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.
1
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
2
(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
3
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.
4
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.
5
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
7
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
8
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
9
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
10
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
11
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
12
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
13
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
14
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).
15
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:
16
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.
17
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
19
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
20
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
21
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
22
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.
23
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.
24
New Delhi (ASOK KUMAR GANGULY)
February 24, 2011
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