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HindustanTimes Sun,21 Sep 2014

Guv can send back mercy petitions for review

Hitender Rao  Chandigarh, May 04, 2013
First Published: 09:29 IST(4/5/2013) | Last Updated: 14:13 IST(4/5/2013)

Haryana governor Jagannath Pahadia, who will consider the cases of four life convicts for grant of pardon under Article 161 of the Constitution, can send back the mercy petitions to the council of ministers for re-consideration in view of dismissal of their criminal appeal by the Punjab and Haryana high court.

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The council of ministers had on Thursday recommended to consider grant of pardon to four murder convicts from chief minister Bhupinder Singh Hooda’s constituency — Garhi Sampla-Kiloi — who were sentenced to life imprisonment by a Rohtak court in 2003.
 
Parmanand showed resolve

One of Pahadia’s predecessor, Babu Parmanand had in August 2003 sent back the mercy petitions of four life convicts who were recommended for premature release on compassionate grounds by the council of ministers, headed by the then chief minister Om Prakash Chautala, for reconsideration to the Cabinet.

Parmanand had sent back the mercy petitions on the grounds that the Cabinet’s recommendation was against the Supreme Court guidelines, violated the state government’s own instructions and were against the spirit and philosophy of the Constitution and section 433-A of the Code of Criminal Procedure (CrPC).
 
Compromise theory rejected by HC in 2010
 
While the Hooda Cabinet took the plea of “maintenance of peace, harmony and brotherhood for betterment and interest of society at large” as validated by a communitywide compromise and commitment of maintenance of peace for recommending pardon, a division bench of the Punjab and Haryana court comprising justices Satish Kumar Mittal and Jora Singh, had in 2010, dismissed a criminal appeal of the convicts rejecting the compromise theory.

“Under sections 320 and 321 of the CrPC, when the offence is not compoundable the accused are not to be acquitted on the basis of compromise. From the perusal of evidence on the file, we are of the opinion that present case does not fall in the category of marginal cases,” the high court had ruled.

The division bench further said: “Cases which were registered by one party or the second party after the present occurrence resulted in acquittal because eye witnesses did not support the prosecution story. But, on the file, there is no documentary proof as to how the accused were acquitted. Whether eye witnesses had resiled from their statements or not? In case parties have compromised and are willing to live peacefully in future, then we are happy, but in view of the compromise among the parties, we are not in a position to ignore the prosecution story by giving benefit of doubt to the appellants and acquit them.

Impugned judgment is to be set aside if the same is perverse and against the law. But after going through the evidence on file, we are of the opinion that evidence was rightly scrutinised and there is no scope for interference in the impugned judgment.”
 
What Governor can do

Legal experts say though the governor exercises the power under Article 161 on the advice of the council of ministers, there were instances when an effective personality could influence the decision of the chief minister.

“It is reported that the first President, Dr Rajender Prasad, personally examined the mercy petitions though he was expected to act in these matters according to the advice of the union home minister. In the same way, if a governor has the capacity and interest, he may also look into mercy petitions,” experts said.

Former Madhya Pradesh governor Hari Vinayak Pataskar had once said that the tradition was to allow the office to prepare the brief and suggest decision. “I broke away from that tradition. And I do feel that the governor should go into minute details…,” Pataskar had said.

Experts say that the governor need not be a mere rubber stamp of his chief minister as far as mercy petition is concerned. Rather, he should scrutinise such cases in minutest details and take utmost care and caution to ensure that each case gets the consideration it deserves. The Supreme Court in Kehar Singh case had observed that it was apparent that power under Article 72 entitled the President to examine the record if evidence of the criminal case and to determine for himself whether the case deserves grant of relief falling within that power.


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