Ramdeo Chauhan @ Rajnath Chauhan vs Bani Kant Das & Ors

Remdeo Chauhan @ Rajnath Chauhan ..Petitioner(s)

Versus

Bani Kant Das & Others ..Respondent(s)

J U D G M E N T

GANGULY, J.

1. This case has a chequered background. The facts,

therefore, are to be appreciated in their

sequence.

2. A criminal case was registered against the

petitioner under section 302 IPC, on an FIR

lodged by Bani Kant Das (first respondent),

1 elder brother of Bhabani Charan Das (the

deceased), in view of the offences committed by

the petitioner on 8.3.1992. After investigation

and preparation of charge sheet, the case was

committed for trial to the Court of Sessions and

charges were framed against the petitioner under

Sections 302, 323, 325 and 326 of IPC.

3. On 31.3.1998, the Trial Court held the

petitioner guilty of murdering four members of

Bhabani Charan Das's family and that all the

charges under Sections 302, 323, 325 and 326 of

IPC against him were proved beyond all

reasonable doubt. The Trial Court also opined

that the crime fell within the category of

`rarest of rare cases' and the petitioner

deserved death penalty.

4. However, the defence raised the plea that at the

time of commission of the crime, the petitioner

was below 16 years of age. To determine the

actual age of the petitioner, Dr. Bhushan

Chandra Roy, Associate Professor of Forensic

2 Medicine of Guwahati Medical College, with a

team of doctors, examined him on 23.12.1997. The

defence examined the father of the petitioner,

Mr. Firato Chauhan and also placed reliance on

the school admission register. The school

register was held to be unreliable, as it was

not properly maintained. Further, the

petitioner's father estimated the petitioner's

age to be 19 years at the time of occurrence of

the crime.

5. However, on the basis of the physical and

radiological examination done of the petitioner,

the doctor was definitely of the opinion that

his age was above 20 years but could not be more

than 21 years on the date of the examination.

This examination was conducted more than 5=

years after the date of commission of the crime.

6. Dr. Bhushan Chandra Roy, who was a prosecution

witness, subjected the petitioner to scientific

tests including radiological tests. The medical

opinion of Dr. Bhushan Chandra Roy was a joint

3 opinion and he consulted the doctor in the

Department of Radiology and Dr. Kanak Chandra

Das, the Medical Officer on duty in the

Department of Radiology.

7. About the age of the petitioner, trial Court

accepted the opinion of the team of doctors

headed by Dr. Bhushan Chandra Roy.

8. The Trial Court's finding about the age of the

petitioner is as follows:

"On the basis of the physical examination and radiological examination done on Ramdeo Chauhan alias Raj Nath Chauhan, they are of opinion that the age of the individual is above 20 years."

9. The Trial Court, after considering the medical

evidence about the age of the petitioner along

with the evidence of the father of the

petitioner, came to the following conclusion:

"Then the accused cannot be below sixteen years of age at the time of alleged occurrence to attract the provisions of Juvenile Justice Act, 1986 as the alleged occurrence took place before six years."

4 10. On appeal by the petitioner, the High Court,

vide its judgment dated 1.2.1999, confirmed the

conviction and sentence of death against the

petitioner. Before the High Court the Counsel

for the petitioner specifically submitted, that

he was not challenging the finding of the Trial

Court on the point of age of the accused-

petitioner.

11. The appeal from the High Court judgment was

dismissed by a Bench of this Court, comprising

K.T. Thomas and R.P. Sethi, JJ, on 31.7.2000 and

death sentence was upheld. In that judgment,

this court did not advert to the question of age

of the petitioner as it was possibly not argued.

12. A review petition (hereinafter, the first review

petition) was filed against the abovementioned

judgment of this Court. After notice was issued,

a two Judge Bench of this Court held that the

question of conviction of the petitioner under

5 section 302 IPC cannot be reopened. However,

considering the fact that the petitioner raised

an important question that he was a juvenile at

the relevant time and there is a legal

prohibition against sentencing a juvenile, the

first review petition was referred to a larger

Bench comprising K.T. Thomas, R.P. Sethi and

S.N. Phukan, JJ.

13. In the larger Bench decision dated 10.5.2001,

Sethi, J., inter-alia, held- "From the evidence

produced and the material placed before the

courts below, there is not an iota of doubt in

my mind to hold that the petitioner was not a

child or near or about the age of being a child

within the meaning of the Juvenile Justice Act

or the Children Act."

