Asok Kumar Ganguly, J.
1. Peter James Gifran Von Kalkestein Bleach, a British national, appearing in person, petitioned before this High Court with the grievance that he is a victim of discrimination as the President of India, while acting in exercise of power, under Article 72, refused to remit the sentence imposed on him while granting the said prayer of five other Russians who were similarly convicted and sentenced with him. His specific case is that he, along with five other Russian Nationals, were convicted in Sessions Case No. 1 of 1997, under Sections 121A/121/122, IPC read with Sec. 25(1-A) and 25(1-B) of the Arms Act 1959 and 9B(2) of Explosives Act 1884 and Section 5 of Explosives Substances Act 1908 read with Section 5(2)(1)/10/11/11 of the Aircraft Act 1934.
2. The brief facts of that criminal case are that the accused persons were jointly charged for dropping huge quantities of arms and ammunitions from an Aircraft in the villages Khatugon. Belomu, Moramu, Varadhi, Baradhi within PS Jhalda on the night of 17th/ 18th December, 1995 and they were charged under various provisions of different acts noted above. The facts of the case show that in connection with dropping such huge quantities of arms, an Aircraft was used and Mr. Bleach was its pilot and the five Russians were crew members of the same.
3. Mr. Bleach submitted that at the end of a protracted and joint trial with the five Russians the learned Trial Judge, after considering in detail the evidence against him, and the five Russians, gave a common judgment and sentenced all of them equally.
4. Relying on the aforesaid aspect of the matter, Mr. Bleach argued that in matter of sentencing, the learned trial Judge had a discretion. Most of the charges in respect of which Mr. Bleach was convicted, he was not awarded the maximum sentence, but was awarded a lesser sentence and which is exactly similar to the sentences awarded to the five Russians who were convicted with him. Mr. Bleach for the purpose of emphasizing this aspect of the matter has prepared a chart which is set out below :
"PURULIA ARMS DROP CASE
TABLE OF CHARGES TRIED, VERDICTS AND SENTENCES
ALL APPLY EQUALLY TO BLEACH AND FIVE RUSSIANS
CHARGES TRIED (RUSSIAN CREW AND PETER BLEACH) MAXIMUM SENTENCES AVAILABLE ACTUAL SENTENCES IMPOSED BLEACHED AND RUSSIANS __________________________________________________________________ __________________________________________________________________ __________________________________________________________________
COUNT NO. ACT SEC. OFFENCE MAX. IMPRISONMENT MAX. FINE (Rs.) VERDICT SENTENCE
1 INDIAN PENAL CODE 121 ABETTING THE WAGING OF WAR AGAINST INDIA DEATH OR LIFE UNLIMITED ACQUITTED -
2 IPC 121A CONSPIRACY TO ABET THE WAGING OF WAR AGAINST STATE OF WEST BENGAL LIFE UNLIMITED GUILTY LIFE
3 IPC 122 COLLECTING ARMS AND AMMUNITIONS WITH THE INTENTION OF WAGING WAR OK BEING PREPARED TO WAGE WAR AGAINST INDIA LIFE UNLIMITED ACQUITTED -
4 ARMS ACT 25(1-A) POSSESSION OF PROHIBITED ARMS AND AMMUNITION 10 YEARS UNLIMITED GUILTY 7 YEARS
5 ARMS ACT 25(I-B) f & g TRANSPORTATING ARMS & AMMUNITION INTO OR ACROSS INDIA 3 YEARS UNLIMITED GUILTY 2 YEARS
6 EXPLOSIVE ACT 9B(2) POSSESSION OF OR IMPORTING EXPLOSIVES IN CONTRAVENTION OF A RULE MADE UNDER SECTION 6 OF THE EXPLOSIVES ACT 3 YEARS Rs. 5,000 GUILTY 2 YEARS
7 EXPLOSIVE SUBSTANCES ACT 5 MAKING OR POSSESSING EXPLOSIVES UNDER SUSPICIOUS CIRCUMSTANCES 14 YEARS UNLIMITED GUILTY 10 YEARS 8 AIR-CRAFT ACT 10 VIOLATING RULES MADE UNDER 5(2)(1) OF THE AIRCRAFT ACT 2 YEARS UNLIMITED GUILTY 1 YEAR
9 AIRCRAFT ACT 11 WILFULLY FLYING AN AIRCRAFT IN SUCH A MANNER LIKELY TO CAUSE DANGER TO PERSON OR PROPERTY 6 MONTHS Rs. 1,000 GUILTY 3 MONTHS
10 AIRCRAFT ACT 11a WILFULLY DIVERTING FROM AN AUTHORISED FLIGHT PATH 6 MONTHS Rs. 1,000 GUILTY 3 MONTHS
5. Mr. Bleach further argued that in the criminal case in which he was convicted along with the five Russians, the charge was the same. Mr. Bleach has annexed extracts of the charge that was filed by the CBI in pages. A/2, A/3, A/4, A/5 of his petition and underlined certain portions of those documents in order to show that he along with those five Russians were similarly charged by the prosecuting agency.
6. Similarly Mr. Bleach tried to show that the Sessions Court, 4th Bench, City Civil Court while framing charges against him and the five Russians framed charges on ten counts similarly against all of them. According to Mr. Bleach there is no factual distinction between him and the five Russians in the matter of filing the charge-sheet by the prosecution and the framing of charges by the Court. The conviction and sentence is also the same. So the contention of Mr. Bleach is that he and those five Russians were similarly placed in connection with the said criminal case.
7. But then on the basis of mercy petitions filed on behalf of five Russians by various organisations and agencies in the Russian Federation the President, acting under Article 72 of the Constitution and considering various aspects of the case and the bilateral relations between the Government of India and the Russian Federation, was pleased to remit, in respect of those five Russians, with immediate effect, the unexpired sentence of imprisonment and fine, if not paid, as awarded by the Sessions Judge, IVth Bench, City Sessions Court, Calcutta in Sessions Trial No. 1 of 1997, vide judgment and order dated 2nd February, 2002.
8. By the same order dated 21st July. 2000, State Government was directed to release forthwith and hand over those five Russians to the officers of the Embassy of the Russian Federation for their deportation to Russia.
9. Immediately thereafter on behalf of Mr. Bleach, a mercy petition was filed by one Deepak Kumar Prahladka, inter alia, praying for remission of the unexpired sentence of imprisonment from the President.
10. Then comes the letter dated 9th August 2001 from the Director (Judicial). Government of India, Ministry of Home Affairs addressed to Mr. Prahladka to the effect that, after careful consideration of the mercy petition, filed on behalf of Mr. Peter Bleach, the president rejected the same on merits Under Article 72 of the Constitution of India (Page A/28 of the petition).
11. At page A/32 of the petition, there is another communication dated 11-9-2001 addressed to Mr. Prahladka by one S.K. Agarwal, Director in President's Secretarial that his letter dated 1st September; 2001 addressed to the President of India has been forwarded to the Ministry of Home Affairs, New Delhi for appropriate attention.
12. In view of the aforesaid facts and grant of remission by the Presidential order in favour of those five Russians and refusal of the same to him, Mr. Bleach submitted that there is a clear case of discrimination.
13. His further case is that both he and the five Russians were convicted by the learned Sessions Judge on the basis of a Joint trial and on the basis of a common Judgment. He filed an appeal against the said judgment and order of conviction and his appeal is numbered as CRA No. 64 of 2000. The five other Russians filed an appeal numbered as CRA No. 54 of 2000.
