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Saturday, July 2, 2016

grant of parole.= It has been clearly stated in the impugned order that the convict was involved in disruptive activities, criminal conspiracy, smuggling of arms, ammunitions and explosives and further he had also been involved in various other activities. It has also been mentioned that the prisoner under disguise of common name used to purchase vehicles for transportation and his conduct showed that he had wide spread network to cause harm and create disturbance to National Security. Because of the aforesaid reasons remission was declined. In such a fact situation, the view expressed by the High Court to consider the case on the basis of the observations made by it in the judgment is not correct.- In Sunil Fulchand Shah v. Union of India and others[26] the Constitution Bench while dealing with the grant of temporary release or parole under Section 12(1) and Section 12(1-A) of the Conversation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA Act) had observed that the exercise of the said power is administrative in character but it does not affect the power of the High Court under Article 226 of the Constitution. However, the constitutional court before directing the temporary release where the request is made to be released on parole for a specified reason and for a specified period should form an opinion that request has been unjustifiably refused or where the interest of justice warranted for issue of such order of temporary release. The Court further ruled that jurisdiction has to be sparingly exercised by the Court and even when it is exercised, it is appropriate that the Court should leave it to the administrative or jail authorities to prescribe the conditions and terms on which parole is to be availed of by the detenu. It is well settled in law that a Judge is expected to act in consonance and accord with the legal principles. He cannot assume the power on the basis of his individual perception or notion. He may consider himself as a candle of hope but application of the said principle in all circumstances is not correct because it may have the effect potentiality to affect the society. While using the power he has to bear in mind that “discipline” and “restriction” are the two basic golden virtues within which a Judge functions. He may be one who would like to sing the song of liberty and glorify the same abandoning passivity, but his solemn pledge has to remain embedded to constitution and the laws. There can be deviation. Consequently, the appeal is allowed and the impugned judgment and order of the High Court is set aside and liberty is granted to the first respondent to submit a representation/application before the competent authority of the Union of India within a period of eight weeks and the authority shall consider the same as expeditiously as possible in accordance with law and the guidelines framed for premature release.

                                 REPORTABLE


                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION

                      CRIMINAL APPEAL NO.  171  OF 2016
                   (@ S.L.P. (Criminal) No. 7701 of 2012)


State of Gujarat & Anr.                        …Appellant(s)

                                  Versus

Lal Singh @ Manjit Singh & Ors.                 …Respondent(s)


                               J U D G M E N T

Dipak Misra, J.

        The present appeal,  by  special  leave,  is  directed  against  the
judgment and order dated August 23, 2012 passed by the High Court of  Punjab
and Haryana at Chandigarh  in  Criminal  Writ  Petition  No.  1620  of  2011
whereby the High Court entertaining the Writ Petition had  opined  that  the
order dated 26.07.2011 passed by the  Government  of  Gujarat  declining  to
grant the benefit of premature release to the  first  respondent  herein  is
illegal and further directed the State Government  to  reconsider  his  case
and take a fresh decision in the  light  of  the  discussions  made  in  the
impugned order and further to release him on parole for a  period  of  three
months on furnishing personal bond/security bond for a sum of  Rs.  50,000/-
to the satisfaction of the concerned Jail Superintendent.

2.    The facts which  are  essential  to  be  stated  are  that  the  first
respondent along with 20 other accused was tried in TADA Cases Nos. 2, 7  of
1993 and 2 of 1994.  The Designated Judge, Ahmedabad  (Rural)  at  Mirzapur,
Ahmedabad convicted the first respondent and some others  for  the  offences
punishable under Section 3(3) of the  Terrorist  and  Disruptive  Activities
(Prevention) Act, 1987 (for short, “the TADA Act”) and sentenced  to  suffer
life imprisonment and to pay a fine of Rs. 10,000/- each and in  default  to
suffer RI for 6 months; under Section 120-B(1) IPC sentenced  to  suffer  RI
for 10 years and to pay a fine of Rs. 5,000/- each, in default to suffer  RI
for 3 months;  under Section 5 of the TADA  Act  sentenced  to  suffer  life
imprisonment and to pay a fine of Rs. 10,000/- and in default  to suffer  RI
for 6 months; under Section 5 of the Explosive Substances Act to pay a  fine
of Rs. 5,000/- and in default to undergo RI  for  3  months;  under  Section
25(1-A) of the Arms Act sentenced to suffer RI for 7  years  and  to  pay  a
fine of Rs. 5,000/- and, in default, to  suffer  RI  for  3  months.  Be  it
stated, he was also convicted for the offence punishable under Section  3(3)
of the TADA Act read with Section 120-B IPC but  no  separate  sentence  was
awarded. All the sentences were directed to run concurrently.

3.    The first respondent preferred Criminal Appeal No.  219  of  1997  and
the said appeal  was  heard  along  with  the  appeals  preferred  by  other
convicts.  This Court in Lal  Singh  v.  State  of  Gujarat  and  another[1]
scrutinized the evidence in  detail  and  ultimately  dismissed  the  appeal
preferred by the first respondent and  confirmed  the  conviction   and  the
sentence as imposed by the learned Judge, Designated Court.

