Holding

The Governor’s order of pardon is invalid because it exceeded the constitutional limits of Article 161 by pronouncing on the accused’s innocence and by failing to consider the pending appeals, and therefore must be set aside and remanded for reconsideration.

Summary

The Additional Sessions Judge convicted Narayan Dutt, Manjit Singh and Prem Kumar for murder under the IPC and sentenced them to life imprisonment. While their appeals were pending before the High Court, they filed petitions under Article 161 of the Constitution seeking pardon from the Governor of Punjab, who granted it, stating that they were innocent. The State challenged the pardon and the High Court set aside the Governor’s order. The Supreme Court examined whether the Governor’s clemency power is subject to judicial review and whether the order was valid in the circumstances. It held that the power is reviewable on limited grounds such as lack of material consideration, mala‑fide or extraneous reasons, and that the Governor’s order exceeded constitutional limits by pronouncing on the accused’s innocence and by not considering the pending appeals. Accordingly, the Court set aside the pardon and remanded the matter to the Governor for reconsideration, disposing of the criminal appeals.

Issues considered

Whether the power to grant pardon under Article 161 of the Constitution is subject to judicial review and, if so, the extent of such review.
Whether the Governor of Punjab validly exercised his power to grant pardon in the present case, considering the pending appeals and the Governor’s pronouncement on the accused’s innocence.

Legislation cited

Code of Criminal Procedure, 1973s. 173, s. 319, s. 321
Constitution of Indias. 14, s. 161, s. 72
Indian Penal Code, 1860s. 120-B, s. 148, s. 149, s. 302, s. 307, s. 323, s. 324, s. 325, s. 326

Subjects

Article 161Governor's pardonjudicial reviewexecutive clemencymurderIPCCrPCconstitutional lawextraneous considerationsmala fide

Judgment

• [2011) 4 S.C.R. 983

NARAYAN DUTT AND ORS. A
v.
STATE OF PUNJAB AND ANR.
(Civil Appeal No. 2058 of 2011)

FEBRUARY 24, 2011
B
[G.S. SINGHVI AND ASOK KUMAR GANGULY, JJ.]

Constitution of India, 1950 - Art.161 - Grant of pardon
by Governor under Art. 161 - Nature and scope of the power
of pardon - Extent ofjudicial review over such power- Murder C
of one person - Additional Sessions Judge convicte j
accused-appellants under s.302 /PC rlw other provisions of
/PC and sentenced them to life imprisonment - All the
appellants appealed before th& High Court - During the
pendency of the appeals, the appellants also filed petitions D
under Article 161 of the Constitution before. the Governor of
the State - The Governor granted pardon to them and they
were directed to be released - Writ petition was filed
thereagainst - High Court set aside the order of pardon of the
Governor - Held: There is limited scope of judicial review on E
exercise of power by the Governor under Article 161 - In the
instant case, before the Governor could pass the order of
pardon, the accused-appellants filed appeals against the
order of conviction and sentence and the same were pending
before the High Court - This was a relevant fact for the F
Governor to take into consideration before granting his power
of pardon - But, in the instant order of the Governor there was
no reference to this fact- Therefore, all relevant facts were
possibly not placed before the Governor - Apart from this,
there is another vital aspect in the order of the Governor which G
requires serious consideration, inasmuch as, in the order of
the Governor, there were some observations about the guilt
or innocence of the accused-appellants - The powers of a
Court of law in a criminal trial and subsequent appeal right

983 H
984 SUPREME COURT REPORTS [2011] 4 S.C.R.
•
A upto Supreme Court and that of the President/Governor under
Article 721161 of the Constitution operate in totally different
arenas and the nature of these two powers are a/so totally
different from each other - One should not trench upon the
other - The instant order of the Governor, by pronouncing
B upon the innocence of the accused therefore exceeded the
permissible constitutional limits under Article 161 of the
Constitution - The order of the Governor cannot be approved
- Matter remanded to the Governor for re-consideration of the
matter in accordance with law - Penal Code, 1860 - ss. J 48,
c 3021149, 323, 149, 324, 325 and 326.
In a criminal case involving murder of a person, the
Additional Sessions Judge convicted the accused-
appellants under s.302 IPC r/w other provisions of IPC
and sentenced them to life imprisonment. All the accused-
D appellants appealed before the High Court. During the
pendency of the appeals, the accused-appellants also
filed petitions under Article 161 of the Constitution before
the Governor of the State. The Governor granted pardon
to them and they were directed to be released. Writ
E petition was filed thereagainst. The High Court set aside
the order of pardon of the Governor.

