Governors can`t exceed their power of pardon: SC

Governors cannot exceed their powers and pardon accused persons on the ground that they were innocent, the SC ruled.

Updated: Feb 24, 2011, 21:33 PM IST

New Delhi: Governors cannot exceed their
powers and pardon accused persons on the ground that they were
innocent, the Supreme Court ruled on Thursday, quashing a Punjab
Governor order in which he directed the release of three
persons facing life imprisonment in a murder case.

The apex court said though the President and the
Governors enjoy special Constitutional powers to pardon
convicted persons, it cannot be exercised to determine the
innocence or otherwise of the convicts as it is purely in the
domain of courts.

"One should not trench upon the other. The instant order
of the Governor, by pronouncing upon the innocence of the
accused, has therefore, if we may say so with respect,
exceeded the permissible constitutional limits under Article
161 of the Constitution.

"For these reasons, we are constrained to hold that we
cannot approve the order of the Governor. We therefore, set
aside the order and remand it to the Hon’ble Governor for
reconsideration of the matter in accordance with law", a bench
of justices GS Singhvi and Asok Kumar Ganguly said in a

The apex court passed the judgement while dealing with
the appeal filed by the three convicts Narayan Dutt, Prem
Kumar and Manjit Singh pardoned by the Governor by using his
powers under Article 161 on July 24, 2007.

The Governor passed the order for their pardon with an
observation that they were falsely implicated in the murder in
which they were convicted by the sessions court Barnala. The
convicts had moved the application for pardon before the
Governor even while filing an appeal in the High Court against
the conviction.

The High Court quashed the Governor`s order, following
which they appealed in the apex court.

Article 161 of the Constitution of India confers on
the Governor the right to grant pardon, remission, reprieve or
commute the sentence of any person convicted of any offence
against any law relating to a matter to which the executive
power of the state extends.

The apex court said that in the present case the fact of
the appeal pending in the High Court was not placed before the
Governor. However, it said that yet the Governor could not
determine their innocence.

"It is well settled that to decide on the innocence or
otherwise of an accused person in a criminal trial is within
the exclusive domain of a court of competent jurisdiction as
this is essentially a judicial function.”

A Governor’s power of granting pardon under Article 161
being an exercise of executive function is independent of the
courts power to pronounce on the innocence or guilt of the
accused. The powers of a court of law in a criminal trial
and subsequent appeal right upto this court and that of the
President/Governor under Article 72/161 operate in totally
different arenas and the nature of these two powers are also
totally different from each other", Justice Ganguly writing
the judgement said.

Two of the accused Prem Kumar and Narayan Dutt have
during the pendency of the appeal been acquitted by the High
Court of the murder charges.