Allahabad High Court
Harishankar vs State Of U.P. And Others on 21 December, 2015
Bench: Huluvadi G. Ramesh, Pramod Kumar Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 9
Case :- CRIMINAL MISC. WRIT PETITION No. - 12997 of 2011
Petitioner :- Harishankar
Respondent :- State Of U.P. And Others
Counsel for Petitioner :- Manish Chand Umrao
Counsel for Respondent :- Govt. Advocate
Hon'ble Huluvadi G. Ramesh,J.
Hon'ble Pramod Kumar Srivastava,J.
Heard Sri Manish Chand Umrao, learned counsel for the petitioner as well as learned A.G.A. appearing for the State-respondents and perused the record.
By way of this writ petition, the petitioner seeks a writ of certiorari quashing the Government order dated 22nd January 2011 and also for a direction to the State Government for remission of life sentence of the petitioner in exercise of power under Sub Section (1) of Section 432 of Code of Criminal Procedure, 1973.
It is pleaded in the case in hand that the petitioner alongwith other co-accused committed the murder of four persons and were convicted under Sections 147, 148, 149, 307 and 302 I.P.C. and awarded life imprisonment by the trial court on 10.10.1983. It is stated that the petitioner moved application for premature release before the State Government on 26.9.2007, but the State Government on 26th of October, 2007 rejected the prayer of the petitioner for premature release.
Learned counsel for the petitioner has relied upon page no. 89 of the writ petition regarding the instance of remission made by the State Government. In page no.89 of the writ petition, it has been averred that the sentences of a life convict of Faujdar, has been reduced from 30 years 1 month 20 days to 23 years 9 months 5 days.
Learned counsel for the petitioner has stated that since petitioner has already spent more than 26 years in jail, but the Governor, in exercise of power under Article 161 of the Constitution, has rejected his application for remission. He has relied upon a Constitutional Bench decision of Hon'ble the Apex Court in the case of Union of India vs. V. Sriharan @ Murugan & Ors. (Writ Petition (Crl.)No.48 of 2014), wherein the Hon'ble Court held in paragraph no.163 as under :
"Question No.52.2 Whether the "Appropriate Government" is permitted to exercise the power of remission under Sections 432/433 of the Code after the parallel power has been exercised by the President under Article 72 or the Governor under Article 161 of by this court in its Constitutional Power under Article 32 as in this case ?
Ans. The exercise of power under Sections 432 and 433 of Code of Criminal Procedure will be available to the Appropriate Government even if such consideration was made earlier and exercised under Article 72 by the President or under Article 161 by the Governor. As far as the application of Article 32 of the Constitution by this Court is concerned, it is held that the powers under Sections 432 and 433 are to be exercised by the Appropriate Government statutorily and it is not for this Court to exercise the said power and it is always left to be decided by the Appropriate Government."
So far as the principle exercising the power under Sections 432 and 433 of the Code of Criminal Procedure is concerned, it has to be exercised by the appropriate Government and not by the Court. Under Article 72 of the Constitution, the President and under Article 161 of the Constitution, the Governor have the power to take a decision of remission of sentence of a life convict, depending upon the facts and circumstances of each case and thereafter pass appropriate order, in accordance with law.
In the case in hand, it appears that the State Government has already taken a decision rejecting the application of the petitioner in October 2007. However, taking into notice of instance, as mentioned in page no. 89 of the writ petition, wherein the State Government has remitted the sentences of a life convict and also the Constitutional Bench decision of Hon'ble the Supreme Court (supra), it is expected that the State Government should take a decision on the application of the petitioner for remission of his sentence, in accordance with law.
Accordingly, the writ petition is disposed of with the liberty to the petitioner to move an application afresh before the State Government for remission of his sentences, who may decide the same in exercise of his power under Sections 432 and 433 of Code of Criminal Procedure within a period of three months from the production of a certified copy of the order, taking into notice of instance, as mentioned in page no. 89 of the writ petition, wherein the State Government has remitted the sentences of a life convict and also the Constitutional Bench decision of Hon'ble the Supreme Court (supra), in accordance with law.
Order Date :- 21.12.2015
Atmesh
