. One should not

trench upon the other. The instant order of

the Governor, by pronouncing upon the innocence

of the accused, has therefore, if we may say so

with respect, exceeded the permissible

constitutional limits under Article 161 of the

Constitution.

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42.For these reasons, we are constrained to hold

that we cannot approve the order of the

Governor. We therefore, set aside the order and

remand it to the Hon’ble Governor for re-

consideration of the matter in accordance with

law.

43.It may be mentioned in this connection, that of

those three accused persons, two persons

namely, Prem Kumar and Narayan Dutt, had been

acquitted by the High Court by judgment and

order dated 11.3.2008 in connection with the

criminal appeals filed by them.

44.The appeals are thus disposed of. No orders as

to costs.

.......................J.

(G.S. SINGHVI)

.......................J.

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New Delhi (ASOK KUMAR GANGULY)

February 24, 2011

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