In the instant appeals, the questions which arose for
consideration were: 1) whether the power under Article
F 161 of the Constitution is subject to judicial review and if
yes, to what extent and 2) whether in the instant case the
Governor had rightly exercised his power to pardon
under Article 161 of the Constitution.
Disposing of the appeals, the Court
G
HELD:1.1. Article 161 of the Constitution of India
confers on the Governor of a State the right to grant
pardons, remissions, reprieves or commute the sentence
of any person convicted of any offence against any law
H
• NARAYAN DUTT AND ORS. v. STATE OF PUNJAB
AND ANR.
985

relating to a matter to which the executive power of the A
State extends. [Paras 18, 19] [992-D-E]

1.2. There is limited scope of judicial review on the
exercise of power by the Governor under Article 161.
Since the power of granting pardon under Article 161 of 6
the Constitution is a constitutional power, it is amenable
to judicial review on the following grounds: a) if the
Governor had been found to have exercised the power
himself without being advised by the government, b) if
the Governor transgressed his jurisdiction in exercising C
the said power, c) if the Governor had passed the crder
without applying his mind, d) the order of the Governor
was mala fide, ore) the order of the Governor was passed
on some extraneous considerations. Further, if the
Governor was not aware of general considerations such
as period of sentence undergone by the convict, his D
conduct and behaviour while undergoing sentence and
other such material considerations, it would make the
order of the Governor under Article 161 arbitrary and
irrational. [Paras 28, 29, 36] [995-E-H; 996-B; 997-E-F]
E
1.3. It is axiomatic that before the power of the
Governor under Article 161 of the Constitution is invoked
by any person, the condition precedent is that such
person or persons must be convicted of any offence
against any law and will be subjected to undergo a F
sentence. Therefore, an omission of any reference to an
order of conviction or sentence in the Governor's order
in respect of the accused is really of no consequence.
[Para 38] [997-G-H; 998-A-B]

1.4. However, in this case before the Governor could G
pass the aforesaid order of pardon, the accused persons
filed appeals against the order of conviction and sentence
and the same were pending before the High Court. This
is a relevant fact for the Governor to take into
H
986 SUPREME COURT REPORTS [2011] 4 S.C.R. •
A consideration before granting his power of pardon. But,
in the instant order of the Governor there is no reference
to this fact. This court, therefore, is inclined to infer that
all relevant facts were possibly not placed before the
Governor. Apart from this, there is another vital aspect in
B the order of the Governor which requires serious
consideration, in as much as, in the order of the
Governor, there are some observations about the guilt or
innocence of the accused persons who prayed for
pardon under Article 161 of the Constitution. [Paras 39,
c 40] [998-C-E]
Maru Ram & Ors. v. Union of India and Ors. AIR 1980
SC 2147; Kehar Singh & Anr. v. Union of India and Anr. AIR
1989 SC 653; Swaran Singh v. State of UP. and Ors. AIR
=
1998 SC 2026 1998 (2) SCR 206; Satpal and Anr. v. State
D of Haryana & Ors. AIR 2000 SC 1702 = 2000 (3) SCR 858;
Bikas Chatterjee v. Union of India & Ors. (2004) 7 SCC 634;
Epuru Sudhakar & Anr. v. Government of A.P. & Ors. AIR
2006 SC 3385 = 2006 (7) Suppl. SCR 81 - relied on.

E Ex Parte Williams Wells (1854-57) 15 Law Ed 421 [U.S.
Supreme Court]; Ex parte Philip Grossman (1924) 267 US
87 and U.S. v. Benz, (1930) 75 Law Ed 354 - referred to.

