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2004 DIGILAW 618 (JHR)

Jainarayan Prasad Alias Sao v. State Of Jharkhand

2004-06-23

LAKSHMAN URAON, SUDHANSU JYOTI MUKHOPADHAYA

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JUDGMENT S.J. Mukhopadhaya, J. 1. This writ petition has been preferred by the petitioner against the order dated 15th September, 2003, as contained in Memo No. 4174 issued under the signature of the special Secretary, Home Department, Government of Jharkhand, whereby and where under, the petitioner has been informed that his application for pardon under Article 161 of the Constitution of India has been rejected by the Governor of Jharkhand. 2. The brief fact of the case as per petitioner is that while he was on duty in the Deepatoli Cantonment in the district of Ranchi situated at a distance of 123 Kilometers away from the district of Gumla an F.I.R. was lodged against him in the district of Gumla in the Tinshere Police Station, alleging therein that at about 6 a.m. on 12th August, 1981, while Aneshwar Sah who had gone to Dehri Majhi to see his field in Plot Nos. 97-98 of Khata No. 68, on return he saw his nephew Parmeshwar Sao coming from his field. He saw that several persons including the petitioner were standing in front of their house were armed with various weapons and Lathis. Immediately, thereafter, they opened fire upon him due to which Parmeshwar Sao fell down. Thereafter, all the persons took him to his field and assaulted him by Lathi Danda and ultimately the accused persons killed him (Parmeshwar Sao) with Balua and Tangi. 3. A case was instituted against the petitioner and seven others. The petitioner and others were tried in Sessions Trial No. 49 of 1983. 4. The prosecution examined altogether seven witnesses in its support. After hearing the parties, the learned trial Court by its judgment dated 5th August 1986 held the petitioner and seven others guilty and convicted them for the charges under Sections 302/149, I.P.C. Some other accused were also convicted for the charges under Sections 109; 147 and 148 of the I.P.C. The petitioner and others were sentenced to undergo imprisonment for life. 5. Being aggrieved, petitioner and some others preferred Criminal Appeal No. 145 of 1986 against the conviction and sentence aforesaid. Another accused preferred Criminal Appeal No. 145 of 1986(R) against the same order of conviction and sentence. They were heard along with Criminal Appeal No. 209 of 1986(R) which was separately preferred by one Gauri Shankar Sao against the same order of conviction and sentence. Another accused preferred Criminal Appeal No. 145 of 1986(R) against the same order of conviction and sentence. They were heard along with Criminal Appeal No. 209 of 1986(R) which was separately preferred by one Gauri Shankar Sao against the same order of conviction and sentence. A Division Bench of the High Court while rejected the alibi taken by the petitioner that he was on duty as on the date of occurrence, upheld the conviction and sentence, so far as petitioner is concerned, by judgment dated 3rd August, 1988. Criminal Appeal No. 145 of 1986(R) was allowed in part and the conviction of sentence of appellant in the said case was set aside. The petitioner, thereafter, moved before the Supreme Court in Special Leave to Appeal (Criminal) No. 2269 of 1989. It was dismissed by the Supreme Court by its order dated 9th August, 1999. The Review Petition No. 974 of 2000, thereafter preferred by the petitioner was also dismissed by the Supreme Court on 12th September, 2000. 6. It appears that the wife of petitioner, thereafter moved before the Governor of Jharkhand under Article 161 of the Constitution for proper enquiry in the case and to pardon the petitioner. According to the petitioner, he was on duty on the date of occurrence, as was the alibi taken by him before the trial Court and the appellate Court. He was on duty has also been confirmed by his Commanding Officer, vide his letter dated 26th February, 1988. In this background, the Governor was requested to make enquiry and pardon the petitioner under Article 161 of the Constitution. Further case of the petitioner is that the Governor of Jharkhand, thereafter directed the Home Department of the State of Jharkhand to conduct an enquiry and pursuant thereto, the Home Department, Government of Jharkhand, vide its letter dated 10th April, 2001 directed the Deputy Commissioner, Gumla, as also the S.P. Gumla to conduct an enquiry in regard to allegation levelled against the petitioner. 7. Counsel for the petitioner submitted that pursuant to the direction of the Home Department, State of Jharkhand, the S. P., Gumla directed the S.D.O., Gumla to conduct an enquiry about the allegation. 7. Counsel for the petitioner submitted that pursuant to the direction of the Home Department, State of Jharkhand, the S. P., Gumla directed the S.D.O., Gumla to conduct an enquiry about the allegation. The Sub-Divisional Police Officer, Gumla also conducted a separate enquiry and in the said enquiry, he found that the petitioner was not present on the place of occurrence on the date of occurrence, rather he was on duty at Ranchi. According to him, the Sub- Divisional Police Officer, Gumla has given a clean chit in favour of petitioner and vide his report dated 1st June, 2001 and reported that the petitioner has been wrongly, implicated in the instant murder case, though he is absolutely innocent. 8. Further case of petitioner is that the report dated 1st June, 2001 was communicated by the S. P., Gumla to the Deputy Secretary, Home Department, Jharkhand on 18th June, 2001 stating therein that the petitioner was not present in the village on the date of occurrence, rather he was on duty at Ranchi being an army personnel. The Deputy Secretary, Home Department, State of Jharkhand also sought for clarification from the Deputy Commissioner, Gumla with regard to the fact that on the one hand, it has been reported that the petitioner was not present in the village and was discharging his duty in the Army, rather on the other hand, the petitioner has been convicted and sentenced to undergo life imprisonment. Both the facts being contrary, it was directed to submit a report so that the same may be forwarded to the Governors Secretariat. 