4.    During the pendency of the criminal  appeal  before  this  Court,  the
first respondent sought transfer from the Central Prison, Ahmedabad  to  the
Central Prison, Jalandhar on the ground that his family is based in  Punjab;
his old parents were suffering from number  of  ailments;  and  further  the
financial condition of the family was precarious.  Considering  the  reasons
ascribed in the  representation,  the  State  Government  vide  order  dated
11.11.1998 consented to transfer the first respondent from  Central  Prison,
Ahmedabad to the Central Prison, Jalandhar.  A condition was  stipulated  by
the  State  of  Gujarat  that  tight  security  and  proper  police   escort
arrangement was to be ensured.

5.    The first respondent on  19.01.2004  sought  premature  release  under
Section 432 of the Code of Criminal Procedure, 1973  (CrPC)  on  the  ground
that he would complete 14 years of actual sentence  in  jail.    His  prayer
for premature release was considered  by  the  competent  authority  of  the
State of Gujarat which vide order dated 26.10.2006 considering the over  all
aspects of the matter rejected the said application.   The  said  order  was
assailed in Criminal Writ Petition No. 505 of 2007 before the High Court  of
Punjab and Haryana which vide order dated 25.08.2008 disposed  of  the  Writ
Petition with the direction to the State of Gujarat to reconsider  the  case
of the first respondent for premature release considering the  applicability
of Section 433 CrPC, Section 3 of the  Transfer  of  Prisoner  Act  and  the
decision in State of Haryana v. Mahender Singh[2].

6.    Keeping in view  the  order  passed  by  the  High  Court,  the  State
Government considered the prayer  of  the  first  respondent  for  premature
release on 06.03.2009 and considered all aspects that have to be taken  note
of as per the direction of the High Court along with all other  factors  and
the decisions in U.T. Chandigarh v. Charanjit Kaur[3]  and Laxman Naskar  v.
State of West Bengal[4]   and  eventually  rejected  the  application.   The
grievance of rejection compelled the first  respondent  to  prefer  a  Misc.
Criminal Application No. 6515 of 2009 before the  Punjab  and  Haryana  High
Court which was eventually withdrawn vide order dated 16.03.2009 wherein  it
was observed that it was  open  to  the  said  respondent  to  approach  the
concerned authority.  The order dated 06.03.2009  was  again  challenged  in
Special Criminal Application No. 1274 of  2009  under  Article  226  of  the
Constitution of India which was dismissed by the High Court.

7.    Remaining indefatigable the first  respondent preferred Writ  Petition
No.  677 of 2010 praying for a writ of habeas corpus on the ground  that  he
had already  suffered  requisite  period  of  sentence  and  hence,  he  was
entitled to be released as per Sections 432, 433 and  433-A  CrPC  and  para
431 of the New Punjab Jail Manual.  A  grievance  was  put  forth  that  his
representation had not  been  considered   by  the  State  Government.    On
20.04.2010, the High Court  disposed  of  the  matter  directing  the  State
Government to pass a speaking order within a period of two  months.   Be  it
stated, when the High Court passed the said order, it had not issued  notice
to the State of Gujarat.  However, regard being had to the direction  issued
by  the  High  Court,  the  competent  authority  took  up  the  matter  for
reconsideration  and  after  obtaining  the  opinion  from  the  appropriate
quarters as required under the manual,  the  State  Government  declined  to
grant  premature  release  to  the  first  respondent   vide   order   dated
30.12.2010.   The said order was assailed before  the  High  Court  in  Writ
Petition No. 158 of 2011  and the High Court vide judgment and  order  dated
25.05.2011 directed the State to reconsider  the  premature  release  taking
note of the actual sentence of 14 years and three months and  more  than  21
years  including  remission.   The  High  Court  had  directed   the   first
respondent  to  be  released  on  parole  subject  to  certain   conditions.
Pursuant to the order passed by the High Court, the  State  Government  took
up  the  case  for  reconsideration  and  keeping  in  view  the   statutory
provisions of CrPC, Rule No. 1448  of the Bombay Jail Manual  which  governs
the State of Gujarat, the opinion of the advisory board and keeping in  view
the number of cases the first respondent was really  involved,  the  gravity
and nature of the crime and its impact  on  the  society,  it  rejected  the
proposal for release vide order dated 26.07.2011.

8.    Being aggrieved by the aforesaid order, the first  respondent  invoked
the jurisdiction of the High Court under Article 226 of the Constitution  of
India.  It was contended on behalf of  respondent  No.  1  before  the  High
Court that provisions of Punjab Jail Manual,  1996  are  applicable  to  him
since he had been transferred to the State of Punjab as per the Transfer  of
Prisoners Act, 1950 and as there had been a recommendation by the  competent
authority under the Punjab Jail Manual that he was entitled to  the  benefit
of the premature release but the same has been  declined  by  the  State  of
Gujarat and hence, the whole action was arbitrary and illegal.  It was  also
urged that as per the Bombay Jail Manual which is  applicable  in  State  of
Gujarat, he was also  entitled  to  premature  release  as  he  had  already
undergone more than 14 years of sentence.  It was also argued  that  refusal
to entertain the prayer for premature release was contrary  to  the  concept
of Article 21 of the Constitution and, therefore, the order  passed  by  the
State Government was non est in law.