14. Thomas, J gave a dissenting judgment with

respect to imposition of death sentence upon the

accused. His Lordship observed that the Court

had already held on facts that the petitioner

had been unable to prove that he was below 16

6 years of age on the date of the crime. However,

Thomas J. approached the question from a

different angle and questioned whether death

sentence could be awarded to a person whose age

was not positively established by the

prosecution as above 16 years on the crucial

date? The learned Judge opined that if the age

of the petitioner could not be held to be

unquestionably above 16 on the relevant date

(and there was a doubt created in view of the

medical report of Dr. Bhushan Chandra Roy), its

corollary was that the lesser sentence also

could not unquestionably be foreclosed, as per

the Constitution Bench judgment in the case of

Bachan Singh v. State of Punjab, [(1982) 3 SCC

24]. Thus, the learned Judge opined that the

sentence of death be altered to one of

imprisonment for life.

15. Phukan, J., gave a concurring opinion with

Sethi, J. and opined that the imposition of

sentence of death could not be reopened on

review. However, His Lordship observed that if

7 any motion was made in terms of Sections 432,

433 and 433A of the Code of Criminal Procedure

and/or Article 72 or Article 161 of the

Constitution, the same may be appropriately

dealt with.

16. In the words of Phukan, J., "the factors which

have weighed with my learned Brother Mr. Justice

Thomas can be taken note of in the context of

section 432(2) of the Code."

17. Even before the judgment on the first review

petition was pronounced on 10.5.2001, the

petitioner had already filed on 17.8.2000 a

petition before the Governor of Assam praying

for mercy and for commutation of his death

sentence to one of life imprisonment.

18. At about the same time when the petition for

commutation was pending, Dr. Ved Kumari,

Professor of the Faculty of Law, University of

Delhi, wrote a fairly detailed article titled

"Has a child been executed in India?" The said

8 article came to be noticed by National Human

Rights Commission (NHRC). Thereupon, NHRC sent a

notice to Dr. Ved Kumari. In the meantime, the

judgment in the review petition, as aforesaid,

was pronounced by this Court on 10.5.2001.

19. On 21.5.2001, the full Commission of NHRC,

consisting of the Chairperson, Mr. Justice J.S.

Verma, as also two of its judicial members,

namely, Dr. Justice K. Ramaswany and Justice Ms.

Sujata

V. Manohar, and the other member Sri Virendra

Dayal, held its proceedings, in which the

judgment rendered in the review proceeding was

perused.

20. NHRC, upon considering the materials on record,

made the following recommendations:

"The Commission is of the view that the above opinion of Thomas, J. in the judgment disposing of the review petition and the above quoted observations of Phukan, J. are very strong reasons to support the view and this is a fit case for commutation of the sentence of Ram Deo Chauhan @ Raj Nath Chauhan in the above

9 case from death sentence to that of imprisonment for life. This Commission is of the considered view that the case, placing reliance on the views of Thomas, J. and Phukan, J., who were two of the three learned Judges, constituting the Bench deserves the highest consideration by the executive authority while considering the question of commutation of sentence of the said Ram Deo Chauhan @ Raj Nath Chauhan.

Accordingly, this Commission makes the above recommendation in terms of the opinion of Thomas, J. for due consideration by the Governor of Assam and/or the President of India, as the case may be, in the event of a mercy petition being filed for the purpose."

21. Thereafter, on 28.1.2002, the Governor of Assam

commuted the death sentence of the petitioner to

one of life imprisonment. The Order of the

Governor runs as under:

"The Governor of Assam after careful consideration of the mercy petition and other relevant records is pleased to commute the sentence of death to that of imprisonment for life of the above named condemned prisoner."

22. Challenging the aforesaid order of the Governor,

of Assam, the relatives of the deceased filed a

writ petition under Article 32 of the

10 Constitution of India before this Court. In that

proceeding, Secretary NHRC was impleaded.

However, this court, by an order dated

21.1.2009, issued notice to Prof. Ved Kumari,

asking her to state how her complaint before

NHRC was maintainable. Pursuant thereto, Prof.

Ved Kumari submitted an affidavit before this

Court on 3.2.2009, stating that the Juvenile

Justice (Care & Protection of Children) Act,

2000 applied to all pending cases and was

extended to all children who had not completed

18 years of age; and thus it would also be

applicable to the present case.

23. After hearing the matter, the Bench comprising

of one of us passed an order on 8.5.2009,

setting aside the Governor's order dated

28.1.2002 of commutation of death sentence to

life imprisonment.

