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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

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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

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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 another1 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

1

(2001) 3 SCC 221

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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

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of Prisoner Act and the decision in  State of Haryana v.

Mahender Singh2.

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 Kaur3

and  Laxman  Naskar  v.  State  of  West  Bengal4  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

2

 2007 (4) RCR (Criminal) 909 : (2007) 13 SCC 606 3

JT 1996 (3) SC 30 : 1996 (7) SCC 492 4

AIR 2000 SC 2762 : (2000) 7 SCC 626

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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

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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

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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

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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

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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 Punjab5, Kuljeet Singh

v.  Lt.  Governor  of  Delhi6,  Kehar  Singh  v.  Union  of

India7,  Mahender Singh (supra),  Mohd. Munna v. Union

of  India  and others8 and  certain  other  authorities  and

came to hold thus:-

5

AIR 1976 SC 2386 : (1976) 4 SCC 190 6

1982 (1) SCC 417 7

1989 (1) SCC 204 8

(2005) 7 SCC 417

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“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 others9 and  Swaran Singh v.  State of  U.P.

9

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and others10 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:-

1981 (1) SCC 107 10

 1998 (4) SCC 75

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“… 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.

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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

others11 a two-Judge Bench speaking through Fazal Ali, J.,

after adverting to the decision in Gopal Vinayak Godse v.

State  of  Maharashtra12 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. 11

(1976) 3 SCC 470 12

(1961) 3 SCR 440 : AIR 1961 SC 600

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17. In Naib Singh s/o Makhan Singh v. State of Punjab

and others13  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

13

(1983) 2 SCC 454

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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

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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.”

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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 Maharashtra14 and

Kishori Lal v. Emperor15  and the law laid down in Gopal

Vinayak Godse (supra) and held that:-  

14

1962 Supp (1) SCR 567 : AIR 1962 SC 605 15

AIR 1945 PC 64

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“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.

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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.

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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

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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

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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 others16

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 Haryana17 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

16

(2004) 7 SCC 634 17

(2000)  5 SCC 170

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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 others18 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

18

(2006) 8 SCC 161

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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

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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  &  Ors19 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,

19

2015 (13) SCALE 165

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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  Karnataka20 deserved

acceptance.  The  Court  referred  to  the  decision  in  V.

Sriharan alias Murugan v. Union of India and others21

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

20

(2008) 13 SCC 767  21

(2014) 4 SCC 242

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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

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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  others22,  Hanumant  Dass  v.  Vinay  Kumar  and

others23,  Govt.  of  A.P.  and others  v.  M.T.  Khan24 and

G.V. Ramanaiah v. The Superintendent of Central Jail,

Rajahmundry and others25  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,

22

(1976) 3 SCC 616 23

(1982) 2 SCC 177 24

(2004) 1 SCC 616 25

AIR 1974 SC 31 : (1974) 3 SCC 531

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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

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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

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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  others26 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.

26

(2000) 3 SCC 409

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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

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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