1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD. CRIMINAL WRIT PETITION NO. 716 OF 2008 Smt. Sumanbai w/o Shekhar Mahire, Aged - 56 years, Occu. House wife, C/o Shri Shekhar Tumadu Mahire, Rtd. Primary Teacher, at Post Pariwardhe, Tal. Shahada, Dist. Nandurbar, At present in Women Cell of Yeravada Central Prison, Pune ..PETITIONER VERSUS 1. The State of Maharashtra 2. His Excellency the Governor of the State of Maharashtra, Raj Bhavan, Malbar Hill, Mumbai - 400 035 ..RESPONDENTS Mr Joydeep Chatterji, Advocate for the petitioner; Mr K.J. Ghute Patil, A.P.P. for respondents. CORAM : P.V. HARDAS AND SHRIHARI P. DAVARE, JJ. (Date of reserving the judgment : 24.2.2010 Date of pronouncing the judgment : 18.3.2010 ) 2 JUDGMENT (PER P.V. HARDAS, J.) This is a petition under Article 226 of the Constitution of India by which the petitioner challenges the order passed by respondent no.2 dated 31.3.2008. The petitioner also prays for recommending to the respondent no.2 the case of the petitioner as a case fit for considering remission of sentence as prayed by the petitioner in the clemency petition. 2. Facts in brief as are necessary for the decision of this petition may be stated thus :- A charge-sheet for offence punishable under section 306 read with section 34 of the Indian Penal Code came to be filed against the petitioner and the petitioner was tried for the said offences in Sessions Case No.70 of 1994. The petitioner came to be convicted by the judgment of the Trial Court dated 25.3.1996 in Sessions Case No.70 of 1994. The Trial Court, however, acquitted the husband of the petitioner. The petitioner was convicted for an offence punishable under section 302 oaf the Indian Penal Code and was sentenced to undergo imprisonment for life by the Additional Sessions Judge, Nandurbar. The petitioner being thus aggrieved by the judgment of the Trial Court filed Criminal Appeal No.151 of 1996. The appeal came to be dismissed by this Court by its judgment dated 6.7.2005. A petition for special leave to appeal 3 also came to be dismissed by the Supreme Court on 30.9.2005. The petitioner thereafter filed a clemency petition before respondent no.2 and urged various grounds on the merits of the matter. In addition thereto, in the clemency petition at paragraph 7 the petitioner urged (i) that her husband was 70 years of age and was bedridden with heart ailment and high blood pressure and to some extent was hard of hearing with faltering eye-sight; (ii) there was no one to look after and take care of the husband of the petitioner and (iii) apart from the petitioner no other person was available to take care of her husband and give him medicine and medical treatment from time to time. It appears that a communication was received by the petitioner informing her that her clemency petition after careful consideration came to be rejected by the second respondent. The aforesaid communication is dated 31.3.2008. The petitioner by communication dated 17.4.2008 sought a detailed order/judgment. It appears that no detailed or a reasoned order came to be passed by the second respondent. The petitioner has, therefore, filed the present petition. 3. Mr Joydeep Chatterji, learned Counsel for the petitioner has urged before us that the order of the second respondent dismissing the clemency petition is a cryptic order, which is bereft of any reasons. Therefore, it was urged before us that this is a fit case where this Court should either allow the clemency petition or remit the matter back to the respondent no.2 for a decision afresh. Reliance is placed by the learned 4 Counsel for the petitioner that judgment of Supreme Court in Epuru Sudhakar & anr. vs. Govt. of A.P. & ors., AIR 2006 S.C. 3385. 4. On notice being issued to the respondents, respondents have filed their affidavit in reply. In the affidavit in reply it is stated that the petitioner was on bail for about 3371 days and had undergone actual imprisonment of one year, eleven months and twenty seven days as on 31.1.2007 and since the petitioner had not completed 14 years of actual imprisonment under section 433 A of the Code of Criminal Procedure, the petitioner was not entitled to succeed in the clemency petition. It is also stated in the affidavit in reply that the petitioner had not furnished any documents in support of the illness with which her respondent is afflicted. It is also disclosed at paragraph 10 of the affidavit in reply that the petitioner had two sons and married daughter and, therefore, the contention of the petitioner that there was no one to look after her husband was not correct. It is also stated that the State Government while submitting the proposal to the second respondent did not recommend the grant of pardon and remission of the sentence and the second respondent has accepted the recommendation of the State Government and has rejected the petition. The affidavit in reply discloses that while rejecting the clemency petition there was due application of mind and the decision cannot be said to be mala fide and the second respondent had considered all the relevant documents. 