12 - Chapter 5

Procedural Aspects of the Exercise
of Pardoning Powers
1. Prelude:
The power to grant pardon, no doubt, is an extra ordinary power.
Therefore it is required that this power be exercised by the concerned
authority with great care and caution. The principles of natural justice
demands that this power shall be exercised uniformly in each and every
case. Its beneficiaries shall never be the extraordinary persons exclusively.
Rather it shall be available to all deserving individuals. To achieve this goal
there we need to have a well established statutory uniform and transparent
procedure. Therefore it becomes necessary to study as to how these
powers are exercised by different authorities in whom they are vested. This
has been done by scrutiny of the available cases decided by these
authorities while exercising the power to grant pardon.
2 Exercise of Power by the President:
The extraordinary Constitutional power to grant pardon conferred on
the President of India has become a common topic of national debate in
our country especially after 2006 when the wife of Mohammed Afzal^ filed
Mohammad Afzal, also known as Afzal Guru, was convicted of conspiracy in the
December 2001 attack on the Indian Parliament and was sentenced to death by
the Supreme Court of India in 2004. The sentence was scheduled to be carried
out on 20 October 2006. On filling mercy petition under Article 72 of the
Constitution of India he was given a stay of execution and till date remains on
death row because his mercy petition is still pending for disposal.
265
a mercy petition in tJie office of the President of India. Everyone is anxious
to l<now tiie fate of tJiis case. Since this power is to be exercised only on
the aid and advice of the council of ministers therefore there is definitely an
apprehension that the power can be misused. There is no doubt that this
power can be misused in the same manner as it has been seen in many
instances in the past especially in United States. In United States there are
instances of the exercise of this power even in cases of terrorist, rich
persons and the politicians.
In our country, apart from the apprehension of misuse and abuse of
this power, the delay in disposal of the mercy petition by the President is
another biggest problem. The public in India, who was eagerly waiting for
the decision of the President in Mohammed Afzal's petition, is now afraid
that the Kandhar incident^ may once again get repeated and it is also
apprehended that in case of Kasaab^ also this may happen however it
seems a remote possibility. Therefore in order to find out the loopholes in
the system of pardoning powers exercised by the President it becomes
necessary to find out the status of this power in our country.
2. An Indian Airlines Flight 814 that was an Indian Airlines Airbus A300 en route
from Kathmandu, Nepal to Delhi, India when it was hijacked by five Pakistani
nationals on 24 December 1999. Harkat-ul-Mujahideen, a Pakistan-based
terrorist group, was held responsible for the hijacking. The aircraft was hijacked
by armed gunmen shortly after it entered Indian airspace. After touching down in
Amritsar, Lahore and Dubai, the hijackers forced the aircraft to land in Kandahar,
Afghanistan. Taliban moved its well-armed fighters near the hijacked aircraft in
an attempt to prevent Indian Special Forces from storming the aircraft. The
hijacking lasted for seven days and ended after India released three Islamic
militants — Mushtaq Ahmed Zargar, Ahmed Omar Saeed Sheikh (who was later
arrested for the murder of Daniel Pearl) and Maulana Masood Azhar (who later
founded Jaish-e-Mohammed).
3. Mohammed Ajmal Amir Kasab is a Pakistani Islamic terrorist who was involved in
the 2008 Mumbai attacks. Ajmal Amir Kasab is the only attacker captured alive
by police and is currently in custody. The Government of Pakistan initially denied
that Ajmal was from Pakistan, but in January 2009, it officially accepted that
Ajmal Amir Kasab is a Pakistani citizen. On 3 May 2010, the court convicted him
of murder, waging war on India, possessing explosives, and other charges. On 6
May 2010, the same trial court sentenced him to death on four counts and to a
life sentence to five others.
266
A. Mercy Petition:
As per the Constitution, whenever a crime has been committed and
the person concerned has also been punished by the court of law, he may
present a mercy petition to the President of India under Article 72 of the
Constitution of India, where the matter falls within the ambit of Article 72. In
his mercy petition the person concerned is required to state the grounds
upon which he requests for the grant of pardon. These grounds may not
have any value in the eyes of law for exonerating the accused person from
offence but they may play an important role in the release of the person by
the President. The grounds such as the convicted person is the only bread
earner of the family or the physical fitness of the convict, his age or even
the law was quite harsh or the court by chance committed any mistake or
error inadvertently, may be taken into consideration at the time of disposal
ofthe mercy petition.
It is true that the petition prepared by the convicted person is to be
presented to the President of India. But there is no specific procedure
established for the same. The question as to whether there exited any
procedure for filling and the disposal of mercy petitions was answered by
the Ministry of Home Affairs on August 9, 2008."* The Ministry accepted the
fact that there is no written procedure to deal with mercy petition. The then
Joint Secretary to the Home Ministry Mr. Shashi Bhushan gave this
information to Central Information Commission (CIC) in reply to a petition
filed by a resident of Mumbai Mr. Vats Raj wherein he had demanded the
information saying that "the procedure for examining mercy petitions by the
Ministry of Home Affairs for sending recommendations to the President
without delay is of official importance. He also wanted to know if the
government is considering any proposal to review and revamp the
Thaindian news, (lANS) August 9, 2008, available at:

http://www.thaindian.corri/newsportal/uncategorized/no-written-procedure-to-dea
l-with - mercv-petition-home-ministrv 10081935.html, (Visited on March 20,
2011).
267
procedure to speed up the process of dealing with mercy petitions. In reply
to the first question the Ministry replied that "There is no written procedure
followed for examining power to grant pardon or to suspend, remit and
commute death petitions under Article 72 (of the Constitution, dealing with
the president's sentences to a condemned prisoner), which could be
provided to the appellant."^ The second question was also answered in the
negative. Hence it is clear from the acceptance of the Home Ministry itself
that there is no prescribed procedure to deal with mercy petitions.
In practice, whenever a person is punished by a court of law for the
commission of an offence, he may submit a mercy petition before the
President under Article 72 of the Constitution of India of India.® All such
petitions are received in the President's Secretariat on behalf of the
President and are forwarded to the Ministry of Home Affairs for their
comments and recommendations.^ There is a separate section in the
Ministry of Home Affairs where all these petitions are dealt with in
details.®
Since power of pardon under the constitution is executive in nature
hence there is no question of a personal hearing before the authorities,
therefore this is quite possible that in absence of a prescribed form, the
petitioner who filed a simple application may not provide the complete
information because of illiteracy or unawareness or he may also act
smartly by hiding certain information. The prescribed form will definitely
help the petitioner and the President or the Governor as the case may
be.
5. Ibid.
6. Since there is no procedure prescribed for the presentation of the mercy petition
therefore it is to be filed before the President of India itself as he is the authority
who will decide the mercy petition by virtue of Art. 72. It is basically a simple
application addressed to the President of India.
7. R.N. Mishra, The President of the Indian Republic 117, (Vora and Company
Publishers Private Limited, Bombay, 1965).
8. Ibid; see also Ministry of Home Affairs, available at: http://mha.nic.in/pdfs/
JudlDvnPolPen.pdf. (Visited on March 20, 2011).
268
The position in United States of America is altogether different. If a
person has been convicted for an offence he can apply to the President for
pardon on a prescribed form, which is easily available along with
necessary instructions that are required to be followed.^ Similarly in
England if a person is willing to seek pardon he is to file an application
before the Home Secretary.^° When the United States and England have
already framed the rules for the purpose of filing a mercy petition then why
no rules have been framed by our country, this question still remains
unanswered. The framing of rules is necessary for the purpose of
transparency. Moreover a fair procedure is the natural demand of Article
21 and no procedure itself indicates the possibility of arbitrary exercise of
the power.^^
Thus it can be concluded that unlike the developed countries such
as United States and United Kingdom there is no statutory procedure
established in India for dealing with the mercy petitions. The internal
procedure adopted by the Government of India for dealing with the mercy
petition is discussed hereunder.
a. Filling of Petition:
It is evident that there is no written procedure for dealing with mercy
petitions but in practice, whenever a person is punished, he or his relative
may submit a mercy petition in writing to the President. A convict under the
sentence of death is allowed to file a mercy petition within a period of
seven days after the date on which the Superintendent of Jail informs him
about the dismissal of the appeal or special leave to appeal by the
Supreme Court. But in case where no such an appeal was preferred this
period of seven days is computed from the date next after the date on
9. United States Department of Justice, available at: http://www.usdoi.qov/pardon

/pardon instructions.htm. (Visited on March 20, 2011).
10. Halsbury's Laws of England, Vol. - 8(2) (Butterworth and Co. Publishers Ltd.,
London, 4'" edn. 1996) para 825.
11. Maneka Gandhi v. Union of India, AIR 1978 SC 597.
269
which the period allowed to approach Supreme Court expires.^^ As a
matter of fact it is the duty of the Superintendent of Jail to inform the
convict that if he desires to file a petition. In case the petition is filed within
seven days then it is the duty of the jail Superintendent to stay the
execution of the death sentence. But this does not mean that after the
expiry of seven days a convict cannot file a mercy petition. In such cases it
is the Government of the concerned State who will decide the question of
postponement of the death sentence.^^
Whereas in case of sentence other then death sentence there is no
fix time limit within which the mercy petition under Article 72 is to be filed.
The convict can file mercy petition at any time after the final order or
judgment against him has been passed by the court.
All these petitions are received in the President's Secretariat on
behalf of the President and are forwarded to the Ministry of Home Affairs
for their comments and recommendafions. As mentioned earlier that there
is a separate section in the Ministry of Home Affairs where all these
pefifions are dealt with in details.
Thus it can be concluded that there is no fixed or prescribed form for
filling the mercy petition. Here it is to be filed in the office of the President
just like a simple application and thereafter the office of the President will
forward the same to the office of Ministry of Home Affairs.
b. Scrutiny of Petition by the IVIinistry of Home Affairs:
After receiving such application the Ministry of Home Affairs
scrufinise the applicafion/petifion. The scrufiny is done on the following
points:
(a). Whether the condemned prisoner has been punished for an offence
for which the Governor of the State concerned has power to grant
12. Government of India, Ministry of Home Affairs, Procedure Regarding Petitions for
Mercy in death Sentence; see Appendix - 1 .
13. Ibid.
270
i A
pardon,
(b). If the offence is pardonable by Governor and whether the applicant
first of all approached the Governor of the concerned State where he
had been punished.^^
On scrutiny if it is found that the offence committed by the person
concerned falls within the pardoning power of the Governor but his
application has already been rejected by the Governor or the offence
committed by him does not fall under the jurisdiction of the Governor then
the Ministry starts working on the Petition. But, if it is found that the offence
committed by the person concerned falls within the pardoning power of the
Governor and he directly approached the President for mercy then the
Ministry of Home Affairs forward the application/petition to the Concerned
Governor.^® This procedure might have been adopted with the intention
that the convicted person shall approach the Governor in first instance and
if he could not get relief there then he can always opt to file a fresh
application in the office of the President. But in case the matter belongs to
a Union Territory, the condemned prisoner has only one authority i.e. the
President to whom he can approach under Article 72 of the Constitution of
India.''^
Thus it can be concluded that a mercy petition under Article 72 is
maintainable only in the following cases:
1. Where the offence committed falls under the pardoning power of the
President of India. It includes the offences committed in Union
territories.
14. Government of India, Ministry of Home Affairs. For details see Appendix - 2. It
contains the letter written under the Right to Information Act, 2005, by the
researcher and the reply thereof given by Ministry of Home Affairs(Government
of India) wide Letter No. 16/1/2010-JUDL. CELL dated 06-07-2010, whereby the
Ministry supplied the requisite information.
15. Ibid.
16. Ibid.
17. Ibid.
271
2. In case the Governor of the State possesses the power to deal with
the mercy petition, the prisoner shall approach the President only
after his first application/petition has been rejected by the Governor.
c. Opinion of Government of State/Union Territory:
Once the scrutiny of mercy petition is complete and it is confirmed
that the petition can only be disposed off under Article 72 of the
Consfitution of India, thereafter, the Ministry of Home Affairs writes to the
concerned State or Union Territory Government to give opinion regarding
the exercise of pardoning power in case of the person concerned.
On receiving such a letter the concerned government is bound to
give its opinion to the Ministry of Home Affairs as soon as possible. But no
specific time period has been fixed for submitfing the opinion. It is also
evident from the case of Afzal Guru whose file remained with the Delhi
government for nearly four years from the date of receipt of the case.^^
The Delhi Government was asked to give opinion in the year 2006 and it
returned the file alongwith the opinion in May, 2010.
One of the reasons for the delay in furnishing the opinion is that the
state government forms the opinion after consulting the Police, the
Directorate of Prosecution, the Probation Officer of the Social Welfare
Department and the local Government e.g. Gram Panchayat Pradhans or
Municipal Councilors, the family of victim etc.
d. Summary For Tlie President:
After receiving the opinion from the concerned government i.e. the
Government of State or Union Territory, the Ministry of Home Affairs
prepares a "Summary For The President'. This document contains the
entire case. Although there is no fix format of this summary but generally it
contains the following:
18. The Hindu: Online edition of India's National Newspaper, Saturday, Jun 05, 2010,
available at: http://www.thehindu.com/2010/06/05/stories/20100605585124
00.htm. (Visited on March 20, 2011).
272
Firstly the name, age parentage and address of the convicted
person are mentioned in the summary and if the petition is filed by some
relative his name and relation with the convict is also necessarily required
to be mentioned in the summary. The second portion contains the entire
facts right from the commission of the crime to the conviction by trial court
and the decisions of the appellate courts approached (if any). The
judgments of all courts are discussed at length. The third part contains the
grounds taken by the petitioner in his petition for seeking the pardon. But
generally the relief can only be granted to the convicted person only if his
plea falls under any of the ground or guidelines followed by the Ministry of
Home Affairs. The next part of the summary contains the scrutiny of the
case on the basis of the grounds mentioned in mercy petition and the
grounds framed by the ministry itself.
Although there are no statutory grounds/guidelines made for
granting pardon but as per the statement of the Ministry itself "the broad
guidelines generally considered while examining the mercy petition under
Article 72 of the Constitution relate to personality of the accused such as
age, sex or mental state of the accused, circumstances of the case,
conduct of the offender, medical abnormality falling short of legal insanity
and so on."^^ In fact the broad guidelines generally considered (while
examining the mercy petition in the Ministry of Home Affairs) states that
the clemency is justified on the following grounds:
I. Personality (such as age, sex or mental deficiency) or circumstances
of the case (such as provocation or similar justification),
ii. Cases in which appellate Court expressed doubt as to reliability of
evidence but has nevertheless decided on conviction.
contains the Letter No. 16/1/2010-JUDL. CELL dated 15-02-2010, whereby the
Ministry of Home Affairs (Government of India) provided ttie information
pertaining to the disposed off and the pending mercy petitions and the Summary
for the President prepared by the Ministry in different cases.
273
iii. Cases in which it is alleged that fresh evidence is obtainable mainly
with a view to seeing whether fresh enquiry is justified,
iv. Where the High Court on appeal reversed acquittal or on appeal
enhanced sentenced?
v. Is there any difference of opinion in Bench of High Court Judges
necessitating reference to third Judge?
vi. Consideration of evidence in fixation of responsibility in gang murder
case.
20
vii. Long delay in investigation and trial etc.
The Ministry has framed these seven grounds where a mercy may
be granted to the condemned prisoner. But there are certain uncertainties
and ambiguities in these guidelines. The very first fact is that it has not
been mentioned that how many grounds out of these seven shall be in
favour of the petitioner. Whether even a single ground will be sufficient or
there shall be two or more grounds in favour of the petitioner. Secondly the
age of the condemned prisoner has not been fixed for the purpose of
mercy.
Another defect in it is that the long delay in the investigation and trial
has not been specified. It has also not been mentioned whether the period
during which the convict was absconding after the commission of crime
shall be included in the delay.
The ground number (iv) provides that if the High Court reversed the
judgment or enhanced the sentence but it does not say anything about the
fact that if the supreme Court will do the same then whether the convict
may get the relief. And the ground number (v) provides that if there is a
difference of opinion in Bench of High Court judges whereas it does not
say anything about the same in Supreme Court.
The major defect in these guidelines is that the government is not
20. Ibid.
274
bound by these guidelines. These are basically the internal grounds that
may or may not be taken into consideration as these grounds are not the
statutory guidelines. As mentioned earlier that the ministry has accepted
that no guidelines have been framed for the exercise of the power and this
lack of guidelines is a major cause of concern.^^
Finally the last part of the Summary for the President contains
the recommendations regarding the acceptance or rejection of the petition.
These recommendations are made after considering the case of the
condemned prisoner under the seven guidelines framed by the Ministry.
Thereafter the Ministry forwards the brief summary of the entire case
together with the recommendations to the President for final disposal.
On receiving the summary prepared by the Ministry of Home Affairs
the President of India goes through the entire case and takes the final
decision. This order of the President is also contained in the "Summary for
the President" after the "advice" of the Ministry.
While taking the final decision the President, by virtue of Article 1A}^
is bound by the advice of the Council of Minister. It is not only the
Constitution but various judgments^^ of the Supreme Court also confirm it
that the President shall in exercise of his function, act in accordance with
the aid and advice of the council of Ministers. But still he can ask the
Council of Minister to reconsider or review such advice. In nutshell it can
be said that it is a constitutional duty of the President of India to abide by
the decision of the Council of Minister.
Thus it is evident that there is no fixed procedure for the
21. See, supra Chapter III.