2. It is well settled that to decide on the innocence
or otherwise of an accused person in a criminal trial is
F within the exclusive domain of a Court of competent
jurisdiction as this is essentially a judicial function. A
Governor's power of granting pardon under Article 161
of the Constitution being an exercise of executive
function, is independent of the Court's power to
G pronounce on the innocence or guilt of the accused. The
powers of a Court of law in a criminal trial and
subsequent appeal right upto this Court and that of the
President/Governor under Article 72/161 of the
Constitution operate in totally different arenas and the
H nature of these two powers are also totally different from
NARAYAN DUTT AND ORS. v. STATE OF PUNJAB 987
AND ANR.

each other. One should not trench upon the other. The A
instant order of the Governor, by pronouncing upon the
innocence of the accused has therefore exceeded the
permissible constitutional limits under Article 161 of the
Constitution. The order of the Governor cannot be
approved. Therefore the order of the Governor is set B
aside and the matter is remanded to the Governor for re-
consideration in accordance with law. (Paras 41 & 42]
[998-F-H; 999-A]

Case Law Reference:
c
AIR 1980 SC 2147 relied on Para 20
AIR 1989 SC 653 relied on Para 24
1854-57) 15 Law Ed 421
D
(U.S. Supreme Court] referred to Para 24
(1924) 267 us 87 referred to Para 24
(1930) 75 Law Ed 354 referred to Para 25
1998 (2) SCR 206 relied on Para 27 E
2000. (3) SCR 858 relied on Para 28
(2004) 1 sec 634 relied on Para 30
2006 (7) Suppl. SCR 81 relied on Para 31 F
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
2058 of 2011.

From the Judgment & Order dated 11.03.2008 of the High
Court of Punjab and Haryana at Chandigarh in C.W.P. No.2147 G
of 2008.

WITH

C.A. No. 2059 of 2011.
H
988 SUPREME COURT REPORTS [2011) 4 S.C.R.
•
A U.U. Lalit, Kamini Jaiswal, Abhinanue Shreshtha, D.P. -
Singh for the Appellant.

Raju Ramchandran, Arnita Gupta, Rahat Bansal, Ajay Pal
for the Respondents.
B The Judgment of the Court was delivered by

GANGULY, J. 1. Delay condoned.
2. Leave is granted in both the special leave petitions.
C They are heard together as common questions of facts and law
are involved.

3. One Kiranjit Kaur, daughter of a handicapped school
master, was abducted when she was returning from school on
29.07.1997, and then gang-raped and murdered by Gurprit
D Singh, Jagraj Singh, Desh Raj and Partap Singh. The Hon'ble
Additional Sessions Judge, Barnala, after holding the trial
,convicted and sentenced them to undergo ·. .life imprisonment.
In the area an Action C001mittee was. fo~h)~d to ensure that
accused persons, involved in the gang-rape and murder of that
E girl, were brought to book. That committee consisted, inter-alia,
of Manjit Singh, Prem Kumar and Narayan Dutt, accused in the
present case, as its members. Ultimately, the accused persons
in the case of gang-rape and murder of Kiranjit Kaur w·ere
punished, as aforesaid.
F
4. On 3.03.2001, Beant Singh (father of Jagraj Singh),
Dalip Singh (grandfather of Jagraj Singh), Gurnam Singh and
Rajinder Pal Singh (nephew of Dalip Singh), while coming out
of Court, after hearing a criminal case, were attacked by a mob
G consisting of 7 persons, namely- Sukhwinder Singh, Labh Singh
and Avtar Singh (all armed with kirpans), Bakhtaur Singh
(armed with a ghop), Manjit Singh (armed with a kirch), along
with Prem Kumar and Narayan Dutt (both without any weapon
in their hands). Apparently, Bakhtaur Singh gave a blow to the
head of Dalip Singh, who was being allegedly held by Prem
H Kumar and Narayan Dutt, which resulted in his death.
• NARAYAN DUTI AND ORS. v. STATE OF PUNJAB
AND ANR. [ASOK KUMAR GANGULY, J.]
989

5. Beant Singh lodged an FIR on the same day under A
Sections 307, 148, 149 and 120-B of IPC and investigation
commenced in the matter. During the course of investigation
Dalip Singh had passed away, and thus, the charge under
Section 302 IPC was added. After investigation, the police, in
its report under Section 173 Cr.P.C, found that Manjit Singh, B
Prem Kumar and Narayan Dutt were innocent. Thus, charge
sheet was filed by the police only against the remaining four
accused under Sections 302/34, 326, 325, 324 and 323 IPC
and the case was committed to the Court of Sessions for trial.
At the stage of trial, Beant Singh moved an application on c
11.9.2001 under Section 319 Cr.P.C., whereupon the Sessions
Judge by an order dated 19.9.2001 summoned Manjit Singh,
Prem Kumar and Narayan Dutt. The Sessions Judge found a
prima-facie case against them and framed charges against all
accused, including those three, under Sections 302, 148, 326, D
325, 324 and 323 of IPC on 6.2.2002.