14. In connection with his appeal, Mr. Bleach urged before the Appeal Court that in view of the order of the President, the sentence of appellants in CRA No. 54 of 2002 has been remitted in full but since similar prayer for remission on his behalf was rejected, he does not stand on the same footing with those Russians in that matter of proceeding with his appeal. In other words it was submitted that he has been substantially prejudiced in pursuing his remedy of appeal inasmuch as the co-accused, the appellants in CRA No. 54 of 2000 virtually will not have to press the appeal in view of the Presidential order of the remission. Thus, he is disadvantaged before the Appeal Court and is on a legal footing which is tainted with discrimination. He further submits unless this vice of discrimination is removed from his case, he cannot proceed with his appeal.
15. Since this question of discrimination was raised by Mr. Bleach, the learned Judges of the Appeal Court by an order dated 4-2-02 were pleased to hold that this question of alleged discrimination cannot be decided by them while dealing with the appeal. Such a question of alleged discrimination can be decided only by a Writ Court. After the decision by the writ Court on the point of discrimination the appeal may be listed for hearing before the Appeal Court.
16. Thereafter, the matter was placed before the Hon'ble Chief Justice for assignment of the petition filed by Mr. Bleach before a Writ Court and pursuant to an order of assignment dated 4th March 2002 the petition was taken up by me and upon exchange of affidavits I heard the matter on several dates.
17. Mr. Bleach also urged that in the affidavits-in-opposition filed in this matter by the Home Ministry and by the CBI authorities the charge of discrimination made by him has not been controverted.
18. Mr. Bleach started his submission on law by saying that even though he is a foreigner, he is entitled to the protection of Article 14 of the Constitution since that protection is given to any person. This Court is of the view that Mr. Bleach is right in asserting that he is entitled to the protection under Article 14 of the Constitution since the protection under Article 14 is given to ever person, regardless of the fact whether the person is a citizen or not. This shows the inherent human right content in Indian Constitution which cuts across national barriers and is truly international in character.
19. Mr. Bleach next urged, relying on the provision of Article 51A of the Constitution, that it is the duty of every citizen of India to uphold the Constitution. It is also the duty of the President who is a citizen of India to abide by the constitutional dispensation by properly exercising his power under Article 72 of the Constitution without any vice of discrimination.
20. Mr. Bleach further submitted that it is well known that when the President exercises his power under Article 72 of the Constitution he does so on the basis of aid and advice which he receives from the Council of Ministers.
21. Mr. Bleach also refers to the provisions of Article 74 of the Constitution and contends that under Article 74(2) of the Constitution even though it is provided that the question whether any, and if so what, advice was tendered by Ministers to the President shall not be inquired into by any Court, but if the Government produces papers before the Court showing that advice in fact was tendered by the Council of Ministers to the President and if mala fide is alleged, the Court can look into the same to come to a finding. Mr. Bleach contended, and in my view rightly, that in an appropriate case, the Court, despite the provisions of Article 74(2) of the Constitution, can look into the materials if they are produced before the Court. The reason behind this approach is the discernible modern trend of open government and also the paramount need that justice must not only be done but must be publicly seen to be done. Therefore, normally there is nothing to prevent the Court from looking into the materials upon which the advice was based unless of course the Government succeeds in establishing its valid claim of privilege. It may be noted that in the instant case, the file containing the materials on which advice was tendered was produced before this Court on 16-8-2002 by Smt. Meenakshi Arora, Director (Judicial), Ministry of Home Affairs and the Court looked into the materials.
22. Mr. Bleach further submits that under Article 361 of the Constitution, the President and Governor have been given a protection to the extent that they shall not be answerable to any Court for the exercise and performance of the powers and duties of their office or for any act done or purported to be done by them in the exercise and performance of those powers and duties. But Mr. Bleach has pointed out the second proviso of the Article 361 of the Constitution and urged that the second proviso makes it clear that nothing shall be construed as restricting the right of any person to bring appropriate proceedings against the Government of India or the Government of a State.
23. Mr. Bleach further submitted that under the second proviso the personal immunity of the President does not bar any legal proceeding to be initiated against the Government and as such it cannot be said that the instant petition by Mr. Bleach is hit by Article 361 of the Constitution of India or that the Court cannot exercise its power of judicial review in respect of his alleged claim of discrimination in view of Article 361 of the Constitution.
24. This Court holds that this petition filed by Mr. Bleach impugning the exercise of power of the President is not per se hit by Article 361 of the Constitution. The instant proceeding is maintainable but the extent and ambit of judicial review and the exercise of discretion by the President is a totally different question. This Court will advert to that later.
25. Mr. Bleach has also referred to certain judgments of Supreme Court to show that in various cases orders passed by the Governor under Article 161 of the Constitution, which is equivalent to President's power under Article 72 were quashed by the Supreme Court. In one case the President has been requested by the Supreme Court to reconsider the decision taken by him under Article 72 of the Constitution of India. This being the law declared by the Supreme Court, is binding under Article 141 of the Constitution on all Courts in India including this Court. This Court accepts this contention of Mr. Bleach.
26. Now coming to some decided cases of the Supreme Court on the exercise of power by the Heads of the State either under Article 72 or 161 of the Constitution, both Mr. Bleach and Mr. D. K. Sengupta. the learned Counsel for the Union of India relied on some common judgments delivered by Supreme Court in the case of Maruram and in the case of 'Kehar Singh' , also .
27. Apart from relying on those two judgments Mr. Bleach relied on certain other judgments also. He relied on the judgment of the Supreme Court in C.S. Rowjee v. State of Andhra Pradesh to contend if in a given case the petitioners have given all the relevant facts in the petition and in the affidavit there is no denial by the authority against whom the allegations were made nor is there affidavit by any person who claims to know personally the truth or otherwise of those allegations, in such a situation the allegations remain unrebutted as was held by the Apex Court.
28. In Rowjee's case the Hon'ble Supreme Court noted in paragraph 21 of the judgment that the allegations of mala fide against the Chief Minister were made with sufficient particulars. But there was no denial either by the Chief Minister or by any person who claims to know personally the truth or otherwise of those allegations. Instead of that, the Apex Court found an affidavit of the Secretary of the Home Department in which the allegations were formally denied and in respect of those denials the learned Advocate General appearing for the State did not even invite the Court to act. In view of those facts the Court held that the allegations against the Chief Minister were unrebutted.
29. But in the instant case there is no such allegations of mala fide against anyone. Apart from that the Joint Secretary of the Government of India, Ministry of Home Affairs, conversant with the facts of the case, filed an affidavit before this Hon'ble Court. It cannot be disputed that the President exercises power under Article 72 of the Constitution on the advice of the Council of Ministers and the Home Ministry had to deal with such matters. In the instant case the affidavit came from the Joint Secretary of the Home Ministry who is a competent person. And the affidavit, in my opinion, deals with the challenge made in the petition filed by Mr. Bleach. The factual basis of such challenge namely that Mr. Bleach and five Russians have been similarly charged by the Court and the prosecution allegations against them are similar and that they have been convicted by similar sentences cannot be denied as those are matters on record. That was the stand taken in the affidavit about those factual aspects of the matter. Therefore, the ratio in the case of Rowjee is not attracted here.