22. The Constitution of India, 1950, Art. 74.
23. Maru Ram v. Union of India. (1981) 1 SCC 107, Ketiar Singh v. Union of India,
(1989) 1 SCC 204, Epuru Sudhakar M. Government of Andhra Pradesh, AIR
2006 SC 3385.
24. Supra note 22 Art. 74 Proviso. This proviso was Inserted by the Constitution
(Forty fourth Amendment) Act, 1978, s. 11 (w.e.f. 20-6-1979).
275
presentation of the mercy petition and the guidelines have also not been
framed by the Government of India for the exercise of the power of pardon.
The Ministry of Home Affairs is the real authority who plays a great role in
the disposal of mercy petitions.
B. Factual Matrix of exercise of Powers:
Right from 1950 the different Presidents of India so many times
exercised the power under Article 72 of the Constitution of India. On the
basis of the available Information provided by the Ministry of Home Affairs
one thing is clear that a mercy petition under Article 72 have been filed
only in those cases where a person has been sentenced with death
penalty.^^ The office of the President never received even a single petition
wherein the sentence was less than death. Although there is no bar for
presenting a petition under Article 72 of the Constitution in the cases
involving punishments less than death sentence.
Therefore it can be said that in practice till date the President of
India has been forced to exercise this power under Article 72 only in cases
where the offenders had been punished with death sentence. The exercise
of this power that empowers the President to grant pardon, reprieve,
respite, remission and commutation has been compiled in the Table - 5.1
drawn hereunder:
Table - 5.1
Year Total Par- Rep- Res- Remi- Comm- Reje Total Pen-
Number don rieve pite ssion utation -cted Number
of Mercy of Mercy ding
Petitions Petitions
filed Decided
1981
to 106 0 0 0 0 12 67 79 27
2010
Sourcis: Go>/ernmeint of In die, M inistry c f Home/Affairs (See, App endix -

and 5).
25. Supra note 19.

276
On the basis of the information contained in this Table- 5.1 it is clear
that till date the President of India has exercised only one power i.e. the
power to commute a sentence. In all of the 12 cases the death sentence of
the condemned prisoner had been commuted to life imprisonment. The
important fact that comes out of this table is that unlil<e United States of
America the power to grant pardon, reprieve, respite and remission under
Article 72 has never been exercised by any of the Presidents till date. Now
the question that arises over here is that since these four powers has
never been exercised then what is the use of these powers or why these
powers have been created by the Constitution. It may also be inferred that
till date not even a single case came up for the consideration of any
President in which these powers could have been exercised.
The second fact that needs the attention is the pendency of Mercy
Petitions. The position of disposal of the petitions is contained in the
following Table:
Table - 5.2
Sr. Name of The President Already Mercy Mercy Pendi Perc
No (Term of Office) Pending Petition Petition ng enta
Petitions Received Decided Petitio ge%
ns
1. Sh. Giani Zail Singh 9 36 22 23 48.8
(25.7.1982 To 25.7.1987) 8
2. Sh. R. Venkataraman 23 16 39 Nil 100
(25 7.1987 To 25.7.1992)
3. Dr.Shankar Dayal Sharma Nil 14 14 Nil 100
(25 .7.1992 To 5.7.1997)
4. Sh. K. R. Narayanan Nil 13 Nil 13 0
(25.7.1997 To 25 .7.2002)
5. Dr. A.P.J. Abdul Kalam 13 16 1 28 3.45
(25.7. 2002 To 25.7.2007)
6. Smt. Pratibha Devisingh 28 2 3 27
Patil (July 25, 2007 To )
Source: Government of India, Ministry of Home Affairs (See, Appendix - 4).

This Table-5.2 clearly shows the working of the different Presidents.
The period of 1982 to 1997 can be said to be the golden period that
witnessed the speedy disposal of the mercy petitions by the different
277
Presidents. But the position after 1997 as sliown by this Table is quite
alarming. Right from 1997 to till date, out of 31 Mercy Petitions only 4
petitions were decided and 27 petitions are still pending for disposal. The
oldest Petition pending for disposal is the petition filed by Piara Singh and
three other condemned prisoners who killed 17 persons during a marriage
function of the aggrieved person. This petition was received in the year
1997. After a period of more than 13 years the petition has not been
disposed of. The person who committed a heinous crime in a marriage
function in a country like India has not been punished for so long. Now the
long delay in execution of death sentence falls in favour of the prisoner and
he may claim for the same. It is difficult to understand the policy of delay in
disposal of such a matter.
The most important fact that requires the attention is that this list of
27 pending matters contains the four petitions of those condemned
prisoners who were involved in terrorist activities. The very first case is that
of Murgan and Santhen who were involved in former Prime Minister Rajiv
Gandhi's assassination case. Their mercy petition is pending for disposal
in the office of the President since 2000. The second one is that of
Devender Pal Singh who caused death of 9 persons and injured 29
persons by exploding a bomb. He applied for mercy in the year 2003. The
third one is that of Simon, Ghanaprakash, Madaiah, and Bilavendra who
caused death of 22 police personals by blasting land mines. The petition of
these persons is pending since 2004. And lastly the most debated case of
Mohd. Afzal involved in Parliament attack case whose mercy petition has
been filed in the year 2006.^^
These are the cases that require immediate or prompt action. But it
appears that as if the Government of India is really waiting for another
26. Ibid.
27. Ibid.
278
28
Kandhar incident. It shall be better for the President to decide these

cases by ignoring the serial order based on the date of filling and it will not
amount to an infringement of the Article 14 of the Constitution of India.
Because the Article 14 only prohibits class legislations but permits
29
reasonable classification. Here it is the question of the security of the

State hence at least the cases involving terrorist activities should be
disposed of as soon as possible. Moreover keeping such criminals inside
the prison for so much of a long period Is quite costly e.g. Ajmal Kasab's
detention in jail.^°
Another question arises over here is that who is at fault for delay in
execution of the death sentence. Whether it is the office of the President or
the Ministry of Home Affairs responsible for this undue long delay?
Interestingly out of the total 27 pending matters only 5 matters are under
examination in the Ministry and 22 matters have already been submitted to
the President's Secretariat for final disposal."^^
Therefore it appears from the record that it is the office of the
President who is not putting the efforts for the speedy disposal of the
Mercy petitions and this is also possible that the office of President may be
waiting for a green signal from the government. But on papers it is the
office of the President who is not deciding these petitions.
C. Critical evaluation of the Cases Decided by the President:
It is evident from the ongoing study that there is no specific
28. Supra note 2.

