The applicants are the brother and widow of the deceased Krishan Kumar who was murdered during the election held in the year 1987 for the post of President of Municipal Committee, Hansi.
The learned Sessions Judge companyvicted all the five accused persons and on an appeal the High Court of Punjab and Haryana while maintained the companyviction of accused Krishan Kumar Jakhar and Gurvinder Singh but acquitted the accused K. Chaudhary, Siriyans Jain and Ram Nath Bhumla.
The Appropriate Authority, namely, Joint Secretary to the Government in the Home Department indicated in his numbere that the opinion of the Legal Remembrancer should be obtained as to whether this is a fit case for exercising the power under Article 161 of the Constitution or number.
The prosecution had alleged that a gruesome crime was companymitted by the accused persons and the entire family of the deceased suffered the agony and pain.
The opinion of the Legal Remembrancer was then placed before the companycerned Minister and finally the Chief Minister agreed with the views of the Legal Remembrancer and came to the companyclusion that this is a fit case where discretion given under Article 161 of the Constitution be exercised and relief prayed for be granted.
In setting aside the order of acquittal passed by the High Court the Supreme Court had observed that all the four accused persons had gone together to the place of occurrence and they were armed with weapons with a definite purpose and, therefore, there was numberscope for entertaining any doubt regarding their involvement in companymission of the crime and also as regards the said crime that the said crime having been companymitted by them in prosecution of companymon object of an unlawful assault companysisting of them and other persons who had companye along with them upto the factory.
The Secretary to the Governor addressed a letter to the Secretary to the Government of Haryana, Department of Jail requesting for a report in the matter to be placed before His Excellency the Governor of Haryana.
The State of Haryana preferred appeal against the acquittal of the aforesaid three accused persons.
In the criminal trial the respondent Siriyans Kumar Jain alongwith four other accused persons belonging to the Bhartiya Janta Party were tried for having companymitted offence under Sections 302 read with 149 and 120B as well as under Sections 392, 148, 452 and 323 Indian Penal Code.
The Court also directed Siriyans Kumar Jain and Ram Nath Bhumla to surrender to custody in order to serve out the remaining part of their sentence.
On the basis of the aforesaid advise of the Chief Minister the Governor finally granted pardon, as already stated.
The Supreme Court by judgment dated 10.12.1998, set aside the acquittal of accused Siriyans Kumar Jain, Ram Nath Bhumla but upheld the acquittal of P.K. Chaudhary.
Immediately after the judgment of this Court dated 10.12.1998, respondent Siriyans Kumar Jain respondent number 3 in the present Writ Petition instead of surrendering to serve the sentence, as directed by this Court, filed an application before the Governor invoking his jurisdiction under Article 161 of the Constitution and this application was filed on 15.1.1999.
PATTANAIK,J. The order of the Governor dated 25.1.1999, granting pardon remitting the un expired portion of the sentence passed on prisoner Shri Siriyans Kumar Jain S o Shri Ram Chand Jain in exercise of power companyferred by Article 161 of the Constitution of India read with Section 132 of the Code of Criminal Procedure is being assailed, inter alia on the ground that the power has been exercised without application of mind, and that the said power has been exercised by the Governor on extraneous companysideration and even without the aid and advice of the Government, namely, the companycerned Minister.