6. However, the prosecution then filed an application dated
, 29.10.2002 under section 321 Cr.P.C., seeking to withdraw the
case against Manjit Singh, Prem Kumar and Narayan Dutt and
that was disallowed by the Trial Court vide order dated E
7.11.2002.

7. Aggrieved, the accused filed criminal revision petitions
(No. 2248/2002 and 2413/2002), which were dismissed by the
High Court of Punjab and Haryana vide common order dated F
14.10.2003. A Special leave petition filed by the State of
Punjab against the order of the High Court dated 14.10.2003
was also dismissed by this Court.

8. Accordingly, the trial commenced against all the 7
accused. G

9. The Additional Sessions Judge, Barnala, convicted all
the accused by judgment and order dated .2$.03.2005 and
convicted them under Sections 148 IPC and Section$ 302, 302/
.
. ::·'·:· .
. . ..
'

'• ·. ;/;,~, .. H
990 SUPREME COURT REPORTS [2011] 4 S.C.R.
•
A 149, 323, 149, 324, 325 and 326 on various counts and passed
an order of life sentence on 30.03.2005.

10. All the accused appealed before the High Court of
Punjab and Haryana. During the pendency of the appeals,
Narayan Dutt, Manjit Singh and Prem Kumar alsQ filed petitions
8
under Article 161 of the Constitution of lndia~before the
Governor of Punjab.

11. The Governor of Punjab, vide order dated 24.07.2007,
in exercise of his powers under Article 161, granted pardon to
C Narayan Dutt, Prem Kumar and Manjit Singh and they were
directed to be released immediately.

12. Challenging that order Rajinder Pal Singh filed a writ
petition before the High Court of Punjab and Haryana.
D
13. The criminal appeals of the accused and the writ
petition of Rajinder Pal Singh were heard together by the High
Court of Punjab and Haryana. The High Court framed two
questions for consideration:

E a. Whether case of the prosecution is proved against all
the appellants by evidence on record?

b. Whether the order of pardon is sustainable in law?

14. Vide the impugned common judgment dated
F 11.03.2008, the High Court allowed the writ petition and set
aside the order of pardon of the Governor of Punjab. It gave
the benefit of doubt to Prem Kumar and Narayan Dutt, and
allowed their appeals by acquitting them. However, the
conviction and sentence of Sukhwinder Singh, Labh Singh,
G Bakhtaur Singh, Avtar Singh and Manjit Singh was upheld by
the High Court and it was of the opinion that the prosecution
had successfully established the offences against them.

15. Against the said impugned judgment dated
H
• NARAYAN DUTT AND ORS. v. STATE OF PUNJAB
AND ANR. [ASOK KUMAR GANGULY, J.]
991

11.03.2008, the State of Punjab filed Special Leave Petition A
(CC No.3090/2010) before this Court. Accused Narayan Dutt,
Prem Kumar and Manjit Singh also filed another Special Leave
Petition (No.11544/2008) before this Court. Both the. Special
Leave Petitions were directed against the order of the High
Court whereby the order of pardon by the Governor of Punjab B
was set aside.

16. In the background of these facts, questions of law
arising before us are:

a. Whether the power under Article 161 is subject to C
judicial review and if yes, to what extent?

b. Whether the Governor had rightly exercised his power
to pardon under Article 161?