9. According to the petitioner, pursuant to letter dated 20th August, 2001, the Deputy Commissioner, Gumla had sought for a legal opinion from the Public Prosecutor, Gumla who has given a finding that on the date of occurrence, the petitioner was not present in the village and he was discharging his duty in the Army as evident from Annexure-12 to the writ petition. After going through the legal opinion, the Deputy Commissioner, Gumla confirmed the finding of the S. P., Gumla and forwarded the same to the Deputy Secretary, Home Department, Government of Jharkhand, Ranchi on 18th January, 2002. 10. After going through the legal opinion, the Deputy Commissioner, Gumla confirmed the finding of the S. P., Gumla and forwarded the same to the Deputy Secretary, Home Department, Government of Jharkhand, Ranchi on 18th January, 2002. 10. Counsel for the petitioner submitted that the petitioner was not present on the place of occurrence on 12th August, 1981, rather he was on duty in the Army, as confirmed by the Officiating Commanding Officer by his letter dated 11th November, 2001. 11. Counsel for the petitioner further submitted that the impugned decision communicated vide letter dated 15th September, 2003 rejecting the prayer for pardon under Article 161 of the Constitution is subject to judicial review. It can be reviewed on the ground that the Governor of Jharkhand has not considered the various recommendations of the S. P., Gumla and Deputy Commissioner, Gumla, as also the recommendations of the Home Department, and without considering all the recommendations in which the petitioner has been found innocent, his application under Article 161 of Constitution of India has been rejected. It was further submitted that the Governor of a State having conferred with the power under Article 161 of the Constitution to grant pardon or remission to a convicted person, he being the Head of the Executive can do so purely on the basis of the report and recommendations made by the other part of the executive, namely, the Home Department. 12. The power to grant pardon under Articles 72/161 and judicial review of such order fell for consideration before the Supreme Court from time to time. In the case of Maru Ram v. Union of India, AIR 1980 SC 2147 : (1980 Cri LJ 1440), the Supreme Court held as follows : "(8) The power under Articles 72 and 161 of the Constitution can be exercised by the Central Government and State Governments, not by the President or Governor on their own. The advice of the appropriate Government binds the Head of the State. No separate order for each individual case is necessary but any general order made must be clear enough to identify the group of cases and indicate the application of mind to the whole group." "(9) Considerations for exercise of power under Articles 72/161 may be myriad and their occasions proteam, 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." 13. In the case of Satpal v. State of Haryana, (2000) 5 SCC 170 : (2000 Cri LJ 2297), the Apex Court noticed the earlier decisions and made the following observations : "4. There cannot be any dispute with the proposition of law that the power of granting pardon under Article 161 is very wide and does 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 the subject-matter of consideration before this Court in Kehar Singh case ( 1989 (1) SCC 204 : 1989 Cri LJ 941) where the Constitution Bench has observed: (SCC p. 217, para 14) (Para 14 of Cri LJ) It appears to us clear that the question as to the area of the Presidents power under Article 72 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 regard 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 case.: What has been stated in relation to the Presidents power under Article 72 equally applies to the power of the Governor under Article 161 of the Constitution. In Maru Ram case 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 proteam, 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. In para 62 of the judgment in Maru Ram case the Court had observed: (SCC p. 147, para 62) "62. 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 underlines 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." 14. From the pleading made by the petitioner, it will be evident that the State of Jharkhand/its authorities took steps, made enquiry and reports were also submitted before the competent authority. It is not the case of the petitioner that the advice of the appropriate Government was not obtained by the Governor of Jharkhand. The petitioner failed to show that the decision taken by the Governor on the advice of the State Government is mala fide or wholly irrelevant, irrational and discriminatory. 15. In these circumstances, the case of petitioner cannot be stated to be a rare case which falls within the domain of the Court to review the decision. Therefore, question of interfering with the decision does not arise. 15. In these circumstances, the case of petitioner cannot be stated to be a rare case which falls within the domain of the Court to review the decision. Therefore, question of interfering with the decision does not arise. Further, there being no allegation that the Governor has not acted as per the advice of the appropriate Government and as there is nothing on the record to suggest that the Governor differed with the advice of the appropriate Government, the Governor was not required to give ground for rejection of petition under Article 161 of Constitution of India. 16. There being no merit, the writ petition is dismissed. Lakshman Uraon, J. 17. It agree.