24. In passing that order, the Bench was of the

opinion that the NHRC proceedings were not in

line with the procedure established under the

11 Protection of Human Rights Act, 1993

(hereinafter, `the 1993 Act') and therefore,

NHRC's recommendations were void. Further, the

order of the Governor of Assam directing

commutation did not indicate any reason and was

based on the recommendations of NHRC, which

itself were without jurisdiction. Thus, the writ

petition was allowed and the order of the

Governor of Assam was quashed and this Court

directed re-consideration afresh of the

petitioner's prayer for commutation of sentence.

25. This instant review petition (hereinafter, the

second review) is directed against this Court's

order dated 8.5.2009.

26. In this second review, notice was issued by this

Bench for formal hearing by an order dated 3rd

September, 2009. One of the reasons for issuing

notice was that one of the grounds put forward

was that the judgment under review was passed

without hearing Ram Deo Chauhan, the petitioner,

and without providing him legal aid. However,

12 almost at the conclusion of the hearing of this

proceeding, this Court found that the aforesaid

representation was not correct. The correct

position was that by an order dated 19th

November, 2005, Mr. Muralidhar was appointed by

the Registrar of this Court to represent the

petitioner. After Mr. Muralidhar, became a Judge

of Delhi High Court, the Registrar appointed one

Mr. Vijay Panjwani, an advocate of this Court,

to represent the review petitioner. Mr. Panjwani

filed a counter affidavit in the Article 32

proceeding. However, from the judgment under

review, it does not appear that Mr. Panjwani

appeared before the Court and made his

submissions.

27. Be that as it may, it is not correct to say that

no notice was given to the petitioner.

Therefore, one of the grounds on which notice

for review was issued became non-existent.

28. The question is whether this second review

should be dismissed in view of such misleading

13 stand having been taken by the petitioner while

invoking this Court's jurisdiction of review.

29. On a very careful consideration of this issue,

this Court thinks that in view of various other

questions of far reaching importance having been

raised in this second review, it may be a

travesty of justice if this petition is

dismissed on only the ground mentioned above.

30. This Court on a contested hearing is of the

opinion that the second review should still be

entertained and decided as it raises various

questions of signal significance, touching the

rights of the petitioner to seek commutation as

also touching questions regarding the

jurisdiction of the NHRC, as also various

constitutional provisions relating to life and

freedom. Various concerns of public law have

come up for consideration in this second review

and in the context of these issues the

constitutional provision of Article 137 for

14 review of judgment and order of this Court may

have to be examined. Article 137 of the

Constitution provides as follows:

"137. Review of judgments or orders by the Supreme Court: Subject to the provisions of any law made by Parliament or any rules made under article 145, the Supreme Court shall have power to review any judgment pronounced or order made by it.

31. In terms of Article 137, Rules have been framed

under Article 145 of the Constitution and Part

VIII Order XL of the said Rules deals with

review.

32. Order XL Rule 1 provides that in reviewing the

judgment in a civil proceeding, the Court will

follow the grounds in Order XLVII Rule 1 of the

CPC. However, in case of review of criminal

proceedings, no review is permissible except on

the ground of error apparent on the face of the

record.

33. The extent of the review power of this Court

came up for consideration in several cases. In

15 M/s Northern India Caterers (India) Ltd. v.

Lieutenant Governor of Delhi reported in 1980

(2) SCC 167, a three Judge Bench of this Court

examined the scope of this power and held that

if the attention of the Court is not drawn to

any material statutory provision during the

original hearing, that is a ground of review.

The Court also held that it may reopen its own

judgment if a manifest wrong has been done and

it is necessary to pass an order to do full and

effective justice.

34. In Ram Chandra Singh v. Savitri Devi and others

reported in 2004 (12) SCC 713, this Court

dealing with its power of review held in para

19:

"19. It is no doubt true that in appropriate cases this Court may pass an order ex debito justitiae by correcting mistakes in the judgment but inherent power of this Court can be exercised only when there does not exist any other provision in that behalf......"

16 35. In a three Judge Bench of this Court in the case

of Suthendra Raja alias Suthenthira Raja alias

Santhan & Ors. v. State through DSP/CBI, SIT,

Chennai reported in 1999 (9) SCC 323, this Court

held that the scope of review in criminal

proceedings has been considerably widened in the

P.N. Eswara Iyer and others v. Registrar,

Supreme Court of India [1980 (4) SCC 680]. To

maintain a review in a criminal case, what has

to be considered is whether there has been a

miscarriage of justice.

