Judgment :- Somasundaram, J. The petitioner in W.P.No. 16140 of 1990 is the appellant in this writ appeal. The respondents in the writ petition are the respondents in this writ appeal. For the sake of convenience, we are referring to the parties as per their nomenclature in the writ petition. 2. The petitioner along with his father was convicted for an offence under Sec.302 read with Sec.34, I.P.C. and sentenced to undergo imprisonment for life by the Additional Sessions Court, Tirunelveli in S.C.No.86 of 1981, on 29. 1981. This Court confirmed their conviction and sentence in C.A.No.612 of 1981 on 212. 1983. As against the judgment of this court in C.A.No. 12 of 1981, the petitioner and his father filed a petition before the Supreme Court of India for Special Leave to Appeal in S.L.P. (Criminal) No.(2) 891 of 1986. The petitioner is the second petitioner in S.L.P.No.891 of 1986 filed before the Supreme court. The S.L.P. filed by the petitioner and his father was disposed of by the Supreme Court on 13. 1988. While disposing of the S.L.P. the Supreme Court recommended to the State of Tamil Nadu to consider the petitioner’s claim for remission of the balance of sentence in the following terms: "Ordinarily in this background the Special Leave Petition would have been dismissed. Special case seems to have been made out so far as Palraj, petitioner No.2, is concerned and the Supreme Court Legal Aid Committee has highlighted this aspect by filing this petition. While in custody undergoing sentence the petitioner No.2 was permitted to take the L.LB. as also M.Sc. (Maths) examination. He appears to have come out successfully in both the examinations and has secured first rank in the law examination and in M.Sc. he has passed in the first class. Proper certificates have been placed on records. His conduct in the jail during the period he has been undergoing the sentence appears to have been exemplary. Taking these into consideration, and the fact that the petitioner has undergone seven years of the sentence, we would recommend to the State of Tamil Nadu to consider the petitioner’s claim for remission of the balance sentence. We hope and trust that the claim of the petitioner would receive favourable consideration of the State.” The first respondent after considering the recommendation of the. We hope and trust that the claim of the petitioner would receive favourable consideration of the State.” The first respondent after considering the recommendation of the. Supreme Court made in S.L.P.No.891 of 1986 and the petitioner’s claim for remission 01 the balance of sentence, passed an order in G.O.Rt.No.4800, Home (Pri.IV) Department, dated 212. 1988 and the operative portion of the said order reads thus: “The Government, considered the above views and recommendations of the Supreme Court of India with reference-to the provisions under Art. 161 of the Constitution of India, His Excellency, the Governor of Tamil Nadu considers that there are no sufficient grounds to release the convict who has been found guilty of grave offence of murder. 5. The Government accordingly reject the request for remission of sentence of the above convict.” 3. In the above circumstances, the petitioner filed W.P.No.16140 of 1990 projecting the following prayer: “......to issue a writ, order or direction in the nature of a writ of certiorarified mandamus more particularly a writ of certiorarified mandamus by calling for the entire records connection with G.O.Rt.No.4800, Home (Pri.IV), Department, dated 212. 1988 on the file of first respondent and to quash the same and to direct the first respondent to release the petitioner by accepting the claim of the petitioner for remission of the balance period of sentence as per the recommendations of the Supreme Court.....” 4. Mr.K.Raja Kumar, the learned counsel for the petitioner urged before the learned single Judge that the Supreme Court after taking into consideration that the petitioner has undergone 7 years of sentence and other circumstances, recommended to the first respondent to consider the petitioner’s claim for remission of the balance of sentence and that the first respondent has not properly exercised the power under Art.16l of the Constitution of India and the said power has been exercised by the first respondent in an arbitrary and unreasonable manner. The learned counsel for the petitioner further contended before the learned single Judge that the first respondent has erroneously taken guidance from Sec.433-A of the Code of Criminal Procedure (hereinafter called”the Code“), in refusing to exercise the clemency power under Art.161 of the Constitution. The learned single Judge did not accept the contention of the learned counsel for the petitioner, found no warrant to countenance the prayer of the petitioner in the writ petition and dismissed the same. The learned single Judge did not accept the contention of the learned counsel for the petitioner, found no warrant to countenance the prayer of the petitioner in the writ petition and dismissed the same. This writ appeal is directed against the order of the learned single Judge. 5. Before us Mr.K.Raja Kumar, the learned counsel for the petitioner reiterated the very same contentions urged by him before the learned single Judge and submitted that the Apex Court in S.L.P.No.891 of 1986 made recommendation for considering favourably the claim of the petitioner for premature release of the petitioner by the first respondent knowing fully well that the petitioner was sentenced and convicted for an offence under Sec.302,I.P.C. and that the first respondent refused to exercise the clemency power under Art.161 of the Constitution on an erroneous view that the clemency power of the Head of State under Arts.72/ 161 of the Constitution is controlled by Sec.433-A of the Code. The learned counsel for the petitioner further contended that the power under Arts.72/161 of the Constitution is absolute and cannot be fettered by any statutory provision such as Sec.433-Aof the Code. In support of his contention, the learned counsel relied on the following passage from the decision of the Apex Court