9.    The stand of the first respondent was controverted  by  the  State  of
Gujarat contending, inter alia, that the recommendations  of  the  competent
authority under the Punjab Jail Manual are not binding on it  which  is  the
sole authority to decide the matter relating to premature release; that  the
High Court of Punjab and Haryana had no jurisdiction  to  issue  a  writ  of
habeas corpus; that the factual background as depicted by the State  do  not
make out a case for premature release and, therefore, the Court  should  not
exercise its extra ordinary jurisdiction on the said  score.   It  was  also
contended that the first respondent having acceded to the earlier orders  of
rejection by the High Court, was debarred  from  approaching  the  Court  in
subsequent petitions.

10.   The learned single Judge posed five questions for consideration.  They
read as under:-

“i) Which is the appropriate Government empowered to consider  the  case  of
premature release of the petitioner?

ii) Whether earlier dismissal of the petition for  premature  release  by  a
High Court operates as  bar  and  estoppels  to  the  filing  of  subsequent
petitions?

iii) Whether the High Court where prisoner is transferred  has  jurisdiction
to entertain the criminal writ petition?

iv) Whether non-release of a  convict  is  worse  sanction  than  the  death
sentence, resultant encroachment upon the life and personal liberty  by  the
executive?

v) Whether order dated 26.07.2011 is  subject  to  judicial  review  and  is
arbitrary, whimsical and  against  the  provisions  of  Article  21  of  the
Constitution of India?”

11.   Answering the first question, the High  Court  held  that  it  is  the
Government of Gujarat which is the appropriate Government  for  passing  the
order with regard to premature release to the first  respondent.   Answering
the question No. 2, the High Court opined  that  dismissal  of  the  earlier
petitions did not operate as a bar  to  file  fresh  petition  nor  do  they
operate as estoppel when fresh cause of action  arises.   Dealing  with  the
third facet,  the  High  Court  opined  that  it  had  the  jurisdiction  to
entertain the Writ Petition keeping  in  view  the  ambit  and  scope  under
Article 226 of the Constitution.  While dealing with  question  No.  4,  the
High Court referred to Universal Declaration of Human Rights, Article 21  of
the Constitution, the view expressed by this Court in Santa Singh  v.  State
of Punjab[5], Kuljeet Singh v. Lt. Governor  of  Delhi[6],  Kehar  Singh  v.
Union of India[7], Mahender Singh (supra), Mohd. Munna  v.  Union  of  India
and others[8] and certain other authorities and came to hold thus:-

“In the light of the above  discussions,  facts  and  circumstances  of  the
cases in hand, the arguments of the counsel for the  Government  of  Gujarat
that life imprisonment means natural life of the  prisoner  is  against  the
provisions of the Constitution and the International Human Rights  Documents
and will amount to arbitrary  exercise  of  power  rejecting  the  premature
release  of  petitioners.  I  have  no   doubt   that   indeterminate   life
imprisonment  and non-release of a convict  –  prisoner  is  worse  sanction
than the death sentence, resultant encroachment upon the life  and  personal
liberty by the executive.  A barbaric crime does not have to be met  with  a
barbaric penalty which may upset the mental balance  of  a  person  who  may
realize that he will never be out of prison.  The  reasonable  determination
period of imprisonment with regard to offences where life  imprisonment   is
provided is a necessity and call for appropriate amendment  for  prescribing
determinate punishment keeping in view the gravity  of  the  offence.   This
Court feels that it is the primary obligation of the  Legislature  to  carry
out necessary amendments in  the  cases  where  imprisonment   for  life  is
provided to make aware the  convict/prisoner  how  much  period  he  has  to
undergo in prison.  Otherwise, the approach of  reformative,  rehabilitative
and corrective system will be only a futile  exercise.  Otherwise  also,  to
keep a prisoner behind bars is a financial burden  on  the  State  exchequer
and for that reason it is imperative to fix some determinate  punishment  by
making amendments.”

12.   While adverting to the fifth issue, the High  Court  referred  to  the
decisions in Kehar Singh (supra), the Constitution Bench  decision  in  Maru
Ram v. Union of India and others[9] and Swaran Singh v. State  of  U.P.  and
others[10] and came to hold that the power of judicial review of  the  order
passed by the President or the Governor under Article 72 or Article  161  is
available on limited grounds.  Thereafter the High  Court  opined  that  the
State  of  Gujarat  while  considering  the  representation  of  the   first
respondent seeking premature release had not taken  into  consideration  the
reports of the District Magistrate and the Senior Superintendent of  Police,
Kapurthala as well as the Superintendent Maximum Security Jail, Nabha  where
the  first  respondent  was  undergoing  the  sentence  and  no  reason  for
discarding such reports had been ascribed.  The High  Court  further  opined
that it is not recorded in the order how the Advisory Committee  of  Gujarat
has come to a conclusion for not recommending the case of premature  release
of the first  respondent.    That  apart,  it  has  been  observed  that  no
evidence or material  had  been  placed  before  the  Court  to  reject  the
recommendations of the transferee State, that is, the Government of  Punjab.
  Thereafter, the learned single Judge proceeded to state thus:-

“… The petitioner more than 20 years had never been in the  jurisdiction  of
District Magistrate and District Superintendent of Police of  the  concerned
District of Gujarat, how their reports  can  outweigh  the  reports  of  the
transferee State.  The  absence  of  obligation  to  convey  reason  to  the
petitioner for rejecting the recommendations of the State  of  Punjab  where
the petitioner permanently resides does not mean that there  should  not  be
legitimate  and  relevant  reasons   for   passing   order   of   rejection.
Furthermore, no such material has been placed on  the  paper  book  nor  any
record has been shown to the Court which had formed the basis for  rejecting
the claim of the petitioner.  The obligation to supply reasons  is  entirely
different to apprise the Court about the reason  for  the  action  when  the
same is challenged in Court…”

13.    Eventually,  the  High  Court  directed  to  reconsider   the   first
respondent’s representation in the light of  the  discussion  made  in  that
order and further to release him forthwith on parole for a period  of  three
months.  The said order is the subject matter of assail in  this  appeal  by
special leave.