29. Chiranjit Lai Chowdhary v. Union of India, AIR 1951 SC 41 followed in Budhan
Chaudhary v. State, AIR 1955 SC 191, Bidi Supply Company v. Union of India,
AIR 1956 SC 479, Kedamath Bajoria v. State of West Bangal, AIR 1953 SC 404,
Ram Krishan Dalmia v. Justice Tendolkar, AIR 1958 SC 538, Dharam Dutt v.
Union of India, AIR 2004 SC 1295.
30. Kasab continues to bleed India, Hindustan Times, Vol.- LXXXVII No. 123, May
25, 2011. As per this newspaper a staggering Rs. 10.87 crore has been spent on
guarding 26/11 terror convict Ajmal Kasab. This bill is for the period March 28,
2009 to September 30, 2010.
31. Government of India, Ministry of Home Affairs, supra note 19.
279
procedure enacted by the Government and the statutory guidelines have
also not been framed. In absence of proper procedure and the guidelines
the apprehension of misuse of powers is inevitable. Hence it is necessary
to scrutinise the cases decided by the President of India under Article 72 of
the Constitution.
As per Table 5.1 the different Presidents of India have decided 79
mercy petitions right from 1981 to till date. Out of these 79 cases the
President of India accepted only 12 mercy petitions where as 67 petitions
were rejected. But the Ministry of Home Affairs supplied the complete
information of 19 cases only. Out of which in 6 cases the President
accepted the mercy petitions and in remaining 13 matters the petitions
were rejected. All these cases are evaluated hereunder:
a. Cases wherein sentence has been commuted:
The six cases in which the President granted relief by commuting the
death sentence into life imprisonment are discussed hereunder:
i. C. K. Banker Case
The very first case in which the President of India accepted the plea
of mercy is the case of Mr. Chandrakant Krishna Bankar.^^ Basically the
facts of the case are that the Petitioner C. K. Bankar was convicted and
sentenced to death under Section 302 of Indian Penal Code, 1860 for
double murder of Gajanan Shankar Chogle (20 Years) and his mother
Smt. Shantabai Dinkar Bankar {50 Years). The Incident took place on 11-
09-1980 when the petitioner, who was a priest of a temple and also an
agriculturist, had gone to the temple. He had a gun with him. From the
temple he reached the field where the deceased Gajanan was sitting on a
stone. There was some altercation between them with regard to water for
irrigating their respective fields as both of them used same natural water
source for irrigation. The petitioner fired the gun at Gajanan as a result of
32. Ibid.
280
which he fell down. The petitioner reloaded the gun and fired again at him,
and he died.
On hearing the shouts, Shivaji and his mother Shantabai, who were
in another field, rushed toward the spot. The accused opened fire on them
also, injuring Shivaji. Thereafter, even though Shantabai pleaded for mercy
with folded hands, the petitioner fired twice at her and injured her. On
hearing loud shouts, some persons arrived at the spot. They gave them
some water and took them to the hospital. Shantabai succumbed to her
injuries. The weapon of the offence i.e. the gun, the empties and other
articles were recovered.
The learned Trial Court on 30-05-1981, opted for the extreme
penalty of death in this case. The court cited the following reasons:
he not only took the life of Gajanan but also took the life
of Shantabai, who was coming there for his help. He has used
deadly weapon like a gun which he had brought for the
protection of the crop but used the same for taking the lives of
human beings. He took the lives of two persons in the said
incident in the broad day light using the said gun illegally.
Beahng in mind the facts regarding pre-planned and
calculated cold-blooded murders in question and the real
intention behind this incident, I think the accused does not
deserve leniency.
The petitioner filed appeal against the orders in the High Court. The
High Court agreed with the findings of the trial court and confirmed the
death sentence on 28-09-1981. While confirming the death sentence the
High Court gave the following reason:
It is a ghastly crime and it shows the criminal, a well
determined and ready to-finish anyone person, using a
weapon like gun. Hardly, we have any material to come to the
conclusion that would indicate even smallest traces of
reflecting consideration or slightest compunction. For firing five
shots, the gun must have been loaded five times. That itself
shows a determined degenerate criminal mind. This objective
33. Ibid.
281
factor throws flood of light both on the criminal as well as on
the crime. He had a structural will to kill and nothing else. It is
merely coincidence that Shivaji sun/ived and the gunner could
not get at the vital parts, but the firing appears to be, as the
evidence shows, from a closer range and, therefore, it is
reasonable to infer that every time the accused loaded the
gun, his hand did not shake and he could not get at the vital
parts probably because the object which he aimed at was
moving or he had no adequate skill. Had there been the
slightest trace of compunction or of humane consideration,
there would be enough time available to such a person before
every time the gun was loaded and fired. The very fact that the
loading and firing were resorted in such repetitious times
shows a hardened killer whose mind did not move nor his will
deflected from the object. No reflections, no thoughts and no
mercy. As must happen in such cases, against the first victim,
as we have indicated above, two shots were fired one after
another, while against the other two, at least three shots were
resorted to. Thus, we are satisfied that this is a case where
legally the penalty of death is the only adequate and
appropriate penalty.^^
Aggrieved with the decisions of the Trial Court and High Court the
petitioner approached the Supreme Court twice in Special leave petition
and Review Petition. Both of these petitions were dismissed by the
Supreme Court on 05-04-1982 and 29-07-1982 respectively. Thereafter he
applied for mercy under Article 161. In his petition he took the following
grounds:
(i) There was enmity between the prisoner and the deceased because
of land dispute and, therefore, he purchased the gun for self
protection,
(ii) The deceased Gajanan and Shantabai, who were having deadly
weapons such as sickle and iron bar, rushed at him with a view to
beat him. He got frightened and with an intention to protect his own
life he reluctantly fired at both,
(lii) The charge-Sheet against him was "framed".
34. Ibid.
282
(iv) At the time of the incident, he was young and immature. He has a
young wife, a young brother and two small children and there is no
body to look after them. ^^
The State government went into the depth of the case and looked
into the merits of the case as well. After examining the entire case the
State Government came to the conclusion that the grounds taken by the
petitioner for mercy were ought weighed by so many factor. The State
Government itself specifically mentioned the following factors responsible
for rejection of the mercy petition:
(i) The petitioner used a deadly weapon like a gun, which he had
obtained for protection of crops, for taking the life of two persons
including a woman,
(ii) The murder of Gajanan was pre-planned, calculated and cold-
blooded,
(iii) Although the petitioner is a young man, an equally important factor is
that he killed a young man, i.e., Gajanan, and further attempted to
murder another young man, viz. Shivaji.
(iv) He murdered Shantabai, a middle-aged lady, in spite of the fact that
she prayed to him for mercy, with folded hands,
(v) Actually there would have been three murders but it was the grace of
God that Shivaji go{ good medical treatment and survived,
(vi) The plight of the family of the deceased is no way going to be
different from that of the petitioner's family.^^
Accordingly, the Governor of the State rejected the mercy petition.
Finally the President of India was approached under Article 72 by the
petitioner as well as his wife in separate petitions. The wife of the petitioner
contended that she herself is of 20 years and her husband is also very
35. Ibid.
36. Ibid.
283
young and that she has been bed ridden for the last two to three years.
She has also stated that her husband did not commit these murders
deliberately but through Anger it happened. The Ministry of Home affairs
considered all relevant facts including the decision of the respected Courts,
the decision of the Governor and the grounds taken in mercy petitions. The
Ministry found that two grounds were in favour of the petitioner. The very
first one was the age of the petitioner and the other one was the delay of
more than 6 years as the order of death sentence was passed by the
Learned Trial Court in May, 1981.
In spite of the two forgoing circumstances, the Ministry of Home
Affairs recommended to the President to reject the mercy petition because,
the Ministry agreed with the observation of the High Court that the
petitioner's youthful age was outweighed by the "cruel and callous
character of the crime as well as by the determined "dare doing" actions of
the criminal".
The President in spite of rejecting the petition asked the Ministry to
review the decision on the basis of the observation of the Supreme Court
in T. V. Vatheeswaran,^^ Sher Singh^^ and Javecf Ahmed^^ cases.
So far as the Vatheeswaran case^^ is concerned the Division Bench
of the Supreme Court ruled that the delay exceeding two years in
execution, whatever may be the reason for delay, should be a ground for a
prisoner under the sentence of death to invoke Article 21 of the
Constitution and demand the quashing of his sentence of death into life
imprisonment. But within a period of two months this decision of the Court
was overruled by the three Judges Bench in Sher Singh Case.^^ The
Bench observed that apart from the fact that the rule of two years did not
37. T. V. Vatheeswaran v. State of Tamil Nadu, AIR 1983 SC 361.

38. Sher Singh v. State of Punjab, AIR 1983 SC 465.
39. Javed Ahmed Abdul Hamid Pawala v. State of Maharashtra, AIR 1983 SC 231.
40. Supra note 37.
41. Supra note 38.
284
seem to accord with the time generally occupied by proceeding in the High
Court, Supreme Court and before the executive authorities. No absolute or
unified rule could be laid down in every case in which there was long delay
in execution of death sentence, the sentence must be substituted by the
sentence of life imprisonment.
In the last case"*^ that was cited by the President the two Judges
Bench of the Supreme Court although questioned the correctness of the
Sher Singh Case but, without pursuing this view further, converted the
two year and 9 months old death sentence into life imprisonment taking
into consideration other factors, namely the young age of the prisoner, his
remorse, his desire to make amends for the harm he had caused and a
report from the jail authorities that they had nothing adverse to say against
his conduct in the jail.
The Ministry of Home Affairs looked into the matter in accordance
with the guidelines framed by the President and decided to commute the
sentence of death into life imprisonment on two grounds namely, Firstly the
delay of seven years since the death sentence was imposed. The Second
ground that was in favour of the petitioner was the young age of the
petitioner. The Ministry specifically observed that "the other extenuating
factor is that this petitioner was only 21 years of age at the time of the
commission of the offence."'*^
Thus it appears that the main factor that played a great role for the
commutation of the petitioner was the delay of seven years because the
recent decisions of the Supreme Court in Vatheeswaran^^ and Javed
Ad
Ahmed cases emphasised on commutation of sentence if there is undue
42. Supra note 39.

43. Supra note 38.
45. Supra note 37.
46. Supra note 39.
285
delay in execution of death sentence. Aitiiougii the judgment in
Vatheeswaran case wherein the Court framed two years deadline was
overruled in Sher Singh case^^ case but still the delay in execution worked
in favour of the petitioner as at that particular time the seven years delay
was sufficient for the commutation of the sentence especially when the
division bench of Supreme Court commuted a 2 years and 9 months old
death sentence into life imprisonment in Javed Ahmed case.^^ It indicates
that the Supreme Court is of the view that if the two years delay is not
enough for commutation of sentence then 2 years and 9 months are
sufficient for the same.
ii. Nana Bhau Chormale Case:
The second case wherein the President ordered the commutation of
the death sentence into life imprisonment is that of Nana Bhau
49
Chormale. In this case the Petitioner Nana Bhau Chormale was

convicted and sentenced to death under Section 302 of Indian Penal
Code, 1860 by the Trial Court on 20-03-1982. The Bombay High Court on
14-02-1983 dismissed his appeal and confirmed the death sentence. His
special leave petition and subsequent review petition were dismissed by
the Supreme Court on 24-10-1983 and 15-12-983 respectively. His mercy
petition under Article 161 had also been rejected by the Governor of
Maharashtra. Lastly he approached the President for mercy under Article
72 of the Constitution of India.
Basically the facts of the case are that the petitioner an ex
serviceman had served the military for 15 years. He, on 28-05-1981,
intentionally and knowingly caused the death of five persons, by using a
licensed gun. The five murders were committed at three different sites. As
a matter of fact the petitioner had taken umbrage at the remarriage of one
47. Supra note 38.