36. In this connection, this Court finds that in the

Supreme Court Rules framed under Article 145 of

the Constitution, there is a clear provision in

Order XL Rule 6 of the Rules to the following

effect:

"6. Nothing in these Rules shall be deemed to limit or otherwise affect the inherent powers of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court."

17 37. In Girdhari Lal Gupta v. D.N. Mehta & Anr.

reported in AIR 1971 SC 2162, this Court held

when the attention of this Court is not drawn to

any particular provision of a statute, this

court can review the decision and it is not the

case of a mere mistaken judgment. (Para 16, pg

2164)

38. On a bare reading of the provision of Order XL

Rule 1 of the Supreme Court Rules, one may get

the impression that the extent of review in

criminal cases is more restricted than in civil

cases. But the said impression has been given a

quietus by this Court in its Constitution Bench

judgment in Eswara case (supra).

39. Delivering the main judgment, Justice Krishna

Iyer held- "So it is reasonable to assume that

the framers of the rules could not have intended

a restrictive review over criminal orders or

judgments. It is likely to be the other way

about. Supposing an accused is sentenced to

death by the Supreme Court and the `deceased'

18 shows up in court and the court discovers the

tragic treachery of the recorded testimony. Is

the court helpless to review and set aside the

sentence of hanging? We think not. The power to

review is in Article 137 and it is equally wide

in all proceedings. The Rule merely canalizes

the flow from the reservoir of power. The stream

cannot stifle the source. Moreover, the dynamics

of interpretation depend on the demand of the

context and the lexical limits of the test. Here

`record' means any material which is already on

record or may, with the permission of the court,

be brought on record. If justice summons the

judges to allow a vital material in, it becomes

part of the record; and if apparent error is

there, correction becomes necessitous." (See

para 34, pg. 695)

40. Keeping those parameters in mind, let us

consider the extent to which power of review can

be extended in the facts of this second review.

19

41. In our view several aspects of this Court's

judgment dated 8.5.2009, rendered on the Article

32 petition, call for a review.

42. In the judgment which is under review in the

second review petition, the Court concluded:

(a) NHRC has no jurisdiction to interfere and make a recommendation, and

(b) The order of the Governor in commuting the sentence of death to one of life is bad in law as it did not disclose any reason.

43. On a review, we are constrained to hold that

both findings on (a) and (b) are vitiated by

errors apparent on the face of the record.

A.Jurisdiction of NHRC

44. The NHRC was constituted under Section 3 of the

1993 Act for better protection of human rights.

The term `human rights' as defined in Section

2(d) of the 1993 Act, reads as follows:

20

"2. (d) "Human rights" means the rights relating to life, liberty, equality and dignity of the individual guaranteed by the Constitution or embodied in the International Covenants and enforceable by courts in India."

45. The functions of NHRC have been set out in

Section 12 of the 1993 Act. Section 12 reads as

follows:

"12. Functions of the Commission- The Commission shall perform all or any of the following functions namely:

a. inquire, suo motu or on a petition presented to it by a victim or any person on his behalf or on a direction or order of any court, into complaint of

(i) violation of human rights or abetment thereof; or

(ii) negligence in the prevention of such violation, by a public servant;

b.intervene in any proceeding involving any allegation of violation of human rights pending before a court with the approval of such court;

c. visit, notwithstanding anything contained in any other law for the time being in force, any jail or other institution under the control of the State Government, where persons are detained or lodged for purposes of

21 treatment, reformation or protection, for the study of the living conditions of the inmates thereof and make recommendations thereon to the Government;

d.review the safeguards provided by or under the Constitution or any law for the time being in force for the protection of human rights and recommend measures for their effective implementation;

e. review the factors, including acts of terrorism, that inhibit the enjoyment of human rights and recommend appropriate remedial measures;

f.study treaties and other international instruments on human rights and make recommendations for their effective implementation;

g.undertake and promote research in the field of human rights;

h.spread human rights literacy among various sections of society and promote awareness of the safeguards available for the protection of these rights through publications, the media, seminars and other available means;

i.encourage the efforts of non- governmental organization and

institutions working in the field of human rights;

22 j. such other functions as it may consider necessary for the promotion of human rights."

46. The NHRC has been constituted to inquire into

cases of violation of and for protection and

promotion of human rights. This power is an

extensive one, which should not be narrowly

viewed.