30. The Court now proposes to deal first with the affidavit field on behalf of the Union of India by one Mr. Durgadas Gupta, Joint Secretary, Government of India, Ministry of Home Affairs, New Delhi. In the said affidavit it has been categorically denied that Mr. Bleach is serving the sentence just because he is a British national. The stand is that he is in jail in view of an order passed by a competent Court upon a regular trial, which has nothing to do with the nationality or citizenship of anyone. It is also stated that the mercy petition filed on his behalf was considered on merits and rejected and not because he is a British citizen. Thus the charge of recall discrimination was denied.
31. It is also stated that the executive power of the Union, which vests in the President under Article 72 of the Constitution was exercised in accordance with law and Constitution and the appropriate Appeal Court can proceed with either of the appeals namely CRA No. 54 of 2000 or CRA No. 64 of 2000 and there would be no violation of Article 14 of the Constitution. Some references were made to some decided cases regarding the ambit and scope of Article 72 of the Constitution and it was also stated that it was not open to Mr. Bleach to question the exercise of power of the President under Article 72 of the Constitution and such power of the President is "unapproachable" and "untouchable".
32. It was also stated that the manner of consideration of petitions etc. and the exercise of power under Article 72 is within the discretion of the President and it is not open to judicial review in the way it has been asked for and the power of the President of India under Article 72 of the Constitution is unfettered and absolute and not subject to judicial review in the manner it has been asked for by Mr. Bleach.
33. Insofar as the charges framed against Mr. Bleach and the order of conviction and sentence passed against him are concerned, they have been referred to as matters of record. It has also been stated that the jurisdiction vesting in the President to grant pardon, reprieves, respites, remittance etc. is substantially different form the jurisdiction of a Court in passing a judgment and sentencing an accused person.
34. In the affidavit filed by the CBI authorities it was also reiterated that the power of the President under Article 72 in unfettered. The Russians were released by an order passed by the President in exercise of that power and it is not open to Mr. Bleach to question the exercise of the said power. The stand taken is that application of Article 14 is not called for in this case and the alleged grievance of violation of Article 14 is a result, of wrong interpretation by Mr. Bleach. It is denied that this Court cannot proceed to hear either of the appeals namely CRA No. 54 of 2000 and CRA No. 64 of 2000 until such time as Mr. Bleach is placed on the same legal footing as that of the Russians. It is denied that Mr. Bleach is in jail because he is a British citizen or any racial discrimination was shown to him and that the exercise of power by the President under Article 72 of the Constitution is subject to judicial review.
35. Mr. Bleach next relied on the decision in the case of Swaran Singh v. State of U.P., . In that case the facts
were that one Sri Doodh Nath, an MLA of U.P. Assembly, convicted for murder, came out of the prison within less than two years of imprisonment as a result of remission granted by the Governor. The petition of the son of the deceased before the High Court was dismissed on the ground that the order of the Governor was not justiciable. Then SLP was filed.
36. The Hon'ble Supreme Court held, after looking into the files concerning the grant of remission to Doodh Nath, that the Governor was not told of certain vital facts concerning Doodh Nath, namely his involvement in 5 other criminal cases of serious offences and the rejection of his earlier clemency petition which was filed on the same grounds and the report of the jail authorities that his conduct inside the jail was far from satisfactory, and that out of two years and five months for which Doodh Nath was supposed to be in jail, he was in fact on parole during the substantial part thereof.
37. The Supreme Court found that since the Governor was not posted with material facts, the Governor was deprived of an opportunity to exercise the powers under Article 161 in a fair and just way. Therefore, the Court quashed the order of the Governor and sent back the matter to the Governor to enable him pass a fresh order on the petition of Doodh Nath in the light of the observations made in the said judgment (Paras 13 and 14).
38. It may be mentioned even while quashing the order, the Supreme Court observed, "the Court cannot go into the merits of the grounds which persuaded the Governor in taking a decision in the exercise of ............................................... power". (Para13, page 79 of the report). [Underlined by Court].
39. For the same reason Mr. Bleach cited the judgment rendered in the case of Satpal v. State of Haryana, . In
that case also the learned Judges of the Supreme Court relied on the decision reported in Kehar Singh (1989 Cri LJ 941) and Maru Ram (1980 Cri LJ 1440). The learned Judges found that the Governor was not made aware of what was the total period of sentence the accused had really undergone, and whether or not he had undergone any sentence at all. The file produced before the Supreme Court showed the uncanny haste with which it was processed and the unusual interest and zeal shown by the authorities in the matter of exercise of power to grant pardon. The file showed that the prisoner was in jail but the fact remains that he was at large and had not surrendered to serve the sentence despite the clear directions of the Supreme Court.
40. Under those circumstances the Court found that the order of the Governor was vitiated and he was not properly assisted with the proper materials and therefore, the learned judges quashed the order of the Governor under Article 161 of the Constitution. The Court observed that the Governor is to reconsider the matter with relevant materials in accordance with the constitutional provisions and discretion. The Court also relied on the judgment in the case of Swaran Singh . In the case of Satpal, the learned judges formulated the following proposition laid down in Maru Ram (1980 Cri LJ 1440) :
"considerations for exercise of power under Article 72 or 161 may be myriad and their occasions protean, and are left to the appropriate Government, but no consideration nor occasion can be wholly irrelevant, irrational, discriminatory or mala fide. Only in these rare cases will the Court examine the exercise."
41. Relying on the decision in Maru Ram (1980 Cri LJ 1440) the learned Judges formulated the propositions as follows :
"Wide as the power of pardon, commutation and release (Articles 72 and 16) is, it cannot run riot; for no legal power can run unruly like John Gilpin on the horse but must keep sensibly to a steady course. Here, we come upon the second constitutional fundamental which underlies the submissions of counsel. It is that all public power, including constitutional power, shall never be exercisable arbitrarily or mala fide and, ordinarily, guidelines for fair and equal execution are guarantors of the valid play of power. We proceed on the basis that these axioms are valid in our constitutional order."
42. Mr. bleach relied on the Constitution Bench judgment of the Supreme Court in S.R. Bommai v. Union of India, .
The said judgment was of course dealing with the promulgation of the Presidential order under Article 356 of the Constitution of India in a case of failure of constitutional machinery in a State. In the said judgment there are references to the exercise of Presidential power under Article 72 of the Constitution of India Mr. Bleach has drawn the attention of this Court to paragraph 73 (of SCC) : (Para 56 at p. 1969 of AIR) in Bommai where the learned judges by mentioning Article 72 of the Constitution and the judgment of Kehar Singh (1989 Cri LJ 941) held that since the exercise of President's power under Article 72 of the Constitution falls within the judicial domain, there is no reason why the exercise of Presidential discretion in passing an order under Article 356 would be outside the same. But after saying so, it was made clear that the order of the President cannot be subjected to judicial review on merits, except within the strict limitations laid down in Maru Ram (1980 Cri LJ 1440).
43. Mr. Bleach also referred to in Bommai in which again reference was made to Kehar Singh and Article 72 of the Constitution and it was held in para 360 (of SCC) : (Para 292 of AIR) in Bommai that exercise of power under Article 72 falls squarely within the judicial domain and can be examined by the Court by way of judicial review. But the Court cannot go into the merits of such decision and the review is very limited.
44. Mr. Bleach very much relied on the judgment in the case of Harbans Singh v. State of U.P., . The facts of
that case, which are rather interesting, may be considered in some detail.