5 5. The Supreme Court in the aforesaid judgment at paragraphs 22 and 34 has held thus :- "22. It is fairly well settled that the exercise or non-exercise of pardon power by the President or Governor, as the case may be, is not immune from judicial review. Limited judicial review is available in certain cases. 34. The position, therefore, is undeniable that judicial review of the order of the President or the Governor under Art. 72 or Art. 161, as the case may be, is available and their orders can be impugned on the following grounds : (a) that the order has been passed without application of mind; (b) that the order is mala fide; (c) that the order has been passed on extraneous or wholly irrelevant considerations; (d) that relevant materials have been kept out of consideration; (e) that the order suffers from arbitrariness." 6. Mr Chatterji, learned Counsel for the petitioner has urged before us that the second respondent has not given any reasons in the order impugned in the present petition for rejecting the clemency petition and for the aforesaid purpose has placed reliance on paragraph 67 of the 6 judgment cited supra, which reads thus :- "67. In conclusion, it may be stated that, there is a clear symmetry between the Constitutional rationale for review of statutory and prerogative power. In each case, the Courts have to ensure that the authority is used in a manner which is consistent with the Rule of Law, which is the fundamental principle of good administration. In each case, the Rule of Law should be the overarching constitutional justification for judicial review. The exercise of prerogative power cannot be placed in straight-jacket formulae and the perceptions regarding the extent and amplitude of this power are bound to vary. However, when the impugned decision does not indicate any data or manageable standards, the decision amount to derogation of an important Constitutional principle of Rule of Law." 7. The learned A.P.P. on behalf of the respondent has placed before us the record. We have perused the record and we find that the proposal which was placed by the State Government before the second respondent clearly indicates amongst various grounds that the petitioner had not undergone 14 years of actual imprisonment and, therefore, was not entitled to remission of her sentence. It appears that thereafter the order came to be passed by the second respondent rejecting the clemency petition. In the affidavit in reply it is stated that the second 7 respondent had perused all the necessary documents and had agreed with the decision of the State Government and accordingly had conveyed to the petitioner the rejection of her clemency petition. 8. At this juncture, it would be useful to refer to section 433-A of the Code of Criminal Procedure. Section 433-A of the Code of Criminal Procedure reads thus :- "Notwithstanding anything contained in section 432, where a sentence of imprisonment for life is imposed on conviction of a person for an offence for which death is one of the punishment provided by law, 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 had served at least fourteen years of imprisonment." Section 433 of the Code of Criminal Procedure deals with the power of the appropriate Government to commute the sentences. Section 433-A of the Code of Criminal Procedure, in that sense of the term puts a restriction in respect of exercise of the power to commute the sentence of life imprisonment and mandates that such a power could be exercised only in the event the person has undergone at least 14 years of imprisonment. In the present case, undisputedly the petitioner has not 8 undergone 14 years of imprisonment and, therefore, her request for commuting the sentence before the respondents was not maintainable. Since the petitioner was ineligible as per section 433-A of the Code of Criminal Procedure to seek commutation of her sentence, according to us it would be a exercise in futility to remit the matter back to the respondent no.2 for a decision afresh by giving reasons. The ground of section 433- A of the Code of Criminal Procedure was specifically raised in the proposal which was submitted by the State Government to the respondent no.2 and the second respondent has agreed with the proposal of the State Government that the petitioner was ineligible to claim clemency. Since the second respondent was aware about the exception carved out by section 433-A of the Code of Criminal Procedure and had agreed with the proposal submitted by the State Government, according to us it would not be necessary, in the facts of the present case, to remit the matter back to the respondent no.2 for a decision afresh. Therefore, according to us, the petitioner cannot succeed in the present petition. 9. Accordingly, this writ petition is dismissed with no order as to costs. Rule stands discharged. //Authentic copy// (A. M. Joshi), P.S to Honourable Judge 9