47. It must be jurisprudentially accepted that human

right is a broad concept and cannot be

straitjacketed within narrow confines. Any

attempt to do so would truncate its all-

embracing scope and reach, and denude it of its

vigour and vitality. That is why, in seeking to

define human rights, the Legislature has used

such a wide expression in section 2(d) of the

Act. It is also significant to note that while

defining the powers and functions of NHRC under

section 12 of the Act, the said broad vision has

been envisioned in the residuary clause in

Section 12(j).

23

48. Therefore, it is imperative that while

interpreting the powers and jurisdiction of

NHRC, the Court construes section 2(d) of the

1993 Act along with its long title and also the

Statement of Objects and Reasons of the said

Act. The relevant portion of the statement of

objects and reasons are excerpted below:

"2. However, there has been growing concern in the country and abroad about issues relating to human rights. Having regard to this, changing social realities and the emerging trends in the nature of crime and violence, Government has been reviewing the existing laws, procedures, and system of administration of justice; with a view to bringing about greater accountability and transparency in them, and devising efficient and effective methods of dealing with the situation."

49. In his Tagore Law Lecture (The Dialectics and

Dynamics of Human Rights in India), Justice V.R.

Krishna Iyer describes the width and sweep of

human rights in his matchless words and which

are worth quoting:

"Human rights are writ on a large canvas, as large as the sky. The law makers,

24 lawyers and particularly, the judges, must make the printed text vibrant with human values, not be scared of consequences on the status quo order. The militant challenges of today need a mobilization of revolutionary consciousness sans which civilized systems cease to exist. Remember, we are all active navigators, not idle passengers, on spaceship earth as it ascends to celestial levels of the glorious human future."

50. We share the same view.

51. What was said by Alexander Hamilton, the great

constitutional expert and political philosopher,

way back in 1775, is poignant still today for

having a clear perception of what human rights

are. The words of Hamilton still resonate with a

strange relevance and immediacy, and are quoted

below:

"The sacred rights of mankind are not to be rummaged for, among old parchments, or musty records. They are written, as with a sun beam in the whole volume of human nature, by the hand of divinity itself; and can never be erased or obscured by mortal power."

25 52. Keeping those broad principles in our mind if we

look at Section 12(j) of the 1993 Act, we find

that it confers on NHRC "such other functions as

it may consider necessary for the promotion of

human rights." It is not necessary that each and

every case relating to the violation of human

rights will fit squarely within the four corners

of section 12 of the 1993 Act, for invoking the

jurisdiction of the NHRC. One must accept that

human rights are not like edicts inscribed on a

rock. They are made and unmade on the crucible

of experience and through irreversible process

of human struggle for freedom. They admit of a

certain degree of fluidity. Categories of human

rights, being of infinite variety, are never

really closed. That is why the residuary clause

in sub-section (j) has been so widely worded to

take care of situations not covered by sub-

sections (a) to (i) of Section 12 of the 1993

Act. The jurisdiction of NHRC thus stands

enlarged by section 12(j) of the 1993 Act, to

take necessary action for the protection of

human rights. Such action would include

26 inquiring into cases where a party has been

denied the protection of any law to which he is

entitled, whether by a private party, a public

institution, the government or even the Courts

of law. We are of the opinion that if a person

is entitled to benefit under a particular law,

and benefits under that law have been denied to

him, it will amount to a violation of his human

rights.

53. Human rights are the basic, inherent, immutable

and inalienable rights to which a person is

entitled simply by virtue of his being born a

human. They are such rights which are to be made

available as a matter of right. Constitution and

Legislations of civilized country recognise them

since they are so quintessentially part of every

human being. That is why every democratic

country committed to rule of Law put into force

mechanisms for their enforcement and protection.

Human rights are universal in nature. The

Universal Declaration of Human Rights

(hereinafter referred to as UDHR) adopted by the

27 General Assembly of the United Nations on 10th

December 1948 recognizes and requires the

observance of certain universal rights,

articulated therein, to be human rights, and

these are acknowledged and accepted as equal and

inalienable and necessary for the inherent

dignity and development of an individual.

Consequently, though the term `human rights'

itself has not been defined in UDHR, the nature

and content of human rights can be understood

from the rights enunciated therein.