"Harbans Singh and two other accused persons were convicted in multiple murder case and all were sentenced to death by a common judgment. Jeeta Singh, one of the accused, preferred an SLP to the Supreme Court but the same was dismissed. Then Kashmira Singh, another accused person, filed an SLP and obtained leave on the question of sentence. Ultimately the death sentence of Kashmira was commuted to imprisonment for life. But the SLP filed by Harbans was dismissed by the Supreme Court and his review petition was also dismissed. But at that time the fact that Kashmira's death sentence was commuted to life was not brought to the notice of the Court, despite a note by the Registry. Then Harbans filed a petition before the President of India for commutation of death sentence but it was also dismissed. Jeeta who could not file any review petition was executed pursuant to the death sentence passed by the High Court. Harbans, who was also about to be executed on the same date, filed a petition under Article 32 of the Constitution and obtained a stay of the execution."
45. In the facts of that case the Court held that no distinction could at all be made between the part played by Kashmira on the one hand and the Harbans on the other but the death sentence imposed on Kashmira was commuted to one for imprisonment for life (para 6). Under those circumstances the Hon'ble Supreme Court held that it would be unjust to confirm the death sentence imposed upon Harbans. In the particular facts of that case the Supreme Court held that "in the interest of comity between the power of the Supreme court and the powers of the President of India, it will be more in the fit-ness of things" if the Court were "to recommend that the President of India may be so good as to exercise his power under Article 72 of the Constitution to commute the death sentence imposed upon the petitioner into imprisonment for life". The Supreme Court also found that President of India had already rejected the mercy petition of Harbans. But the Court felt all the relevant facts were not before the President. So the Hon'ble Supreme Court recommended that on those facts, the President may commute the death sentence of the petitioner and the Supreme Court directed a copy of the judgment to be forwarded to the President forthwith.
46. Relying on the said decision Mr. Bleach argued that in the facts of the instant case, the Court should come to the same conclusion and make the same recommendation to the President since there is no difference between the part played by Mr. Bleach and the five Russians in whose favour the President has exercised his power of remission of the sentence.
47. Mr. Bleach also argued that the ratio in Harbans Singh (1982 Cri LJ 795) is that Court can, in an appropriate case, even after the President has rejected the mercy petition of a person, recommend to the President to reconsider the matter in the light of the facts of the case and it was urged that following the ratio on Harbans Singh this Court should give a similar order.
48. The principles in Maruram (1980 Cri LJ 1440) and Kehar Singh (1989 Cri LJ 941), the two leading judgments on the points at issue, are of substantial importance for deciding the controversy since both Mr. Bleach and Mr. Sengupta relied on them.
49. In Maruram the Court considered Section 433A of the Code of Criminal Procedure and also the Constitutional provision under Articles 72 and 161 and held that both the powers are substantially different and cannot be equated. In para 9 in Marurarn (1980 Cri LJ 1440), the Court held that the Constitutional power under Articles 72/161 is untouchable and unapproachable by law. Even after saying so, the learned Judges held that Section 433A itself may be treated as a guideline for exercise of power under Articles 72/161. Since both the Governor and the President exercise their powers in accordance with the advice of the Council of Ministers, the President, in effect means the Central Government and the Governor means the State Government. Therefore while advising on the exercise of power, the appropriate Government should treat the legislative guide under Section 433A of the Code as a model. But. the Supreme Court accepted the position that powers under Article 72/161 are absolute and cannot be fettered by law.
50. In this case is concerned with the scope of judicial interference with the exercise of power under Article 72/161 of the Constitution. In paragraph 63 of Maruram (1980 Cri LJ 1440), the learned Judges held that it is unthinkable that in a democracy governed by the rule of law the executive Government or any of its officers should possess arbitrary power over the interests of the individual. It was held that every action of the Executive Government must be informed with reason and should be free from arbitrariness and in that context it was held that discretion of the government cannot be exercised on its sweet will. Applying the said standard for exercising the power under Article 72/161 of the Constitution, the learned Judges, by giving certain illustrations in paragraph 65, held that if the order passed under Article 72/161 of the Constitution is the product of extraneous or mala fide factors that will vitiate the exercise. The precise observations are as follows :
"Pardon, using this expression in the amplest connotation, ordains fair exercise, as we have indicated above. Political vendetta or party favouritism cannot but be interlopers in this area. The order which is the product of extraneous or mala fide factors will vitiate the exercise. While constitutional power is beyond challenge, its actual exercise may still be vulnerable. Likewise, capricious criteria will void the exercise. For example, if the Chief Minister of a State releases every one in the prisons in his State on his birthday or because a son has been born to him, it will be an outrage on the Constitution to let such madness
survive.............................No Constitutional power can be vulgarised by personal vanity of men in authority. Likewise, if an opposition leader is sentenced, but the circumstances cry for remission such as that he is suffering from cancer or that his wife is terminally ill or that he has completely reformed himself, the power of remission under Articles 72/161 may ordinarily be exercised and a refusal may be wrong-headed. If, on the other hand, a brutal murderer, blood thirsty in his massacre, has been sentenced by a Court with strong observations about his bestiality, it may be arrogant and irrelevant abuse of power to remit his entire life sentence the very next day after the conviction merely because he has joined the party in power or is a close relation of a political high-up. The Court, if it finds frequent misuse of this power may have to investigate the discrimination. The proper thing to do, if Government is to keep faith with the founding fathers, is to make rules for its own guidance in the exercise of the pardon power keeping, of course, a large residuary power to meet special situations or sudden developments. This will exclude the vice of discrimination such as may arise where two persons have been convicted and sentenced in the same case for the same degree of guilt but one is released and the other refused, for such irrelevant reasons as religion, caste, colour or political loyalty."
51. Relying on those observations, Mr. Bleach submitted that his case for discrimination stands on the same footing and that his prayer for remission has been turned down only because he is a British national.
52. Mr. Bleach submitted that the principles decided in Maru Ram's case (1980 Cri LJ 1440) have not been departed from rather they have been reiterated by Supreme Court in Kehar Singh (1989 Cri LJ 941).
53. Mr. Bleach relied on paragraph 11 of Kehar Singh (1989 Cri LJ 941), where the learned Judges held that area and scope of the Presidential power is amenable to judicial review and submitted that Kehar Singh thus clearly affirms Maru Ram. Mr. Sengupta also relied on the same paragraph but submitted that the limited area of judicial interference pointed out in Maru Ram (1980 Cri LJ 1440) has been affirmed in Kehar Singh (1989 Cri LJ 941).
54. It may, however, be noted that Mr. Sengupta placed reliance on the opinion of Justice Fazal Ali in paragraph 100 in Maru Ram (1980 Cri LJ 1440) Justice Fazal Ali, in a concurring opinion, held that the President of India under Article 72 has an absolute and unfettered power to grant pardon, reprieves, remissions etc. and such power cannot be altered or modified by any statutory provisions. The learned counsel placed particular reliance on an observation in paragraph 100 to the effect that where a power is vested on a very high authority, it must be presumed in law that the said authority would act properly and carefully and after an objective consideration of all the aspects of the matter.
55. Mr. Sengupta also submitted that even though in Maruram (1980 Cri LJ 1440), the learned Judges have referred to the requirement of guidelines, but in the subsequent decision, in Kehar Singh (1989 Cri LJ 941) the Hon'ble Supreme Court held that the guidelines need not be framed as it may not be possible to lay down any precise and clearly defined guidelines having regard to the widest amplitude of the power under Article 72. In paragraph 15 in Kehar Singh it has been stated that an oral hearing by the President to a person invoking the power under Article 72 is also not feasible, Mr. Sengupta very much relied on the paragraph 15 in Kehar Singh to show the nature of proceeding before the President in connection with a petition under Article 72 and particularly emphasised on the observations of the Supreme-Court in paragraph 15 that the matter lies entirely within the discretion of the President.
