SAMJUBEN GORDHANBHAI KOLIversusSTATE OF GUJARAT

                     [2010] 12 S.C.R. 247


              SAMJUBEN GORDHANBHAI KOLi                           A
                                V.
                     STATE OF GUJARAT
              (Criminal Appeal No. 689 of 2005)

                      OCTOBER 7, 2010
                                                                   B
      [MARKANDEY KAT JU AND T.S. THAKUR, JJ.]

      Code of Criminal Procedure, 1973:

       ss.432, 433 and 433 - Remission or commutation of c
  sentence - Restrictions - Conviction of accused by courts
  below - Upheld by Supreme Court - Prayer for remission of
· rest of the sentence - HELD: Remission can only be granted
  by the executive authorities - Accused will be free to seek
  appropriate redress from the appropriate Government by D
  making a representation praying for pardon or remission of
  sentence in terms of s. 432 CrPC or under Article 72 or Article
  161 of the Constitution of India - Section 433-A Cr.PC. can
  restrict the power u/s 432 ors. 433 CrPC, but it cannot restrict
  the constitutional powers of the President of India under Article E
  72 or the Governor under Article 161 of the Constitution, just
  as no limitation statute can restrict the constitutional power of
  the High Court under Article 226 of the Constitution - This is
  because the Constitution is a higher law and the statute is
  subordinate to it - Constitution of India, 1950 - Articles 72
  and 161.                                                          F

     CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
 No. 689 of 2005.

     From the Judgment & Order dated 17.12.2003 of the High        G
 Court of Gujarat at Ahmedabad in Criminal Appeal No. 812 of
 1995.

     C.D. Parmar, Dr. Kailash Chand and S. Talukdar for the
 Appellant.
                            247                                    H
    248      SUPREME COURT REPORTS                 [2010] 12 S.C.R.


A       Hemantika Wahi, Jesal and Ranuka Sahu for the
    Respondent.

          The following order of the Court was delivered

                                ORDER
B
          Heard learned counsel for the parties.

      This Appeal, by special leave, has been filed against the
  impugned judgment and order of the High Court of Gujarat
C dated 17.12.2003 passed in Criminal Appeal No. 812of1995.

        The facts have been set out in the impugned judgment and
    order and hence we are not repeating the same here.

         Having carefully perused the impugned judgment and order
o   of the High Court, we are of the opinion that there is no infirmity
    in the same. The High Court has dealt with the matter in great
    detail and upheld the conviction of the appellant. We see no
    reason to disagree with the impugned judgment and order.

          The Appeal is dismissed accordingly.
E
         By order dated 09.05.2005 this Court has granted bail to
    the appellant. The bail bonds are cancelled. The appellant shall
    be taken into custody forthwith to serve out the remaining portion
    of sentence.
F
        Learned counsel for the appellant submitted that the
    appellant should be ·granted remission of the rest of her
    sentence. In our opinion, remission can only be granted by the
    executive authorities.

G        However, the appellant will be free to seek appropriate
    redress from the sppropriate Government by making a
    representation praying for pardon or remission of sentence in
    terms of Section 432 of the Code of Criminal Procedure or
    under Articles 72 or 161 of the Constitution of India. We make
H
   SAMJUBEN GORDHANBHAI KOLi v. STATE OF                     249
                GUJARAT
it clear that the power of the President of India under Article      A
72 or of the Governor under Article 161, being a constitutional
power cannot be under the restriction imposed by Section 433-
A Cr.P.C. Section 433-A Cr.P.C. can restrict the power under
Section 432 Cr.P.C. or Section 433 Cr.P.C. but it cannot
restrict the constitutional powers under Article 72 or 161 of the    B
Constitution, just as no !imitation statute can restrict the
constitutional power of the High Court under Article 226 of the
Constitution. This is because the Constitution is a higher law
and the statute is subordinate to it.

      The appellant may also file a petition before the High Court   C
if the appellant is entitled to the benefit of any Rule or G.O. of
the State Government for remission of the sentence.

R.R.                                         Appeal dismissed.
                                                                     r1