in State of Punjab and others v. Johindra Singh and others, A.I.R. ,1190 S.C. 1396, “In Maru Ram v. Union of India; (1981)1 S.C.R. 1196 .A.I.R. 1980 S.C. 2147, this Court repelled the challenge to Sec.433-A both on the question of competence of Parliament to enact the provision and its constitutional validity. While interpreting Secs.432, 433 and 433-A of the Code, this Court pointed out that wide powers of remission and commutation of sentences were conferred on the appropriate Government, but an exception was carved out for the extreme category of convicts who were sentenced to death but whose sentence had been commuted under Sec.433 into one of imprisonment for life. Such a prisoner is not to be released unless he has served at least 14 years of imprisonment. The Court refused to read down Sec.433-A to give overriding effect to the Remission Rules of the State. It categorically ruled that Remission Rules and like provisions stand excluded so far as ‘lifers’ punished for capital offences are concerned. Such a prisoner is not to be released unless he has served at least 14 years of imprisonment. The Court refused to read down Sec.433-A to give overriding effect to the Remission Rules of the State. It categorically ruled that Remission Rules and like provisions stand excluded so far as ‘lifers’ punished for capital offences are concerned. Remissions byway of reward or otherwise cannot cut down the sentence awarded by the Court except under Sec.432 of the Code or in exercise of constitutional power under Arts.72/161 of the Constitution. Remission cannot detract from the quantum and quality of the judicial sentence except to the extent permitted by Sec.432 of the Code, subject of course to Sec.433-A, or where the clemency power under the Constitution is invoked. But while exercising the Constitutional power under Arts.72/161, the President or the Governor, as the case may be, must act on the advice of the Council of Ministers. The power under Arts.72 and 161 of the Constitution is absolute and cannot be fettered by any statutory provision such as Secs.432, 433 and 433-A, of the Code. This power cannot be altered, modified to interfered with in any manner whatsoever by any statutory provisions or Prison Rules.” In order to appreciate the contention of the learned counsel for the petitioner, it is necessary to refer Sec.433-A of the code which reads thus: “433. A restriction on powers of remission or commutation in certain cases: Notwithstanding anything contained in Sec.432, 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 law, or where a sentence of death imposed on a person has been commuted under Sec.433 into one of imprisonment for life, such person shall not be released from prison unless he had served at least fourteen years of imprisonment.” In Maru Ram v. Union of India, (1981)1 S.C.R. 1196 .A.I.R 1980 S.C. 2147, the Supreme Court has held that Sec.433-A of the Code is not violative of the provisions in Art.72 or 161 of the Constitution because the source and substance of the two powers are different. The Supreme Court in Maru Ram v. Union of India, (1981)1 S.C.R. 1196 : A.I.R 1980 S.C. 2147, as well as in State of Punjab and others v. Johindra Singh and others, A.I.R 1990 S.C. 1396, further held that Sec.433-A of the Code cannot control the unfettered power of the Executive under Art.72 or 161 of the Constitution of India in any way. However, in Maru Ram v. Union of India, (1981)1 S.C.R. 1196 .A.I.R. 1980 S.C. 2147, the Apex Court took the view that since Sec.433-A, was passed by the Parliament, on being sponsored by the Central Government, it would be desirable for he Government not to overlook the object, spirit and philosophy of Sec.433-A of the Code in exercising its power under Art.72 of the Constitution. The Apex Court in para 10 of the judgment observed as following: “Doubtless, the President of India under Art.72 and the State Government under Art. 161 have absolute and unfettered powers to grant pardon, reprieves, remissions, etc. This power can neither be altered, modified or interfered with by any statutory provision. But, the fact remains that higher the power, the more cautious would be its exercise. This is particularly so because the present enactment has been passed by the Parliament on being sponsored by the Central Government itself. It is, therefore, manifest that while exercising the powers under the aforesaid Articles of the Constitution neither the President, who acts on the advice of the Council of Ministers, nor the State Government is likely to overlook the object, spirit and philosophy of Sec.433-A so as to create a conflict between the legislative intent and the executive power. It cannot be doubted as a proposition of law that where a power is vested in a very high authority, it must be presumed that the said authority would act properly and carefully after an objective consideration of all the aspects of the matter.” 6. The learned counsel for the petitioner placed reliance on para 3 of the impugned order in support of his contention that the decision of the first respondent refusing to order the premature release of the petitioner is based on the opinion of the 2nd respondent that the first petitioner was sentenced to life sentence on 29. 1991 and that he has to undergo 14years of sentence as per Sec. 433-A of the Code. 1991 and that he has to undergo 14years of sentence as per Sec. 433-A of the Code. Para 3 of the impugned order reads thus: “The Inspector General of Prisons, Madras who was asked to offer his remarks on the above request has stated that, the convict has so far undergone 6 years, 6 months and 16 days, as per his letter dated 20.7.1988, that he will be eligible for consideration under Advisory Board Scheme on 112. 1995, that as the convict was sentenced to life sentence on 29. 