56. But Mr. Sengupta, submitted that in case of Mr. Bleach exercise of Presidential power cannot be interfered with if we go by the principles decided in Maruram and Kehar Singh.
57. Mr. Sengupta also relied on the decision in the case of K.M. Nanavati v. State of Bombay, . In that
case, a question arose whether the order of the Governor of Bombay under Article 161 of the Constitution impinges on the judicial powers of the Apex Court, with particular reference to its powers under Article 142 of the Constitution. What happened in that case was that the petitioner, K.M. Nanavati, was placed on trial by the Jury before the Sessions Judge, Greater Bombay on a charge of murder. The Jury returned the verdict of 'not guilty' by a majority of eight to one. The learned Sessions Judge made a reference to the High Court under Section 307 of the Code of Criminal Procedure disagreeing with the verdict of the Jury. The High Court accepted the reference and convicted the petitioner under Section 302 and sentenced him to rigorous imprisonment for life by its judgment and order dated 11th March, 1960. On the very same day, the Governor of Bombay passed an order suspending the sentence passed by the High Court until Shri K.M. Nanavati filed his appeal in the Supreme Court against the conviction and sentence. As a result of this order being passed by the Governor the warrant of arrest issued to the police by the City Sessions Court for Greater Bombay was not executed. In the meantime, Mr. Nanavati's appeal before the Hon'ble Supreme Court came for hearing and the issue of unexecuted warrant came up. The Hon'ble Supreme Court, having regard to the unusual fact situation of the case, placed the matter before a larger Bench. In that contest the Hon'ble Supreme Court held that even though the powers of the Governor under Article 161 is very much wider than that of the Supreme Court under Article 142 of the Constitution, but on the principles of harmonious construction and to avoid a conflict between the two powers it must be held that Article 161 does not deal with the suspension of sentence during the time Article 142 is in operation and the matter is sub-judice before the Supreme Court. In so doing the learned Judges of the Supreme Court, dealing with the history of the power of pardon in para 10 of the judgment, held that the said power emanates from the common law background of mercy which is a Royal Prerogative. The learned Judges of the Supreme Court quoted with approval the statement of law in Halsbury's Laws of England. However, we are not concerned with the said question here.
58. Mr. Sengupta also relied on the judgment of the Supreme Court in the case of Sarat Chandra Rabha v. Khagendranath, . In Rabha, provision of Section 7(b) of the Representation of People Act 1951 which provides for disqualification of a candidate came up for consideration. Under that provision a person who was convicted and sentenced for a period of more than 2 years and when 5 years did not pass after his release from jail, the disqualification remains. The Court held that the remission of sentence under Section 401 of Cr.P.C. and the release of the person from jail before two years of actual imprisonment would not reduce his sentence into one of a period of less than two years and would not wipe out the disqualification. In para 4 of Rabha, the Court discussed the effect of grant of pardon and grant of remission and the Court held that an order or remission means that the rest of the sentence need not undergone, leaving the order of conviction and the sentence passed by the Court untouched.
59. Mr. Sengupta relied on the said judgment in order to show that despite remission, the legal status of those five Russians and that of Mr. Bleach before the Criminal Court of Appeal remains the same and both are convicted and sentenced by a Court of law.
60. Mr. Sengupta distinguished the case of S.R. Bommai by saying that the learned Judges of the Supreme
Court rendered the decision in Bommai by construing Article 356 of the Constitution which is very differently worded than the provisions of Article 72 of the Constitution and the manner of conferment of power under these two articles is totally different.
61. The learned counsel submitted that Mr. Bleach has merely a right to have his case for remission and pardon considered by the President under Article 72 on merits and he has no right on the result of such consideration.
62. In order to appreciate the extent of judicial review on the exercise of power by the President under Article 72 of the Constitution one has to remember that the extent of judicial review is not same in all cases of exercise of power by an authority on whom power is conferred. The extent of review is conditioned by several factors. One of them is the nature and character of the power conferred, and the purpose behind it and also the factors and circumstances which are to be taken into account for its exercise.
63. The power which has been conferred on the President under Article 72 of the Constitution is a relic of the Royal Prerogative conferred on the British Crown. This prerogative all over the world has now been recognised as inherent not in any individual or any department of the State but it is inherent in a State or as a governmental power inherent in people who by Constitutional provision confer it on the head of the Republic. As with passage of time this absolute power is no longer treated as a prerogative but has taken the character of a power of public nature and the growing concept of Rule of Law which has gained primacy over Rule of man guides the exercise of this power to a certain extent.
64. Even though the power is no longer treated as 'a private act of grace' by the per -son exercising the power but its exercise is solely dependent on the discretion of the authority on whom the power vests.
65. Under the American Constitution this power is conferred on the President almost on similar terms. Article II Section 2(1), the American Constitution provides "He (the President) shall have the power to grant reprieves and pardon for offences against the United States, except in cases of impeachment". This constitutional power of the President to grant pardon has been held to include the power to grant conditional pardons, commute sentences, to remit fines and forfeitures and to grant amnesty by proclamation. (See American Jurisprudence Vol. 39, Article 16).
66. In Corpus Juris Secundum Volume 67, the nature of this power has been suc-cinctly put as follows :
"The power of pardoning is found on considerations of the public good, and is to be exercised on the ground that the public welfare, which is the legitimate object of all punishment, will be as well promoted by a suspension a by an execution of the sentence."
It has been further explained :
"A pardon is granted, not as a matter of right, but as a matter of grace bestowed by the government through its duly authorised officers or departments. It is, however, not a personal favour or a private act of grace from the individual happening to possess power, it is granted in the exercise of a public function or as an act in the interest of the public welfare. The exercise of the power lies in the absolute and ucontrolled discretion of the officer in whom it is vested."
67. Prior to Article 72 of the Constitution, we find that same power was conferred and was embodied in Section 295 of the Government of India Act, 1935. Section 295 of the Government of India Act, 1935 is set out below :
"Provisions as to death sentences -- (1) Where any person has been sentenced to death in a Province, the Governor-General in his decision shall have all such powers of suspension, remission or commutation of sentence as were vested in the Governor-General in Council immediately before the commencement of Part III of this Act, but save as aforesaid no authority in India outside a Province shall have any power to suspend, remit or commute the sentence of any person convicted in the Province.
Provided that nothing in this sub-section affects any power of any officer of His Majesty's forces to suspend, remit or commute a sentence passed by a Court-marital.
(2) Nothing in this Act shall derogate from the right of His Majesty, or of the Governor-General, if any, such right is delegated to him by His Majesty, to grant pardons, reprieves, respites or remissions of punishment."
68. As a result of the aforesaid power the Governor General in his discretion could grant pardon, remission etc. in cases of death sentence and the Governor of the Province had the same power with regard to all sentence passed in the Province. But the prerogative power of the Crown given to the Governor General as delegate of the Crown remains unaffected. It is, therefore, clear that till the coming of the Constitution, the King's prerogative power remained unaffected and was plenary and unfettered. (Kindly see para 41 of the judgment in Nanawati of the report).
69. When the constitution came, both Articles 72 and 161 of the Constitution give widest power to the President and the Governor of the State, as the case may be. There are no words of limitation indicated in either of these two Articles. The very conferment of the power implies that it is plenary, unfettered and is not to be controlled by any legislation.