48. Supra note 39.
286
Nanibai, cousin of Navrutti Narayan Tule. There was a custom and
tradition that the women of Chormafe and Tule families did not remarry. He
felt insulted by the act of Nanibai and was brooding over it. He stopped
attending any marriage among the '"Btiaubands" (kinship) in which Nanibai
was also invited. On a few occasions when he found that Nanibai was
present at the marriage venue, he had been known to have left the venue.
On 25-05-1981 Navrutti's daughter got married and the petitioner, who had
also been invited to it and also assured that Nanibai would not attend the
marriage, found her in marriage pandal and had left it along with some of
his Bliaubands, without taking dinner.
The adjoining fields of petitioner and Navrutti were irrigated from the
same water source. On 26-05-1981, Dada son of Navrutti, went to his
father's field to water it. The petitioner obstructed him and said that "he had
a gun to show Navruttf. Thereafter an FIR was lodged against the
petitioner. On 28-05-1981, Navrutti alongwith ten other persons (including
four who subsequently died at the hands of the petitioner) went to the field
to remonstrate with the petitioner. When the petitioner arrived there he
suggested that they shall go to the Bhauband, Namu Stiankar Ctiarmole
and accordingly they did the same. But there during argument they were
about to come to blows. Then Shankar and the petitioner's father
intervened and succeeded in confining the petitioner in a room. Later
everyone disappeared and the petitioner also escaped.
On the same day, when Navrutti alongwith some other persons was
in the field of Btiau Slianl<ar Charmole, the petitioner suddenly appeared in
front of them with a gun. Despite their prayer for mercy, the petitioner
made them stand in a line. He killed two persons and injured one. Rest of
the person ran away but he started chasing them. He killed two persons
while they were running. But the rest of the persons made good escape
through a sugarcane field. Thereafter the petitioner went to the house of
287
Bhau Shankar Chormale. He shot at and caused grievous hurt to Bhau
Shankaran6 also killed his son on the spot.
Opting for the death penalty for the petitioner, in preference to the
lesser sentence of life imprisonment, the trial court expressed the opinion
that the death sentence was the only penalty which he observed to be
adequate. The Court observed that"
He restored to firing without any justification
or excuse fie was "Architect of Cruelty". The acts
done by the accused were determined the incident
took place at three different places went to his house
and returned with the gun and sufficient quantity of
ammunition ''
When the petitioner appealed before the High Court he could not get
any relief there as well. The High Court also agreed with the Trial Court
and observed that the killing was "cold and brutal", the action of the
petitioner demonstrated his "depraved mind", the crime committed by him
was "so dreadful in character" that it demanded the "most emphatic
denunciation of law, viz. death penalty" and that "nothing less can atone for
this transgression of law".
Later the petitioner approached the Supreme Court twice but that
was once again of no use as the Apex Court did not pay any heed to the
contentions of the petitioner. Thereafter the petitioner filed a mercy petition
before the Governor of Maharashtra. The main grounds taken by the
petitioner in his mercy petition are as under:
(i) He killed these persons in self defence because they along with
others were out to kill him.
(ii) The prisoners have seven dependents, viz. his father (70 years),
wife (30 years) and five children (including one daughter ranging
from 5 to 15 years of age) and that he is the sole bread winner of the
family without whom the whole family is facing starvation.
50. Ibid.
288
He had served the military for 15 years.^^
The petitioner could not get any relief here as well. The Governor
rejected the mercy petition, after taking into consideration the fact that the
petitioner had committed these murders at three different places in cool
and deliberate manner. More over on one occasion he made his victims
line up and shot them down despite the pleas of mercy and he also chased
some of his victims when they had run away and had provided himself with
an abundant supply of ammunition. So far as his ground of self defence is
concerned the State Government pointed out that none of the petitioner's
victims was armed, thereby ruling out the plea of self defence.
In his supplementary mercy petition he pleaded that during service in
military 5 medals were awarded to him. But the State Government refused
to interfere in their earlier decision not to give mercy to the petitioner
because the medals given to him were routine awards and were given to
all military personnel in the absence of anything serious against them.
Finally the petitioner approached the President under Article 72. As
a matter of fact three mercy petitions were filed. One by the petitioner
himself and the second one by the wife and lastly the villagers also filed a
mercy petition. In these petitions in addition to the grounds taken before
the Governor some more grounds for mercy were taken, which are as
under:
(i) As yet no ex-military man has been hanged,
(ii) The unfortunate incident took place in a heat of passion and
emotional outbreak which was basically a result of provocation,
(iii) The petitioner has no monitory or personal gains to be made out of
the acts,
(iv) He has been giving the villagers guidance in all respect and made
himself available for help of villagers and was used to come to
51. Ibid.
289
rescue to everybody,
(v) The villagers were used to honour him on the Independence Day
and Republic Day on which occasion he would deliver a lectures for
joining the Indian Army by villagers.^^
In this matter one more petition was presented before the President
by some other villagers in which they opposed the exercise of power by
the President of India under Article 72 of the Constitution on the ground
that the earlier petition filed by the villagers has basically been filed by the
Choremale community.
The Ministry of Home Affairs considered the grounds taken by the
petitioner and the different cases decided by the Supreme Court especially
53
that of Bachan Singh in which the Court gave verdict that the death
sentence shall be awarded only in rarest of rare cases and found the case
of Nana Bhau to be one where the death penalty is the only sentence that
is appropriate. It was observed that:
The petitioner i<illed five persons at three different
places turning a deaf ear to the pleas of mercy from his
victims. He came prepared to kill a number of persons
because he had still 11 live cartridges with him after firing six
times. The evidence shows that the petitioner hit his victims on
the left sides of their chests thereby clearly establishing the
fact that he wanted his victims to die. He had to reload his gun
every time which he did coolly and deliberately. The entire
affair smacks of extreme brutality. All his years in the military
service do not seem to have benefited him in the matter of
maintaining self-control. He indulged in an extravagant display
of temper and ran amok with the gun. All this for no real
reason. He seems to be an extremely dangerous
54
person.
Hence the Ministry recommended to the President that the petition
shall be rejected. But the case of the petitioner was sent back by the
52. Ibid.
53. Bachan Singh v. State of Punjab, AIR 1980 SC 898.
290
President for reconsideration. As a matter of fact this case was sent back
alongwith the case of Chandra Kant Bankar^^ on the same day and by the
same covering letter requesting the Ministry to reconsider its decision on
the basis of the decision of the Supreme Court in T. V. Vatheeswaran,^^
Sher Singh^^ and Javed AhmecT'^ cases.
The Ministry reconsidered the entire case as per the directions of the
President and in this case also the Ministry, just like in case of Chandra
Kant Bankar, decided to commute the sentence of death into life
imprisonment. Here also the major factor that worked in favour of the
petitioner was the delay in execution of death sentence. There was a delay
of six years since the death sentence was imposed on him. The other
favourable factor that has been quoted as an extenuating factor by the
ministry was that the petitioner had a good military service record and was
given some medals, and has also been helping the villagers.
It can be concluded that the major ground for commutation of a
death sentence which emerges out from the decision in these two cases
and which was a common ground in both of these cases, is the delay in
execution of death sentence. In both of these cases the delay played a big
and great role. The other grounds of young age and a good previous and
present character are also important factors for extenuating the sentence.
All these factors outweighed the fact of gruesome, cold blooded, pre-
planned murder.
iii. Kheraj Ram Case:
The other case in which the President commuted the death
sentence was that of Kheraj Ram who committed brutal murder of his own
family members which included his wife Amru, his brother-in-law, and his
55. See, supra head note C. K. Bankar Case.

56. Supra note 37.
57. Supra note 38.
58. Supra note 39.
291
two daughters Meera and Kesi.^^ The brief facts of the case are that on the
intervening night of 9**" and 10*^ October, 1992 Kheraj Ram went to the
house of his neighbor, Gaina Ram at 2.00 am and informed him that
somebody had beaten his wife daughters and the brother-in-law who were
sleeping in his house and blood was coming out of their bodies. Gaina
Ram went to the house of Kheraj Ram and found the truth in the incident
narrated by Kheraj Ram.
Thereafter, Gaina Ram went to the house of Dhaula Ram and
informed him about the incident which was narrated to him by Kheraj Ram
and it was found true by him. Later both of them called other persons of
the nearby houses. An FIR was lodged by Dhaula Ram. The name of
accused was not mentioned in the FIR. During the investigation it was
found that Kheraj Ram was the perpetrator of the crime and therefore he
was arrested. The arrest of the accused also led to recoveries of various
articles such as the weapon of offence, the blood stained Dhoti of the
accused etc.
The Learned Trial Court found him guilty for the offence under
Section 302 of the Indian Penal Code and while convicting him the Court
placed reliance over the following facts:
(i) The recoveries of articles,
(ii) The conduct of the accused was found abnormal as he was smoking
the Chilam when the witnesses from the nearby house came at the
scene of the occurrence and the four dead bodies were lying in the
house of the accused,
(iii) The motive that the accused was suspecting the fidelity of his wife
Amru.
(iv) The quarrel took place between the accused and deceased, which
was heard by two witnesses.
292
(v) The accused, after committing the murder took up the shoes of the
deceased Achia and went to the house of his mother-in-law.
(vi) He was last seen in the house alongwith the deceased.®°
An appeal against the judgment was filed by the accused in the High
Court. The High Court after hearing the detailed deliberations from both
sides, held that the prosecution has failed to establish the case against the
accused. The Court said that it was hazardous to convict Kheraj Ram and
confirm his sentence of death imposed by the learned Trial Court. The two
Judges Bench of the High Court acquitted the accused of all charges
leveled against him. Therefore an appeal against the judgment was
preferred in the Supreme Court by State of Rajasthan.
The Supreme Court after hearing the contentions of both sides came
to the conclusion that the circumstances highlighted by the prosecution
present the complete picture which completely rules out the role of any
other person and unerringly as well as inevitably point the finger at the
accused and in that view of the matter the trial Court was justified in
convicting the accused and consequently the High Court was in error in
reversing the conviction.^^ The Court set aside the judgment of the High
Court and confirmed the judgment of the Trial Court.
The Governor of Rajasthan rejected the mercy petition of the
accused hence he filed another mercy petition in the office of the President
of India. He took the grounds that he is 54 years old, poor and weak fellow.
He was falsely implicated in the case and the persons who implicated him
in this false case are living freely. It was also submitted that he has a small
child and no one is there to look after him.
The Ministry of Home Affairs examined the case on the guidelines
framed by itself which contains seven grounds that justify the clemency.
Out of these seven ground two grounds i.e. (ii) and (vii) were in favour of
60. Ibid.
61. State of Rajasttian v. Ktieraj Ram, Al R 2004 SC 3432.
293
the petitioner. As per the ground (ii) the basic requirement is that there
shall be some doubt in the mind of the appellate court. The benefit may be
given to an accused under this ground even if he has been convicted by
the appellate court despite the doubt. But in this case the court completely
exonerated him of all charges. The case of the accused was strong for the
requirement of ground (vii) wherein the delay in execution of death
sentence is most important. In this case the Ministry itself pointed out that
the crime was committed in the year 1992 and the legal proceedings were
completed in the year 2003 when the Supreme Court confirmed the death
sentence. The investigation and trial took approximately 11 years which
was considered to be slightly a long period. Hence the Ministry
recommended the commutation of the death sentence into life
imprisonment.
This was the third case in which the delay in execution of death
sentence played a big role for commutation of sentence. Although the
judgment of High Court was equally a strong point for the commutation but
the delay came for rescue of a condemned prisoner for the third time and
made the case very strong for sympathy consideration for grant of mercy
to the prisoner under Article 72.
iv. R. Govindasamy Case:
Another case in which the President issued orders of commutation of
death sentence was that of R. Govindasamy who was charged with the
murder of his uncle aunt and three cousins on May 29, 1984.^^ The Trial
Court acquitted him on the ground that the charges were not proved
beyond reasonable doubt. But the High Court found him guilty and
awarded the death sentence. The Supreme Court dismissed the appeal of
the Petitioner on September 9, 1997. The Court observed that:
The brutal manner in wtiicii the appellant wiped out the
entire family of his uncle (except one of his sons) obviously to
294
grab his properties iias shocked our judicial conscience.
Nonetheless, we looi^ed into the record to find out whether
there was any extenuating or mitigating circumstances in
favour of the appellant but found none.^^
The petitioner approached the Governor for mercy under Article 161
but the Governor rejected the mercy petition. Thereafter the petitioner
approached the President under Article 72. The Ministry of Home Affairs
advised the President to reject the mercy petition. Accordingly the
President did the same and the order was conveyed to the State
Government. But once again so many mercy petitions were filed by
different persons including the family members of the petitioner.
The Ministry entertained the petitions and once again recommended
the rejection of the same. But the President instead of rejection opted to
accept the petition. The President on September 30, 2005, recorded the
decision in the following words:
"I have carefully studied the mercy petition proposal
sent for my consideration in respect of R. Govindasamy, I find
that the accused was acquitted by the Court of First Trial on a
rather compelling ground of there being no eye-witness to the
murder and that the one of the former Attorney General had
opined that since the entire case of prosecution rested on
circumstantial evidence, the benefit of clemency could be
extended to the accused. The function of the law as a medium
of reform and not just that of punishment is well recognised. I
feel that the accused can be allowed the opportunity of
undergoing a self-reformatory exercise. I am therefore inclined
to accept his mercy petition and commute his death sentence
to life long imprisonment (i.e. for the rest of his life) and that
during his incarceration in prison, he may receive periodic
counseling from spiritualist and moral leaders which could
help reform his personality and mental psyche. This may be
considered.'
Notwithstanding the above, the decision was not communicated to
63. Govindasamy v. State of Tamil Nadu, Al R 1998 SC 2889.

295
the State Government and no order was passed. Later when the matter
was resubmitted, the Ministry after discussion with the Prime Minister in
the year 2009 decided to pay respect to the decision of the then President
taken on September 30, 2005 and advised the President to commute the
sentence of the prisoner R. Govindasamy. And accordingly the President
passed the orders of commutation of sentence. The decision of the
President recorded on September 30, 2005 appears to be a clear violation
65
of the Article 74 that binds the President to follow the decision of the
Ministry. But the only thing that is appreciable is the decision of the Council
of Minister to pay respect to the decision of the President.
Coming back to the merits of the case, it is the lack of direct
evidence in the case that favored the petitioner. The President took into
consideration the advice of the Attorney General who was of the opinion
that since the entire case of the prosecution rests upon the circumstantial
evidence, the benefit of clemency could be extended to the accused. Thus
in this case one more ground has been added to the list of the grounds for
mercy contained in the guidelines framed by the Ministry of Home Affairs.
Thus to conclude it can be said that the petitioner basically got the
relief of non availability of direct evidence in his case. He was punished
solely on the basis of the circumstantial evidence. Hence the President
found it a fit case for the exercise of the power under Article 72 and
thereby added a new ground for the commutation of sentence of death.
V. Shyam Manohar and other's Case:
The President of India, Smt. Pratibha Patil, on July 15, 2010 decided
two more mercy petitions and in both of these cases the death sentences
of 8 persons were commuted to life imprisonment. In the very first case the
death sentence of Shyam Manohar and five other condemned prisoners
65. The Constitution of India, supra note 22 Art. 74.
296
was commuted by the President. In this case new grounds of revenge
and oppressed community were included. Basically in this case five
persons were killed by a group of 24 persons who were tried by the Trial
Court. Out of these five deceased persons the heads of two persons were
chopped off and one child of 10 years was tossed alive into smoldering fire
and consequently he died. The trial court passed a sentence of death
against four persons and called the act to be a cold-blooded, pre-planned
and calculated. The Hon'ble Court imposed the penalty of life
imprisonment on 13 accused persons and acquitted seven persons. On
appeal filled by both of the parties i.e. the prosecutions and the convicted
persons the High court confirmed the sentence of four already convicted
with the death sentence and in addition the court enhanced the
punishment of life imprisonment of three convicts to death sentence. On
appeal to the Supreme Court the sentence of one of these three
convicts was converted into life imprisonment but the remaining six
convicts could not get relief and the Supreme Court confirmed their death
sentence.^^
All of these six convicts filed a mercy petition before the Governor
but the same was rejected on the ground that they committed a heinous
crime by severing the heads of their victims and by throwing one of them
into fire while he was alive. Hence they approached the President under
Article 72 on the ground that they all belong to extremely poor Harijan
family, they have small children, young wives and they have been
wrongfully implicated in case out of social malice and groupism in village.
The case was considered by the Ministry of Home Affairs and it was
recommended that their sentence may be commuted into life
contains the Letter No. 16/1/2010-JUDL. CELL dated 16-08-2010, whereby the
Ministry of Home Affairs (Government of India) provided the Summary for the
President prepared by the Ministry in two cases.
67. Shri Ram v. State of Utter Pradesh, AIR 1998 SC 49.
297
imprisonment. The IVIinistry observed that:
The mitigating circumstances are tlie age of the accused/
sentenced persons at the time of commission of the
offence and the fact that they belong to the Passi (Hahjan)
community and the crimes were committed as an act of
revenge against the earlier murder of Chandrika Passi. The
sub-text of the case is that there was oppression and
persecution by the Brahmin community of the Passi (Hahjan)
community in the village. Three of the six persons (namely,
Ravindra, Rajindera and Prakash) who have been sentence to
death were originally sentenced to life imprisonment and it is
the High Court which enhanced the sentence to one of
death^
Thus in this case the death sentence was commuted into life
imprisonment on four grounds out of which one was old and the three were
new concepts. The old ground that provided the benefit to the convicts was
the age and whereas the new grounds were the oppressed community i.e.
the Harijan Community revenge of the murder and the difference of opinion
of trial court and High Court. The trial court punished three persons with
the imprisonment for life but, the High Court converted the same into death
sentence.
Therefore it can be concluded that the Ministry introduced three new
grounds for the commutation of death sentence into life imprisonment.
That means the Ministry is not bound to follow the internal guidelines for
exercising this power. It can go beyond the guidelines and can provide for
new dimensions.
vi Case of Dharmender Yadav and Narender Yadav:
The last but not the least i.e. the second case that was decided by
the present President Smt. Pratibhasingh Patil on July 15, 2010 is the case
of Dharmender Yadav and Narender Yadav in which the death sentence of
both of them was commuted.^^ Basically the facts of this case are that