14.   We have heard Mr. D.N. Ray and Ms.  Hemantika  Wahi,  learned  counsel
for the State of Gujarat, Ms. Sunita Sharma, learned counsel for  the  first
respondent and Mr. V. Madhukar, learned Additional Advocate General for  the
State of Punjab.

15.   To appreciate  the  controversy  specially  in  the  backdrop  of  the
judgment delivered by the High Court, it is necessary  to  restate  the  law
pertaining  to  sentence  of  imprisonment  for  life  and  the  concept  of
remission as envisaged under CrPC.

16.   In State of Madhya Pradesh v. Ratan Singh and others[11]  a  two-Judge
Bench speaking through Fazal Ali, J., after adverting  to  the  decision  in
Gopal Vinayak Godse v. State of Maharashtra[12] and other decisions and  the
provisions of CrPC, has opined that that  a  sentence  of  imprisonment  for
life does not automatically expire at the end  of  20  years  including  the
remissions, because the administrative rules framed under the  various  Jail
Manuals or under the Prisons Act cannot supersede the  statutory  provisions
of the Indian Penal Code. A  sentence  of  imprisonment  for  life  means  a
sentence for  the  entire  life  of  the  prisoner  unless  the  appropriate
Government chooses to exercise its discretion to remit either the  whole  or
a part of the sentence under Section 401 of the Code of Criminal Procedure.

17.   In Naib Singh s/o Makhan Singh v. State of Punjab and others[13]   the
Court was dealing with a writ petition preferred under  Article  32  of  the
Constitution challenging the continued detention of the  convict  petitioner
in jail and seeking an order in the nature of habeas  corpus  claiming  that
he had served more than the  maximum  sentence  of  imprisonment  prescribed
under law and therefore he should be released. The  petitioner  therein  was
convicted under Section 302 IPC and  sentenced  to  death  but  on  a  mercy
petition preferred by him, his death sentence was commuted  by the  Governor
of Punjab to imprisonment for life.  After serving rigorous imprisonment  of
more than 22 years, a petition was filed seeking  the  release.   The  Court
referred to Sections 53 and 55 IPC and Section 433 CrPC., various  decisions
of  the  High  Court  and  then  concept  of  transportation  for  life  and
eventually held that it is well settled position in law  that  the  sentence
of imprisonment for life has to be  equated  to  rigorous  imprisonment  for
life and ultimately the claim of the petitioner  to  immediate  release  was
declined in the absence of any order of  commutation   being  passed  either
under Section 55 IPC or Section 433(b) CrPC.

18.   In this regard, we may fruitfully refer to a two-Judge Bench  decision
in Laxman Naskar (supra). In the said case, after referring to  the  earlier
decisions, the Court opined that though under the relevant Rules a  sentence
for imprisonment for life is equated with the definite period of  20  years,
that is no  indefeasible  right  of  such  prisoner  to  be  unconditionally
released on the expiry of such  a  particular  terms,  including  remissions
and that is only for the purpose of working  out  the  remissions  that  the
said sentence is  equated  with  definite  period  and  not  for  any  other
purpose.  The Court proceeded to state thus:-

“… In view of this legal position explained by this Court it  may  not  help
the petitioner even on the construction placed by the  learned  counsel  for
the petitioner on Section 61(1) of the  West  Bengal  Correctional  Services
Act 32 of 1992 with reference to explanation thereto that  for  the  purpose
of calculation of the total period of imprisonment under  this  section  the
period of imprisonment for life shall be  taken  to  be  equivalent  to  the
period of imprisonment for 20 years.  Therefore,  solely  on  the  basis  of
completion of a term in jail  serving  imprisonment  and  remissions  earned
under the relevant Rules or law will not entitle an automatic  release,  but
the  appropriate  Government  must  pass  a  separate  order  remitting  the
unexpired portion of the sentence.”

19.   It is essential  to  state  here  that  while  so  stating  the  Court
adverted to the issue whether there had been due consideration of  the  case
of the petitioner by the Government. The Court took note of  the  fact  that
earlier on the Court had directed the Government  to  reconsider  the  cases
for premature release of all life convicts who  had  approached  the  Court.
The Court took note of the  fact  that  the  Government  had  constituted  a
Review  Committee  consisting  of  certain  members,  and   enumerated   the
guidelines issued earlier to form the  basis  on  which  a  convict  can  be
released prematurely. The said guidelines read as under:-
“This Court also issued certain guidelines  as  to  the  basis  on  which  a
convict can be released prematurely and they are as under:
“(i) Whether the offence is an individual act  of  crime  without  affecting
the society at large.
(ii) Whether there is any chance of future recurrence of committing crime.
(iii) Whether the convict has lost his potentiality in committing crime.
(iv) Whether there is any fruitful purpose of  confining  this  convict  any
more.
(v) Socio-economic condition of the convict’s family.”