17. The order of the Governor dated 6.8.2007, which is D
relevant in the present context, reads as follows:
"I have considered the matter carefully.
Ever since the lodging of FIR, there has been a E
widespread public belief that Sarvshri Narain Dutt, Prem
Kumar and Manjit Singh had been falsely implicated in the
murder of Dalip Singh, because of their role as leaders of
the Action Committee set up to secure justice for the late
Kiranjit Kaur's family. This has been corroborated by the F
investigation into the case, during the course of which, the
above three persons were found to be innocent. The
Intelligence Wing has also supported the innocence of
these persons.
It is also noteworthy that out of the 7 persons accused and G
convicted for the murder of Dalip Singh, pardon has been
sought only for the three persons that have been found to
be innocent. This benefit has not been proposed for the
other 4 accused. Further, the recommendation for pardon
had initially been moved by the previous government, and H
992 SUPREME COURT REPORTS [2011] 4 S.C.R.
•
A has also been endorsed by the present one. Hence, the
recommendation for pardon seems to be objective and
bona fide.

The courts have held that the power under Article 72 and
B
161 is a wide power, conferred inter alia with the purpose
of doing justice in cases even where the courts might have
convicted a person.

In view of the above, I exercise my powers under Article
161 and grant "pardon" to Sarvshri Narain Dutt, Prem
c Kumar and Manjit Singh in FIR No. 56 dated 03.03.2001
P.S- Kotwali Barnala."

18. Article 161 of the Constitution of India confers on the
Governor of a State the right to grant pardons, remissions,
0 reprieves or commute the sentence of any person convicted of
any offence against any law relating to a matter to which the
executive power of the State extends.

19. The nature and scope of the power of pardon and the
extent of judicial review over such power has come up for
E consideration in a catena of cases and has now virtually
crystallised into a rule of law.

20. In Maru Ram & Ors. v. Union of India & Ors. [AIR 1980
SC 2147] Krishna Iyer J, speaking for the Constitution Bench,
F held that although the power under Articles 72 and 161 were
very wide, it could not "run riot". His Lordship held that no legal
power can run unruly like John Gilpin on the horse, but "must
keep sensibly to a steady course". According to His Lordship,
"all public power, including constitutional power, shall never be
G exercisable arbitrarily or mala fide and, ordinarily, guidelines
for fair and equal execution are guarantors of the valid play of
power." (para 62 at p. 2170)

21. The Court further observed that "Article 14 is an
expression of the egalitarian spirit of the Constitution and is a
H
NARAYAN DUTT AND ORS. v. STATE OF PUNJAB 993
AND ANR. [ASOK KUMAR GANGULY, J.]

clear pointer that arbitrariness is anathema under our system. A
It necessarily follows that the power to pardon, grant of
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." The
Constitution Bench also observed "the Government is not and B
should not be as free as an individual in selecting the recipients
for its largesse. Whatever its activity, the Government is still the
Government and will be subject to restraints, inherent in its
position in a democratic society. A democratic Government
cannot lay down arbitrary and capricious standards for the c
choice of persons with whom alone it will deal... Every action
of the Executive Government must be informed with reason and
should be free from arbitrariness... it makes no difference
whether the exercise of the power involves affectation of some
right or denial of some privilege ... From this angle, even the 0
power to pardon, commute or remit is subject to the wholesome
creed that guidelines should govern the exercise even of
Presidential power." (para 63 at p. 2170-71)
22. The Bench cautioned that political vendetta or party
favoritism should not be the basis of exercising such power. It E
also advised that the government should make rules for its own
guidance in the exercise of the pardon power to exclude the
vice of discrimination.

23. In conclusion, the Bench observed that considerations F
for exercise of power under Articles 72/161 "may be myriad and
, their occasions protean, 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." (para 72 at p. G
2175)
24. In the subsequent Constitution Bench decision in Kehar
Singh & Anr. v. Union of India & Anr. [AIR 1989 SC 653) on
the same question, this Court quoted the United States
Supreme Court in Ex Parle Williams Wells, (1854-57) 15 Law H
994 SUPREME COURT REPORTS [2011] 4 S.C.R.
•
A Ed 421, on its power to scrutinize the exercise of this power
and pointed out that it was to be used "particularly when the
circumstances of any case disclosed such uncertainties as
made it doubtful if there should have been a conviction of the
criminal, or whnn they are such as to show that there might be
B a mitigation of the punishment without lessening the obligation
of vindicatory justice." The Bench also quoted Chief Justice Taft
in Ex parte Philip Grossman, (1924) 267 US 87), wherein the
learned Chief Justice opined:

"Executive clemency exists to afford relief from undue
c harshness or evident mistake in the operation or the
enforcement of the criminal law. The administration of
justice by the Courts is not necessarily always wise or
certainly considerate of circumstances which may properly
mitigate guilt. To afford a remedy, it has always been
D thought essential in popular governments, as well as in
monarchies, to vest in some other authority than the Courts
power to ameliorate or avoid particular criminal
judgments ... " (para 8 at p. 658)

E 25. The Bench having regard to the nature of the power of
the President under Article 72, stated that the President under
Article 72 could scrutinize the evidence on record of a criminal
case and come to a different conclusion from that of the court.
In doing so, "the President does not amend or modify or
. F supersede the judicial record. The judicial record remains intact,
' and undisturbed. The President acts in a wholly different plane
from that in which the Court acted. He acts under a constitutional
power, the nature of which is entirely different from the judicial
power and cannot be regarded as an extension of it." The
G Bench quoted with approval the formulations of Sutherland, J.
in U.S. v. Benz, (1930) 75 Law Ed 354, wherein the learned
Judge held:

"The judicial power and the executive power over
sentences are readily distinguishable. To render judgment
H
• NARAYAN DUTT AND ORS. v. STATE OF PUNJAB
AND ANR. [ASOK KUMAR GANGULY, J.]
995

is a judicial function. To carry the judgment into effect is A
an executive function. To cut short a sentence by an act of
clem~ncy is an exercise of executive power which abridges
the enforcement of the judgment, but does not alter it qua
a judgment."
B
26. In Kehar Singh (supra) this Court observed that the
order of the President under Article 72 could not be subjected
to judicial review on merits except within the strict limitations
defined in Maru Ram (supra). Therefore, on the ambit of judicial
review, Kehar Singh (supra) concurred with Maru Ram (supra). C
~
27. In Swaran Singh v. State of U.P. & Ors. [AIR 1998 SC
2026], a three-Judge Bench held that "this Court has no pci'Wer
to touch the order passed by the Governor under Article 161
of the Constitution. If such power was exercised arbitrarily, mala "
fide or in absolute disregard of the finer canons of the D
constitutionalism, the by-product order cannot get the approval
of law and in such cases, the judicial hand must be stretched
to it." (para 12 at p. 2028)

28. Again in Satpal & Anr. v. State of Haryana & Ors. [AIR E
2000 SC 1702], this Court held that the power of granting'.!'
pardon under Article 161 was very wide and did not contain
any limitation as to tre time and occasion on whi.ch and the
circumstances under which it was to be exercisedli, Since the
power is a constitutional power, it is amenable to judiCial review
on the following grounds: F

a. If the Governor had been found to have exercised
the power himself without being advised by the
government,
G
b. If the Governor transgressed his jurisdiction, i!"'
exercising the said power,

c. If the Governor had passed the ordefwithout
applying his mind,
.. H
996 SUPREME COURT REPORTS
•
[2011] 4 S.C.R.

A d. The order of the Governor was mala fide, or

e. The order of the Governor was passed on some
extraneous considerations.

29. Further, if the Governor was not aware of general
B considerations such as period of sentence undergone by the
convict, his conduct and behaviour while undergoing sentence
and other such material considerations, it would make the order
of the Governor under Article 161 arbitrary and irrational.

c 30. The Constitution Bench in Bikas Chatterjee v. Union
of India & Ors. [(2004) 7 sec 634] reiterated the same
principles on the extent of judicial review as laid down in Maru
Ram (supra) and Satpal (supra).
31. In Epuru Sudhakar & Anr. v. Government of A.P. &
D Ors. [AIR 2006 SC 3385] this Court observed that it was well
settled that the exercise or non-exercise of the power of pardon
by the President or Governor was not immune from judicial
review and limited judicial review was available in certain cases.

E 32. Justice Pasayat, delivering the judgment, summed up
the ground on which judicial review of an order passed under
Articles 72 and 161 could be undertaken. Those grounds are:

(a) that the order has been passed without application
of mind;
F
(b) that the order is malafide;

(c) that the order has been passed on extraneous or
wholly irrelevant considerations;
G
(d) that relevant materials have been kept out of
consideration;

(e) that the order suffers from arbitrariness.