69. Ibid.
298
these two persons along with four other persons were charged for murder
of five persons. Although there was no direct evidence but the
circumstantial evidence against them was very strong hence the trial court
awarded death penalty to these two persons and life imprisonment to the
remaining four persons. On appeal the High Court held that the court
below had not committed any error in awarding extreme penalty and the
court upheld the conviction of all the six accused. It, however, rejected the
reference of the Session Judge for confirmation of the death sentence
awarded to Dharmendra Singh and Narendra Yadav and commuted their
sentence to that of life imprisonment on the following grounds:
" the appellants Dharmendra and Nartendra are
languishing in death cell since 3.6.1994 and 28.5.1994,
respectively, i.e. more than three years. Consequently now it
may not be proper to confirm the sentence of death passed on
them by the trial court. "^°
On appeal, the Supreme Court found that although the High Court
had concurred with the reasoning of the Sessions Judge that the crime
was the most dastardly act, involving the death of five innocent persons
but still it commuted the death sentence.^^ The Supreme Court observed
that the sentence was factually incorrect and opposed to accept legal
principles as the High Court failed to exercise its discretion alongwith the
accepted judicial lines. The Supreme Court taking into consideration the
brutality of attack, number of persons murdered, age and infirmity of
victims, their vulnerability and diabolic motive and acts of perversion on the
person of young deceased girl, the Court reversed the judgment of the
High Court and confirmed the sentence of death awarded by the Trial
Court to both of the accused persons.
Both of these accused persons filed a mercy petition before the
Governor but the same was rejected. Thereafter they approached the
70. Ibid
71. State of Utter Pradesh v. Dharmendra Singh, AIR 1999 SC 3789.
299
President on the ground that they had been falsely implicated in the case
and they have to look after their children and family. After going through
the entire case the Ministry of Home Affairs came to the conclusion that:
The circumstances of the case are that there was a
history of bitterness and rivalry between the two families
This was a crime driven by greed, lust and family feud,
not uncommon in many parts of India. Having regards to all
the factors, especially their age and the fact both have been in
prison for 15 years it would be appropriate to commute the
death sentence to one of life imprisonment.^^
Thus in this case as well just like in the previous case of

commutation of death sentence of six persons one of the factor for
commutation was the revenge or rivalry. But the other major factors that
were also responsible for commutation in this case were the age and the
long delay in execution of death sentence.
Therefore on the basis of the study of these six cases it is evident
that in three cases out of these 6 cases, the death sentence was
commuted on the basis of the young age of the accused and the delay in
execution of sentence. But in no case the age and the long delay has been
defined. It also came to light that the grounds or guidelines framed for the
internal guidance are not binding on the ministry. It can decide the matter
on some other grounds as well. The gravity of offence could not play any
role in presence of the grounds cited for commutation by the ministry. In no
case the ministry discussed the effect of the commutation of the sentence
on the family of victim and the society at large.
b. Cases Rejected by the President:
As per the statement of the Ministry of Home Affairs there are as
many as 67 cases In which the different Presidents consider it necessary
to provide no relief under Article 72 of the Constitution of India.^^ Out of

73. For details see Table 5.1 supra.
300
these 67 cases the 13 cases supplied by the Ministry have been
scrutinised hereinafter:
i. Jaiprakash Case:
The very first case that was rejected by the President was that of
Jaiprakash who killed nine persons/"* He was sentenced to death by the
Trial court and he could not get any relief from the High Court and
Supreme Court. His first mercy petition was rejected by the Governor and
finally he approached the President on the ground of young age and delay
of more than three years. While rejecting the mercy petition it was
observed that the petitioner had, within hours, murdered as many as nine
persons, three of whom were tender children and two were young women.
One of the women was his own sister. Although two facts the age of 21
years at the time of commission of offence and the delay of three and half
years in execution of death sentence were in his favour, but still the
petition was rejected.
Thus in this case the gravity of offence was a major factor. Although
the delay was not so long to get relief but the young age was also ignored
by the ministry despite the fact that it is one of those grounds for
commutation of sentence that were framed by the Ministry itself.
ii. Case of Nataraya and Nattuthural:
The second case rejected by the President was that of Nataraya and
Nattuthural who were father and son.^^ They killed four persons and the
reason behind the same was the unequal partition of land between them
because of which both families were used to fight with each other. The trial
court awarded death sentence to them which was confirmed in appeals
before the High Court and the Supreme Court as well. The Governor
rejected the mercy petition and they approached the President on the
basis of the extreme old (63 years) and young age (30 years) on the date

75. Ibid.
301
of filing the petition and tiiat they committed the offence in a spur of
movement because of rivalry. But the contention of both of them was not
accepted. It was observed by the Ministry that:
"these two petitioners tiave done to death in a very
cruel, deliberate and brutal manner four relatives, two of whom
were old man and one was a young woman. Their death
sentences are less than two years. Their contention that they
suddenly lost their mental balance and became agitated and
desperate before committing the murders is not tenable. '"^^
The first defect in this decision was that the Ministry did not go into
the question of the age of the petitioners. Moreover the factor of age is
quite crucial as per the guidelines of the Ministry itself. Secondly the
ministry did not look into the fact of rivalry between them. Although in two
of the recent cases relief has been given by the ministry on the basis of the
rivalry as well.^^
iii. Kehar Singh and Satwant Singh case:
The third case which is of great importance in the history of India,
rejected by the President is that of Satwant Singh and Kehar Singh who
were involved in the assassination of the then Prime Minister Indira
Gandhi^^ Basically the facts of the case are that in June 1984, the Indian
Army mounted an operation known as 'Blue Star Operation' by which the
armed force personals entered the Golden Temple Complex at Amritsar to
flush out the armed terrorists. That operation resulted in loss of life and
property as well as damage to Akal Takht at the Golden Temple. It had
offended the religious feelings of some members of Sikh community. The
accused persons Constable Satwant Singh and Kehar Singh, an Assistant
in the DGS&D who were Sikh by faith expressed their resentment openly.
76. Ibid.
77. See, supra head notes Shyam Manohar and other's Case and Case of
Dharmender Yadav and Narender Yadav.
302
holding the Prime Minister responsible for the action taken at Amritsar.
They became parties to a criminal conspiracy.
On October 31, 1984 when Mrs. Gandhi was on her way to be
interviewed by the British actor Peter Ustinov, she was walking through the
garden of the Prime Minister's Residence and as she passed a wicket gate
guarded by Satwant Singh and Beant Singh, they opened fire. Beant Singh
fired five rounds from his revolver and Satwant Singh fired a stream of
twenty five bullets from his carbine. It resulted in the death of Mrs. Gandhi.
Beant Singh was shot dead by other bodyguards at the scene of the
assassination. Whereas Satwant Singh was arrested by Gandhi's other
bodyguards.
Both of these persons i.e. Satwant Singh and Kehar Singh were
tried by the trial court and were found guilty of murder and conspiracy
thereof and were sentenced to death. The High Court confirmed the death
79
sentence and the Supreme Court also rejected the special leave
petition.^° Both of these convicted persons did not file any mercy petition
but the son of Kehar Singh filed the petition on behalf of his father.
Although the Ministry decided to consider the mercy for Satwant Singh as
well. The main grounds that were in favour of the convicts were the age of
Satwant Singh that was 21 years at the time of commission of the offence
and Kehar Singh was convicted on the sole evidence of a lady who was
kept for two months in custody that was basically a torture chamber.
Moreover the previous record of both of them was excellent and the
offence was committed by them as a revenge for hurting their religious
feelings.
The Ministry took into considerafion all relevant facts and decided for
non interference in the execution orders of these condemned prisoners as
the cases were not found to be fit for clemency or any relief under
79. ibid.
80. Ketiar Singh v. State (Delhi Administration), Al R 1988 SCI 883.
303
Article 72 and the death sentence of both of them was executed
accordingly.
Thus in this case the ministry did not grant any relief despite the
presence of certain facts of young age, revenge, good behaviour etc. But
these facts were over weighed by the fact that it cannot be expected from
a body guard to commit such an offence against the person whom he is
bound to protect. In such a case mercy cannot be exercised on the
grounds mentioned hereinabove.
iv. Krishna's Case:
The fourth case in which no relief was given to the petitioner belongs
to Krishna who on 17.06.1981, committed murder of a child of 4 years and
the father of the child because of the fact that he had suspected that the
father and mother of the child have stolen his mother's ornaments.^^ The
Trial Court punished him with death sentence and so did the High Court.
On appeal although the Supreme Court did not record any reasons for
dismissing the Special Leave Petition, the fact that it did not even give him
limited leave to appeal against the sentence indicates that it was satisfied
that the death sentence is justified in this case. In his mercy petition to the
Governor of Utter Pradesh he pleaded that he is a very poor fellow hence
he could not engage best lawyer for himself and was completely
dependent on legal aid by the court at all stages. He also pleaded that
there was a rivalry because of which he was falsely implicated and his age
was just 25 years at the time of commission of the offence.
The petition was rejected by the Governor on the Ground that the
petitioner committed the heinous offence of murdering in a brutal and
gruesome manner two persons, including an innocent boy, who were
asleep and helpless. Finally when he approached the President under
Article 72 the only ground that attracted the consideration was the long
304
delay in investigation and trial etc. It was found that the offence was
committed on 17.06.1981. The petitioner had absconded and warrants
were issued for attachment of his property under the Criminal Procedure
82
Code. The sessions trial started after more than three years i.e. on
22.08.1985 and the Supreme Court judgment was passed on 25. 03.1987.
The mercy petition presented to the Governor was rejected on 17. 04.1989
i.e. more than two years after the conclusion of judicial proceedings. While
rejecting the mercy petition the judgment of Supreme Court was taken into
consideration in which the Constitutional Bench of the Supreme Court held
that "the time taken in judicial proceedings upto final judicial verdict is to be
83
excluded in considering the delay in execution." Moreover in this case

the convict himself was absconding for more than four years hence the
Ministry did not find the delay to be inordinate and rejected the mercy
petition.
But in this case the offence was committed because of rivalry. The
delay was definitely not in favour of the petitioner but the factor of revenge
also not taken into consideration.
V. Case of Sukhdev Singh and Harjinder Singh:
This case is also related to the "Blue Star operation" wherein the
task of flushing out the terrorists was assigned by the Government to
General A. S Vaidya, who had been assassinated by Sukhdev Singh and
Harjinder Singh at Pune.^^ Both of these persons were convicted by the
Magistrate of Designated Court, Pune, and were sentenced to death. The
case did not come up before the High Court for confirmation of death
sentence. The Magistrate of the Designated Court, Pune recorded in his
judgment that in view of the Special status of Terrorist and Disruptive
Activities (Prevention) Act would have to be submitted to the Supreme
82. The Code of Criminal Procedure, 1973 (Act 2 of 1974), ss. 82 and 83.
83. Smt. Triveniben v. State of Gujrat, Al R 1989 SC 1335.
305
Court of India for confirmation.^^ The Supreme Court confirmed the death
sentence of both of these accused on 15.07.1992.^^ The jail
Superintendent informed them about the confirmation other death
sentence and asked them to file a mercy petition if any within a period of
seven days. But they did not apply for mercy. After some time they wrote a
letter to the President in which they stated that:
This letter of ours may not be mistaken for an appeal.
We have no regrets whatsoever after killing General A. S.
Vaidya. We are not praying for mercy. We do not have an
iota of repentance over our action, instead we are giving a
proof of greatness dauntlessly after this historic event..
However as many as four mercy petitions were filed on their behalf

by different entities namely firstly by a retired judge of Supreme Court,
secondly by District Bar Association, Faridkot, third one by Punjab Sikh
Intellectual Council, Patiala and lastly by Peoples Party of Prants,
Ludhiana. In all of these petitions it was contended that the death penalty
is violation of right to life and the offence has been committed as a revenge
for hurting the religious sentiments of Sikh. All of these petitions were
rejected by the President on the basis of the fact that the grievous crime
was executed with previous planning. The accused persons went all the
way from Punjab/ Rajasthan to Pune with the intention to kill a retired Army
man having glorious career. So far as the fact of hurting the religious
feelings is concerned it was observed that:
The operation Blue Star was not intended to hurt the
religious feelings of the Sikhs. As a loyal and dutiful General of
Indian Army, Shri A. S. Vaidya obeyed faithfully the orders of
the Government of India in carrying out the Operation Blue
Star It was not his personal choice. He did the duty towards
the nation. It was not directed to cause any damage to the
Akal Takht. It was unfortunate that the Akal Takht was
85. Terrorist and Disruptive Activities (Prevention) Act, 1985, s. 17(3).