20.   The Court analysed the reasons  given  by  the  Review  Committee  and
opined that the reasons given by the Government are palpably  irrelevant  or
devoid of substance and accordingly remitted the matter  to  the  Government
again for examination in the light of what has been stated by the Court.

21.   In Mohd. Munna (supra) a two-Judge  Bench  was  dealing  with  a  Writ
Petition wherein the prayer was made  for  issuance  of  a  writ  of  habeas
corpus to set the petitioner at liberty on the ground that he  had  remained
in detention for more than 21 years. It was contended  that  the  length  of
the  duration  of  imprisonment  for  life  is  equivalent  to   20   years’
imprisonment and that too subject  to  further  remission  admissible  under
law.   The two-Judge Bench referred to various provisions  of  IPC,  earlier
decisions in the field including K.M. Nanavati v. State  of  Maharashtra[14]
and Kishori Lal v. Emperor[15]  and the  law  laid  down  in  Gopal  Vinayak
Godse (supra) and held that:-

“The Prisons Rules are made under the Prisons Act and  the  Prisons  Act  by
itself does not confer any authority or power to commute or remit  sentence.
It only provides for the regulation of the prisons and for the terms of  the
prisoners confined therein. …”

      The Court further observed that the petitioner was not entitled to  be
released on any of the grounds urged in the writ petition so long  as  there
was no order of remission  passed  by  the  appropriate  Government  in  his
favour.

22.   In Maru Ram (supra) the constitutional validity of Section 433-A  CrPC
which had been brought in the statute book in the year 1978  was  called  in
question. Section 433-A CrPC imposed restrictions on powers of remission  or
commutation in certain  cases.  It  stipulates  that  where  a  sentence  of
imprisonment for life is imposed on conviction of a person  for  an  offence
for which death is one of the punishments  provided  by  laws,  or  where  a
sentence of death imposed on a person has been commuted  under  Section  433
into one of imprisonment for life, such person shall not  be  released  from
prison unless he has served at least fourteen years  of  imprisonment.   The
majority in Maru Ram (supra)  upheld  the  constitutional  validity  of  the
provision. The Court  distinguished  the  statutory  exercise  of  power  of
remission and exercise of power by the constitutional authorities under  the
Constitution, that is, Articles 72 and 161.   In  that  context,  the  Court
observed that the power which is the creature of the Code cannot be  equated
with  a  high  prerogative  vested  by  the  Constitution  in  the   highest
functionaries of the Union and the States, for the source is  different  and
the substance is different. The  Court  observed  that  Section  433-A  CrPC
cannot be invalidated as indirectly violative of Articles 72 and 161 of  the
Constitution. Elaborating further,  the  majority  spoke  to  the  following
effect:-

“… 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. …”


23.   In Kehar Singh (supra) the Constitution Bench opined  that  the  power
to pardon is a part of  the  constitutional  scheme  and  it  should  be  so
treated in the Indian Republic.   The Court further observed that  it  is  a
constitutional responsibility of great significance, to  be  exercised  when
occasion arises in  accordance  with  the  discretion  contemplated  by  the
context. It has also been held that the power to pardon rests on the  advice
tendered by the Executive to the President who, subject  to  the  provisions
of Article 74(1), must act in accordance with  the  advice.    Dealing  with
the justiciability of exercise of power under Article 72,  the  Court  after
due deliberation ruled that the question as to the area of  the  President’s
power under Article 72 falls squarely within the judicial domain and can  be
examined by the court by way of judicial  review.    In  this  context,  the
larger Bench ruled thus:-

“… The manner of consideration of the petition lies  within  the  discretion
of the President, and it is for him to  decide  how  best  he  can  acquaint
himself with all the information  that  is  necessary  for  its  proper  and
effective disposal. The President may consider  sufficient  the  information
furnished before him in the first  instance  or  he  may  send  for  further
material relevant to the issues which he considers pertinent,  and  he  may,
if he considers it will assist him in treating with the  petition,  give  an
oral  hearing  to  the  parties.  The  matter  lies  entirely   within   his
discretion. As regards the considerations to be applied by the President  to
the petition, we need say nothing  more  as  the  law  in  this  behalf  has
already been laid down by this Court in Maru Ram (supra).”

24.   In Swaran Singh (supra) a three-Judge Bench was called  upon  to  deal
with the non-justiciability of an order passed by  the  President  of  India
under Article 72 of the Constitution or by the Governor of the  State  under
Article  161  thereof.    The  Court  referred  to  the  Constitution  Bench
decision in Kehar Singh (supra) where the  principles  stated  in  Maru  Ram
(supra) were followed and culled out the  principles  that  in  Kehar  Singh
(supra)   a point has been stressed to the effect that the  power  being  of
the greatest moment, cannot be a law unto itself but it must be informed  by
the finer canons of constitutionalism.  The Court adverted to the  facts  of
the case and held thus:-

“In the present case, when the Governor was not posted with  material  facts
such as those indicated above, the Governor was apparently deprived  of  the
opportunity to exercise the powers in a fair and  just  manner.  Conversely,
the order now impugned fringes on arbitrariness.  What  the  Governor  would
have ordered if he were apprised of the above facts  and  materials  is  not
for us to consider now because the Court cannot then go into the  merits  of
the grounds which persuaded the Governor in taking a  decision  in  exercise
of the said power. Thus, when the order of the Governor  impugned  in  these
proceedings is subject to judicial review within the strict parameters  laid
down in Maru Ram case and reiterated in Kehar Singh case we  feel  that  the
Governor shall reconsider the petition of Doodh Nath in the light  of  those
materials which he had no occasion to know earlier.”

