The power of Governor under Article 161 of the Constitution to commute sentence or to pardon will override the restrictions imposed under Section 433-A of the Criminal Procedure Code.
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In fact, the Governor’s power to pardon overrides a provision in the Code of Criminal Procedure — Section 433A — which mandates that a prisoner’s sentence can be remitted only after 14 years of jail
Section 433A of the Code cannot and does not in any way affect the constitutional power conferred on the President/Governor to grant pardon under Articles 72 or 161 of the Constitution.
If the prisoner has not undergone 14 years or more of actual imprisonment, the Governor has a power to grant pardon. Such power is in exercise of the power of the sovereign, though the Governor is bound to act on the aid and advice of the State Government.
In fact, the court noted that the sovereign power of a Governor to pardon a prisoner under Article 161 is actually exercised by the State government and not the Governor on his own.
The advice of the appropriate government binds the Head of the State, Justice Gupta observed in the judgment which referred to the Supreme Court’s Constitution Bench judgment in the Rajiv Gandhi assassination case on the power of remission.
