Chauhan @ Raj Nath Chauhan Vs. State of Assam  Insc 298 (10
Phukan Phukan, J
reading draft judgments by my learned Brothers, I record my separate views on the
sentence to be imposed on the accused-petitioner in this Review Petition.
as the expression itself shows is a fresh view of matters already examined. As
my learned Brothers have elaborately delineated the scope of review, it is
unnecessary to traverse the path again. Suffice it would be to say that power
of review is a restricted power which authorises the Court which passed the
order sought to be reviewed, to look over and go through the order, not in
order to substitute a fresh or a second order; but in order to correct it or
improve it because some materials which it ought to have considered has escaped
its consideration. As my learned Brothers have agreed on the scope of review,
the sentence of death imposed cannot be reopened. With respect, I agree with my
learned Brother Mr. Justice R.P. Sethi.
question that remains to be considered further is the effect of conclusion
arrived at by my learned Brother Mr. Justice Thomas. Is the accused remediless;
that remains to be seen. Few provisions in the Code of Criminal Procedure (for
short the Code) and other in the Constitution deal with such situation.
Sections 432, 433 and 433A of the Code and Articles 72 and 161 of the
Constitution deal with pardon. Article 72 of the Constitution confers upon the
President power to grant of pardons, reprieves, respites or remission of
punishment or to suspend, remit or commute sentence of any person of any
offence. The power so conferred is without prejudice to the similar power
conferred on the Governor of the State.
161 of the Constitution confers upon the Governor of a State similar powers in
respect of any offence against any law relating to a matter to which the
executive power of the State extends. The power under Article 72 and Article
161 of the Constitution is absolute and cannot be fattered by any statutory
provision such as Sections 432, 433 and 433A of the Code or by any Prison
432 of the Code empowers the appropriate Government to suspend or remit
sentences. The expression appropriate Government means the Central Government
in cases where the sentences or order relates to the matter to which the
executive power of the Union extends, and the State Government
in other cases. The release of the prisoners condemn to death in exercise of
the powers conferred under Section 432 and Article 161 of the Constitution does
not amount to interference with due and proper course of justice, as the power
of the Court to pronounce upon the validity, propriety and correctness of the
conviction and sentence remains unaffected. Similar power as those contain in
Section 432 of the Code or Article 161 of the Constitution can be exercised
before, during or after trial. The power exercised under Section 432 of the
Code is largely an executive power vested in the appropriate Government and by
reducing the sentence, the authority concerned thereby modify the judicial
sentence. The Section confines the power of the Government to the suspension of
the execution of the sentence or remission of the whole or any part of the
punishment. Section 432 of the Code gives no power to the Government to revise
the judgment of the court. It only provides power of remitting the sentence.
of punishment assumes the correctness of the conviction and only reduces punishment
in part or whole.
word remit as used in Section 432 is not a term of art. Some of the meanings of
the word remit are to pardon, to refrain from inflicting to give up. It is
therefore no obstacle in the way of the President or Governor, as the case may
be in remitting the sentence of death. A remission of sentence does not mean
power to commute a sentence of death is independent of Section 433A. The
restriction under Section 433A of the Code comes into operation only after
power under Section 433 is exercised. Section 433A is applicable to two
categories of convicts :
who could have been punished with sentence of death and
whose sentence have been converted into imprisonment for life under Section
observed in Mura Ram vs. Union of India [1981 (1) SCC 106] that Section 433A
does not violate Article 20(1) of the Constitution.
circumstances, if any motion is made in terms of Sections 432, 433 and 433A of
the Code and/or Article 72 or Article 161 of the Constitution as the case be,
the same may be appropriately dealt with. It goes without saying that at the
relevant stage, the factors which have weighed with my learned Brother Mr.
Justice Thomas can be duly taken note of in the context of Section 432(2) of