25.   In Bikas Chatterjee v. Union of India and others[16] the  Constitution
Bench while dealing with the power of judicial review in  respect  of  order
passed under Article 72 of the Constitution held that the  powers  are  very
very limited. Relying on Maru Ram (supra), the Court  observed  that  it  is
only a case of no consideration or consideration based on wholly  irrelevant
grounds or an irrational,  discriminatory  or  mala  fide  decision  of  the
President which can provide ground for judicial  review.  Dealing  with  the
powers of the Governor, the Court referred to the  authority  in  Satpal  v.
State of Haryana[17] and opined that:-

“In a Division Bench decision of this Court in Satpal v.  State  of  Haryana
(supra)  these  very  grounds  have  been  restated  as:  (i)  the  Governor
exercising the power under Article 161 himself without being advised by  the
Government; or (ii) the Governor transgressing his  jurisdiction;  or  (iii)
the Governor passing the order without application  of  mind;  or  (iv)  the
Governor’s decision is based on some extraneous consideration; or  (v)  mala
fides. It is on these grounds that the  Court  may  exercise  its  power  of
judicial review in relation to an order of the Governor under  Article  161,
or an order of the President under Article 72 of the  Constitution,  as  the
case may be.”

      Be it stated, the Court declined to entertain  the  writ  petition  on
the ground that there was no justification to assume that the  President  of
India had not applied his mind to all the  relevant  facts  and  accordingly
rejected the petition.

26.   At this juncture, reference to a two-Judge Bench  decision   in  Epuru
Sudhakar and another v. Govt. of A.P. and others[18] would be  apposite.  In
the said case, the convict was granted remission of the unexpired period  of
sentence under Article 161 of the Constitution.   The  convict  was  granted
remission of unexpired period of about seven years imprisonment.   The  same
was challenged by the son of the deceased.  The question of interference  by
the Court arose for consideration.  Arijit Pasayat, J.  placed  reliance  on
the authority in Swaran Singh (supra) wherein Maru  Ram  (supra)  and  Kehar
Singh (supra) were referred to and dealt with and reiterated the  view  that
if the power is exercised in an arbitrary or malafide manner or in  absolute
disregard  of  finer  canons  of  constitutionalism,  the   order   can   be
scrutinized in exercise of power of judicial review and the  judicial  hands
can be stretched to it.

27.  In the concurring opinion, S.H. Kapadia, J. (as His Lordship then  was)
opined thus:-

“Exercise of executive clemency is a matter of discretion  and  yet  subject
to certain standards. It is not a matter of privilege. It  is  a  matter  of
performance of  official  duty.  It  is  vested  in  the  President  or  the
Governor, as the case may be, not for the benefit of the convict  only,  but
for the welfare of the people who may  insist  on  the  performance  of  the
duty.  This  discretion,  therefore,  has  to   be   exercised   on   public
considerations alone. The President and the Governor are the sole judges  of
the sufficiency of facts and of the appropriateness of granting the  pardons
and  reprieves.  However,  this  power  is  an  enumerated  power   in   the
Constitution and its limitations, if any, must be found in the  Constitution
itself. Therefore, the principle of exclusive  cognizance  would  not  apply
when and if the decision impugned  is  in  derogation  of  a  constitutional
provision. This is the basic working  test  to  be  applied  while  granting
pardons, reprieves, remissions and commutations.”

 And, again:-

“… The Rule of Law is  the  basis  for  evaluation  of  all  decisions.  The
supreme quality of the Rule of Law is  fairness  and  legal  certainty.  The
principle of legality occupies a central plan in  the  Rule  of  Law.  Every
prerogative has to be subject to the  Rule  of  Law.  That  rule  cannot  be
compromised  on  the  grounds  of  political  expediency.  To  go  by   such
considerations would be subversive of  the  fundamental  principles  of  the
Rule of Law and it would amount to setting a dangerous precedent.  The  Rule
of Law principle comprises a requirement of “Government according  to  law”.
The ethos of “Government according to law” requires the  prerogative  to  be
exercised in a manner which  is  consistent  with  the  basic  principle  of
fairness and certainty. Therefore, the power of executive  clemency  is  not
only for the benefit of the convict, but while exercising such a  power  the
President or the Governor, as the case may be,  has  to  keep  in  mind  the
effect of his decision on the family of the victims, the society as a  whole
and the precedent it sets for the future.”


      We respectfully concur with the  aforesaid  expression  pertaining  to
the constitutional norm and the concept of rule of law.