54. Possibly considering the wide sweep of such

basic rights, the definition of `human rights'

in the 1993 Act has been designedly kept very

broad to encompass within it all the rights

relating to life, liberty, equality and dignity

of the individual guaranteed by the Constitution

or embodied in the International Covenants and

enforceable by Courts in India.

55. Thus, if a person has been guaranteed certain

rights either under the Constitution or under an

28 International Covenant or under a law, and he is

denied access to such a right, then it amounts

to a clear violation of his human right and NHRC

has the jurisdiction to intervene for protecting

it.

56. The contrary finding in the judgment under

review about the absence of jurisdiction of NHRC

to make some recommendations to the Governor is

thus vitiated by errors apparent on the face of

the record. Of course NHRC cannot intervene in

proceeding pending in Court without its approval

[Section 12(6)] as it is assumed that Court will

remedy any case of violation of human rights.

57. The assumption in the judgment under review that

there can be no violation of a person's human

right by a judgment of this Court is possibly

not correct. This Court in exercise of its

appellate jurisdiction has to deal with many

judgments of High Courts and Tribunals in which

the High Courts or the Tribunals, on an

erroneous perception of facts and law, have

29 rendered decisions in breach of human rights of

the parties and this Court corrects such errors

in those judgments.

58. The instances of this Court's judgment violating

the human rights of the citizens may be

extremely rare but it cannot be said that such a

situation can never happen.

59. We can remind ourselves of the majority decision

of the Constitution Bench of this court in

Additional District Magistrate Jabalpur v.

Shivakant Shukla reported in (1976) 2 SCC 521.

60. The majority opinion was that in view of the

Presidential order dated 27.6.1975 under Article

359(1) of the Constitution, no person has the

locus standi to move any writ petition under

Article 226 before a High Court for Habeas

Corpus or any other writ to enforce any right to

personal liberty of a person detained under the

then law of preventive detention{ Maintenance of

Internal Security Act of 1971}, on the ground

30 that the order is illegal or malafide or not in

compliance with the Act.(See paras 78 and 136 of

the report)

61. The lone dissenting voice of Justice Khanna

interpreted the legal position differently by

inter alia holding:

"(8) Article 226 under which the High Courts can issue writs of Habeas Corpus is an integral part of the Constitution. No power has been conferred upon any authority in the Constitution for suspending the power of the High Court to issue writs in the nature of habeas corpus during the period of emergency. Such a result cannot be brought about by putting some particular construction on the Presidential order in question."(Point 8 at page 777 of the report)

62. There is no doubt that the majority judgment of

this court in the ADM Jabalpur case (supra)

violated the fundamental rights of a large

number of people in this country. Commenting on

the majority judgment, Chief Justice

Venkatachalliah in the Khanna Memorial Lecture

delivered on 25.2.2009, observed that the same

be `confined to the dustbin of history.' The

31 learned Chief Justice equated Justice Khanna's

dissent with the celebrated dissent of Lord

Atkins in Liversidge v. Sir John Anderson

reported in (1942) AC 206.

63. In fact the dissent of Justice Khanna became the

law of the land when, by virtue of the Forty

Fourth Constitutional Amendment, Articles 20 and

21 were excluded from the purview of suspension

during emergency.

64. But we hasten to add that NHRC cannot function

as a parallel seat of justice to rectify or

correct or comment upon orders passed by this

Court or any other Courts of competent

jurisdiction. For correcting an order in a

judicial proceeding, the aggrieved party has to

avail of the well established gamut of the

corrective machinery of appeal, revision,

review, curative petition and so on.

65. In fact in this case the NHRC did not send any

recommendation as long as the first review

32 proceedings were pending in this court. The NHRC

was keeping a track of the proceeding in the

Court. From its order dated 16.10.09, it is

revealed that NHRC was aware that a review

petition was filed against the judgment of this

Court in Criminal Appeal No. 4/2000, in addition

to a mercy petition filed before the Governor of

Assam. The NHRC closely followed the proceedings

of the review petition.

66. The NHRC made its recommendations on 21.5.2001

only after the judgment in first review

(No.1105/2000) was passed on 10.5.2001 by this

Court.

67. About NHRC, this Court in Paramjit Kaur v. State

of Punjab and Ors. - (1999) 2 SCC 131 held:

"10. The Commission headed by a former Chief Justice of India is a unique expert body in itself. The Fundamental Rights, contained in Part III of the Constitution of India, represent the basic human rights possessed by every human being in this world inhabited by people of different continents, countries, castes, colours and religions. The country, the colour and the

33 religion may have divided them into different groups but as human beings, they are all one and possess the same rights."

