http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 5

PETITIONER:

SATPAL & ANOTHER

Vs.

RESPONDENT:

STATE OF HARYANA & ORS.

DATE OF JUDGMENT: 01/05/2000

BENCH:

U.C.Banerjee, G.B.Pattanaik

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 5

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.

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, the said order cannot sustain the judicial

scrutiny and must be set aside. He also contended that if

the order of the Governor is examined it will indicate as to

the uncanny haste with which the entire matter was disposed

of, without scant regard for the judgment of this Court

whereunder the Court convicted the present respondent no. 3

under Section 302/149 IPC and 120-B and the final order of

the Governor emanated even before respondent no. 3

surrendered to serve the sentence though the impugned order

categorically indicates that the prisoner is in jail. Mr.

Tulsi also contended that the Governor has passed the order

without being aided and advised by the Council of Ministers

and, therefore, the order is vitiated.

Mr. R.K.Jain, learned senior counsel appearing for

the State of Haryana and Mr. D.D. Thakur, learned senior

counsel appearing for respondent no. 3, however, contended

that the power to grant pardon and remission of sentence is

essentially an executive function to be exercised by the

Head of the State after taking into consideration various

matters and the Court is precluded from examining the wisdom

or expediency of exercise of the said power. According to

the learned counsel the power of judicial review, as has

been held by this Court in Kehar Singhs case is of a very

limited nature, namely, whether the authority who had

exercised the power had the jurisdiction to exercise the

same, and whether the impugned order goes beyond the power

conferred by law upon the authority who made it, and this

being the position the grounds on which the impugned order

is being attacked essentially pertain to the propriety of

the Governor in the matter of exercising power under Article

161 after the conviction and sentence passed by this Court

and as such, it should not be interfered with.

There cannot be any dispute with the proposition of

law that the power of granting pardon under Article 161 is

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 5

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. The extent of judicial

review in relation to an order of the President under

Article 72 of the Constitution of India was subject matter

of consideration before this Court in Kehar Singhs case

1989 (1) Supreme Court Cases 204 , where the Constitution

Bench had observed It appears to us clear that the question

as to the area of the Presidents power under Article 72 of

the Constitution falls squarely within the judicial domain

and can be examined by the Court by way of judicial review.

The Court had further indicated that as regards the

considerations to be applied by the President to the

Petition we need say nothing more as the law in this behalf

have already been laid down by this Court in Marurams case

1981 (1) Supreme Court Cases 107. What has been stated in

relation to the Presidents power under Article 72 equally

applies to the power of Governor under Article 161 of the

Constitution. In Marurams case (supra) the Court came to

the conclusion that the power under Articles 72 and 161 can

be exercised by the Central and State Governments and not by

the President or Governor on their own. The advice of the

appropriate Government binds the head of the State. The

Court also came to the conclusion that considerations for

exercise of power under Articles 72 or 161 may be myriad and

their occasions protean, and are left to the appropriate

Government, but no consideration nor occasion can be wholly

irrelevant, irrational, discriminatory or malafide. Only in

these rare cases will the Court examine the exercise. In

paragraph 62 of the judgment in Maru Rams case (supra) the

Court had observed :- An issue of deeper import demands our

consideration at this stage of the discussion. Wide as the

power of pardon, commutation and release (Articles 72 and

161) is, it cannot run riot; for no legal power can run

unruly like John Gilpin on the horse but must keep sensibly

to a steady course. Here, we come upon the second

constitutional fundamental which underlies the submissions

of counsel. It is that all public power, including

constitutional power, shall never be exercisable arbitrarily

or mala fide and, ordinarily, guidelines for fair and equal

execution are guarantors of the valid play of power. We

proceed on the basis that these axioms are valid in our

constitutional order.

It was further held that the power to pardon, grant

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.

Three Judge Bench of this Court recently considered

the question of judicial review against an order granting

pardon by the Governor under Article 161 of the Constitution

in the case of Swaran Singh vs. State of U.P. and Others

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 5

(1998) 4 Supreme Court Cases 75. In that case an MLA of the

State Assembly had been convicted of the offence of murder

and within a period of less than two years he succeeded in

coming out of the prison as the Governor of Uttar Pradesh

granted remission of the remaining long period of his life

sentence. The son of the deceased moved the Allahabad High

Court challenging the aforesaid action of the Governor and

the same having been dismissed the matter had been brought

to this Court by grant of Special Leave Petition. This

Court had come to the conclusion that the Governor was not

told of certain vital facts concerning the prisoner such as

his involvement in five other criminal cases of serious

offences, the rejection of his earlier clemency petition and

the report of the jail authority that his conduct inside the

jail was far from satisfactory and out of two years and five

months he was supposed to have been in jail, he was in fact

on parole during the substantial part thereof. The Court

further held that when the Governor was not posted with

material facts the Governor was apparently deprived of the

opportunity to exercise the powers in a fair and just manner

and the order fringes on arbitrariness. The Court,

therefore, quashed the order of the Governor with a

direction to re-consider the petition of the prisoner in the

light of the materials which the Governor had no occasion to

know earlier.

Bearing in mind the parameters of judicial review in

relation to an order granting pardon by the Governor, 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 2.2.99. 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 Singhs case (supra). 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 5

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 15.1.1999. We

accordingly quash the impugned order dated 25.1.1999 and

allow this Writ Petition, but, however quashing of the order

does not de bar the Governor in reconsidering the matter in

the light of the relevant materials and act in accordance

with the constitutional provision and discretion.