H
• NARAYAN DUTI AND ORS. V. STATE OF PUNJAB
AND ANR. [ASOK KUMAR GANGULY, J.]
997

33. Justice Kapadia (as His Lordship then was) in his A
concurring opinion, observed that "granting of pardon is in no
sense an overturning of a judgment of conviction, but rather it
is an Executive action that mitigates or set aside the
punishment for a crime. It eliminates the effect of conviction
without addressing the defendant's guilt or innocence. The B
controlling factor in determining whether the exercise of
prerogative power is subject to judicial review is not its source
but its subject-matter." (para 64 at p. 3402)

34. His Lordship further added that "the exercise Of power C
depends upon the facts and circumstances of each case and
the necessity or justification for exercise of that power has to
be judged from case to case ... Rule of law should be the
overarching constitutional justification for judicial review." (para
65, 67 at p. 3402)
D
35. In that case, an order of remission had been passed,
inter alia, on an inference that the accused was not involved in
the murder, was falsely implicated and false witnesses had been
produced. This Court held such reasons to be irrelevant and
held that the order of remission was bad. E

36. From the abovementioned judicial decisions it is clear
that there is limited scope of judicial review on the exercise of
power by the Governor under Article 161.

37. Keeping the aforesaid principles in our mind if we look F
at the order of the Governor it appears that there has been
consideration of various aspects of the matter by the Governor
in granting pardon. The Governor's order also contains some
reasons.
G
38. The Governor's order does not contain any reference
to the order of conviction and sentence imposed on the
accused persons. It is axiomatic that before the power of the
Governor under Article 161 of the Constitution is invoked by any
person, the condition precedent is that such person or persons H
998 SUPREME COURT REPORTS [2011] 4 S.C.R. •
A must be convicted of any offence against any law and will be
subjected to undergo a sentence. Therefore, an omission of any
reference to an order of conviction or sentence in the
Governor's order in respect of the accused is really of no
consequence.
B
39. However, in this case before the Governor could pass
the aforesaid order of pardon, the accused persons filed
appeals against the order of conviction and sentence and the
same were pending before the Hon'ble High Court. This is a
relevant fact for the Governor to take into consideration before
C granting his power of pardon. But, in the instant order of the
Governor there is no reference to this fact. This court, therefore, '
is inclined to infer that all relevant facts were possibly not placed
before the Governor.

D 40. Apart from this, there is another vital aspect in the order
of the Governor which requires serious consideration, in as
much as, in the order of the Governor, there are some
observations about the guilt or innocence of the accused
persons who prayed for pardon under Article 161 of the
E Constitution.

41. It is well settled that to decide on the innocence or
otherwise of an accused person in a criminal trial is within the
exclusive domain of a Court of competent jurisdiction as this is
F essentially a judicial function. A Governor's power of granting
pardon under Article 161 being an exercise of executive
function, is independent of the Court's power to pronounce on
the innocence or guilt of the accused. The powers of a Court
of law in a criminal trial and subsequent appeal right upto this
Court and that of the PresidenVGovernor under Article 72/161
G operate in totally different arenas and the nature of these two
powers are also totally different from each other. One should
not trench upon the other. The instant order of the Governor, by
pronouncing upon the innocence of the accused, has therefore,
if we may say so with respect, exceeded the permissible
H constitutional limits under Article 161 of the Constitution.
• NARAYAN DUTT AND ORS. v. STATE OF PUNJAB 999
AND ANR. [ASOK KUMAR GANGULY, J.)
42. For these reasons, we are constrained to hold that we A
cannot approve the order of the Governor. We therefore, set
aside the order and remand it to the Hon'ble Governor for re-
consideration of the matter in accordance with law.

43. It may be mentioned in this connection, that of those 8
three accused persons, two persons namely, Prem Kumar and
Narayan Dutt, had been acquitted by the High Court by
judgment and order dated 11.3.2008 in connection with the
criminal appeals filed by them.
44. The appeals are thus disposed of. No orders as to C
costs.
. '
B.B.B. Appeals disposed of.