28.   In this context, reference to Union of India v. V. Sriharan @  Murugan
& Ors[19] is quite seemly.  The majority in the Constitution Bench  referred
to the authority in Maru Ram (supra) and opined  that  constitutional  power
of remission provided under Articles 72 and 161  of  the  Constitution  will
always  remain  untouched,  inasmuch  as,  though  the  statutory  power  of
remission, etc., as compared to constitutional power under Articles  72  and
161 looks similar, yet they are not the same. Be it stated,  the  Court  was
dealing with imposition of sentence of life by fixing a period of 25  or  30
years without remission.  The Court after  analyzing  various  aspects  held
that it is permissible and the law  laid  down  in  Swamy  Shraddananda  (2)
alias Murali Manohar Mishra v. State of Karnataka[20]  deserved  acceptance.
The Court referred to the decision in V. Sriharan alias Murugan v. Union  of
India and others[21] wherein commuting the sentence of  death  into  one  of
life clearly laid down that such commutation was independent  of  the  power
of remission under the Constitution as well as the statute. Elaborating  the
proposition the Court while dealing with  the  power  of  remission  in  the
context of Article 21 of the Constitution, the majority said:-

“… It may also  arise  while  considering  wrongful  exercise  or  perverted
exercise  of  power  of  remission  by  the  Statutory   or   Constitutional
authority. Certainly there would have  been  no  scope  for  this  Court  to
consider a case of claim for remission to be ordered  under  Article  32  of
the Constitution. In other words, it has  been  consistently  held  by  this
Court that when it comes to the question of  reviewing  order  of  remission
passed which is  patently  illegal  or  fraught  with  stark  illegality  on
Constitutional violation or rejection of a claim for remission, without  any
justification or  colourful  exercise  of  power,  in  either  case  by  the
Executive Authority of the State, there may  be  scope  for  reviewing  such
orders  passed  by  adducing  adequate  reasons.  Barring  such  exceptional
circumstances, this Court has noted in  numerous  occasions,  the  power  of
remission always vests with the State Executive and this Court at  best  can
only give a direction to consider any claim for remission and  cannot  grant
any remission and provide for premature  release.  It  was  time  and  again
reiterated  that  the  power  of  commutation  exclusively  rest  with   the
Appropriate Government. …”
29.   After so stating the Court referred to series of  judgments,  analysed
the scope of constitutional provisions  and  the  statutory  provisions  and
opined thus:-

“Therefore, it must be held that there is every  scope  and  ambit  for  the
Appropriate Government to consider and grant remission  under  Sections  432
and 433 of the Code of Criminal Procedure even  if  such  consideration  was
earlier made and exercised under Article  72  by  the  President  and  under
Article 161 by the Governor. As far as the implication of Article 32 of  the
Constitution by this Court is concerned,  we  have  already  held  that  the
power under Sections 432 and 433 is  to  be  exercised  by  the  Appropriate
Government statutorily, it is not for this Court to exercise the said  power
and it is always left to be decided by the Appropriate Government,  even  if
someone approaches this Court under Article 32 of the Constitution. …”


30.   In the said case,  the  question  arose  with  regard  to  appropriate
Government in the context of Section 432(7) CrPC. The majority  referred  to
the authorities in Ratan Singh (supra), State  of  Madhya  Pradesh  v.  Ajit
Singh and others[22], Hanumant Dass v. Vinay Kumar and others[23], Govt.  of
A.P. and others v. M.T. Khan[24] and G.V. Ramanaiah  v.  The  Superintendent
of Central Jail, Rajahmundry and others[25]  and eventually held thus:-

“The status of Appropriate Government whether Union Government or the  State
Government will depend upon the order of sentence  passed  by  the  Criminal
Court as has been stipulated in Section 432(6) and in the event of  specific
Executive Power conferred on the Centre under a law made by  the  Parliament
or under the Constitution itself then in the event  of  the  conviction  and
sentence covered by the said law of the Parliament or the provisions of  the
Constitution even if the Legislature of the State is also empowered to  make
a law on the same subject and coextensive, the Appropriate  Government  will
be the Union Government having regard to the prescription contained  in  the
proviso to Article 73(1)(a) of the Constitution.  The  principle  stated  in
the decision in G.V. Ramanaiah (supra) should be applied.  In  other  words,
cases which fall within the four corners of Section 432(7)(a) by  virtue  of
specific Executive Power conferred on the Centre, the same will  clothe  the
Union Government the primacy with  the  status  of  Appropriate  Government.
Barring cases falling under Section 432(7)(a), in all other cases where  the
offender  is  sentenced  or  the  sentence  order  is  passed   within   the
territorial jurisdiction of the concerned State, the State Government  would
be the Appropriate Government.”

31.   Be it stated, the aforesaid part forms a part of  the  conclusion.  In
course of analysis, the Court has opined that when it comes to the  question
of primacy to the Executive Power of the  Union  to  the  exclusion  of  the
Executive Power of the State, where the power is co-extensive, in the  first
instance, it will have to be seen again whether,  the  sentence  ordered  by
the Criminal Court is found under any law relating to  which  the  Executive
Power of the Union extends.  In that context, the Court stated thus:-

“… In that respect, in  our  considered  view,  the  first  test  should  be
whether the offence for which the sentence was imposed was under a law  with
respect to which the Executive Power of the Union extends. For instance,  if
the sentence was imposed under TADA Act, as the said  law  pertains  to  the
Union Government, the Executive Power of the Union alone will apply  to  the
exclusion of the State Executive Power, in which  case,  there  will  be  no
question of considering the  application  of  the  Executive  Power  of  the
State.”