70. In America a very limited nature of judicial review is permissible on the exercise of power of pardon by the executive. It has been said :
"An executive may grant a pardon for good reason or bad, or for any reason at all, and his act is final and irrevocable. Even for the grossest abuse of this discretionary power the law affords no remedy; the Courts have no concern with the reasons which actuated the executive. The Constitution clothes him with the power to grant pardons, and this power is beyond the control, or even the legitimate criticism, of the judiciary. Whatever may have been the reasons for granting the pardon, the Courts cannot decline to give it effect, if it is valid upon its face, and no Court has the power to review grounds or motives for the action of the executive in granting a pardon, for that would be the exercise of the pardoning power in part, and any attempt of the Courts to interfere with the governor in the exercise of the pardoning power would be manifest usurpation of authority.
(American) Jurisprudence, Volume 39. page 454)
The limited area of Judicial interference has been pointed out as follows :
The authorities apparently are agreed that the Courts have jurisdiction to determine the validity of a pardon, as affected by the question whether the official granting it had power to do so. Thus, it has been held that a Court on habeas corpus to secure release from custody on the strength of a pardon has jurisdiction to determine the validity of the pardon where the question of validity depends upon whether or not the governor at the time the pardon was issued had authority to act as governor. So, also, there are numerous decisions to the effect that Courts have jurisdiction to pass upon the validity of pardons which it is alleged were obtained by fraud." (American Jurisprudence, Volume 39, Volume 43, page545).
71. The extent of judicial review permitted by the Courts in England is also equally limited. In England, prerogative of mercy is treated as a personal prerogative of the Crown, but, the right to petition for exercise of prerogative mercy is protected by the Bill of Right. In England, such right is exercised by Her majesty on the binding advice of the Secretary of the State for the Home Department.
72. The Courts in England initially took a very rigid attitude towards any kind of review on the exercise of prerogative mercy. One of the classic example of such rigid attitude is the speech of Lord Denning, Master of Rolls in Hanratty v. Ld. Butler of Saffron Walden. The basic facts of the case are that 8 years after their son had been hanged on a charge of murder, the parents of James Hanratty brought an action for negligence against the Home Secretary who declined to grant a reprieve. The challenge was that the Home Secretary failed to take into account the evidence that had come to light after the sentence was passed, but, before it was executed. Lord Denning, the Master of Rolls refusing to uphold the challenge, stated the principles as follows :
"The high prerogative of mercy was exercised by the monarch on advice of one of her principal Secretaries of State who took full responsibility and advised her with the greatest conscience and care. The law would not inquire into the manner in which that prerogative was exercised. The reason was plain -- to enable the Home Secretary to exercise his great responsibility without fear of influence from any quarter or of actions brought thereafter complaining that he did not do it aright. It was part of the public policy which protected judges and advocates from actions being brought against him for things done in the course of their office."
73. Of course, this view of Lord Denning on prerogative power is rather starting and directly opposite to His Lordship's view in the case of Laker Air-ways Ltd. v. development of Trade (1977 Queen's Bench 643). In Laker Air-ways, Lord Denning opined that prerogative power being a discretionary power is to be exercised for public good and such exercise "can be examined by the Court just as any other discretionary power which is vested in the executive".
74. In an article published in 1971 CLJ page 179, D.G.T. Williams criticized the judicial attitude in older cases on prerogative power and said that the "older case law on the prerogative needs re-assessment against a back-ground of the realities of political control of the present day". This has been referred to by Mr. A.T. Smith (Reader in Law, University of Durham) in his article on The Prerogatives mercy, The power of Pardon and Criminal Justice published in 1983 Public Law page 398. Mr. Smith also pointed in his article that the Court is increasingly taking the view that the prerogative is a public power and the Court can ensure that it is exercised for public good.
75. Next decision on this aspect is of the Privy Council in the case of Michael De Freitas and George Ramoutar Benny, reported in 1976 Appeal Cases 239. The facts of the case were that the appellant De Fretas was convicted of murder and sentenced to death. His appeal against conviction was dismissed by the Court of Appeal and a petition for special leave to appeal to the Judicial Committee of the Privy Council was dismissed. Then De Freitas applied to the High Court for, inter alia, a declaration that the carrying out of the death sentence would contravene his human rights recognised under the Trinidad and Tobago (Constitution) Order in Council 1962. The High Court dismissed that application and its decision was affirmed by the Court of Appeal April 30, 1974.
76. On appeal by the appellant to the Judicial Committee, it was held that none of the rights of the appellant under the Constitution was abridged. Commenting on the exercise of prerogative mercy the Judicial Committee held that the appellant had no legal right to have disclosed to him the material furnished to the advisory committee and to the Minister on which the Minister tendered advice to the Governor-General on the exercise of the prerogative of mercy as the exercise of the royal prerogative was solely discretionary and not quasi-Judicial.
77. Lord Diplock further held at page 247 of the report that "Mercy is not the subject of legal right. It begins where legal rights end. A convicted person has no legal right even to have his case considered by the Home Secretary in connection with the exercise of prerogative of mercy. In tendering his evidence to the sovereign, the Home Secretary is doing something that is often cited as the exemplar of a purely discretionary act as contrasted with the exercise of a quasi-judicial function".
78. In the subsequent decision in the case of Regina v. Secretary of State for the Home Department Ex Parte Bentley, reported in 1994 Queen's Bench 349, the learned Judges traced the development of the law of judicial review on the prerogative of mercy. The learned Judges found that the starting point in favour of judicial review is the decision of the House of Lords in Council of Civil Service Unions v. Minister of Civil Service, reported in 1985 Appeal Cases 75 (known as CCSU Case). According to the learned Judges, the essence of the decision in CCSU was expressed in the speech of Lord Roskill at page
417. Lord Roskill opined if the executive in pursuance of a statutory power does any act which affects the right of a citizen, the exercise of that power can always be challenged. Similarly if the executive, instead of acting under the statutory power, acts under the prerogative power and similarly affects the right of a citizen, Lord Roskill held, "I am unable to see, ..................... that there is any logical reason why the fact that the source of the power is prerogative and not statute should today deprive the citizen of the right of challenge to the manner of its exercise, which he would possess were the source of power statutory". The learned Judge further explained that to talk of the act of the executive in respect of the prerogative power as that of the sovereign "savours of the archaism of past centuries". But of course in the case of the prerogative of mercy, Lord Roskill expressed reservation later in the judgment at page 418 of the report.
79. The learned Judges held in Bentley, that De Freitas was decided prior to CCSU case and was not concerned with judicial review of an error of law. So In Bentley the Judges felt they were not prevented from deciding the question of reviewability on the ground of a binding precedent. In Bentley, Lord Justice Watkins said if "for example, it was clear that the Home Secretary had refused to pardon someone solely on grounds of their sex, race or religion, the Courts would be expected to interfere and, in our judgment, would be entitled to do so". Much before in 1980 the Hon'ble Supreme Court came to similar conclusion in Maru Ram (1980 Cri LJ 1440).
80. The learned Judges 'In Bentley' affirmed the decision of the New Zealand Court of Appeal on prerogative mercy in the case of Burt v. Governor General of New Zealand, reported in 1992 (3) New Zealand Law Report 672.