11. The Chairman of the Commission, in his capacity as a Judge of the High Court and then as a Judge of this Court and also as the Chief Justice of India, and so also two other members who have held high judicial offices as Chief Justices of the High Courts, have throughout their tenure, considered, expounded and enforced the Fundamental Rights and are, in their own way, experts in the field. The Commission, therefore, is truly an expert body to which a reference has been made by this Court in the instant case."

68. After the aforesaid observations this court decided

that when in exercise of its power under Article 32,

this Court gives any directions to NHRC, then like

all other authorities in this country, NHRC is bound

by such directions. In such situations, NHRC acts

`sui-generis'. The statutory bar of limitation under

Section 36(2) of the 1993 Act will not stand in the

way (paras 12 and 15, pages 137-138 of the report).

69. Therefore, NHRC, a statutory body, in a given

situation, may have to act under the order or

direction given by this Court in exercise of its

constitutional power of judicial review.

34

70. However, in the facts of this case, NHRC has not

committed any illegality by taking into

consideration the article written by Professor

Ved Kumari and then making a mere recommendation

to the Governor, for considering the

petitioner's plea for commutation. We are of

the opinion that in doing so, NHRC acted within

its jurisdiction.

B. Whether non-disclosure of reason vitiates the Order of the Governor under Article 161 of the Constitution?

71. In the judgment on Article 32 petition, it was

noted that the order of the Governor directing

commutation "does not indicate any reason" and

this, according to the judgment is contrary to a

decision of this Court in Epuru Sudhakar and

another v. Government of A.P. & Ors., reported

in 2006 (8) SCC 161. The impugned judgment

quotes para 38 from Epuru (supra). 35

72. After quoting that, the impugned judgment

quashes the order of commutation by the Governor

and directed reconsideration.

73. On review of the aforesaid reasoning, we find

that this finding in the judgment is vitiated by

errors apparent on the face of the record.

74. In this case, the entire record relating to

exercise of power by the Governor was always

available for perusal of the Court.

75. It is well-settled that while exercising power

of commutation under Article 161 of the

Constitution, the Governor is to act on the aid

and advice of the Council of Ministers.

76. From a perusal of the materials on the file, it

appears that detailed consideration has been

made in the Chief Minister's Secretariat and

notes in detail have been put up by the Chief

Minister's Secretariat, wherein the entire

factual aspect of the case has been considered.

36 The different judgments given in the first

review petition were part of the note, and on a

consideration of the detailed note, the Chief

Minister approved on 22.10.2001 the note put up

before him by the Secretary, Judicial Department

for commutation. Thereafter, the matter was

placed before the Governor's Secretariat with

the entire record. The Hon'ble Governor approved

the proposal on 12.1.2002. Therefore, more than

adequate reasons are available on the records of

the case.

77. It was open to the Bench passing the judgment

under review to peruse the entire record.

78. However, on the extent of judicial review in

respect of exercise of power by the Governor

under Article 161, or by the President under

Article 72, there are authoritative

pronouncements by this Court and the matter is

no longer res-integra.

37

79. In G. Krishta Goud & J. Bhoomaiah v. State of

Andhra Pradesh & Ors. reported in (1976) 1 SCC

157, this Court while construing the extent of

judicial review in connection with exercise of

clemency power by the President or the Governor

respectively under Articles 72 and 161 held that

even though the power granted to the highest

executive authority is not totally immune from

judicial review, but Court makes an almost

extreme presumption in favour of bonafide

exercise of such power (Para 8). However, in

para 9 the Court sounded a note of caution that

where the exercise of power is just by way of a

rule of thumb and totally arbitrarily or out of

personal vendetta, the Court is not helpless.

(See para 9)

80. This question again came up for detailed

consideration before the Constitution Bench in

the case of Maru Ram v. Union of India & Ors.

reported in (1981) 1 SCC 107. In para 72 at page

153 of the report, this court was summarizing

its conclusions and in sub-para 9 it was held

38 that only in rare cases the Court would examine

the exercise of power by the appropriate

authority. Subsequently, in Kehar Singh & Anr.

v. Union of India & Anr. reported in (1989) 1

SCC 204, again by a Constitution Bench of this

Court, the extent of exercise of this power of

clemency was considered. In para 13, Chief

Justice Pathak, speaking for the Constitution

Bench, held-

"Nor do we dispute that the power to pardon belongs exclusively to the President and the Governor under the Constitution. There is also no question involved in this case of asking for the reasons for the President's order. And none of the cases cited for the respondents beginning with Mohinder Singh Gill (1977 (3) SCC 346) advance the case of the respondent any further." (emphasis added)

81. It also appears from para 11 of Kehar Singh

(supra) that it relies on the formulations of

principles in Maru Ram (supra). Paras 7 and 15

of Kehar Singh (supra) would also show that

Maru Ram (supra) ratio was followed in Kehar

Singh (supra).

