M.M.PUNCHHI, J. - (1.) We are called upon to test the correctness of the rule laid down by an Hon'ble single Judge of this Court in Baljit Singh v. State of Punjab, 1986 Cri LJ 1037. The facts which justify placement of this matter before this Bench are apparent from the referring order prepared by one of us and do not bear repetition.
(2.) In Baljit Singh's case (1986 Cri LJ 1037) (Punj and Har) (supra) the principles of natural justice and audi alteram partem were introduced in the governmental functions of granting remissions under S.432, Cr. P.C. and requiring the Government to reconsider the cases of the then petitioners and passing a speaking order after giving opportunity to the affected prisoners to make their representations, if any. Now the point to be seen is whether the principles of natural justice and audi alteram partem have any such place in the context of the power conferred on the appropriate Government under S.432, Cr. P.C. The answer to it would emerge by first discovering the nature of the power conferred under the said provision on the appropriate Government, for seemingly in Baljit Singh's case (supra) the Hon'ble single Judge was apparently led to the view that such function of the Government was not merely administrative but quasi-judicial.
(3.) Way-bock in K.M. Nanavati v. State of Bombay AIR 1961 SC 112 the Supreme Court while exploring the area of 'mercy power', which includes power to remit sentences, left historical touches in its decision but switched on to a different question without formally pronouncing on the matter. Those extracts are : "...... Pardon is one of the many prerogatives which have been recognised since time immemorial as being vested in the sovereign, wherever the sovereignty might lie. Whether the sovereign happened to be an absolute monarch or a popular republic or a constitutional king or queen, sovereignty has always been associated with the source of power ......... (page 118 of the report col. 1). As a result of historical processes emerged a clear cut division of governmental functions into executive, legislative and judicial. Thus was established the "Rule of Law" which has been the pride of Great Britain and which was highlighted by Prof. Dicey. The Rule of Law, in contradistinction to the rule of man, includes within its wide connotation the absence of arbitrary power, submission to the ordinary law of the land, and the equal protection of the laws. As a result of the historical process aforesaid, the absolute and arbitrary power of the monarch came to be canalised into three distinct wings of the Government........ This dispersal of the Sovereign's absolute power amongst the three wings of Government has now become the norm of division of power; and the prerogative is no greater than what the law allows.";