86. State of Maharashtra v. Sukhdev Singh, Al R 1992 SC 2100.
87. Sypra note 19.
306
damaged in the Operation Blue Star. Ttiis cannot be the cause
for the accused to tal<e revenge on such a great person.^^
Therefore it can be concluded that the ministry did not accept the
plea of revenge in this case as well. Although it accepted that unfortunately
the Akal Takhat got damaged but at the same time it expected from a
common man not to take revenge for the same. The question that arises
over here is that when in the year 2010 the death sentence of eight
persons was commuted to life imprisonment on the basis of rivalry then
why this case was not fit for the same.
vi. Dhananjoy Chatterjee Case:
Dhananjoy Chatterjee was punished by the Trial Court on
12.08.1991 with death sentence for committing rape and murder of 18
89
years old girl on March 5, 1990. He filed a criminal appeal before the
High Court of Calcutta and there was also a Reference made under the
90
Code of Criminal Procedure. The death penalty imposed on the appellant

was confirmed by the High Court and the appeal preferred by the appellant
was dismissed. Feeling aggrieved he filed a special leave to appeal in the
91
Supreme Court but the same was dismissed on 11.01.1994. Thereafter

the President rejected his mercy petition on 09.06.1994. Prior to it the
prisoner had appealed to Calcutta High Court against the rejection of his
mercy petition by the Governor of the State. The High Court had stayed
the execution of the sentence. The Calcutta High Court despite being
informed by the State Government that the President had already rejected
his mercy petition, did not vacate the stay and took nine years in
considering the writ petition challenging the rejection of the mercy petition
by the governor of West Bengal and finally dismissed the writ petition on
14. 11. 2003. Against this order he appealed before the Supreme Court
88. Ibid.
89. Ibid.
90. The Code of Criminal Procedure, 1973, supra note 82 s. 366.
91. Dhananjoy Chatterjee v. State of West Bengal, (1994) 2 SCC 220.
307
and the Court asked to place the mercy petition before the Governor. The
Governor rejected the petition on 31.05.2004 and fixed a date for
execution of sentence, but meanwhile a few mercy petitions were filed on
behalf of the prisoner and he himself filed a writ petition®^ in the Supreme
Court. But since the execution of death was postponed by the government
hence the court vacated the stay granted by it in the writ petition filed by
the prisoner.
The President once again rejected the mercy petitions. The offence
was committed in the year 1991 but the last mercy petition was decided on
03.08.2004. That means there was a delay of 13 years. The Ministry
justified the delay on the basis of repeated appeals filed by the convict.
The judgment in this case itself came for help of the Ministry that provides
that the delay caused due to filing of the present special leave petitions
shall not be taken as a ground by the appellant for commutation of his
93
death sentence before any judicial fora. Moreover the 1989 judgment of
Supreme court also says that the time consumed in judicial proceedings
94
shall be excluded.
The other facts in favour of the accused for mercy were the age that
was 22 on the date of occurrence and his improved conduct. But it was
observed that the prisoner do not deserve the sympathy of the President
and the petitioners have only made an attempt to scuttle the process of
execution of the sentence hence there are no factors or grounds for
President to exercise mercy under Article 72.
vii Bheru Singh Case:
In this case the condemned prisoner Bheru Singh committed murder
of his wife and five children because some village people told him that a
Rajput lady was having an affair with a Gujar and since there was only one
92. Dhananjoy Chatterjee v. State of West Bangal, AIR 2004 SC 3454.

93. Ibid.
94. Smt. Triveniben, supra note 83.
308
family of Rajput in tine village and that was the accused himself hence he
killed his entire family including the children aging between 2 to 14 with the
95
sword. The Trial Court punished him with death sentence and the High
court confirmed the same. The Supreme Court also found the death
penalty the only appropriate sentence. The court after taking into
consideration the dastardly act and the most wanton way of killing of the
deceased observed that:
This needlessly suspicious husband, doubting the fidelity of
his wife Smt. Kajor Bai and suspecting her of having an affair
with someone did not stop short at severing slaughtering her
but went on a murdering spree and murdered hisfive children
also one after the other for no rhyme or reason. The young
innocent children aged between 2 to 14 years were murdered
in most brutal manner for no fault of theirs. He chased the
children and murdered them. The entreaties by his brother's
wife Smt. Ratan Bai to spare at least the last child, also went
96
unheeded by the accused.
The Supreme Court also observed that the barbaric gruesome and
heinous type of crime which the accused committed is a revolt against the
society and an affront to human dignity. The Governor rejected the mercy
petition and finally he approached the President on the grounds that he
was just 40 years of age and was falsely implicated in the case and he has
two widowed sisters and their children and a young brother to look after.
While rejecting the petition it was observed that the prisoner
committed most heinous, cold blooded and gruesome murders. When
even the lower species like animals and birds would take all steps to
protect their progeny, the convict fell down to such depth of depravity as to
slaughter his own wife and five children, only on some suspicion. The
grounds of plight of his widowed sisters and their children are no grounds
for mercy. But the Ministry forgot to consider the fact that the offence was

96. Bheru Singh v. State of Rajasthan, (1994) 2 SCC 467.
309
committed in the year 1988 and the trial court convicted him on 1^* may
1989. Thus there was a delay of six years. But the ministry did not take it
for consideration.
viii. Suresh Chandra Bahri Case:
In this case as well the husband Suresh Chandra Bahri with the help
of two other persons killed his wife and after two days he killed his two
children for which he was punished with the death sentence by the trial
court and the same was confirmed by the High Court.^^ The Supreme
98
Court also upheld the death sentence. The mercy petition filed before the
Governor was rejected hence finally he approached the President for
mercy. The petitioner pleaded that the evidence has not been examined
properly by the court and the other co-accused were not awarded with
death penalty.
The Ministry went into the merit of the case and looked into the
evidence and found no discrepancies by the court in appreciating the
evidence and found that the murders of wife and children were committed
as a result of deep rooted criminal conspiracy. These murders were not
committed in a spur of movement but were simply the cold blooded
murders. So far as the question of co-accused having been let of is
concerned it was found that they had turned approver hence there was no
question of awarding the death penalty to these persons. Taking into
consideration the circumstance of the case the petition of the condemned
prisoner was rejected.
Thus the case has rightly been rejected by the ministry as there was
no justified ground for the commutation of the death sentence of the
convict.
ix. Case of T. G. Shankar and Eldin:
In this case T. G. Shankar who was the leader of a gang of criminals

98. Suresh Chandra Bahri v. State of Bihar AIR 1994 SC 2420.
310
was sentenced to death by the trial court alongwith two of the member of
his gang namely Eldin and Shivaji who were arrested on 06.07.1988 and
99
15.08.1988. He was also running the business in illicit arrack and later he
started the brothel business as well. He was very cruel and ruthless and
was such a character who would not hesitate to eliminate those who
interfered or obstructed his criminal activities. The six deceased persons
incurred his wrath and were done to death by him and his associates, and
their dead bodies were either buried or otherwise made to
disappear. These murders were committed at different places and at
different times.
The High Court while confirming the death sentence of all of these
three persons observed that:
the facts and circumstances in this case reveal
that in all the six murders, the victims were helpless and
undefended and they are cold gruesome in nature, diabolic in
conception and extremely cruel in execution which shows that
the accused persons are hardened criminals and have no
respect for law and they committed all these murders to wreak
100
vengeance.
The Supreme Court when approached by the accused persons also
rendered the same opinion and said that the crime indulged was
gruesome, cold- blooded, heinous, atrocious and cruel and has proved to
101
be an ardent criminal and thus a menace to the society. But the Court
while deciding the quantum of punishment confirmed the death sentences
of T. G. Shankar and Eldin and converted the death sentence of Shivaji
into life imprisonment. These two convicts filed a mercy petition before the
Governor which was rejected on the grounds that the case had been
already been examined in details by various courts and no extenuating
circumstances were found. The Tamil Nadu Government forwarded the
99. Supra note 19.

100. Ibid.
101. Shankar v. State of Tamil Nadu, (1994) 4 SCC 478.
311
mercy petitions to tiie President. Tine IVIinistry of Home Affairs after tailing
into consideration the judgments of all the courts found that the grounds for
mercy are not new and have already been examined by the courts and the
Governor except the one that they should be pardoned for the sake of their
family and children. While disposing of the petitions the Ministry observed
that the petitioners do not seem deserving for mercy on any ground.
Although the Ministry remained silent about the delay of almost seven
years from the date of the arrest.
X. Ravji Case:
In this case Ravji was convicted by the trial court for murder of five
persons including his wife and three children and an old man who was his
102
neighbor. These five murders were committed at three different places.

The accused was punished with death sentence by the trial court which
was confirmed by the High Court^°^ and the Supreme Court^°^ also upheld
the sentence. His mercy pefifion was rejected by the Governor of
Rajasthan. Thereafter his mercy petition was forwarded by the State
Government to the President. The pefitioner took the plea that it was a
mischievous conspiracy which is clear from the facts that there was no
direct evidence of murder of his wife and children and moreover the mofive
of the murder of all five people has also not been proved. He also took the
ground of young age i.e. 23 years. The Ministry took into considerafion the
judgment of all the courts and decided to reject the pefifion. Although the
grounds taken by the petifioner were very strong but sfill it was observed
that none of the exisfing broad guidelines laid down for considerafion for
grant of mercy is attracted.
On a comparison of this case with that of R. Govindasamy case it
can be concluded that the facts of both cases are almost same. In both of