39 82. In view of such consistent view of the two

Constitution Benches of this court clearly

stating that unless the exercise of power by the

Governor under Article 161, is ex facie perverse

or is based on a rule of thumb, the Court should

not interfere for mere non-disclosure of reason,

the finding to the contrary in the judgment

under review, by relying on a two-judge Bench

decision in Epuru (supra) case, is vitiated by

errors apparent on the face of the record. Even

in para 37 in Epuru (supra), the observation of

Kehar Singh (supra), underlined hereinabove were

noted.

83. In the instant case, a perusal of the record

shows that upon a detailed consideration of the

relevant facts, the Governor exercised his power

of commutation. Such an exercise does not call

for any interference, in view of the law laid

down both in Maru Ram (supra) and Kehar Singh

(supra).

40 84. From the perusal of the file this Court also

notes that in passing the order, the Governor

considered all the relevant materials, including

the judgment of three learned Judges in the

first review petition filed by the petitioner,

as also the recommendation of NHRC.

85. This Court has already held that NHRC has the

jurisdiction, in the facts of this case, to make

its recommendation to the Governor to take into

account the materials which NHRC considered.

This court also finds that the Governor

considered, apart from the said recommendation

of NHRC, other relevant materials also and,

therefore, the order of the Governor is not

vitiated in as much as it is not solely based on

the recommendations of NHRC.

86. Now the only question which remains to be

considered is whether the petitioner is entitled

to insist on a fresh look at his juvenility and

a fresh consideration of his rights in view of

the changes in the Juvenile Justice (Care &

41 Protection of Children) Act, 2000 by 2006

amendment.

87. This point has not been stated in the review

petition even though this was argued by the

learned counsel for the petitioner.

88. Mr. P.S. Patwalia, the amicus appearing in the

case, objected to this Court making a

pronouncement on this question which is argued

for the first time in review even though it is

not pleaded in the review petition as a ground

for review.

89. This court finds some substance in the said

objection. We have already indicated that in the

Article 32 petition notice was served on the review

petitioner and it was open to him to raise these

points in that proceeding as by that time the

Juvenile Justice (Care and Protection of Children)

Act, 2000 as amended by the 2006 amendment Act had

come into force.

42

90. Even though the ambit of the review petition has

been widened by this Court in Eswara (supra), it has

to follow broadly the principles of review under

Order XLVII Rule 1 of the Code of Civil Procedure.

91. Following the discipline of Order XLVII, Rule 1 or

the concept of `an error apparent on the face of the

record', we possibly cannot pronounce in a review

petition on a question, which was open to be raised

in the original proceeding, but was not raised. That

apart, it has not at all been pleaded in the review

petition. For these reasons, this Court refrains

itself from pronouncing on the rights of the

petitioner under Juvenile Justice (Care and

Protection) Act, 2000 as amended by the 2006

Amendment. If he is so advised, it is open to the

petitioner to agitate on his rights under the said

Act before the appropriate Forum and in appropriate

proceedings.

92. If such a proceeding is initiated by the petitioner,

the same will be dealt with without being impeded by

any observation made or finding reached in any of

the judgments arising out of the concerned criminal

43 case against the petitioner, by any Court, including

this Court.

93. For the reasons discussed above and considering

the aforesaid legal issues, this Court concludes

as follows:

(i) The judgment of this Court dated

8.5.2009 on Article 32 petition and

which is under Review is set aside.

(ii) The order of the Governor dated

28.1.2002 passed under Article 161 of

the Constitution is restored and the

order of commutation of death sentence

awarded to the petitioner to one of

life imprisonment stands.

(iii) This Court holds that in the facts of

this case, NHRC had the jurisdiction

to make the relevant recommendation.

94. The review petition is allowed to the extent

indicated hereinabove.

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95. Parties are left to bear their own costs.

.....................J. (AFTAB ALAM)

.....................J. (ASOK KUMAR GANGULY)

New Delhi November 19, 2010

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