Chatterjee Alias Dhana Vs. State of West Bengal & Ors  Insc 209 (26 March 2004)
Balakrishnan & B.N. Srikrishna.
out of S.L.P. (Crl.) Nos. 497-498 of 2004] K.G. BALAKRISHNAN, J.
appellant, Dhananjoy Chatterjee was found guilty of offences punishable under
Sections 376, 302 and 380 of the Indian Penal Code by judgment dated 12.8.1991
of the IInd Addl. Sessions Judge, Alipore, who sentenced him to death for the
main offence punishable under Section 302 IPC.
appellant filed a criminal appeal before the High Court of Calcutta and there
was also a Reference made under Section 366 of the 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. The appellant thereafter
filed a special leave petition. Leave was granted in the special leave
petition, but the appeal was dismissed by this Court on 11.1.1994 and the death
sentence imposed on the appellant was confirmed.
appellant preferred a review petition and the same was rejected on 20.1.1994.
Thereupon, the appellant filed a mercy petition before the Governor of West
Bengal praying to commute the capital punishment imposed upon him to any other
sentence prescribed under law. The appellant was informed by the prison
authorities that the Governor had declined to interfere in the matter.
by the rejection of his mercy petition, the appellant filed a writ petition.
writ petition was dismissed by the learned Single Judge of the Calcutta High
Court on 14.11.2003 while upholding the order passed by the Governor. The
appellant thereafter filed a writ petition seeking stay of execution and for
commutation of the death sentence. The Division Bench of the Calcutta High
Court dismissed the writ petition on 8.1.2004. Aggrieved by the aforesaid
orders passed by the High Court, the present appeals are filed.
heard the learned counsel for the appellant and also the counsel for the State
of West Bengal.
brought to the notice of the court that the writ petition was filed by the
appellant at the time when his mercy petition was pending before the Governor.
mercy petition was later rejected by the Governor, but the stay of execution
was not vacated by the High Court as the fact of rejection of his mercy
petition by the Governor was not brought to the notice of the court either by
the counsel who appeared for the State of West Bengal or by the counsel for the
counsel for the appellant submitted that the petition of the appellant filed
under Article 161 of the Constitution of India was not properly dealt with by
the authorities. It was contended that the Governor was not apprised of the
relevant facts and the material and that there was no proper application of
mind in the present case. The counsel for the appellant also submitted that the
appellant has been in jail since 1991 and when his petition under Article 161
of the Constitution came up for consideration, the mitigating factors favourable
to the appellant should have been brought to the notice of the Governor.
settled position of law that an order passed by the Governor under Article 161
is subject to judicial review. In Maru Ram vs. Union of India AIR 1980 SC 2147,
a Constitution Bench of this Court held as follows :
We conclude by formulating our findings.
The power under Articles 72 and 161 of the Constitution can be exercised by the
Central and State Governments, not by the President or Governor on their own. The
advice of the appropriate Government binds the Head of the State. No separate
order for each individual case is necessary but any general order made must be
clear enough to identify the group of cases and indicate the application of
mind to the whole group.
Considerations for exercise of power under Articles 72/161 may be myriad and
their occasions protean, and are left to the appropriate Government, but no
consideration nor occasion can be wholly irrelevant, irrational, discriminatory
or mala fide. Only in these rare cases will the court examine the
exercise." In Kehar Singh vs. Union of India AIR 1989 SC 653 and Satpal
vs. State of Haryana (2000) 5 SCC 170, the dictum laid down in Maru Ram's case
(supra) was followed.
Singh vs. State of U.P. (1998) 4 SCC 75, it was held that though this Court
cannot go into the merits of the grounds which persuaded the Governor in taking
a decision in exercise of his powers, the order of the Governor is subject to
judicial review within the strict parameters laid down in Maru Ram's case and
that the Governor shall not be deprived of an opportunity to exercise his
powers in a fair and just manner.
instant case, the counter affidavit was filed by the respondent in the writ
petition which was sworn to by the Deputy Secretary, Judicial Department,
Government of West Bengal. In paragraph 5, it was stated :
examining and considering the prayer the State Government rejected it,
thereafter it was transmitted to the Governor only because it was addressed to
him, and therefore, the Governor in his turn, rejected the convict's prayer
which was duly communicated to the convict." From the above averments, it
is clear that the Governor was deprived of the opportunity to exercise his
power in a fair and just manner. It is true that the power under Article 161 of
the Constitution is to be exercised by the Governor on the basis of the aid and
advice given by the State Government. However, the material facts should have
been placed before the Governor. Pursuant to our direction, the relevant file
was produced before this Court. We have also perused the same and we feel that
all material facts, including the mitigating factors were not placed before the
Governor. The appellant's mercy petition was rejected on 16.2.1994 without
their being a proper consideration of all relevant facts.
we direct the respondent authorities to put up the mercy petition filed by the
appellant on 2.2.1994 to the Governor again and bring all relevant facts to the
notice of the Governor for an appropriate decision in the case. It is made
clear 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 death sentence before any judicial fora.
appeals are disposed of accordingly.