President’s Clemency Power is not immune from Judicial Review but limited to certain grounds only;Kerala HC [Read the Judgment]

A Division Bench of the Kerala High Court comprising of Chief Justice Ashok Bhushan and Justice A.M. Shaffique, considering the scope of judicial review in the matter of rejection of clemency petition by the President, has following the Supreme Court’s judgment in Epuru Sudhakar's case, held that although decision of the President or Governor are not immune from the power of judicial review, power to review the order of the President or the Governor under Art.72 or Art.161 of the Constitution is available only on certain limited grounds. The Court was considering a writ appeal filed by one T. Mohamed Ashraf, who was convicted under Section 138 read with Section 141 of the Negotiable Instruments Act by the Chief Judicial Magistrate, Pathanamthitta in C.C. No.437 of 2002 with imprisonment for one year and compensation amounting to Rs.57,97,940/- to the complainant. The appellant filed an appeal against the judgment of the Chief Judicial Magistrate, Pathanamthitta which was dismissed by the District and Sessions Judge, Fast Track, Pathanamthitta, against which a Criminal Revision was filed by the appellant in the High Court.The High Court partly allowed the Revision Petition, by modifying the Substantive sentence awarded to the petitioner to simple imprisonment till the rising of the court, and granting him six months' time to deposit in the trial court Rs.57,97,940/- for payment to the complainant by way of compensation under Sec.357(3) of the Code and in case of default, to undergo simple imprisonment for three months.Against the said judgment, the appellant filed a SLP which was dismissed by the Supreme Court though time for payment was extended for a period of three months.After the above proceedings were over, the appellant submitted a petition dated 27.03.2010 described as clemency petition before the President of India for pardon.Pending consideration of the clemency petition, the appellant filed a writ petition praying for a direction to the Chief Judicial Magistrate not to proceed with the steps in execution of the judgment till disposal of the petition submitted by the petitioner to the President of India under Article 72 of the Constitution of India.. A Single Judge of the High Court dismissed the said Writ Petition against which a writ appeal, W.A. No.829 of 2010 was filed before the Division Bench, where an interim order was granted subject to deposit of one half of the compensation ordered. The clemency petition eventually was rejected by the President, following which the writ appeal was dismissed as infructuous.Thereafter, the appellant filed a fresh writ petition the Chief Judicial Magistrate, Pathanamthitta not to proceed with the steps for apprehending the petitioner in furtherance of the judgment in C.C. No.437 of 2002 ‘pending disposal of the clemency petition, Exhibit P1 judgment modified by Exhibit P3 judgment till the disposal of the clemency petition, Exhibit P10 petition in accordance with law.’ which was dismissed by the single Judge who took the view that the conviction having become final upto the Apex Court, the High Court in exercise of the jurisdiction under Article 226 of the Constitution of India cannot stay the execution proceedings.The contention of the appellant in the writ appeal against the said judgment of the single Judge was that the observation of the learned Single Judge that no proceeding is pending consideration before any competent authority is incorrect. It was the further contention of the appellant that the Single Judge ignored the challenge of the petitioner to the communication informing him of the rejection of the clemency petition, and that the power of President of India conferred under Article 72 of the Constitution of India is subject to judicial review.The Central Government Counsel and the Government Pleader refuting the submissions of the appellant’s counsel contended that conviction of the appellant having been confirmed by the Apex Court, the appellant is not entitled to any relief in the Writ Petition. It was submitted that the Writ Petition is nothing but a device for delaying the execution of sentence although conviction has been confirmed upto the Apex Court. It was also submitted that the President of India in exercise of the power under Article 72 of the Constitution of India has rejected the petition of the petitioner for pardoning after considering all relevant aspects including the report received from the State Government.The Court after referring to the pardoning power of the President under Article 72 of the constitution and the historical developments in that regard, said that the conviction of the appellant had already been confirmed by the Apex Court and the clemency petition having been dismissed by the President, the Single Judge has rightly observed that no proceedings are pending on the basis of which proceeding for execution of sentence can be stayed by the Court in exercise of the Writ jurisdiction under Article 226 of the...

President’s Clemency Power is not immune from Judicial Review but limited to certain grounds only;Kerala HC [Read the Judgment]

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