Full Judgment Text
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CASE NO.:
Review Petition (crl.) 1105 of 2000
PETITIONER:
RAM DEO CHAUHAN @ RAJ NATH CHAUHAN
Vs.
RESPONDENT:
STATE OF ASSAM .RESPONDENT
DATE OF JUDGMENT: 10/05/2001
BENCH:
S.N. Phukan
JUDGMENT:
Phukan, J
L...I...T.......T.......T.......T.......T.......T.......T..J
After reading draft judgments by my learned Brothers, I
record my separate views on the sentence to be imposed on
the accused-petitioner in this Review Petition.
Review as the expression itself shows is a fresh view of
matters already examined. As my learned Brothers have
elaborately delineated the scope of review, it is
unnecessary to traverse the path again. Suffice it would be
to say that power of review is a restricted power which
authorises the Court which passed the order sought to be
reviewed, to look over and go through the order, not in
order to substitute a fresh or a second order; but in order
to correct it or improve it because some materials which it
ought to have considered has escaped its consideration. As
my learned Brothers have agreed on the scope of review, the
sentence of death imposed cannot be reopened. With respect,
I agree with my learned Brother Mr. Justice R.P. Sethi.
But, a question that remains to be considered further is
the effect of conclusion arrived at by my learned Brother
Mr. Justice Thomas. Is the accused remediless; that
remains to be seen. Few provisions in the Code of Criminal
Procedure (for short the Code) and other in the
Constitution deal with such situation. Sections 432, 433
and 433A of the Code and Articles 72 and 161 of the
Constitution deal with pardon. Article 72 of the
Constitution confers upon the President power to grant of
pardons, reprieves, respites or remission of punishment or
to suspend, remit or commute sentence of any person of any
offence. The power so conferred is without prejudice to the
similar power conferred on the Governor of the State.
Article 161 of the Constitution confers upon the Governor of
a State similar powers in respect of any offence against any
law relating to a matter to which the executive power of the
State extends. The power under Article 72 and Article 161
of the Constitution is absolute and cannot be fattered by
any statutory provision such as Sections 432, 433 and 433A
of the Code or by any Prison Rules.
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Section 432 of the Code empowers the appropriate
Government to suspend or remit sentences. The expression
appropriate Government means the Central Government in
cases where the sentences or order relates to the matter to
which the executive power of the Union extends, and the
State Government in other cases. The release of the
prisoners condemn to death in exercise of the powers
conferred under Section 432 and Article 161 of the
Constitution does not amount to interference with due and
proper course of justice, as the power of the Court to
pronounce upon the validity, propriety and correctness of
the conviction and sentence remains unaffected. Similar
power as those contain in Section 432 of the Code or Article
161 of the Constitution can be exercised before, during or
after trial. The power exercised under Section 432 of the
Code is largely an executive power vested in the appropriate
Government and by reducing the sentence, the authority
concerned thereby modify the judicial sentence. The Section
confines the power of the Government to the suspension of
the execution of the sentence or remission of the whole or
any part of the punishment. Section 432 of the Code gives
no power to the Government to revise the judgment of the
court. It only provides power of remitting the sentence.
Remission of punishment assumes the correctness of the
conviction and only reduces punishment in part or whole.
The word remit as used in Section 432 is not a term of
art. Some of the meanings of the word remit are to
pardon, to refrain from inflicting to give up. It is
therefore no obstacle in the way of the President or
Governor, as the case may be in remitting the sentence of
death. A remission of sentence does not mean acquittal.
The power to commute a sentence of death is independent
of Section 433A. The restriction under Section 433A of the
Code comes into operation only after power under Section 433
is exercised. Section 433A is applicable to two categories
of convicts : (a) those who could have been punished with
sentence of death and (b) those whose sentence have been
converted into imprisonment for life under Section 433. It
was observed in Mura Ram vs. Union of India [ 1981 (1) SCC
106] that Section 433A does not violate Article 20(1) of the
Constitution.
In the circumstances, if any motion is made in terms of
Sections 432, 433 and 433A of the Code and/or Article 72 or
Article 161 of the Constitution as the case be, the same may
be appropriately dealt with. It goes without saying that at
the relevant stage, the factors which have weighed with my
learned Brother Mr. Justice Thomas can be duly taken note
of in the context of Section 432(2) of the Code.