103. Ibid.
104. Ravji V. State of Rajasthan, Al R 1996 SC 787.
312
these cases the accused persons killed five persons each and were
convicted on the circumstantial evidence. In the first case i.e. the R.
Govindasamy case the sentence of death was converted into
imprisonment for life but in the other case no relief was given.
xi. Uma Shankar Case:
In this case Uma Shankar also just like Ravji attacked his entire
family with the help of a sword resulting into the death of wife and two
daughters, 16 and 10 years old and causing serious injuries to the
105
remaining three children of 12, 10, and 7 years old respectively. He was
sentence to death by the trial Court. The High Court confirmed the
sentence which was upheld by the Supreme Court.^°^ He addressed a
mercy petition to the Governor and the President jointly. The Governor
rejected the same and forwarded the petition to the President. The main
grounds of mercy pleaded were that he was just 37 years old and he is a
very poor, physically and mentally weak and moreover uneducated having
no knowledge of the existing laws of the land and the sole bread earner of
the family. His brother and father also filed mercy petitions. The brother
pleaded that he was not in a sound mental condition on the day of the
incident, whereas the father claimed that he himself is not In a position to
take care of the children and his son was the only bread winner of the
family.
The Ministry called for the report from the hospital where the
accused remained for more than five months for mental treatment. As per
this report the accused was not suffering from any mental disorder. So far
as the ground of care and protection of children is concerned the Ministry
said that the father who tried to kill his children cannot be expected to
provide any care or protection to them. Therefore all petitions were
rejected accordingly.
106. Ibid.
313
xii. Surja Ram Case:
In this case the petitioner Surja Ram was punished with death
sentence by the trial court for the murders of four persons of the family of
107
his own brother including the brother as well. The High Court confirmed
the sentence^°^ and the same was upheld by the Supreme Court.^°^ His
mercy petition presented to the Governor was rejected and the same was
fonwarded to the President. In his mercy petition he pleaded that he had
been falsely implicated in the case and he was an old man of 51 years.
Moreover there was no direct evidence against him. The other petition was
filed by the father of the condemned prisoner who was 86 years old. He
pleaded that his son was an illiterate person. He appealed that after the
death of one of his son and the confinement of the other his third son who
is already married is not taking care of the remaining family. Hence there is
no one to look after the old parents and the remaining family members of
the deceased son and the son confined in prison.
The Ministry after taking into consideration the judgments of the
courts and the grounds for mercy pleaded came to the conclusion that the
case of the prisoner does not fall under any category of the grounds
framed by the Ministry itself and rejected the petitions accordingly.
xiii. Kamta Tiwari Case:
In the last but not the least case in which the President refused to
provide any relief under Article 72, the accused Kamta Tiwari who
committed rape and murder of seven year old gild was sentenced to death
by the Trial Court.^^° The High Court dismissed the appeal in its totality
and confirmed the sentence.^^^ His sentence was also maintained by
the Supreme Court while dismissing the
107. Ibid.
108. Ibid.
109. Surja Ram v. State of Rajasthan, AlR 1997 SC 18.
111. Ibid.
314
appeal.^^^ His mercy petition was forwarded by the State Government after
its rejection by the Governor. In his petition he pleaded that the entire case
of the prosecution was based on the circumstantial evidence. Interestingly
alongwith this ground he pleaded that he felt full remorse for all his acts
and has been leaving a life of regrets. He also claimed that he is the only
member of the family who is earning livelihood for the entire family
including the 70-80 years old parents, a wife and a son (10 years) and a
daughter (7 years).
Another mercy petition was filed by the wife of the prisoner wherein
she pleaded that her husband has falsely been implicated. She pleaded
that they are very poor and have neither land nor property nor any
provision for money whereas the other party was rich.
The Ministry looked into the matter and found that the chain of
circumstances of evidence were very strong against the convict and the
offence committed was very grievous and moreover the case of the
accused was not falling under any of the categories mentioned in the
guidelines framed by the Ministry. While rejecting the petition it was
observed that the convict was not a deserving candidate for the sympathy
of the President and there were no mitigating circumstances in favour of
the accused.
Thus to conclude it can be said that the power to grant pardon under
Article 72 practically is being exercised by the Ministry of Home Affairs. It is
the Ministry that plays a great role in deciding the mercy petition. So far as
the delay in disposal of mercy petition is concerned it is this ministry who is
responsible for the same. It is the fault of the Ministry that no rules have
been framed for the exercise of the power. Moreover no statutory
guidelines have been framed and the internal guidelines are not binding.
The cases decided by the ministry clarify that if one person got relief on
112. Kamta Tiwari v. State of Madhya Pradesh, AlR 1996 SC 2800.
315
one ground the other person may not be entitled for relief on the same
ground.
3. Exercise of power by Governor:
The Constitution of India, just like in case of the presidential power to
grant pardon, does not specify any procedure or specific guidelines to be
followed for the purpose of the exercise of the pardoning power by the
Governor of concerned state. In absence of such guidelines the states are
following their own pattern for dealing with the power to grant pardon.
Some of the States are working without any specific procedure but a few
states have established their own review boards for dealing with such
matters. ""^^
The main task of this review board is to recommend the premature
release of the condemned prisoner. The board considers the application of
the prisoner and scrutinise the same on the basis of the specified
guidelines prescribed for the premature release. The board is empowered
only to deal with the matters of premature release of the life convicts.
Specific guidelines are framed to deal with such matters. As per these
guidelines the power under Article 161 can only be exercised in cases of
life convict prisoners suffering from terminal diseases like cancer, TB
irreversible kidney failure, cardio, respiratory disease, leprosy and any
other infectious disease etc. The extreme old age is also one of the
grounds for the premature release under Article 161 of the Constitution of
India in these States.^^'^
The functioning of the review board cannot be questioned as it is
working on specified guidelines and following a specific procedure. The
only defect in this system is that the board is only dealing with the
premature release of life convicts. In other words only the power to grant
113. Himachal Pradesh, Sikkim, Nagaland, West Bengal, Tamil Nadu and Delhi have
established a Sentence Review Board in their respective states.
114. Supra note 19.
316
remission is being exercised by the Governor with the help of the sentence
review board. Although under Article 161 the Governor is having as many
as five powers i.e. the power to grant pardon, reprieve, respite, remission
and commutation. But only one power is being exercise by the Governor
on the recommendation of the review board and the remaining four powers
are being exercised without any specific procedure or guidelines.
Practically, a person who is willing to seek pardon under Article 161
can file a mercy petition in the office of the Governor of the concerned
state. The office of the Governor manages to forward the mercy petition
received from the convict to the Ministry of Home Affairs of the State. The
Ministry of Home affairs considers the mercy petition and accordingly
advice the Governor to accept or reject the mercy petition. The Governor
being bound by the aid and advice of the council of minister,^ ^^ acts
according to the advice of the Ministry.
In absence of procedure and guidelines there is definitely an
apprehension of misuse and abuse of the power. The Supreme Court itself
quashed in two cases the orders of the respective Governors of Utter
Pradesh^ ^® and Haryana declaring the orders to be arbitrary, irrational and
based on extraneous consideration.^^^ In order to stop the misuse of the
pardoning power there shall be some national policy to deal with the mercy
petitions.
4. Exercise of power by Courts:
As discussed in the previous chapter the Courts in our country
exercise the clemency powers in four types of cases. Firstly, in cases of
accomplices, secondly in cases of appeals, thirdly in cases of capital
punishments to pregnant women and lastly under the law of probation. In
case of pregnant women no specific procedure or guidelines are required
115. The Constitution of India, supra note 22 Art. 163.

116. Swarn Singh v. State of Utter Pradesh, A!R 1998 SC 2026.
117. Satpal V. State of Haryana, AIR 2000 SC 1702.
317
as it is the demand of humanity that we shall not hang a pregnant woman.
More over the High Court while exercising this power has no discretion. It
is bound to exercise this power. The court is bound to exercise the power
to commute the sentence immediately after knowing the fact of pregnancy.
In case the court exercises the power to grant pardon to an
accomplice it is bound by the procedure prescribed in the Code of criminal
Procedure itself under Section 306 and 307. Under the code it is
compulsory that the pardon shall only be granted to a person in respect of
the offence for which he had been charged as an accused. But the pardon
shall never be granted to the main culprit. Hence the person who is least
guilty is the best candidate for pardon. Such a person who agrees to
become an approver has to appears as a witness in the trial before
Magistrate. As per Section 306 his statement is required to be recorded
twice. Firstly, when he agrees to become a witness. His statement is
recorded as per the provisions of Section 164 of the Code of Criminal
Procedure as confession. The reason for recording the statement under
Section 164 of the Code is that the statement made by the accomplice is
basically a confession. In this statement he accepts that he was an
accomplice alongwith others. After recording the statement of the
accomplice under Section 164 once again he is called for making the
statement. This time he will have to appear as a witness before the trial
court. The trial court is bound to ask the accomplice about the statement
under Section 164 made by him. The accomplice once again narrates the
entire episode before the trial court. Thus the statement of accomplice is
required to be recorded twice.
While exercising the power to grant pardon to an accomplice the

court is bound to record reasons. It is one of the cardinal principles of law
that the Magistrate shall record the reasons for the orders passed by him.
It is necessary to find out the genuineness of the order. It is only the
speaking order that can easily be scrutinised, but if the order is passed
318
without recording the reasons, one can infer the existence of the mala fide
intention behind the order or the misuse of the power.
So far as the recording of the reasons under Section 306 and 307 of
the Code of Criminal procedure is concerned the Patna High Court had
observed that:
The Provision for tiie recording of reasons is mandatory
and the omission to record reasons may result in quashing the
grant of pardon. If the breach of the provision is challenged at
the earliest stage, it should be rectified.^^^
Thus as per this judgment recording of reasons is mandatory while

granting or refusing the tender of pardon. Magistrate is bound to record
reasons. If no reasons are recorded the whole order of the Magistrate may
be quashed. Moreover if the breach of this condition is challenged at the
earliest stage it is the duty of the court to rectify such an error. But it is not
necessary that in all cases if the reasons are not recorded it will result in
quashing the orders. It is so because the Patna High Court used the words
"may result in quashing the grant of pardon".
But the law of recording of reasons had already been settled by the
Privy Council and it is still binding.^^® It has been held by the Privy Council
that the failure on the part of the Magistrate to record reasons for tendering
pardon to the approver is merely an irregularity which does not affect the
120
right of the accused to be tried by the Sessions Judge. Moreover the

omission to record acceptance of tender of pardon was also held to be a
mere irregularity.^^^
Therefore it can be concluded that the Magistrate shall record the
118. Prabhat Rajan Sarkary. State ofBitiar, 1974 Cri. L.J 957 (Pat.).
119. The Supreme Court of India held in Prittam Singh v. State, AIR 1950 SC 169 that
the law declared by the Privy Council shall be binding upon the High Courts and
other lower courts even after the commencement of the Constitution until
overruled by the Supreme Court.
120. Bawa Faquir Singti v. Emperor, AIR 1938 PC 266 at 270.
121. S. Raman, 1979 Cri. LJ. (NOC) 185 (Kant.).
319
reasons for granting or refusing the pardon under Section 306 or 307 of
the code. Because everyone expects that the judiciary shall do its job
properly and in accordance with law. But in case of failure to record the
reasons the right of accomplice does not come to an end.
The other procedural requirement, in cases of pardon to an
accomplice, is contained in Section 306(4). It requires that the person
accepting the tender of pardon shall be examined as a witness and shall,
unless he is already on bail, be kept or detained in custody until the
termination of the trial. The basic object behind this detention in custody
has been explained by the Supreme Court in the following words:
It is no doubt true that clause (b) of Section 306(4)
directs ttiat the approver shall not be set at liberty till the
termination of the trial against the accused persons and the
detention of the approver in custody must end with the thai.
The dominant object of requiring an approver to be detained in
custody until the termination of the trial is not intended to
punish the approver for having come forward to give evidence
in support of the prosecution but to protect him from the
possible indignation, rage and resentment of his associates in
a crime whom he has chosen to expose as well as with a view
to prevent him from the temptation of saving his one time
friends and companions after he is granted pardon and
released from custody. It is for these reasons that clause (b) of
Section 306(4) cast a duty on the Court to keep the
approver under detention till the termination of the trial and
thus the provisions are based on statutory principles of public
policy and public interest, violation of which could not be
tolerated.^^^
Therefore the detention of the accused is mandatory especially

when the Supreme Court called it to be a principle of public policy. Hence
an order releasing the approver on bail in contravention of sub section 4(b)
is illegal and is liable to be set aside.^^^ Thus it can be said that the
provisions of Section 306(4) are of special nature and override the general
122. Suresh Chandra Bahri v. State of Bihar, AIR 1994 SC 2420 at 2435.
123. Mukesh In re, AlR 1958 AP 165.
320
provision of bail contained in Section 439 of the Code of Criminal
Procedure, 1973. Merely because the accused persons facing trial having
been released on bail is no ground to subvert or circumvent the mandatory
provisions of Section 306(4) (b).^^'*
This provision is binding not only on the lower courts but is equally
applicable on the High Courts as well. The High Court has no inherent
power to release an approver on bail.^^^ Therefore in view of Section 306
{4)(b), an approver in custody is not statutorily entitled to bail till the trial is
over, but under the inherent power High Court may grant bail if the period
of detention exceeds the period of sentence had he been convicted.^^^
Thus to conclude it can be said that the power to grant pardon to an
accomplice is exercised by the courts in accordance with the provisions of
the code and the decisions of the Hon'ble High Courts and the Supreme
Court. The higher judiciary took care that the trial court shall act within the
limits prescribed by law.
The other power of the court is that of suspension of execution of
sentence under Section 389. It is also required to be exercised in
accordance with the provisions of the procedure code. This power can only
be exercised under Section 389 by the court whether it is the trial court or
127
appellate court or it is the court of conviction.
The court may suspend the sentence under this section. The word
'may' under this section cannot be interpreted as containing mandatory
1Pft 129
provision It is a discretionary power. But while exercising this power

the court is bound to record the reasons. The question of the importance of
recording of reasons was dealt with by the Supreme Court in a latest
124. Dev Krishan v. State of Rajasthan, 1984 Cri. L. J. 1142.