32.   In the instant case, the High Court  has  opined  that  the  State  of
Gujarat is the appropriate Government.  It is because it has been guided  by
the principle that the first respondent was convicted and sentenced  in  the
State of Gujarat.  As we  find  from  the  discussion,  there  has  been  no
reference to the authority in G.V. Ramanaiah (supra). That apart, the  issue
was not raised before the High Court.  The most important thing is that  the
High Court has referred to, as has been indicated earlier, many  aspects  of
human rights and individual liberty and, if we allow ourselves  to  say  so,
the whole discussion is in the realm of abstractions.   The  Court  has  not
found that  the  order  passed  by  the  State  of  Gujarat  was  bereft  of
appropriate consideration of necessary facts or there has been violation  of
principles of equality.  The High Court has not noticed that  the  order  is
bereft of reason. It has been clearly stated in the impugned order that  the
convict  was  involved  in  disruptive  activities,   criminal   conspiracy,
smuggling of arms, ammunitions and explosives and further he had  also  been
involved in various other activities. It has also been  mentioned  that  the
prisoner under disguise  of  common  name  used  to  purchase  vehicles  for
transportation and his conduct showed that he had  wide  spread  network  to
cause harm and create disturbance  to  National  Security.  Because  of  the
aforesaid reasons remission was declined.  In such  a  fact  situation,  the
view expressed by the High Court to consider the case on the  basis  of  the
observations made by it in the judgment is not correct.

33.   So far as direction for grant of parole is  concerned,  we  find  that
the learned Judge has  directed  parole  to  be  granted  for  three  months
forthwith.  In Sunil Fulchand Shah v. Union  of  India  and  others[26]  the
Constitution Bench while dealing with the  grant  of  temporary  release  or
parole under Section 12(1)  and  Section  12(1-A)  of  the  Conversation  of
Foreign Exchange and Prevention of Smuggling Activities Act, 1974  (COFEPOSA
Act) had observed that the exercise of the said power is  administrative  in
character but it does not affect the power of the High Court  under  Article
226  of  the  Constitution.    However,  the  constitutional  court   before
directing the temporary release where the request is made to be released  on
parole for a specified reason and for a  specified  period  should  form  an
opinion that request has been unjustifiably refused or  where  the  interest
of justice warranted for issue of such  order  of  temporary  release.   The
Court further ruled that jurisdiction has to be sparingly exercised  by  the
Court and even when it is  exercised,  it  is  appropriate  that  the  Court
should leave it to the administrative or jail authorities to  prescribe  the
conditions and terms on which parole is to be availed of by the detenu.

34.   We have referred to the aforesaid  authority  only  to  highlight  the
view expressed by the Constitution Bench with regard  to  grant  of  parole.
The impugned order, as we notice, is gloriously  silent  and,  in  fact,  an
abrupt direction has been issued to release the first respondent  on  parole
for a period of three months.  It is well settled in law  that  a  Judge  is
expected to act in consonance and  accord  with  the  legal  principles.  He
cannot assume the power  on  the  basis  of  his  individual  perception  or
notion.  He may consider himself as a candle of hope but application of  the
said principle in all circumstances is not correct because it may  have  the
effect potentiality to affect the society.  While using the power he has  to
bear in mind that “discipline” and “restriction” are the  two  basic  golden
virtues within which a Judge functions.  He may be one  who  would  like  to
sing the song of liberty and glorify the same abandoning passivity, but  his
solemn pledge has to remain embedded to constitution and  the  laws.   There
can be deviation.

35.   Consequently, the appeal is allowed  and  the  impugned  judgment  and
order of the High Court is set aside and liberty is  granted  to  the  first
respondent to  submit  a  representation/application  before  the  competent
authority of the Union of India within a  period  of  eight  weeks  and  the
authority  shall  consider  the  same  as  expeditiously  as   possible   in
accordance with law and the guidelines framed for premature release.

                                           ...............................J.
                                           [Dipak Misra]



                                           ...............................J.
New Delhi;                           [Shiva Kirti Singh]
June 29, 2016
-----------------------
[1]

      [2] (2001) 3 SCC 221
[3]
      [4]  2007 (4) RCR (Criminal) 909 : (2007) 13 SCC 606
[5]
      [6] JT 1996 (3) SC 30 : 1996 (7) SCC 492
[7]
      [8] AIR 2000 SC 2762 : (2000) 7 SCC 626
[9]
      [10] AIR 1976 SC 2386 : (1976) 4 SCC 190
[11]
      [12] 1982 (1) SCC 417
[13]
      [14] 1989 (1) SCC 204
[15]
      [16] (2005) 7 SCC 417
[17]
      [18] 1981 (1) SCC 107
[19]
      [20]  1998 (4) SCC 75
[21]
      [22] (1976) 3 SCC 470
[23]
      [24] (1961) 3 SCR 440 : AIR 1961 SC 600
[25]
      [26] (1983) 2 SCC 454
[27]
      [28] 1962 Supp (1) SCR 567 : AIR 1962 SC 605
[29]
      [30] AIR 1945 PC 64
[31]
      [32] (2004) 7 SCC 634
[33]
      [34] (2000)  5 SCC 170
[35]
      [36] (2006) 8 SCC 161
[37]
      [38] 2015 (13) SCALE 165
[39]
      [40] (2008) 13 SCC 767
[41]
      [42] (2014) 4 SCC 242
[43]
      [44] (1976) 3 SCC 616
[45]
      [46] (1982) 2 SCC 177
[47]
      [48] (2004) 1 SCC 616
[49]
      [50] AIR 1974 SC 31 : (1974) 3 SCC 531
[51]
      [52] (2000) 3 SCC 409


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