1981, he has to undergo 14years of sentence as per Sec.433-A of the Crl.P.C. and that there is no provision in rules for remission of balance of sentence for such cases of prisoners by reason only of their qualification." A perusal of para 4 of the impugned order shows that the first respondent has considered the views and recommendations of the Supreme Court with reference to Art. 161 of the Constitution and ultimately came to the conclusion that there are no sufficient grounds to release the petitioner who has been found guilty of grave offence of murder. There is nothing in the impugned order which supports the contention of the learned counsel for the petitioner that taking guidance from Sec.433-A of the Code, the first respondent has refused to order the premature release of the petitioner. 7. The learned counsel for the petitioner further contended that the first respondent has not properly exercised its discretionary powers under Art.161 of the Constitution and that the conclusion of the first respondent that there are no sufficient grounds to order premature release of the petitioner is erroneous and untenable. We are unable to accept the above contention of the learned counsel for the petitioner. It is well settled position of law that the power to grant pardon or remission of sentence under Arts.72/161 of the Constitution is in essence an executive function to be exercised by the Head of the State after taking into consideration various matters which may not be germane for consideration before a court of law enquiring into the offence. It is well settled position of law that the power to grant pardon or remission of sentence under Arts.72/161 of the Constitution is in essence an executive function to be exercised by the Head of the State after taking into consideration various matters which may not be germane for consideration before a court of law enquiring into the offence. The Court in the proceedings under Art.226 of the Constitution is precluded from examining the wisdom or expediency of exercise of the power under Arts.72/161 of Constitution in a particular case and the Court cannot go into the merits of the case and interfere with the order passed under Arts.72/161 of Constitution on the ground that the executive, improperly refused to exercise the clemency power. In Kehar Singh v. Union of India, A.I.R. 1989 S.C. 653, the Supreme Court of India while dealing with the question whether the order passed under Art.72 is justiciable on merits held that the order of the President of India cannot be.subjected to judicial review on its merits except within certain limitations. The Apex Court further held that the Courts are the Constitutional instrumentalities to go into the area and scope of the President’s power under Art.72 of the Constitution, but cannot analyse the exercise of the power under Art.72 on its merits. 8. In the present case, the Supreme Court by its order dated 13. 1988 passed in S.L.P.No.891 of 1986, made a recommendation to the first respondent to consider the petitioner’s claim for remission of the balance of sentence and the first respondent as a matter of fact considered the recommendation of the Supreme Court of India with reference to Art.161 of the Constitution and it came to the conclusion that there are no sufficient grounds to order the premature release of the petitioner. Consequently by the impugned order G.O.Rt.No.4800, Home (Pri.IV), Department, dated 212. 1988, the first respondent rejected the petitioner’s request for the premature release. Subsequently on 25. 1990, the petitioner’s mother Tmt.Soundarammal filed a petition before the Government requesting the Government to grant pardon and release the petitioner by exercising the powers under Art.161 of the Constitution. By G.O.(2D) No.88 Home (Prison-C), Department, dated 16. 1991, the first respondent rejected the petition dated 25. 1990 filed by the petitioner’s mother. In para 3 of the said G.O.(2D) No.88 Home (Prison-C) Department, dated 15. By G.O.(2D) No.88 Home (Prison-C), Department, dated 16. 1991, the first respondent rejected the petition dated 25. 1990 filed by the petitioner’s mother. In para 3 of the said G.O.(2D) No.88 Home (Prison-C) Department, dated 15. 1991, the reasons given by former Governor Dr.P.C.Alexander for rejecting the petitioner’s request for remission of sentence are extracted which are in the following terms: "The views expressed by the Supreme Court of India are purely recommendary and not mandatory. It is for me now to consider the petition on merits. The only argument in favour of the premature release is the fact that the convict has done creditably in University Exams; While undergoing his jail service. I cannot accept this as a sufficient ground to release the convict who has been found guilty of a grave offence of murder. This only proves he is a man of intelligence, but intelligent should not get away with the consequences of their crime. The request for remission is rejected." The above reasons given by the former Governor Dr.P.Alexander for refusing to order premature release of the petitioner were accepted and reiterated in the subsequent order G.O.(2D) No.88 Home (Prison-C), Department, dated 16. 1991. Thus, an examination of the impugned G.O.Rt.No.4800, Home (Pr. IV), Department, dated 212. 1988, and the subsequent order G.O.(2D) No.88, Home (Prison-C) Department, dated 16. 1991, show that on the recommendation made by the Supreme Court in S.L.P.No.891 of 1986, the first defendant has examined the claim of the petitioner for premature release with reference to Art. 161 of the Constitution" found that there are no sufficient grounds to release the petitioner and consequently rejected the petitioner’s claim for premature release. As rightly pointed out by the learned single Judge, the impugned order does not suffer from the vice of arbitrariness or non-application of mind. Further, this Court in the proceedings under Art.226 of the Constitution cannot analyse the exercise of the clemency power under Art. 161 of the Constitution on its merits and interfere on the ground that such power to grant pardon or remission of sentence under Art. 161 of the Constitution has been improperly refused. In view of the above discussions, we cannot take exception to the view taken by the learned single Judge. There is no merit in the writ appeal and the.same is liable to be dismissed. Accordingly the writ appeal is dismissed. No costs.