125. Mehra v. State. AIR 1958 Punj. 72.
126. Noor Taki v. State of Rajasthan, 1986 Cri. L.J. 1488.
127. See, supra Chapter IV.
128. Beguram v. Jaipur Udyog Ltd., 1988 Cri. L.J. 1452 (Raj.).
129. P.P. Motiammad\/. State of Kerala, 2006 Cri. L.J. 1906 (Ker.).
321
judgment wherein it was held that the requirement of recording of reasons
is one of the essential ingredients of Section 389 for order of suspension of
execution of sentence or an order of release of accused if the accused is in
130
confinement. The requirement of recording reasons in writing clearly

indicates that before passing order there has to be careful consideration of
relevant aspects and the order directing suspension of sentence and grant
of bail should not be passed as a matter of routine.^^^ Merely, because the
convicted person filed an appeal to challenge his conviction, the court
should not readily suspend the operation of conviction, and the court has a
duty to look at all aspects including the ramification of keeping such
132
conviction in abeyance.
The last field where the court can exercise the power to grant pardon
is that of release on probation. As discussed in the previous chapter an
offender may be released on probation either under the Code of Criminal
Procedure or under the Probation of offenders Act, 1958. Under the code
the court may exercise this power in cases of first offenders, under certain
circumstances, to release the accused who has been convicted on
probation of good conduct. There is no specific procedure laid down in the
code for the exercise of this power. The court may exercise this power on
the request of the offender and before exercising this power it is bound to
hear the prosecution. This code does not require the report of any officers
like probation officers under the probation act. Once the court is satisfied
that the person deserves to be released it may pass the order.
The situation under the probation of offenders act is different. The
court is to exercise this power on the basis of the report of the probation
officer. This probation officer conducts an inquiry regarding the behaviour
130. Vasant Tuka Ram Pawar v. State of Maharashtra, 2005 AIR SCW 2199: 2005
Cri. LJ. 2531.
131. /d, at 2532.
132. Mayu Ram Subramanian Srinivasan v. Central Bureau for Investigation, 2006
AIR SCW 6365 at 6370.
322
etc. of the offender and records the statements of different persons
including the Panchyat Pradhan, members of Municipal Councilors etc.
The report submitted by the Probation Officer is a confidential document. It
remains between the court and the officer. The court while releasing the
offender may put him under the supervision. If the court does it then it shall
narrate the terms and conditions to the receipent.^^^
Under both of the statutes a few procedural aspects are same. This
power to release an offender can be exercised only in case of first
offenders. Such offenders can be released only after the offence
committed has been proved. The orders of release can be issued by the
court who convicted the offenders or the appellate court may also exercise
this power while entertaining the appeal.
5. Exercise of power by Appropriate Government:
There are as many as two different legislations i.e. the Code of
Criminal Procedure^"^^ and the Indian Penal Code^"^^ that confers the same
power to grant pardon on the appropriate Government. The Sections 54 to
55A of the penal code provides for the same power to commute the
sentence which is contained in Sections 433 and 433A of the procedure
code. Both of these legislations empower the appropriate government to
exercise the power to commute a death sentence or to commute the
imprisonment of life. The code of criminal procedure also contains the
power to grant remission under section 432.
Just like the constitutional power to grant pardon, there are no
specific statutory guidelines provided for the exercise of the power under
both of these Codes. Although the sub-section (2) of the Section 432
provides that the government may invite the opinion of the court that
actually sentenced or confirmed the sentence of the person concerned for
133. Probation of Offenders Act, 1958 (Act 20 of 1958), s. 4(4).

134. The Code of Criminal Procedure, 1973, supra note 82 ss 432 and 433.
135. Indian Penal Code, 1860 (Act XLV of 1860), ss 54 and 55.
323
the purpose of deciding the premature release of such person. But the
reference under sub-section (2) is not mandatory and non compliance with
it would not render the order without jurisdiction because the words "may
require" used in this sub-section do not impose an obligation on the
Government and the later not bound to consult the High Court in every
136
case.
The cases where the Government seeks the opinion of the court in
such cases it is not bound by the opinion of the court as there is no
statutory duty on the Government to accept the opinion of the Court.^^^ But
certainly, while taking a different view, the appropriate Government will
have to justify reasons. It is clear that the power of the Government to
grant remission or suspension of the sentence is discretionary. The opinion
of the court even if favours the applicant can bestow no right to be
enforced.
Beside this provision there is no statutory provision for the guidance
of appropriate government. Although a few states have established
advisory boards for the purpose of premature release of the life convicts.
But for the purpose of remission under section 432 of the Code of Criminal
Procedure each and every state is having its own prison rules or the jail
manuals. The different states are having different rules for remission as
well as for the premature release of the prisoners. Even the National
Human Rights Commission also admitted this fact of disparity and differing
standards applied by various states in considering the cases of prisoners
138
serving custodial sentences for premature release.
In order to ensure that, as far as possible, a greater uniformity of
standards is established and achieved the commission evolved certain
136. Hukum Singh v. State of Punjab, AIR 1975 Punj. 148 at 158.
137. Jaswant Singf) v. State of Punjab, AIR 1967 Punj. 155 at 157.
138. National Human Rights Commission Letter No. No. 233/10/97-98 dated 08-11-
1999 available at: http://nhrc.nic.in/webtest/hr In prisons.pdf. (Visited on April 3,
2011).
324
broad criteria after taking into account the practices and procedures
existing in various States. On 08-11-1999 the Human Rights Commission
forwarded the guidelines to all states and asked them to implement the
same in the following words:
These guidelines shall be implemented by the
States and wherever the existing provisions of the rules are
inconsistent with any of the aforesaid guidelines the State
Government shall make appropriate modifications in the rules
and implement the guidelines so that there is uniformity in this
regard throughout the country. A report shall be had within six
139
weeks.
Despite the same it was found by the commission itself that the
states are not following the uniform standards for remission and premature
release of the convicted prisoners.^"^^ Even at present the different
parameters are being followed by the states. It is a clear case of violation
of Article 14 of the Constitution of India. The Constitution provides only
single citizenship to we people. In other words each and every person is
an Indian and not a Punjabi, Himachali or Marathi. On papers we are
Indians but the treatment for release from the prison is different in states.
In practice, for a relief under these provisions a prisoner may file an

application before the appropriate government. There is no specific form
prescribed for this purpose. The government may also exercise this power
on its own motion as well. It is the Ministry of Home Affairs who deals with
such type of matters. As mentioned above that some of the Governments
have established sentence review boards as well. These boards consider
the cases of the prisoners for the premature release. Generally the
eligibility for premature release that may be taken into consideration by the
board are as under:
1. Every convicted prisoner whether male or female undergoing
139. Ibid.
140. "Guidelines on Premature release of prisoners- addressed to all Chief
Secretaries/Administrators of States/ Union Territories", 3 JNHRC 138-40 (2004).
325
sentence of life imprisonment and covered by the post provisions of
Section 433A Code of Criminal Procedure shall be eligible to be
considered for premature release from the prison immediately after
serving out the sentence of 14 years of actual imprisonment i.e.
without the remissions.
2. All other convicted male prisoners undergoing the sentence of life
imprisonment shall be considered for premature release after they
have served at least 14 years of imprisonment inclusive of remission
and after completion of 10 years actual imprisonment i.e. without
remissions.
3. All other convicted female prisoners undergoing the sentence of life
imprisonment shall be considered for premature release after they
have served at least 10 years of Imprisonment inclusive of
remissions and after completion of 7 years actual imprisonment i.e.
without remissions.
4. Convicted prisoners undergoing the sentence of life imprisonment
on attaining the age of 65 years provided he or she has served at
least 7 years of imprisonment including the remissions.
5. The convicted prisoners undergoing the sentence of imprisonment
for life and who are suffering from terminal diseases like cancer,
T.B., AIDS, irreversible kidney failure, cardio respiratory disease,
leprosy and any other infectious disease etc. as certified by a Board
of Doctors on completion of 5 years of actual sentence or 7 years of
141
sentence including remissions.
If the board finds that the prisoner is eligibility under any of the
above mentioned grounds then it may forward the case with the
recommendations to the Ministry of Home Affairs. But it has nowhere been
mentioned that the ministry is bound by the recommendations of the
141. National Human Rights Commission, supra note 140. The National Human
Rights Commission proposed the same eligibility for the premature release.
326
review board. The ministry takes the final decision and accordingly it
forwards the file to the Governor for the approval. The governor is bound
by the advice of the ministry as per Article 161 of the Constitution of India.
Beside these powers the State governments are having power to
make rules for the purpose of remission, furlough or parole under the
prison act. For these purposes the states are having set procedure under
Jail Manuals or some other statutes. These statutory provisions are
binding on the government. Hence there is no question of non-compliance
of these statutory provisions. The only but major problem with these rules
is that they are not uniform in our country. The different states are following
their different rules for different purposes.
6. Exercise of power by the Officers of the Armed Forces:
As discussed in the previous chapter that there are as many as five
legislations dealing with the armed forces of our country providing for the
exercise of the power to grant pardon. The power contained in these
legislations is also unguided that means no specific guidelines have been
framed for the exercise of this power by the officers of the armed forces.
This fact has been admitted by the respective offices of the armed
forces. Moreover these authorities are exercising these powers on merit
only. That means these officers are working like an appellate authority
only.
On the basis of the information obtained under the right to
information it has been revealed that either this power has not been
exercised or in case where this power has been exercised no person
142. For details see Directorate General, National Security Guard (Administrative
Branch), Letter No. A-401 (21)/4/2005-NSG/2227 dated 30-08-2010 (Appendix -
6), Directorate General, Indian Tibet Border Police, Letter No. 1-
45011/16/2009/JAG-900 dated 16-08-2010 (Appendix - 7), Air Officer-in-charge
Administration, Letter No. Air HQ/23401/204/4/1602/E/PS dated 26-08-
2010(Appendix - 8), Ministry of Defence (Navy), Letter No. DL/0812/689 dated
04-08-2010 (Appendix - 9).
143. For details See Appendix - 6 and 7.
327
could get the relief.^"^^ The reason behind the same may be that the
officers are exercising these powers on merits only. If this power has not
been exercised and if it is to be exercised on merit then there is no fun in
keeping this power in books for the officers of armed forces. The power to
grant pardon is altogether different from the exercise of the power of
deciding a criminal case. In other words the grounds of mercy are different
from the grounds of conviction or acquittal.
7. Conclusion:
In India, in absence of a national policy, the power to grant pardon
contained in so many different statutes is being exercised by the
authorities, except the courts, without any specified guidelines and
moreover no specific or uniform procedure has been adopted for dealing
with the matters of pardon. Different authorities are following their own
procedures and the manner of dealing with the petition is also different.
Neither the legislature nor the executives felt it necessary to frame the
specific procedure and guidelines.
The pendency of mercy petition before the President of India is one
of the major problem. The petitions remain pending for years in the office
of the President. In last 14 years only 4 petitions were disposed of. This
delay in the disposal of mercy petitions is helping the convicts only.
144. For details See Appendix - 9.
328

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Procedural Aspects of the Exercise

Thaindian news, (lANS) August 9, 2008, available at:

9. United States Department of Justice, available at: http://www.usdoi.qov/pardon

21. See, supra Chapter III.

Sourcis: Go>/ernmeint of In die, M inistry c f Home/Affairs (See, App endix -

25. Supra note 19.

Source: Government of India, Ministry of Home Affairs (See, Appendix - 4).

Kandhar incident. It shall be better for the President to decide these

reasonable classification. Here it is the question of the security of the

28. Supra note 2.

37. T. V. Vatheeswaran v. State of Tamil Nadu, AIR 1983 SC 361.

42. Supra note 39.

Chormale. In this case the Petitioner Nana Bhau Chormale was

47. Supra note 38.

55. See, supra head note C. K. Bankar Case.

59. Government of India, Ministry of Home Affairs, supra note 19.

62. Government of India, Ministry of Home Affairs, supra note 19.

Notwithstanding the above, the decision was not communicated to

63. Govindasamy v. State of Tamil Nadu, Al R 1998 SC 2889.

65. The Constitution of India, supra note 22 Art. 74.

68. Government of India, Ministry of Home Affairs, supra note 66.

Thus in this case as well just like in the previous case of

72. Government of India, Ministry of Home Affairs, supra note 66.

74. Government of India, Ministry of Home Affairs, supra note 19.

81. Government of India, Ministry of Home Affairs, supra note 19.

excluded in considering the delay in execution." Moreover in this case

However as many as four mercy petitions were filed on their behalf

85. Terrorist and Disruptive Activities (Prevention) Act, 1985, s. 17(3).

Code of Criminal Procedure. The death penalty imposed on the appellant

Supreme Court but the same was dismissed on 11.01.1994. Thereafter

92. Dhananjoy Chatterjee v. State of West Bangal, AIR 2004 SC 3454.

95. Government of India, Ministry of Home Affairs, supra note 19.

97. Government of India, Ministry of Home Affairs, supra note 19.

99. Supra note 19.

neighbor. These five murders were committed at three different places.

102. Government of India, Ministry of Home Affairs, supra note 19.

112. Kamta Tiwari v. State of Madhya Pradesh, AlR 1996 SC 2800.

115. The Constitution of India, supra note 22 Art. 163.

While exercising the power to grant pardon to an accomplice the

Thus as per this judgment recording of reasons is mandatory while

right of the accused to be tried by the Sessions Judge. Moreover the

Therefore the detention of the accused is mandatory especially

provision It is a discretionary power. But while exercising this power

124. Dev Krishan v. State of Rajasthan, 1984 Cri. L. J. 1142.

confinement. The requirement of recording reasons in writing clearly

133. Probation of Offenders Act, 1958 (Act 20 of 1958), s. 4(4).

In practice, for a relief under these provisions a prisoner may file an

144. For details See Appendix - 9.

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