81. In Burt, the Court of Appeal of New Zealand held "the prerogative of mercy can no longer be regarded as no more than "an arbitraty monarchical right of grace and favour, instead of that it has become recognised as a safety net for persons who have been wrongly convicted". The principles in Burt were enunciated as follows at page 678 of the report:
"The prerogative of mercy is a prerogative power in the strictest sense of that term, for it is peculiar to the Crown and its exercise directly affects the rights of persons. On the other hand it would be inconsistent with the contemporary approach to say that, merely because it is a pure and strict prerogative power, its exercise or non-exercise must be immune from curial challenge. There is nothing heterodox in asserting, as counsel for the appellant do, that the rule of law requires that challenge shall be permitted insofar as issues arise of a kind with which the Courts are competent to deal."
82. This development of the law on prerogative mercy was recognised by the Courts in England.
83. However, the subsequent decision of the Privy Council in Tomas Reckley v. Minister of Public Safety Immigration and others, reported in 1996 (1) Appeal Cases 526, held that the decision in De Frietas v. Benny (1976 APP Cas 239) is still good in law (see page 542 of the judgment). The said judgment of the Privy Council was however, criticised by David Pannick, Q.C. in his article (Tempering Justice with Mercy) in 1996 Public Law, 557. The learned author said that the decision of the Privy Council in Reckley is regrettable and shows an "unjustified abdication of judicial responsibility". After saying so a reference was made by the learned author to the decision of Justice Holmes rendered in 1927 for the United State Supreme Court, Justice Holmes in Biddle v. Perovich, reported in (1926) 274 US 480 at page 486 of the report laid down :
"A pardon in our days is not a private act of grace from an individual happening to possess power. It is a part of the constitutional scheme. When granted it is the determination of the ultimate authority that the public welfare will be better served by inflicting less than what the judgment fixed."
84. I am in respectful concurrence with the views of Justice Holmes and the criticism by David Pannick, Q.C. The views of Justice Holmes were approvingly referred to by Chief Justice Pathak in Kehar Singh .
85. Judicial Review being a basic feature in our Constitution, all public power exercised by any authority under the Constitution is reviewable and the concept of unreviewable discretionary power is a contradiction in terms. Power may be conferred in absolute terms as the case of Articles 72/ 161, but its exercise does not create any non-justiciable and non-reviewable area in our Constitution. No Constitutional authority is an 'imperium in imperio' in our Constitutional order. Nor any authority, however high it may be deriving power from the Constitution, can exercise it disregarding the dignity of the individual. That explains why Supreme Court in Maru Ram (1980 Cri LJ 1440) held that the orders passed under Articles 72/161 are reviewable but on limited grounds.
86. The reasons for allowing such limited review are not far to seek. First of all the nature of the power is executive and is to be exercised by the highest executive head under the Constitution. Then the subject-matter of the decision and the considerations to be weighed by the authority are such as not to make them amenable to the judicial process.
87. If we consider the uniqueness of the prerogative power as against its amenability to judicial review, it is often found that the policy element in the decision making of such cases by the highest executive often makes such decisions inappropriate for a review by Court.
88. Broadly speaking in cases of policy decisions, unless such policy is ex facie unconstitutional, Court's for judicial review is undoubtedly restricted by its own procedure.
89. On the general ground of propriety there is an inbuilt on the judiciary, a branch of the State reviewing the policy decision involved in the exercise of power under Article 72 by the highest executive, another wing of the State. This restraint is required as often in such policy decisions community considerations are necessary ingredients and such considerations more often than not override the interest of the individual who is before the Court. So in such matters Courts must be a little circumspect as not to step on the "dangers of judicial overreach". But at the same time Court must not go back, what Lord Akin once cautioned, in a different context, to the clanking of mediaeval chains of the ghost of the past (see United Australia Ltd. v. Bardays Bank Ltd., (1941) Appeal Cases 1, at page 29).
90. So considering these two extreme views the right balance, if I may say so with great respect, has been struck in Maru Ram on the limited extent of judicial review on an order under Article 72. At the same time it is true if the areas of review indicated in Maru Ram are compared with those permitted by Courts in other countries, the grounds in Maru Ram are the most generous and wide.
91. Going by the most generous terms of review outlined in Maru Ram, the Court is unable to accept that Mr. Bleach has been discriminated against in the matter of consideration of his plea for remission by the authority. The reasons why I hold so are indicated below :
92. First I proceed to deal with three decisions on which Mr. Bleach relied very much. They are decisions of the Apex Court in Swaran Singh , Satpal (2000 Cri LJ 2297) and Harbans Singh (1982 Cri LJ 795).
93. Both in Swaran Singh (supra) and Satpal (supra) where the Hon'ble Supreme Court quashed the orders of the Governor passed under Article 161, it is clear that the Court found that vital and crucial facts were not placed before the Governor and the order was based on totally misleading facts. In such a case the order loses its character as an order passed on objective facts by one of the highest Constitutional authority and the Court was entitled to correct it. Such interference by the Court is within the limited scope pointed out in Maru Ram (1980 Cri LJ 1440) and Kehar Singh (1989 Cri LJ 941) and the Apex Court exercised its power within those limits. In this case, it cannot be said that relevant facts were not brought to the notice of the authority while the prayer made on behalf of Mr. Bleach was considered. So the principles in Satpal (2000 Cri LJ 2297) and Swaran Singh are not attracted here.
94. The decision in Harbans Singh (1982 Cri LJ 795) is clearly distinguishable from the facts of the present case. In Harbans Singh, the Hon'ble Supreme Court of India was dealing with the question of execution of capital sentence vis-a-vis the exercise of power by the President under Article 72 of the Constitution. There is no capital sentence here. This is a vital factual difference. In Harbans Singh, there is a judicial finding by the Hon'ble Court in paragraph 6 that no distinction can at all be made between the part played by Kashmira Singh, whose death sentence was computed to life by the Hon'ble Court on an SLP under Article 136 and the part played by Harbans. The same cannot be said in this case having regard to the part played by Mr. Bleach and those five (5) Russians in the commission of crime. This is another vital distinction in this case. Apart from that, it is clear that while exercising the power under Article 32 of the Constitution of India, the Hon'ble Supreme Court has also the power under Article 142 of the Constitution of India to do complete justice between the parties and the directions which were given by the Hon'ble Supreme Court to the President in Harbans can be justified only on the touch-stone of Article 142 of the Constitution. This appears from the nature of direction given by Chief Justice Chandrachud in paragraph 6 and Justice A. N. Sen in paragraph 20 of the judgement. The High Court has no such power as comparable to the one under Article 142 of the Constitution.
95. Apart from that, the judgment in Harbans Singh (1982 Cri LJ 795) was rendered on facts which show that there was a failure of the system, viz. the order passed on the Special Leave Petition of another co-accused was not brought to the notice of the Court while dealing with the Special Leave Petition filed by Harbans. Therefore, the learned Judges wanted to ensure that Harbans does not become the victim of injustice. That explains the recommendations of the Court to the President. The aforesaid factual back-drop is absent in the present case.
96. The order rejecting on merits the prayer for remission made on behalf of Mr. Bleach does not contain any reason. But it was not criticised on that ground by Mr. Bleach, and rightly so, as there is no requirement of disclosing the reasons in the order.
97. Mr. Bleach, however, submitted that even though reasons are not in the order but reasons have been expressed in the Press and to other authorities. In support of this contention, Mr. Bleach has filed a Supplementary Affidavit in this matter while the hearing was going on before its Court. Mr. Sengupta, learned Counsel appearing on behalf of the Union, has objected to the filing of the said Supplementary Affidavit by Mr. Bleach. But, since it is a matter relating to the personal liberty of Mr. Bleach, this Court did not exclude from its consideration the contents of the said affidavit. Mr. Bleach has in that affidavit annexed a communication addressed to him dated 11-9-2001 from the Foreign and the Commonwealth Office, London by the Parliamentary Under Secretary of State. The communication is to the effect that Mr. Jack Straw had a telephonic communication with the Home Minister of India about the continued detention or Mr. Bleach. But, the result of such conversation is dis-appointing in the sense that the Home Minister's response is that Mr. Bleach cannot be released, inter alia, on the ground that the same would undermine the case against Kim Davey. It was also made clear that the opinion of the Home Minister was that the case of Mr. Bleach differed from the Russians as Mr. Bleach had contact with Mr. Davey but which the Russians did not have. It was also stated that the Government of India's opinion is that Mr. Bleach played a greater role in the arms drop than the Russians. The Government refuted any charge of discrimination against Mr. Bleach as he played a central role in the entire planning and operation of the arms drop like purchasing the Air-craft and engaging the Russian crew. Along with the said affidavit, Mr. Bleach also annexed various Press cutting dated 23-7-2001 and 24-7-2001 reiterating the facts which were communicated to Mr. Bleach.
98. Mr. Bleach submitted if the reasons can be disclosed by the Government to the Foreign and Commonwealth Office, London, why the same cannot be disclosed in the order rejecting the petition filed on behalf of Mr. Bleach.
99. This argument is not of much substance. Since the applicant seeking remission of sentence from the President has no right to know the reason for rejection of the said prayer and since non-mentioning of reason does not vitiate the order, the disclosure of the reason by the governmental authority at any other level does not strengthen the case of the discrimination putforward by Mr. Bleach. This Court does not place any reliance on the reasons disclosed in the communication annexed by Mr. Bleach in the said Supplementary Affidavit, but, Mr, Bleach believes those are the reasons and relies on the same. From his reliance on, those reasons it is clear that there is some basis for treating the case of Mr. Bleach differently.
100. In this case, it is appropriate to point out that the Court on going through the judgment and order of conviction passed by the learned trial Judge in the Sessions Trial No. 1 of June, 1997 finds that the involvement of Mr. Bleach and those five Russians in the crime is not of the same degree. The following excerpts from the judgment are relevant on this point :
(a) I find and hold that prosecution has been able to establish that purchase of the YLLDB aircraft was made by way of purchase contract dated 15-11-95 signed at Riga and accused Peter Bleach was instrumental in negotiating the purchase of this particular aircraft and Mr. Bleach, Kim Davy and others were present at the time of inspection of the aircraft. From those materials it has also been established that the Latvian accused persons were engaged as crew members in this particular aircraft YLLDB by way of contract dated 18-11-95.
(b) it would be evident from the aforesaid materials and evidence on record that the dropped arms and ammunition were purchased from Bulgaria and accused Peter Bleach of Aeroserve, UK was instrumental in purchasing the arms and ammunition.
(c) it was established that accused Peter Bleach contacted Robin Peter Campbell, Company Director of BTI to quote for a quantity of Ak-47 and sometime in last October, 1995 he again received a telephone call from Bleach by which he requested a quote for RPGS and land mines and subsequently RP Campbell provided a quote and Bleach stated that the same was acceptable and payment could be made quickly.
(d) that in the month of November, 1995 Bleach requested for inspection of the goods and the same was arranged in Bulgaria and at that time Peter Bleach and the representative of KAS were present and the goods were inspected and crates were marked as Con tract No. 214/719/PROJECTS/DGDP/ ORD/P-4/COMMANDANT CAD RAJENDRAPUR CANTT. Bangladesh and it was further stated by this witness that Mr. Bleach went to Bulgaria to complete loading of the aircraft.
(e) From the aforesaid statement it further transpired that Peter asked him whether it was possible to find a team of crew a Latvia to ferry the sold AN-26 to Bangladesh and work there for three months;
(f) In view of what I have stated above, I hold that it has also been established beyond reasonable shadow of doubt that accused Peter Bleach played a vital role in purchasing the aircraft, engaging the Latvian crew members and using the contract number of Bangladesh and arms were loaded in the aircraft mentioning those as technical equipments and those were thereafter, smuggled into Indian Territory with active connivance of the Latvian accused persons.
101. In the instant case, the Court looked into the file which was presented by the Director (Judicial) of the Home Department and the Court found that the petition on behalf of Mr. Bleach, received proper attention at the appropriate level and the appropriate authority. All the aspects of the case of Mr. Bleach were carefully considered. The relevant opinion was tendered and is on record. There are discernable reasons why the case of Mr. Bleach has been differentiated and those reasons are neither extraneous nor vitiated by any irrelevant consideration. On the other hand, those reasons are germane for the purpose of consideration by the appropriate authority.
102. It is well known that reasons which weigh with authority in considering a plea of mercy are not and cannot be similar to those which are considered by Courts. The exercise of discretion under Article 72 is at a totally 'different plane from that on which the Court acts' (p. 213 of Kehar Singh in and it is open to the authorities to come to a different conclusion from that recorded by the Court (p. 212 (of SCC) : (at p. 946 of Cri LJ) in Kehar Singh). Such proceedings are executive in character and considerations are of the 'widest amplitude' and of 'myriad kinds' and are 'protean' in nature. The authority is to decide how to best inform itself with all the details and acquaint itself with all the necessary information (See pages 217-218 of Kehar Singh in ).
103. So the comparison made by Mr. Bleach of similarity of charges framed by Court and similarity in matters of sentence between him and the five (5) Russians does not necessarily mean that the discretion by the President under Article 72 will be similarly exercised. The merits of an order passed under Article 72 by the authority cannot be examined unless it falls within the exceptions pointed out in Maru Ram. It does not fall within those exceptions. Therefore, the order cannot be questioned.
104. If the case of Mr. Bleach had been that the prayer of those five (5) Russians were considered on merits and an order of remission had been passed but the petition on his behalf is lying pending and is not even considered, that would have been case of violation of the guarantee under Article 14. Here that is not all the position. The case of Mr. Bleach was considered on merits and the records show that there is a valid basis for a different decision in his case. Therefore, his challenge on the ground of discrimination must fall and it does fail.
105. The other grievance of Mr. Bleach that in view of remission being granted in favour of the live (5) Russians, his legal status vis-a-vis those five Russians has become different is also without any substance. An order of remission merely means that the rest of the sentence need not be undergone, leaving the order of conviction by the Court and the sentence passed by it untouched. This has been made clear in Rabha (supra) and which was followed in Kehar Singh
in the context of Article 72. Remission of sentence assumes the correctness of the conviction but only reduces the punishment in part or whole (See Ram Deo Chauhan v. State of Assam, 2001 Cri LJ 2902, para 55, p. 2922). So all of them -- Mr. Bleach and the five Russians have the legal status of convicted persons by a Court.
106. Therefore, this petition fails. No interference with the order under Article 72 in case of Mr. Bleach is called for and the President's order is upheld.
107. However, this Court makes one thing clear. The expression of opinion in this judgment is confined to the challenge of discrimination made by Mr. Bleach in this petition. It cannot be construed for anything else. I am sure that the learned Judges of the Appeal Court dealing with the appeal of Mr. Bleach against his conviction will proceed with the appeal being totally uninhibited by any opinion expressed in this judgment.
108. There will be, however, no order as to costs.